On Friday, a federal judge in Ohio handed down an order prohibiting the Trump campaign and two of its allies “from conspiring to intimidate, threaten, harass, or coerce voters on Election Day.” That order was effectively blocked on Sunday by a decision handed down by an especially conservative panel of the United States Court of Appeals for the Sixth Circuit.
The Friday order listed several activities the Trump campaign could not engage in on election day, including “hindering or delaying a voter or prospective voter from reaching or leaving the polling place fixed for casting the voter’s ballot” and “interrogating, admonishing, interfering with, or verbally harassing voters or prospective voters inside polling places.”
The case is Ohio Democratic Party v. Donald J. Trump For President.
Judge James S. Gwin, the Clinton appointee who handed down that order, cited “Donald Trump’s comments encouraging rally attendees to monitor ‘certain areas,’ as well as promises from Mr. Trump’s supporters to aggressively patrol polling places” in issuing his order.
The Sunday order, by contrast was handed down by two George W. Bush appointees and one George H.W. Bush appointee. One of those three judges, Alice Batchelder, is the wife of Republican former state house Speaker William Batchelder.
In 2008, another Sixth Circuit judge criticized Batchelder’s refusal to recuse from a case brought by the Ohio Republican Party that could have potentially prevented thousands of voters from having their votes counted. “What I find troubling is the fact that Judge Batchelder did not recuse herself from voting for rehearing this case,” the late Judge Boyce Martin wrote in Ohio Republican Party v. Brunner, “while her husband stands for reelection this year as a state representative in Ohio, whose election will no doubt be substantially altered by the way the en banc majority ultimately decides this case.”
The Sixth Circuit panel did not explain its reasoning in its Sunday order staying the ban on voter intimidation by the Trump campaign. Additionally, as voting rights expert Rick Hasen notes, the plaintiffs in this case had not yet filed their brief explaining why a stay should not be granted when the Sixth Circuit decided to hand down this Sunday order anyway. Such a decision, Hasen writes “seems procedurally unfair.”