#SCOTUS: What’s Next in the Hawaii Election Case Whose Vote Counting Justice Kennedy Enjoined Friday?

by Rick Hasen, Election Law Blog, November 30, 2015

As I reported on Friday, Justice Kennedy, in his capacity as Circuit Justice for the Ninth Circuit, has enjoined the counting of ballots in an upcoming election in which only those with Native Hawaiian ancestry may vote. Adam Liptak reported for the NY Times on the case, and I pondered whether the order itself might affect voting, which concludes today. (After all, a person should be less likely to vote if he or she believes it is fairly likely the votes will never be counted.)

As I noted in an update to my original post, and as Lyle Denniston noted in his post at SCOTUSBlog, Justice Kennedy’s order hinted at further action.  It reads: “IT IS ORDERED that the respondents are enjoined from counting the ballots cast in, and certifying the winners of, the election described in the application, pending further order of the undersigned or of the Court.” Lyle writes: “Because of the holiday weekend, it may be that the full Court will consider the matter further when the Court returns to public sessions next Monday.  In the meantime, the cast ballots may not be opened for counting and the outcome cannot be certified officially.”

The Court’s docket shows the briefing on the emergency application is complete, but Justice Kennedy’s order contemplates a further order. I expect within a few days we will get another order from the entire Court, with the holiday weekend over. Justice Kennedy’s order seemed intended to keep the status quo (but I think it actually could be affecting voting). It would not surprise me to see Justice Kennedy’s order extended, and perhaps even the case set for full briefing and argument, although the Court may keep the stay in place and give the Ninth Circuit the first crack at a full decision in this case. Sooner or later, though, I expect the Court will address the merits in this fascinating and important case.

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