A Federal Appeals Court has granted a preliminary injunction to delay the October recall election in California.
The first factor in a preliminary injunction analysis is the probability that the plaintiff will succeed on the merits. Under the continuum analysis of Clear Channel, the greater the demonstrated harm, the lesser the requirement of probability of success. Here, the district court assumed irreparable harm, and we agree with its assumption. As the district court properly observed, Plaintiffs will have no remedy for their claims following the election. The district court concluded that the Plaintiffs had no likelihood of success on the merits of their claims as a matter of substance, and further concluded that the claims were likely barred by the doctrines of res judicata and laches. We respectfully disagree and conclude that the district court erred in its legal analysis.
We conclude that the Plaintiffs have satisfied the requirement of establishing a sufficient probability of success on their federal constitutional claims on the merits. As we recently noted, “[v]oting is a fundamental right subject to equal protection guarantees under the Fourteenth Amendment.” Idaho Coalition United for Bears v. Cenarussa, __ F.3d ___, 2003 WL 22072191 at *2, No. 02-35030 (9th Cir. Sept. 8, 2003) (citing Reynolds, 377 U.S. at 561-62). Additionally, “[t]he ballot initiative, like the election of public officials, is a ‘basic instrument of democratic government,’ and is therefore subject to equal protection guarantees.” Id. (quoting Cuyahoga Falls v. Buckeye Comm. Hope Found., __ U.S. __, 123 S.
Ct. 1389, 1395 (2003)) (citations omitted).
In this case, Plaintiffs’ Equal Protection Clause claim mirrors the one recently analyzed by the Supreme Court in Bush v. Gore, 531 U.S. 98 (2000). As the Supreme Court held in that case: “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Id. at 104-05 (citing Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966)). This holding was consistent with a long line of Supreme Court precedent holding that the right to vote includes the right to have one’s vote counted.