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Emergency appeals: Stay requests

This election explainer was written by Amy Howe. It is part of SCOTUSblog’s 2020 Election Litigation Tracker, a joint project with Election Law at Ohio State.

Election litigation usually moves quickly. Often, a lower court will issue a preliminary ruling mere days or weeks before an election (or an important event related to the election, like the mailing of absentee ballots), leaving little time for the losing side to pursue a full-fledged appeal. In those circumstances, the losing side might file an emergency request asking the Supreme Court to put the lower court’s ruling on hold – a procedure known as asking for a stay – while the normal appeal is pending. Although stays are meant to be temporary, they often effectively resolve the issue at the heart of the case for the upcoming election.

The request for a stay is called an application – a brief that summarizes the facts and history of the case and outlines the arguments why the lower court’s ruling should be put on hold. The application for a stay goes, at least at first, to just one justice, known as the “circuit justice,” who handles emergency appeals from the geographic area where the case originated. The circuit justice can grant or deny the application on her own, or she can refer it to the full court for all of the justices to vote on it. The circuit justice also may order the other side in the case to file a brief responding to the request; depending on the case, that brief may be due within a few days (if not sooner).

If the circuit justice refers the request to the full court, the justices normally consider three factors when deciding whether to grant a stay and put the lower-court ruling on hold: whether they are likely to take up the case on the merits by granting a cert petition; whether, after granting a cert petition, there is a “fair prospect” that the justices will permanently overrule the lower court; and whether the lower court’s ruling will cause permanent harm if it is allowed to remain in effect while the case proceeds through the normal appeals process. The court will grant a stay if at least five justices vote to do so.

Unlike the opinions that the court issues after oral arguments, an order granting or denying a request for a stay is often very brief. The justices generally do not explain their decision, and they often do not explicitly indicate how each justice voted. Justices who disagree with the outcome may decide to do so publicly, either with a short statement included toward the end of the court’s order or by filing a dissenting opinion to express their dissatisfaction.