Touchston v. McDermott
Opinion of the Court
On November 13, 2000, Robert C. Touchston, Diana L. Touchston and Deborah Shepperd (hereinafter “Plaintiffs”), registered voters in Brevard County, Florida, filed a verified complaint and a Motion for a Temporary Restraining Order and/or Preliminary Injunction in the district court for the Middle District of Florida. The
In light of the subject matter of this case and the need for expedition, the documents in this case were lodged in this Court as they were filed in the district court, and, pursuant to Federal Rule of Appellate Procedure 35, this Court ordered that this case be heard initially en banc. See Hunter v. United States, 101 F.3d 1565, 1568 (11th Cir. 1996) (en banc); Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).
On appeal, the Plaintiffs have filed an emergency motion for an injunction pending appeal, asking this Court to enjoin the Defendants from conducting manuabballot recounts and/or to enjoin the Defendants from certifying the results of the Presidential election which contain any manual recounts. In this order, we address only this motion. This Court has carefully considered the Emergency Motion for Injunction Pending Appeal, as well as the other documents filed, has conferred en banc on several occasions, and has decided that a prompt decision on the Emergency Motion for Injunction Pending Appeal was required in these circumstances.
For this Court to grant the extraordinary remedy of an injunction pending appeal, the petitioners must show: (1) a substantial likelihood that they will prevail on the merits of the appeal; (2) a substantial risk of irreparable injury to the intervenors unless the injunction is granted; (3) no substantial harm to other interested persons; and (4) no harm to the public interest. See In re Federal Grand Jury Proceedings, 975 F.2d 1488, 1492 (11th Cir. 1992); MacBride v. Askew, 541 F.2d 465 (5th Cir. 1976).
After expeditious but thorough and careful review, we conclude that the Emergency Motion for Injunction Pending Appeal should be denied without prejudice. Several factors lead us to this conclusion. Both the Constitution of the United States
Based on a thorough review of events as they now stand, we cannot conclude that Plaintiffs have demonstrated a substantial threat of an irreparable injury that would warrant granting at this time the extraordinary remedy of an injunction pending appeal, and thus at this time we need not address the likelihood of success on the merits; nor do we address now the merits of the underlying appeal. Accordingly, the Emergency Motion for Injunction Pending Appeal is
DENIED WITHOUT PREJUDICE.
. Article II, Section 1 of the Constitution provides in relevant part:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress ....
. 3 U.S.C. § 5 provides:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
Reference
- Full Case Name
- Robert C. TOUCHSTON, Deborah Shepperd v. Michael McDERMOTT, in his official capacity as a member of the County Canvassing Board of Volusia County, Ann McFall, in her official capacity as a member of the County Canvassing Board of Volusia County
- Cited By
- 13 cases
- Status
- Published