Lair v. Bullock

A stay of a district court order is appropriate under the four Nken factors when an appellate court has previously ruled on a “virtually indistinguishable” challenge to the constitutionality of a state statute, and the only intervening circumstance is a Supreme Court opinion that lacks both a majority opinion and concurring opinions decided under a consistent rationale.

A variety of individuals and organizations challenged a Montana statute limiting campaign contributions. The district court found the statute unconstitutional, and the state sought an order granting a temporary stay pending appeal. A “virtually indistinguishable attack” in 2003 ended with a Ninth Circuit panel finding the same statute constitutional. The only intervening factor was the Supreme Court’s 2006 decision in Randall that struck down a Vermont statute limiting campaign contributions. The Randall decision did not yield a majority opinion. The Court analyzed the concurring opinions and did not find a consistent rationale among the five justices that would create binding precedent on the Court. On further analysis, the Court found that Randall, even if it created binding precedent, is not likely to alter the Court’s 2003 decision on the same statute. Because, under the four-factor analysis set forth in Nken v. Holder, Montana demonstrated: (1) that it is likely to succeed on the merits of an appeal, (2) not implementing a stay is likely to cause irreparable injury because elections are close, (3) harm to the parties challenging the law is minimal, and (4) the public has an interest in fair elections, the stay pending appeal is GRANTED.