Ohio Republican Party v. Brunner

544 F.3d 711, 2008 U.S. App. LEXIS 21573, 2008 WL 4568682

Opinions

ORDER

A majority of the Judges of the Court in regular active service have voted to hear this case en banc, thus vacating the stay of the Temporary Restraining Order, and to deny the motion of the Appellant Secretary of State to vacate or stay the district court’s TRO.

Attached to this order are the opinions of SUTTON, J., joined by Chief Circuit Judge BOGGS and BATCHELDER, GIL-MAN, GIBBONS, COOK, McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges, concurring with the order; the opinion of GIBBONS, Circuit Judge, joined by BOGGS, Chief Circuit Judge, and BATCHELDER, GILMAN, SUTTON, COOK, McKEAGUE, GRIFFIN, and KETHLEDGE, Circuit Judges, concurring with the order; the statement of ROGERS, Circuit Judge, concurring with the order; and the opinion of KETH-LEDGE, Circuit Judge, joined by GIBBONS and SUTTON, Circuit Judges, concurring with the order. Also attached is the opinion of MOORE, Circuit Judge, joined by MARTIN, DAUGHTREY, COLE, and CLAY, Circuit Judges, dissenting from the order; the opinion of MARTIN, Circuit Judge, joined by DAUGHTREY, COLE, and CLAY, Circuit Judges, dissenting from the order; and the opinion of WHITE, Circuit Judge, joined by DAUGHTREY and COLE, Circuit Judges, dissenting from the order. Not all judges have been able to respond, or to prepare additional separate writings and, should there be any such revisions or additional writings, this order will be reissued with all separate writings appended thereto.

SUTTON, Circuit Judge,

joined by Chief Judge BOGGS and Judges BATCHELDER, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN and KETHLEDGE.

As this case comes (rapidly) to the court, the parties share some common ground. No one disputes that federal law, as described in the Help America Vote Act (“HAVA”), Pub.L. No. 107-252, 116 Stat. 1666 (2002) (codified at 42 U.S.C. § 15301 et seq.), helps Americans cast votes and helps to ensure that their votes count in two distinct respects. In one respect, the Act makes it easier for individuals to cast ballots by establishing a vote-first-challenge-later approach to dealing with disputes about an individual’s eligibility to vote, the most obvious feature of which is the right to cast a provisional ballot when an election official questions an individual’s eligibility to vote. In another respect, the Act helps to ensure that those votes count, or to put it another way the Act helps to ensure that those votes are not diluted by guarding against voter fraud. The one goal complements the other: Enabling the casting of one vote does little good if another voter fraudulently cancels it out. See Crawford v. Marion County Election Bd., — U.S. -, 128 S.Ct. 1610, 1619, 170 L.Ed.2d 574 (2008); Purcell v. Gonzalez, 549 U.S. 1, 7, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam); Prichard v. United States, 181 F.2d 326, 331 (6th Cir.1950).

No one disputes that one of the tools that HAVA creates to address fraud is found in 42 U.S.C. § 15483(a)(5)(B)(i). It says:

(5) Verification of voter registration information

(B) Requirements for State officials.

(i) Sharing information in databases. The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.

No one disputes that this provision places mandatory duties on the Secretary of State. At a minimum, it requires the Secretary of State, together with the head of Ohio’s Bureau of Motor Vehicles (“BMV”), to agree to “match” information in BMV’s database with information in the Statewide Voter Registration Database (“SWVRD”). No one disputes that the purpose of this matching is “to enable [officials] to verify the accuracy of the information provided on applications for voter registration.” Id.

And no one disputes that the Secretary of State has put together an SWVRD System Manual, which is designed to implement these obligations. The pertinent section of that manual says the following:

15.4. BMV Not Confirmed (this process is currently turned off)

Upon receipt of a voter registration record or update, the [Secretary of State] SWVRD will validate certain voter information with the BMV. If the [Secretary] and BMV validation is unable to match the voter record, it may not be confirmed. If this occurs the [Secretary] SWVRD sends the [county boards of election] a message stating that the record may not be “confirmed.” Voter records that are not confirmed must have their information updated and resent to the [Secretary] SWVRD and validation with the BMV will be reattempted.

Resp. to Emergency Mot., Ex. 1 at 35 (Ex. A. to Damschroder Aff.) (emphasis in original). According to the Secretary of State’s manual, that office at one point implemented § 15483(a)(5)(B)(i) in this way: first, if there was not a match between the Secretary’s and BMV’s records, the Secretary would send the county boards of elections a message indicating that the voter’s registration record cannot be “confirmed”; second, after that happened, the Secretary required unconfirmed voter records to be updated and resent to the Secretary for another effort to validate them with the BMV records. Id.; cf. id., Ex. 1 at 63-64 (Kindred Aff.) (explaining the Secretary’s earlier practice of sharing mismatch data with county boards).

The apparent “turn[ing] off’ of this voter-registration-verification process, or at least the discovery that it had been turned off, prompted this dispute. For reasons that the record does not reveal and at a time the record does not reveal, the Secretary of State apparently chose to deactivate at least part of the process, if not all of the process, described in section 15.4 of her manual. In particular, she concedes that at some point she stopped communicating with the county boards about mismatches and stopped renewing validation requests with the BMV after obtaining a mismatch. The Ohio Republican Party (“ORP”) and Larry Wolpert, a state representative, supported by affidavits from two officials of different county boards of election, challenge the Secretary’s interpretation of her duties under HAVA. As they see it, § 15483(a)(5)(B)® requires the Secretary to do what she formerly did under section 15.4 of her manual or at least requires her to share county-by-county records of mismatches with the local boards of election. If the statute requires the Secretary only to identify mismatches but does not require her to share this information in a meaningful way with the county boards, they add, then the purpose of verifying voter records with driver’s license records would be defeated, and one of HAVA’s tools for ferreting out voter fraud would become an empty gesture. The Secretary responds that the county boards of election technically still have “access” to this information because they have access to the SWVRD, which permits them to check each absentee voter (or any other type of voter) for mismatches. But, in contrast to being given a list of mismatches by county or having the Secretary assist them in addressing mismatch problems, the plaintiffs say that general access to the SWVRD system is essentially useless — not unlike asking for a drink of water and being given access to a fire hose at full volume — and will do nothing to address the anti-fraud objective of this provision of HAYA.

This dispute and several others apparently grew out of the Secretary’s August order to allow simultaneous registration and voting for six days in Ohio in late September and early October. In resolving today’s dispute, the district court on October 10, 2008, entered a temporary restraining order (“TRO”) directing the Secretary to ensure that “HAVA’s matching requirements are not rendered meaningless” and to do so either by providing lists of mismatches to the county boards of elections or by providing the county boards of election with a method to search the SWVRD so that they “can isolate and review the mismatches and take appropriate action.” Order at 16.

A panel of this court vacated the order later that same day — October 10. While I tend to agree with some aspects of the panel’s decision and sympathize with the lack of time it had to address these issues (12 hours or so), I disagree with its key premises for vacating the district court’s TRO.

Before addressing those issues, it is important to point out why en banc review of the panel’s decision is appropriate in this matter. W(hile in the normal course it often will be unwise and inefficient to grant en banc review of decisions like this one, this is not a normal case — as the panel’s interlocutory reversal of the district court’s TRO itself establishes. Section 1292(a)(1) does not give courts of appeals authority to review temporary restraining orders but only “injunctions.” 28 U.S.C. § 1292(a)(1). We have correctly construed that authority to extend to TROs in limited cases, namely when a TRO effectively operates as a litigation-altering and litigation-ending injunction because it gives the parties no “meaningful appellate options” about a significant issue of law given the imminence of an irreversible event — say an execution, see, e.g., Workman v. Bredesen, 486 F.3d 896, 904 (6th Cir.2007), or as here an election. Cf. generally Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). The same considerations that justify the panel’s decision to review this TRO — the imminence of a national election and the significance of the issues presented — provide ample justifications for the en banc court to consider doing the same.

There are three problems with the Secretary’s request to stay the district court’s TRO. In the first place, her interpretation of § 15483(a)(5)(B)(i) is not convincing. The key likelihood-of-success inquiry is this: does the provision permit the Secretary only to identify matches on the database (and effectively keep them to herself or, as plaintiffs put it, “throw them in the trash,” Resp. to Emergency Mot. at 12), or does it require her also to verify the registration mismatches either by doing the verification herself or in cooperation with the county boards of election? So far as this record is concerned, the Secretary has given no tenable explanation why her current interpretation of the statute, as opposed to the office’s prior implementation of the law, remotely furthers the anti-fraud objective of the law. A mismatch that she does not track down and that she does not allow the county boards of election meaningfully to track down is not a usable mismatch. When the Secretary argues in her papers that she has no duty to provide the most “user-friendly” system of HAVA compliance, Emergency Mot. at 17, that is something of a euphemism. As far as we can tell, the problem with the current system is not that it is insufficiently user-friendly but that it is effectively useless.

But there is another problem with the Secretary’s interpretation: It straddles the two competing interpretive options presented by the provision rather than embracing one interpretation or the other. The most ruthlessly literal interpretation of the provision is this: the law requires the Secretary and the BMV only to enter into an agreement to match information in their databases and, once they have done that, they have satisfied HAVA’s obligations — meaning that, other than the duty to share their data with each other, they have no duty to share mismatches with anyone else, to provide access to data showing the mismatches to anyone else or to investigate mismatches. The other interpretation of the provision is this: in addition to creating the two databases and in addition to identifying mismatches between them, the Secretary must “verify the accuracy of the information provided on applications for voter registration,” 42 U.S.C. § 15483(a)(5)(B)(i), by correcting mismatches either at the Secretary’s level or at the county board’s level in order to ensure that the “voter registration records in the State are accurate and are updated regularly” and in order to ensure that the State’s “system of file maintenance ... makes a reasonable effort to remove registrants who are ineligible to vote,” id. § 15483(a)(4)(A). The former interpretation does not require the Secretary to provide “access” to mismatch data contained in the system; only the latter interpretation does.

The Secretary picks neither option by itself. She adopts option one in the main but then borrows from option two by conceding that she must provide “access” to the data containing evidence of mismatches. Only then does she draw a line found nowhere in the statute — that the county boards must be given access; they just need not be given meaningful access. Call that interpretation what you will, but it is hardly a construction of the law mandated by its “plain language.” In picking option two, the district court embraced a sensible and coherent interpretation of these provisions, one sufficiently likely to succeed that it deserves our respect.

Contrary to the dissent’s and amiei’s interpretation, Washington Ass’n of Churches v. Reed, 492 F.Supp.2d 1264 (W.D.Wash.2006), and Florida State Conference of the NAACP v. Browning, 522 F.3d 1153 (11th Cir.2008), offer no support for a contrary interpretation. These cases deal with whether HAVA preempts state laws that require successful matching before a would-be voter can register to vote. Reed and Browning are thus two steps removed from today’s case: (1) We are not dealing with any precondition on voter registration, and (2) no one is arguing that a successful match is a necessary precondition to anything. Put simply, neither case addressed, in holding or dicta, the issue presented here: namely, whether § 15483(a)(5)(B)®, together with other provisions of HAVA, require the Secretary to provide local election officials with meaningful access to mismatches identified in the SWVRD. No decision on that issue, one way or the other, can fairly be said to “create[ 1 a circuit split,” Dissent at 20, for the simple reason that no other court of appeals has addressed the issue.

Nor, it bears emphasizing, is anyone arguing that a mismatch necessarily requires that a registered voter be removed from the rolls. At most, the identification of a mismatch allows a county board to investigate whether the mismatch has a legitimate explanation (say, a recent change of address). See Ohio Rev.Code Ann. § 3509.06(D) (requiring election officials, before counting an absentee ballot, to “verify that the absent voter’s ballot is eligible to be counted under section 3509.07 of the Revised Code”); id. § 3509.07 (providing that an absentee ballot “shall not be accepted or counted,” if “election officials find that,” among other things, “the applicant is not a qualified elector in the precinct”). Nothing about this case or the relief plaintiffs seek will allow them to prevent a single voter from casting a ballot in the November election. At most, the relief could prompt an inquiry into the bona fides of an individual’s registration, and at most it could require an individual to cast a provisional ballot. At that point, the validity of the voter’s registration will be determined and, with it, the validity of his or her vote. That is not only sensible but it is also fair — and it also furthers both objectives of HAVA rather than just one of them.

In the second place, the risks of harm to each party and above all the risks of harm to the public support the TRO. HAVA, all recognize, attempts to balance competing interests: enhancing access to the ballot on the one hand while preserving the value of each vote from the diluting effects of fraud on the other. In doing so, the Act no doubt imposes burdens on the States to further these goals, but the policy interests and hardship concerns that HAVA puts front and center are those affecting the rights of voters. Once we balance those interests, they point unmistakably in one direction. The window to detect and deal with vote-diluting fraud in Ohio begins to close on October 25, when the county boards of election open the first absentee-ballot envelopes. See ROA 482, 696. All this order does is ensure that the county boards may, if they wish, investigate voter-registration discrepancies by that date — in part by using the SWVRD (or information already derived from that database) that was designed for this purpose. If that information becomes available after October 25, when the absentee-ballot opening begins, the opportunity to follow up on voter-registration mismatches will be irretrievably lost, a concern that affects all Ohio voters. At the same time, nothing about Judge Smith’s order will limit a single individual’s right to vote in the normal process or at a minimum through a provisional ballot.

The Secretary’s risk-of-harm arguments focus principally on burdens that the district court’s TRO imposes on her, not on burdens or risks that the order imposes on Ohio voters. She raises two burdens: that it will be difficult for her office to develop a computer program to get access to this information and that any changes to the SWVRD at this late stage in the election risk creating other problems in the election process. But why all of this is so is never explained, much less supported by affidavits from the Secretary or her office. The bureaucrat’s lament— that this will be difficult to do — is a hard sell given that the Secretary’s office previously shared this kind of information with the county boards. And if the question is who will have a harder time obtaining meaningful access to the voter-registration mismatches — the Secretary or the county boards of election — it is difficult to see how anyone can argue that the Secretary faces the harder task. So far as the record shows, the only way the county boards can use the database would be to enter each name of every registered voter in the database to determine whether there was a mismatch for that voter. By contrast, the Secretary told the district court that she could put the program together in two to three days. See ROA 695, 698. As between these burdens, I am hard-pressed to understand why the Secretary’s alleged difficulties outweigh the counties’. Indeed, it may be that a county-by-county list of mismatches is a public record under Ohio’s public records laws, making the list available in a usable format under HAVA and Ohio law. See Ohio Rev.Code Ann. § 149.43; cf. id. § 3503.13(A).

The Secretary also argues that running such a program at this stage could create other problems for the election. Here, too, her argument raises more questions than it answers because she again never explains why this is so, much less supports her position with affidavits from someone who would know. The past practices of the Secretary’s office — in providing this kind of information to the county boards before — again suggest that she can mitigate these risks in the same ways she mitigated them before. And if for some reason that is not the case, she has not explained why the TRO does not require relatively modest adjustments to the program — one of which would filter the data to identify mismatched records and one of which would capture the mismatches for each of the 88 counties in the State. As for risks to the database when it comes to other uses of the system during the election, it is not clear why running a report or copy of the database before making these adjustments would not compartmentalize, and thereby eliminate, any risks to the SWVRD. But if all of these things are exceedingly difficult for the Secretary, or worse if they would create a meaningful risk of harm to other parts of the database at this stage in the year, she needs to explain why rather than allowing her attorneys to speculate why. The record on all of this is ear-splittingly silent — all the more conspicuously so given that it is the key risk of harm identified on the Secretary’s side of the case and it is the one risk that must be balanced against the risk (come October 25) of allowing potentially fraudulent votes to be forever counted.

In the third place, the Secretary mistakenly claims that the timing exigencies created by this case should be laid at the feet of the plaintiffs. All of this came to a head, the complaint alleges, when the Secretary issued her August advisory. Because state officials had spoken publicly about trying to resolve election disputes through alternative dispute resolution rather than the courts (still a good idea by the way), we should not punish the plaintiffs for failing to run to court the day after the issuance of the advisory. See, e.g., Mark Niquette, Lawyers Urged to Talk Out Election Scraps, Columbus Dispatch, Aug. 16, 2008, at 2B. To this day, it remains unclear when the Secretary told the public that she had changed the office’s prior policy on implementing § 15483(a)(5)(B)(i), when she told the public why she made these changes and whether she has made additional changes to the policy since. On this record, there is no cognizable basis for punishing the plaintiffs for bringing this challenge when they did.

As for the notion that courts should hesitate to alter election procedures on the eve of an election, that is true — so far as it goes. When an election is “imminen[t]” and when there is “inadequate time to resolve ... factual disputes,” it will often be the case that courts will decline to grant an injunction to alter a State’s established practice. Purcell, 549 U.S. at 8, 127 S.Ct. 5. But that will not always be the case. This generalization surely does not control many election-related disputes-— keeping polls open past their established times on election day or altering the rules for casting ballots or provisional ballots during election week — and it is unclear why it ought to control this one. The question here is whether there is sufficient time to resolve these fact disputes when absentee-vote processing starts on October 25, and the district court determined that it will take two to three days to get the information, not that it cannot be done. Nor, it seems clear, are the plaintiffs challenging an established election practice of the State. The established practice in this case is the one the State used in the last national election, not the Secretary’s innovation of it for this one.

At the panel stage, in deciding to vacate the district court’s TRO, this court did not rely on the Secretary’s position that the plaintiffs may not vindicate these rights through a private right of action under § 1983. At the en banc stage, however, the dissent has now embraced the Secretary’s position as a ground for decision and maintains that plaintiffs have no right to bring a federal cause of action under this statute to enforce these provisions of HAVA. There is nothing wrong with this change of heart, particularly given how little time the panel had to address the issue, but it should prompt similar empathy for a district court judge forced to do the same thing: make a quick likelihood-of-success decision about what can only be described as a deeply intricate issue.

At this stage in the case, there are several reasons for accepting the district court’s probability-of-success prediction on this issue. Since Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court has made it clear that § 1983 empowers claimants to file lawsuits against state officials who violate their constitutional and statutory rights because the provision covers “rights ... secured by the Constitution and laws ” of the United States. 42 U.S.C. § 1983 (emphasis added). In deciding whether a claimant may enforce a given statute through a § 1983 action, we consider three factors: (1) Did Congress “intend[] the provision in question” to “benefit” the claimant? (2) is the asserted right so “vague and amorphous” as to “strain judicial competence”? and (3) is the asserted right “couched in mandatory, rather than precatory, terms”? Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (internal quotations marks omitted); see Gonzaga Univ. v. Doe, 536 U.S. 273, 282-83, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). There is no doubt that the HAVA provisions at issue satisfy the second and third prongs of the test: In enacting the matching-and-verification requirements, Congress did not merely express an aspiration that state officials would cooperate in sharing information; it mandated that they “shall enter into an agreement to match information” for the purpose of “enabling] [the officials] to verify the accuracy of the information provided on applications for voter registration.” 42 U.S.C. § 15483(a)(5)(B)(i) (emphasis added). The statute thus imposes binding, enforceable duties on the Secretary that do not “strain judicial competence.”

What is difficult is the first inquiry: Did the statute intend to benefit the claimants? In one sense, the answer to that question seems straightforward. In Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir.2004), we held that another provision of HAVA — dealing with provisional ballots, 42 U.S.C. § 15482(a)— was intended to benefit individuals, and it would seem strange to infer that Congress wished to pull apart the threads of HAVA by permitting individual enforcement of some of its mandatory provisions but not others. There also seems to be little doubt that a tool designed to facilitate governmental efforts to identify voter fraud is a tool that redounds to the benefit of individuals. The whole point of curbing fraud is to prevent the dilution of individuals’ votes, not to mandate anti-fraud requirements for their own stake.

What makes this question close and presumably what prompted the panel not to rely on this consideration as a basis for vacating the district court’s TRO is the impact of the Supreme Court’s decision in Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), on this analysis. There, in discussing the first prong of the right-of-aetion test, the Court emphasized that “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced” under § 1983 and that such rights must be “unambiguously conferred ... to support a cause of action brought under § 1983.” Id. at 283, 122 S.Ct. 2268. Picking up on this language, the Secretary argues that the HAVA provision at issue in Sandusky County — “[t]he individual shall be permitted to cast a provisional ballot,” 42 U.S.C. § 15482(a)(2)— differs from the language at issue here. Even though the language in each case is mandatory and even though the language in each case identifies judicially enforceable obligations, the Secretary argues that the matching-and-verification requirements do not expressly identify any one individual or group of individuals as beneficiaries of the statutory obligation in the same way as this other provision of HAVA does.

This is a fair argument, one that this court will have to resolve with finality at some point. But it is not an argument with just one plausible answer or even a clear answer. The problem with contending that there is only one way to look at this issue is that the Secretary assumes Gonzaga requires individual-rights-granting language even when there is no individual to whom such language could apply. The beneficiary of every eliminated instance of voter fraud is never any one individual because the individual whose vote would have been diluted — the individual, if you will, whose “right” to vote is impaired — is never known or knowable. Perhaps when a statute effectively benefits everyone but no one in particular, a right of action still may exist, all other things being equal; perhaps it may not. But, either way, it is hard to maintain that the district court should have understood that Gonzaga resolved this point since it did not address, much less discuss, this issue. Nor did Gonzaga overrule earlier holdings that generally permitted the beneficiaries of federal statutes to enforce them through § 1983. See, e.g., Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 510, 110 S.Ct. 2510, 110 L.Ed.2d 455 (1990).

There is one more oddity with accepting the Secretary’s position. The right-of-action inquiry requires a court to ascertain what Congress meant in imposing certain mandatory duties on States — to “determine whether Congress intended to create a federal right.” 536 U.S. at 283, 122 S.Ct. 2268. To accept the Secretary’s position in this case, however, we would have to infer that Congress meant to make both halves of HAVA mandatory — the ease of voting and casting provisional ballots on the one hand and the anti-fraud provisions on the other' — yet wished to allow citizens to enforce just one half of those policies. There is no indication in the statute, or for that matter in the legislative history, that this is what Congress meant, and the fact that all of HAVA’s relevant provisions may be enforced by the United States Attorney General or through administrative processes at the state level, 42 U.S.C. §§ 15511— 12, suggests that all mandates should be privately enforceable or none should be. In the final analysis, the most that can be said about the Secretary’s argument— which in its two pages of argument on this point before the district court dealt with none of these considerations — is that it raises a difficult issue. The “close” answer to this question, together with the reality that all of the other risks of error support the plaintiffs, weigh in favor of denying the Secretary’s motion to stay the TRO. See Ashcroft v. ACLU, 542 U.S. 656, 664-65, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004); Hawaii Housing Authority v. Midkiff, 463 U.S. 1323, 1326-27, 104 S.Ct. 7, 77 L.Ed.2d 1426 (1983) (Rehnquist, J., in chambers); Roth v. Bank of Commonwealth, 583 F.2d 527, 537 (6th Cir.1978) (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.1953) (“To justify a temporary injunction it is not necessary that the plaintiffs right to a final decision, after a trial, be absolutely certain, wholly without doubt; if the other elements are present (i.e., the balance of hardships tips decidedly toward plaintiff), it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation.”)).

That brings us to one final point. As the panel pointed out in vacating the district court’s TRO, the record in this case is far from ample. That is true, but it will almost always be true in the context of a TRO, the nature of which requires rapid decisionmaking. That is what makes the standard of review — abuse of discretion— so relevant to the disposition of this emergency appeal. See Ne. Ohio Coal. for Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir.2006). The point is not just that we give substantial discretion to the district court’s ring-side view of the case in reviewing an order already issued; it is that we entrust the district court to deal fairly with future implementation issues implicated by that order. When it comes to applying abuse-of-discretion review here, one of the key obstacles to the Secretary’s request for relief is the lack of any affidavit or other factual support for her arguments that altering the relevant computer programs will be difficult or will create material risks to other aspects of the election process. In upholding the district court’s October 10 order and its October 17 deadline, it is appropriate to assume what we should always assume in denying interim relief — that the district court will respond fairly to requests to adjust the TRO if the Secretary offers reasonable bases for doing so. With that assumption in mind and with the view that this court should now allow the district court to do its job in handling this difficult case, we deny the Secretary’s motion to stay the district court’s October 10th TRO.