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Surprise Stay in Idaho, Nev. SSM Cases; Waiting on Election Stays

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By William Peacock, Esq. on October 08, 2014 12:28 PM

SECOND UPDATE, October 10, 2014, 2:33 p.m.: The Supreme Court has just issued an order lifting the stay on same-sex marriages in Idaho, less than three days after Justice Kennedy's surprising initial stay.

UPDATE, October 8, 2014, 12:54 p.m.: Justice Kennedy has issued a new order, dropping the stay in Nevada. Gay marriage can proceed in Nevada, but it's still on hold in Idaho. Meantime, BuzzFeed reports that the conservative Nevada district court judge who ruled against gay marriage in 2012, and was ordered to issue the injunction (blocking the ban), has self-recused.

This morning, those of us on the west coast woke up to surprising news: Two days after the Supreme Court declined to take on the issue of gay marriage, and one day after the Ninth Circuit followed that up with a smackdown of Nevada and Idaho's gay marriage bans, the Supreme Court stepped in and pressed pause on Idaho gay marriages. And maybe Nevada too -- nobody is quite sure.

Speaking of stays, despite issuing a stay blocking last-minute changes to voting laws in Ohio, the Court has yet to rule on other requests out of North Carolina and Wisconsin. The latter state sent a follow-up request to the Court earlier today, while the waiting game rolls on on the two earlier requests.

SCOTUS Week at FindLaw

Why Was a Stay Issued in Idaho?

After dropping that 100-page beast of an opinion yesterday, the Ninth Circuit followed up with an immediate mandate, directing the district courts to issue an injunction blocking the laws ASAP. Officials in both states braced for the sudden change to gender-neutral marriage, but Idaho officials and Gov. C.L. "Butch" Otter filed each an emergency motion to recall the mandate so that en banc and other appeals could proceed.

Hearing nothing, Gov. Otter also reached out to Justice Anthony Kennedy, who issued a stay early this morning.

What's Happening in Nevada?

Nevada, quite frankly, didn't give a damn about the mandate. There was no objection, no intent to appeal, nada. And yet, the SCOTUS order included the case number for Nevada as well as Idaho and ordered plaintiffs (presumably from both states) to respond to Gov. Otter's request, even though Nevada officials long ago backed out of the fight.

Needles to say, everyone is really confused right now: Was this a typo by the Court? Or is Kennedy pausing both cases (they did have a consolidated opinion in the Ninth Circuit) even though Nevada doesn't want to keep appealing? Lyle Denniston at SCOTUSblog says that the word out of Nevada is that state officials may seek clarification of the stay order.

Elections, You Say...

Gay marriage isn't the only hot legal issue right now. Election procedures, especially voter ID laws and pull-back on early voting days, have become a bitter nationwide battle -- from Ohio to Wisconsin to North Carolina to Texas.

A stay was issued in Ohio by the Supreme Court pursuant to Purcell, which warned against sowing confusion among the masses by making court-ordered last-minute changes to election laws and procedures. Similar requests came out of Wisconsin and North Carolina after appeals courts ruled on changes to laws in those states.

Many, including Election Law Blog's Prof. Rick Hasen, expected a ruling on North Carolina's request by now, as Chief Justice Roberts required a response by challengers to that state's law by Sunday -- four days ago. Something could happen today, and according to Hasen, the delay could mean a dissent or opinion will accompany it.

Meantime, Wisconsin accompanied an earlier request for a stay with a second request, submitted this morning.

That's a lot of stays, a lot of requests, and a lot of confusion on what the law is regarding gay marriage and elections.

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