The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
BOB BROWN, HAILEY SINOFF, and CV 21-92-H-DWM
DONALD SEIFERT,
Plaintiffs,
ORDER
VS.
CHRISTI JACOBSEN, in her official
capacity as Montana Secretary of State,
Defendants.
Plaintiffs Bob Brown, Hailey Sinoff, and Donald Seifert (collectively
“Plaintiffs”)' allege that the districts established by Montana’s Public Service
Commission (“the Commission”) are malapportioned in violation of the Fourteenth
Amendment of the United States Constitution. (Doc. 1.) According to Plaintiffs,
the Commission’s five districts do not reflect the realities of Montana’s population
distributions, and these distortions run afoul of the one person, one vote principle.
Ud. 99 4, 42-46.) Defendant Christi Jacobsen, who has been sued in her official
capacity as the Montana Secretary of State, has not yet appeared in the case.
Plaintiffs now move for a temporary restraining order or preliminary injunction.
' Plaintiff Brown is a resident of District 5, while Defendants Sinoff and Seifert are
residents of District 3. (Doc. | at Ff 13-15.)
(Doc. 5.) Specifically, Plaintiffs seek a temporary restraining order and/or a
preliminary injunction to prevent Jacobsen from certifying candidates for
commissioner in Districts 1 and 5 pending a determination on the constitutionality
of the Commission’s districting plan. (Doc. 6 at 14.) According to Plaintiffs,
“Commissioners for Districts 1 and 5 will be elected in the 2022 election.” (Doc. 1
at J 40.) Plaintiffs state that candidate filing for commissioner in both of these
districts opens on January 13, 2022, and they consequently request preliminary
relief prior to that date. (/d. at 15.)
I. Threshold Requirements for Issuing a Temporary Restraining Order
The standard for issuing a temporary restraining order is the same as the
standard for issuing a preliminary injunction. Stulbarg Int’l Sales Co. v. John D.
Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). The applicant must show a
likelihood of success on the merits, a likelihood of irreparable injury, that the
balance of equities favors preliminary relief, and that preliminary relief is in the
public interest. See Winter v. Nat. Res. Def: Council, Inc., 555 U.S. 7, 20 (2008).
However, Rule 65 of the Federal Rules of Civil Procedure imposes two additional
requirements if no notice has been provided to the adverse party. Specifically,
[t]he court may issue a temporary restraining order without written or
oral notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result
to the movant before the adverse party can be heard in opposition;
and
(B) the movant’s attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). “[C]ircumstances justifying the issuance of an ex parte
order are extremely limited.” Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d
1126, 1131 (9th Cir. 2006).
Here, Plaintiffs assert that the opposing party has “actually receive[d] notice
of the application for a restraining order,” and so “the procedure that is followed
does not differ functionally from that on an application for a preliminary injunction
and the proceeding is not subject to any special requirements.” (Doc. 6 at 28-29
(quotation marks omitted).) Plaintiffs’ assertion is consistent with the 1966
advisory committee notes, which clarify that “subdivision [(b)] is amended to
make it plain that informal notice, which may be communicated to the attorney
rather than the adverse party, is to be preferred to no notice at all.” Fed. R. Civ. □□
65(b) advisory committee’s note to 1966 amendment. Plaintiffs’ brief includes a
certificate of service that the Office of the Secretary of State and the Office of the
Attorney General were served by certified mail with the application for a
temporary restraining order. (/d. at 42.) Additionally, Plaintiffs filed this action on
December 6, 2021, (Doc. 1), and the Complaint was served on the Offices of the
Secretary of State and the Attorney General on December 8, 2021, (Doc. 2). Thus,
Plaintiffs’ application for a temporary restraining order comes nearly two weeks
after Jacobsen received notice that the case was pending against her, and this
timing (as well as Federal Rule of Civil Procedure 65(b)(4)) alleviates the concern
that Jacobsen will not have an opportunity to respond. Ultimately, given that
Jacobsen has thus received written notice—albeit informally—the additional
requirements imposed under Rule 65(b) do not apply.
Il. Winter Evaluation
As stated above, where the inquiry for a temporary restraining order is
identical to the inquiry for a preliminary injunction—as is the case here—Plaintiffs
“must establish that [they] are likely to succeed on the merits, that [they] are likely
to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in [their] favor, and that an injunction is in the public interest.”
Winter, 555 U.S. at 20. At this stage in the litigation, Plaintiffs have met their
burden and the factors tip in favor of a temporary restraining order.
A. Likelihood of Success on the Merits
To secure a temporary restraining order, Plaintiffs must prove they are likely
to succeed on the merits of their challenge. At the core of Plaintiffs’ case is the
allegation that the Commission’s districting scheme is unconstitutional because it
denies every voter his “constitutional right to have his vote counted with
substantially the same weight as that of any other voter.” (Doc. | at J 42 (quoting
Hadley v. Junior Coll. Dist. of Met. Kansas City, 397 U.S. 50, 53 (1970).) The
Supreme Court has emphasized that “[s]tates must draw congressional districts
with populations as close to perfect equality as possible.” Evenwel v. Abbott, 578
U.S. 54, 59 (2016). This requirement means that when a state
decides to select persons by popular election to perform governmental
functions, the Equal Protection Clause of the Fourteenth Amendment
requires that each qualified voter must be given an equal opportunity to
participate in that election, and when members of an elected body are
chosen from separate districts, each district must be established on a
basis that will insure, as far as practicable, that equal numbers of voters
can vote for proportionally equal numbers of officials.
Hadley, 397 U.S. at 56. The Supreme Court has further established that “[w]here
the maximum population deviation between the largest and smallest district is less
than 10% .. . a state or local legislative map presumptively complies with the one-
person, one-vote rule.” Evenwel, 578 U.S. at 60. Put in the inverse, where the
difference between the deviation in the largest district and the deviation in the
smallest district exceeds 10%, the map at issue may only be constitutional if the
state shows that the districts accommodate for some type of “traditional districting
objective” such as “preserving the integrity of political subdivisions, maintaining
communities of interest, and creating geographic compactness.” Id. at 59.
Here, Plaintiffs have included evidence from the United States Census
pertaining to Montana, (Docs. 6-1, 6-2), to calculate each district’s respective
deviation from the ideal population utilizing the formula from Evenwel.? The
? Plaintiffs also cite to Doc. 6-3 in support of their claim that they are likely to
succeed on the merits, but this document did not properly upload to the docket.
population of the smallest district, District 1, apparently downwardly deviates
approximately 14% from the ideal population while the population of the largest
district, District 3, apparently upwardly deviates approximately 10%. (Doc. 6 at
24.) Under the Evenwel formula, the maximum population deviation is roughly
24%, which exceeds the presumptively reasonable 10% deviation. See 578 U.S. at
60. Because such a significant deviation potentially magnifies the weight carried
by a vote in District 1 while potentially diminishing the weight carried by a vote in
District 3, Plaintiffs are likely to succeed in showing that the current districts are
presumptively unconstitutional. Thus, because it is likely—though not certain—
that Plaintiffs will succeed on the merits of their claim, this factor tips in their
favor.
B. Irreparable Harm
Plaintiffs must establish that the prospect of irreparable harm is not merely
possible, but that it is “likely.” Winter, 555 U.S. at 22. “It is well established that
the deprivation of constitutional rights unquestionably constitutes irreparable
injury.” Index Newspaper LLC v. United States Marshals Serv., 977 F.3d 817, 837
(9th Cir. 2020) (quotation marks omitted). Consequently, because the record
indicates that at least two of the Commission’s districts are presumptively □
unconstitutional as they appear to dilute or concentrate certain votes to an
impermissible level, Plaintiffs have demonstrated that they are likely to suffer
irreparable harm.
C. Balance of the Equities
In balancing the equities, Plaintiffs have shown that their potential harm in
the absence of a restraining order is greater than the potential harm to the state if
the commission certification process is temporarily restrained. As explained
above, Plaintiffs have shown they are likely to suffer irreparable constitutional
harm based on a violation of the one person, one vote principle. By contrast, the
most serious harm that may come to the state is temporary delay in certifying
candidates for the districts, and the state is free to move to dissolve the temporary
restraining order or modify it consistent with Federal Rule of Civil Procedure
65(b)(4). Accordingly, this factor favors Plaintiffs.
D. Public Interest
Plaintiffs persuasively point to several reasons that a temporary restraining
order is in the public interest. First, the public has an interest in “fair and effective
representation,” which is furthered by voting districts that comport with the one
person, one vote rule. See Evenwel, 578 U.S. at 73. Again, as explained above,
Plaintiffs have convincingly shown that the current districts do not comply with
that rule. Second, the public has an interest in “orderly elections” that may be
furthered by temporarily restraining the candidate certification process while the
Commission’s districts are under review. See Benisek v. Lamone, 138 S. Ct. 1942,
1944 (2018). Temporarily restraining the candidate certification process sends a
message to prospective candidates and the public that the current process is under
review to ensure an orderly election in the future. Finally, the public has an
interest in “equal voting strength for each voter.” Hadley, 397 U.S. at 58.
Temporarily restraining the certification process will permit review of the
Commission’s current districts to either affirm that such districts achieve that goal
or rule they do not and then take such action as is necessary to meet that goal.
If. Conclusion
Pursuant to Rule 65(d), the temporary restraining order is issued because
Plaintiffs have demonstrated they are likely to suffer irreparable harm in the
absence of an injunction of the certification process. Moreover, temporarily
restraining the certification of candidates on the basis of the Commission’s present
districts will indicate to potential candidates that the districting system is under
review, which may allow them to assess the strategy of their prospective
campaigns at the earliest possible juncture.
Additionally, the terms of the temporary restraining order are such that the
defendant, Christi Jacobsen, shall be enjoined from certifying candidates for the
Commission based on the current districts. However, given the timing of the
certification of candidates in District 1 and 5 for the 2022 election cycle, the
temporary restraining order is limited in its reach. Plaintiffs ask to temporarily
restrain the candidate certification process only in District 1 and District 5 at this
stage in the litigation. Therefore, in order to respond to the most imminent
potential harm as precisely as possible, the temporary restraining order means that
Jacobsen shall certify no candidates for Commissioner in District 1 and District 5
while Plaintiffs’ challenge is under review. This restriction shall last until the
parties appear for a hearing on Plaintiffs’ request for a preliminary injunction.
Accordingly,
IT IS ORDERED that Plaintiffs’ request for a temporary restraining order or
a preliminary injunction, (Doc. 5), is GRANTED IN PART. It is granted insofar
as Jacobsen is temporarily restrained as explained above. The Court reserves
ruling on the remainder of Plaintiffs’ motion until the parties appear for a hearing
on the request for a preliminary injunction.
IT IS FURTHER ORDERED that a hearing on the motion for preliminary
injunction is set for January 7, 2022 at 9:00 a.m. at the Russell Smith Courthouse
in Missoula, Montana.
DATED this ual of December, 2021.
[Ligh Add, Ji x i Hl oe
Donald W. Molloy, District Judge
United States District Court