The opinion
JULIA SMITH GIBBONS, Circuit Judge,
concurring.
I concur in Judge Sutton’s opinion and offer these additional comments as well.
Before us is the initial issue of whether to grant en banc review of the Secretary of State’s motion to vacate or stay the district court’s temporary restraining order directing the Secretary of State (1) to comply with the Help America Vote Act (HAVA), 42 U.S.C. § 15301 et seq., by performing the required verification of a new registrant’s identity, (2) establish a process by which county boards of election can access the information generated from the checks, (3) provide county boards of election access to the information entered into the Statewide Voter Registration Database no later than October 17, 2008, and (4) provide the boards of election an effective way to access and review mismatches between voter registration information and information in the Ohio Bureau of Motor Vehicles and Social Security Administration databases. A panel of this court granted the motion, so not granting en banc review would have the effect of leaving the stay of the TRO in place.
The question before us is one of exceptional importance, involving the interpretation and application of statutory provisions designed to combat voting fraud and the dilution of validly cast votes in the context of an election for President of the United States. Although the importance of the issue is clear, the parties suggest that we also appropriately consider the role of the courts in intervening in election matters when an election is fast approaching. Plaintiffs argue that this concern favors en banc consideration, while the Secretary argues that it does not. From my perspective, this concern is better addressed in connection with the merits of the motion to vacate rather than in determining whether to grant en banc review. After all, the *722 issue does not become less important because the election is a short time away. I therefore favor granting en banc review of the Secretary’s motion to vacate.
Turning to the merits of the motion, we review the entry of the temporary restraining order for abuse of discretion. In my view, the Secretary has failed to show an abuse of discretion by the district court.
The Secretary’s argument includes several legal issues. The panel adequately and correctly dealt with the jurisdictional issue. The private right of action issue is a difficult one and, while Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir.2004) may well point toward its availability, it seems that the panel was wise to avoid it. I am inclined to disagree with the Secretary’s position about the requirements of the statute for the reasons stated in Judge Sutton’s opinion. In any event, I cannot say that the district court committed a legal error that would constitute an abuse of discretion.
Turning to a balancing of the harms and the public interest, this is the point on which I disagree most strongly with the Secretary’s position and the panel’s granting of the stay. The public interest lies in two areas: carrying out the statutory goals of combating voter fraud and vote dilution and preventing disruption of elections. The harm to the plaintiffs is evident from the nature of the claim they assert; they can hardly be required to show actual vote fraud to establish irreparable harm when the county election boards lack the means to detect any fraud that may exist. And from the evidence presented to the district court and the arguments made there by counsel for the Secretary, disruption of the electoral process and interference with the Secretary in carrying out her election responsibilities as a result of the district court’s order are purely speculative. Thus, any harm to the public interest in avoiding election disruption is speculative as well.
As the Secretary notes, she requested an evidentiary hearing before the district court, which the court denied. This is a typical ruling in situations involving the issuance of a temporary restraining order; permitting an evidentiary hearing would be atypical. The parties did, however, have the opportunity to submit affidavits and make arguments to the district court. As far as I can tell, the Secretary submitted no affidavits relating to harm to her in carrying out her duties or the public interest. 1 And her counsel’s oral arguments to the district court did not emphasize the harm point to any great degree. When questioned about how long compliance with plaintiffs’ requested relief would take, counsel said vaguely that it could take several days or “may take longer.” 2 He noted no problems with carrying out the election otherwise as a result of reprogramming to provide the relief sought. The district court’s reading of the situation was that the parties might well be able to agree to a consent decree. Although that did not occur, obviously, the Secretary’s position in the district court gave no hint that ordering the requested reprogramming would impede the electoral process.
*723 Before this court, however, the Secretary blasts the district court’s action, saying it acted “recklessly” and that its “cavalier attempt to micromanage Ohio officials’ administration of this election is breathtaking.” She complains strenuously about creation of disorder and offers speculation about “hidden dangers” of reprogramming, without any evidence or even proffer of what the dangers might be from anyone who knows anything about the database. And she raises the point, not discussed at argument in the district court, that it is simply too late for court intervention.
The panel majority, while professing disapproval of the district court’s failure to engage in fact finding, adopts the Secretary’s assertions in her brief on appeal without scrutiny, thus by indirection accepting them as facts. This adoption directly leads to a conclusion that the district court abused its discretion in the balancing of harms, a conclusion that is unsupported by anything that transpired in the district court.
The district court was faced with a situation in which the harms to plaintiffs seemed great, and the harms to the Secretary amounted to some programming of uncertain magnitude. Based on the Secretary’s representations in the district court, the only public harm at issue was that asserted by the plaintiffs. There was no suggestion and certainly no evidence that granting the plaintiffs’ request might disrupt the electoral process or harm the public in any way.
Abuse of discretion is a deferential standard, and its application here is not only the correct legal standard-it makes good practical sense. See Purcell v. Gonzalez, 549 U.S. 1 , 127 S.Ct. 5, 7 , 166 L.Ed.2d 1 (2006) (per curiam) (concluding that the main error of the appeals court was its failure to accord proper deference to the findings of the district court). If we leave the district court order untouched, the Secretary is free to take back to the district court any problems she may encounter in carrying out its order. She may also explore with the district court any difficulties that carrying out the order poses for the electoral process generally. She can raise with the district court issues about whether compliance with the order provides plaintiffs with any information they can actually use for any purpose at this point. In short, a district court is the proper forum for raising belated concerns about compliance, not this court.
Returning to the question of en banc review, considered in light of the above analysis, one could argue that my focus on the balancing of the harms undercuts the reasons for granting en banc review. In other words, the argument would be that the case ceases to be one of exceptional importance if its resolution depends largely on a garden-variety balancing of the harms. In this context, I disagree. The exceptional importance of this case lies as much in the public interest concerns and party concerns about the integrity of the electoral process as it does in whether we resolve with finality the existence of a private right of action or the Secretary’s precise duties under HAVA.
Involving the en banc court in the stay of a temporary restraining order is rarely a good use of our resources and rarely presents an issue of exceptional importance, given the procedural posture. This is one of the rare situations, however, where, given the panel’s opinion, our en banc intervention is required to protect important statutory and public values. Purcell, 127 S.Ct. at 7 (“A state indisputably has a compelling interest in preserving the integrity of its election process.” (quoting Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 231 , 109 S.Ct. 1013 , 103 L.Ed.2d 271 (1989))).
In my view, the court has correctly denied the motion to vacate.
. The Secretary's memorandum filed in the district court addresses harm from any order requiring boards of election to note mismatches on poll books and imposing new duties on poll workers. Memorandum in Opposition of Jennifer Brunner 20-21. The district court did not order either of these remedies.
. Apparently, counsel also represented to the district court, perhaps in off-the-record conferences about a possible consent decree, that the reprogramming might take two or three days.