                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

WENDY TOWNLEY; AMY WHITLOCK;          
ASHLEY GUNSON; HEATHER THOMAS;
DAX WOOD; CASJA LINFORD;
WESLEY TOWNLEY; JENNY RIEDL;
TODD DOUGAN; BRUCE WOODBURY;
JAMES W. DEGRAFFENREID,
              Plaintiffs-Appellees,
                v.                    
ROSS MILLER, Secretary of State of
Nevada,
             Defendant-Appellant,
               and
KINGSLEY EDWARDS,
            Intervenor-Defendant.
                                      




                           10903
10904                 TOWNLEY v. MILLER


WENDY TOWNLEY; AMY WHITLOCK;           
ASHLEY GUNSON; HEATHER THOMAS;
DAX WOOD; CASJA LINFORD;
WESLEY TOWNLEY; JENNY RIEDL;                Nos. 12-16881
TODD DOUGAN; BRUCE WOODBURY;                        12-16882
JAMES W. DEGRAFFENREID,                         D.C. No.
               Plaintiffs-Appellees,        3:12-cv-00310-
                v.                            RCJ-WGC
                                           District of Nevada,
ROSS MILLER, Secretary of State of
                                                   Reno
Nevada,
                         Defendant,           AMENDED
                                                 ORDER
               and
KINGSLEY EDWARDS,
   Intervenor-Defendant-Appellant.
                                       
        Submitted to Motions Panel September 4, 2012

                  Filed September 5, 2012

  Before: Stephen Reinhardt, Kim McLane Wardlaw, and
              Carlos T. Bea, Circuit Judges.

                          Order;
              Concurrence by Judge Reinhardt



                         COUNSEL

K. Kevin Benson, Carson City, Nevada, filed the motion for
stay of the district court’s order for appellant-defendant Ross
Miller, Secretary of State of Nevada. Catherine Cortez Masto,
Nevada Attorney General, was also on the motion.
                      TOWNLEY v. MILLER                    10905
John Pablo Parris, Las Vegas, Nevada, filed the motion for
stay of the district court’s order for appellant-intervenor-
defendant Kingsley Edwards.

Paul Swenson Prior, Las Vegas, Nevada, opposed the motion
for stay of the district court’s order for plaintiffs-appellees
Wendy Townley, Amy Whitlock, Ashley Gunson, Heather
Thomas, Dax Wood, Casja Linford, Wesley Townley, Jenny
Riedl, Todd Dougan, Bruce Woodbury, and James W.
Degraffenreid.


                           ORDER

   The order issued September 4, 2012 is hereby amended and
this amended order is designated for publication.

  Appellants Ross Miller, Nevada Secretary of State, and
Kingsley Edwards, a Nevada voter, appeal from the district
court’s preliminary injunction order enjoining Nevada’s
nearly 37-year-old statute that requires a “None of These Can-
didates” option on the ballot in statewide elections for state or
federal office.

   The district court entered its preliminary injunction order,
dated August 22, 2012, on August 24, 2012. The preliminary
injunction order reads in part:

    [T]he Court grants [Docket Number] 15 Motion for
    Preliminary [I]njunction. Defendant Secretary of
    State Ross Miller, his agents, employees, affiliates,
    and all those acting in concert with him, are enjoined
    from allowing “None of these candidates” to appear
    on voting ballots. [Defendant’s counsel]’s oral
    motion to stay pending appeal is denied. Written rul-
    ing of the Court will issue. Court adjourns.

(emphasis omitted).
10906                 TOWNLEY v. MILLER
   The notices of appeal of the grant of the preliminary injunc-
tion were filed immediately thereafter, on August 24 and 25,
2012. The filing of these notices of appeal, consolidated by
this court on August 28, 2012, divested the district court of
jurisdiction over the preliminary injunction. See Griggs v.
Provident Consumer Disc. Co., 459 U.S. 56 (1982); Davis v.
United States, 667 F.2d 822 (9th Cir. 1982) (filing of a notice
of appeal generally divests the district court of jurisdiction
over the matters appealed, although the district court may act
to assist the court of appeals in the exercise of its judgment).
We therefore have jurisdiction over these appeals from the
district court’s August 22, 2012 and August 24, 2012 orders
granting appellees’ motion for preliminary injunction pursu-
ant to 28 U.S.C. § 1292(a)(1).

   Appellants’ emergency motions to stay the district court’s
August 22, 2012 order pending appeal are granted. See Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).

   Appellant Ross Miller’s motion for leave to file an over-
sized emergency motion to stay the district court’s August 22,
2012 order is granted.

   Appellees’ motion for leave to file an oversized opposition
to appellants’ emergency motions to stay the district court’s
August 22, 2012 order is granted.

   The briefing schedule established previously shall remain
in effect.



REINHARDT, Circuit Judge, Concurring:

   I concur fully in this court’s order, including its determina-
tion that this court has jurisdiction over the appeals from the
district court’s preliminary injunction. I write separately only
to add that there is an alternative basis for our jurisdiction
                      TOWNLEY v. MILLER                    10907
over the appeals—a basis that would exist even if the district
judge had not entered his minute order issuing the preliminary
injunction.

   Before doing so, however, I wish to make clear that the
panel is in agreement that the basis for our grant of the stay
of the district court’s order pursuant to Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7 (2008), is that the likelihood of
success on the merits favors the state. Plaintiffs’ arguments
offer an inadequate basis for this court to conclude that
Nevada’s 37-year-old statute providing for “None of these
candidates” ballots is contrary to the Constitution or to any
federal statute. A failure to stay forthwith any injunction
issued by the district court would accordingly result in irrepa-
rable injury to the State of Nevada and its citizens, and would
be directly contrary to the public interest.

   The parties have advised both this court and the district
court that, in order for Nevadans in the military to cast their
ballots in the forthcoming Presidential election, the complex
process of printing the statewide ballots must be completed no
later than September 22, 2012, and that the printing of all
such ballots must begin by September 7, 2012. Although the
district judge acknowledged his awareness of these facts, he
has deliberately attempted to avoid entering any order that
would allow an appeal before that date. His dilatory tactics
appear to serve no purpose other than to seek to prevent the
state from taking an appeal of his decision before it must print
the ballots. As set forth below, these attempts to frustrate the
jurisdiction of the appellate court, and, necessarily, the
Supreme Court—at least until the issue in this case is mooted
—itself constitutes a sufficient basis for our exercise of juris-
diction.

   The district judge’s intent to evade appellate review is plain
from the record. Indeed, the district judge essentially admitted
as much, as evidenced by the transcript of the hearing held
August 22, 2012, regarding the motion for preliminary injunc-
10908                     TOWNLEY v. MILLER
tion. At that hearing, counsel for the state requested that the
district judge rule in time to permit an appeal to the Ninth Cir-
cuit before the ballot deadline; the district judge, however,
displayed no interest in Defendants’ ability to appeal:

      MR. BENSON: Well, we have a problem in the pro-
      cedural sense in that if we — in order to get to the
      Ninth Circuit between now and September 7th —

      THE COURT: Well, that’s your problem. I’m just
      trying to accommodate your problem with regard to
      notifying the printer.

Although the district judge’s response was entirely out of
keeping with the importance and time sensitiveness of this
case, it, alone, would not suffice to evidence deliberate delay.

   The court’s comment, however, followed numerous and
substantial delays caused by the district judge, which, in the
face of efforts by both parties to expedite consideration of the
matter,1 can only be explained as a deliberate attempt to evade
review by higher courts. For example, when the district judge
who had originally been assigned to this case withdrew from
the case on June 11, 2012, the current district judge as Chief
Judge took until July 3, 2012, to reassign the case—and, when
he did so, he reassigned it to himself. The resultant delay had
the prejudicial effect of rendering moot the parties’ request
for expedited briefing. Further, the district judge then waited
almost three weeks, until July 20, 2012, to even schedule a
hearing on the preliminary injunction. The date he eventually
chose—August 22, 2012—resulted in another month-long
delay in the resolution of this proceeding.
  1
    Plaintiffs specifically requested expedited treatment of the preliminary
injunction, marking their motion “EXPEDITED TREATMENT
REQUESTED.” The parties also filed a request for an expedited briefing
schedule. They further explained the importance of an expeditious ruling
during the oral hearing on the preliminary injunction motion.
                      TOWNLEY v. MILLER                   10909
   At the August 22, 2012, hearing, the parties once again
urged the court to issue its ruling as soon as possible; in
response, the district judge assured the parties that he would
rule quickly:

    MR. BENSON: With regard to preparing the order
    and all of that, we have a ballot deadline, printing
    deadline coming up very quickly.

    THE COURT: That’s why I’m announcing this
    orally now.

    MR. BENSON: I appreciate that, your Honor.

    THE COURT: Even though I would like more time
    to study it, but —

    MR. BENSON: And with regard to the written order,
    my understanding is that an appeal cannot be taken
    until a written order is put in the record so —

    THE COURT: Right. I’ll try to do that as quickly as
    I can.

As set forth in the district judge’s recent order in response to
the notices of appeal, however, the district judge has so far
refused to issue a fully-reasoned explanation for his prelimi-
nary injunction (a precondition, under his view, for appellate
review). Despite his promise to rule “quickly,” more than a
month has passed since the completion of briefing on that
issue—and 13 days have passed since the August 22 hearing
—without such a reasoned ruling. It is now three work days
before the printing of ballots must commence, and the district
judge has exhibited no signs of issuing the written explanation
that he believes is essential for appellate review.

   The district judge was fully aware that his efforts might
affect this court’s jurisdiction and that Defendants were seek-
10910                      TOWNLEY v. MILLER
ing appellate review of his decision. Indeed, his recent post-
appeal order notes the notices of appeal filed by the parties,
and describes them as “premature.” In any event, his aware-
ness did not put an end to his attempts to evade appellate
review. When the appeals were filed, he immediately sought
to frustrate our ability to entertain a stay pending appeal,
denying that he had issued an order but scheduling a hearing
on whether he should grant a stay of that order for September
14, 2012—fully a week after the state’s deadline for printing
the ballots—a hearing that he deemed a precondition to this
court’s “entertainment” of a stay motion.2 This last action by
the district judge is particularly egregious in light of the fact
that he swiftly denied oral motions for the precise same stay
(made by both sets of Defendants) during the August 22,
2012, hearing.3

   In circumstances such as these, when a district judge’s
  2
     Before requesting a stay from this court, the parties are required either
to request one from the district court or demonstrate why seeking such a
stay would be impracticable. See Fed. R. App. P. 8(a). Here, both apply.
   3
     The district judge was presented with two such motions for a stay dur-
ing the August 22, 2012, hearing, and denied them both times without
equivocation. The first time was upon motion of the state:
      THE COURT: But the reason I’m announcing this orally is so
      that you’re forewarned with regard to the printing problem.
      MR. BENSON: And, finally, with regard to that, I must take an
      oral motion that the Court stay its order pending appeal. We do
      intend to take an appeal.
      THE COURT: I’ll deny that.
      MR. BENSON: Thank you, your Honor.
      THE COURT: So you have it for the record.
Later, in response to a motion by Defendant-Intervenor, the court again
denied the stay, stating, “I’ll deny that for the record so that you can ask
the appellate court for a stay” (emphasis added). Indeed, the district
court’s orders on this point are so contradictory that the state today filed
a motion with the district court to clarify the precise state of the record
regarding both the preliminary injunction and the stay.
                       TOWNLEY v. MILLER                     10911
actions might serve to deprive the appellate court of meaning-
ful judicial review, an appellate court has the authority to
exercise jurisdiction in aid of its own appellate jurisdiction.
This is so even if an appeal has not yet been properly per-
fected. In FTC v. Dean Foods, Co., for example, the Supreme
Court upheld the court of appeals’s authority to grant a pre-
liminary injunction preventing a merger that would moot any
subsequent appeal. 384 U.S. 597, 603-05 (1966). The Court
noted that, “where an appeal is not then pending but may be
later perfected,” an appellate court may exercise jurisdiction
when doing so would be necessary to preserve its later appel-
late jurisdiction. Id. at 603. The ability of appellate tribunals
to act to preserve their jurisdiction is a necessary element of
appellate review; “[o]therwise the appellate jurisdiction
could be defeated . . . by unauthorized action of the district
court obstructing the appeal.” Roche v. Evaporated Milk
Ass’n, 319 U.S. 21, 25 (1943) (emphasis added); see also Cal-
ifornia Energy Comm’n v. Johnson, 767 F.2d 631, 634 (9th
Cir. 1985) (reiterating this principle but declining to exercise
such jurisdiction).

   When a decision on our part is necessary in order to permit
the losing party below to obtain review by our court and the
Supreme Court, we have the ability to act in order to preserve
the jurisdiction of the appellate courts. In this case, that
authority would permit us to decide the stay motion before us,
even if the district court had not issued the injunction on
August 24. Refusal to exercise our jurisdiction would frustrate
not only our appellate authority, but also that of the Supreme
Court, and would allow the district court to erroneously inval-
idate Nevada’s long-standing election process and to deprive
its citizens of their right to participate in Presidential elections
in the manner that the law prescribes. Such arrogance and
assumption of power by one individual is not acceptable in
our judicial system.
10912                      TOWNLEY v. MILLER
  I therefore wholeheartedly concur in the panel’s decision to
grant the stay.4




  4
    In any event, if the district court were to succeed temporarily in block-
ing appellate jurisdiction as a result of its contention that it has not issued
an injunction, the state would be free to commence printing the ballots
immediately. Any subsequent attempt to disrupt that printing would be
subject to an immediate stay as the weighing of the Winter factors would
favor the state even more strongly.
