           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        September 26, 2008

                                       No. 08-30922                   Charles R. Fulbruge III
                                                                              Clerk

LIBERTARIAN PARTY; LIBERTARIAN PARTY OF LOUISIANA; BOB
BARR; WAYNE ROOT; SOCIALIST PARTY USA; BRIAN MOORE;
STEWART ALEXANDER,

                                                  Plaintiffs–Appellees,
v.

JAY DARDENNE, In His Official Capacity as Louisiana Secretary of State,

                                                  Defendant–Appellant.



     Appeals from the United States District Court for the Middle District of
                           Louisiana, Baton Rouge




                 ORDER GRANTING STAY PENDING APPEAL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       The Louisiana Secretary of State has filed a motion pursuant to Federal
Rule of Appellate Procedure 8(a)(2)(A)(i) for a stay pending his appeal of a
preliminary injunction issued by the district court directing that the presidential


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                      No. 08-30922

electors of the Libertarian Party be placed on the ballot for the presidential
election of 2008 and that ballots be reprinted to include these electors and
delivered to replace ballots previously mailed to military and overseas absentee
voters. We GRANT the motion to stay.
                                           I
      Louisiana election laws provide that “recognized” political parties must file
qualifying papers with the Louisiana Secretary of State no later than 5:00 p.m.
on the first Tuesday in September of each presidential election year in order to
have presidential and vice-presidential candidates placed on the ballot.1 The
Libertarian Party is a “recognized” political party within the meaning of this
statute, and the first Tuesday in September 2008 was September 2. Louisiana
law further provides that if the state central committee of a recognized political
party does not meet the deadline, the national chairman of that party may,
within seventy-two hours after the deadline, certify a slate of electors to support
the nominees for President and Vice-President nominated by the national
convention of that party.2 The resulting time for a national chairman to file was
by 5:00 p.m., September 5, 2008.
      The Libertarian Party asserts that because of Hurricane Gustav and the
Louisiana Secretary of State, it was prevented from filing the necessary
affidavits on or before either September 2 or 5, although personnel were
available in the Secretary of State’s office at the state’s capitol in Baton Rouge
throughout that time to accept filings. The Louisiana Secretary of State further
declared on Monday, September 8, 2008, that any filings received on or before
5:00 p.m. that same day (September 8) would be deemed timely. The State
Chairman of the Libertarian Party contends that he did not receive notice that



      1
          LA. REV. STAT. ANN. § 18:1253.
      2
          Id. § 18:1253(E).

                                           2
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the filing deadline had purportedly been extended by the Secretary of State until
approximately 3:15 on the afternoon of September 8. The Libertarian Party did
not file until the afternoon of September 10, a few hours after the Secretary of
State had sent the certified ballots to be printed and distributed to registrars for
mailing to absentee military and overseas voters. The Secretary declared the
Libertarian Party’s filing untimely and refused to place its candidates for
President and Vice-President on the ballot.
      The Libertarian Party, and others, filed suit, contending that the
Louisiana Secretary of State violated Article II, Section 1, Clause 2, of and the
First and Fourteenth Amendments to the United States Constitution. The
plaintiffs sought to remedy these alleged violations under 42 U.S.C. § 1983.
      In granting the preliminary injunction at issue in this appeal, the district
court found as a factual matter that “Hurricane Gustav hit Louisiana on
Monday, September 1, 2008" and that “[t]he Secretary of State’s Office was
officially closed on September 2 through September 7.” However, the district
court did note that “personnel were available at the Office of the Louisiana
Secretary of State to accept filings made on September 2.”
      The district concluded as a matter of law that the Louisiana Secretary of
State was not authorized to extend the filing deadlines, reasoning that only the
Louisiana legislature could do so under Articles I and II of the United States
Constitution. The district court determined, however, that it had the authority,
based on the Supreme Court’s decision in Anderson v. Celebreeze,3 to extend the
filing deadlines and did so with regard to the Libertarian Party until September
11, 2008. This resulted in the Libertarian Party’s filing being deemed timely by
the court. The district court’s written order was issued September 24, after an
evidentiary hearing that concluded on September 23. The district court stayed



      3
          460 U.S. 780 (1992).

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its preliminary injunction until September 25 to allow time for an appeal. The
Louisiana Secretary of State has appealed from the preliminary injunction and
requests that we stay that injunction pending resolution of this appeal.


                                        II
      In considering whether to stay an injunction pending appeal, we look at
the customary four factors. Chief among them is whether the movant has shown
a likelihood of success on the merits of the appeal. In our view, for the reasons
that follow, we believe that the movant has made such a showing. The movant
has also shown that it will suffer irreparable injury if the stay is not granted,
and that the stay will serve the public interest. Absentee voters in the military
and overseas will receive two ballots with different candidates, with a resulting
likelihood of confusion and duplicate voting. We recognize that the stay will
inflict harm on the Libertarian Party, but our review of the likelihood-of-success-
on-the-merits factor set out below leads us to believe that the harm may well be
of their own making. In sum, the factors justifying the stay of the injunction
pending appeal in our view outweigh any unacceptable harm to the Libertarian
Party likely to result.
      The evidence is undisputed that personnel were in the Louisiana Secretary
of State’s office on September 2 through September 5 and available to accept
filings seeking to place presidential and vice-presidential candidates on the
ballot. Directions were posted in the building specifically advising those seeking
to make the necessary presidential and vice-presidential candidacy filings where
to go.   The Secretary of State’s office accepted hand-delivered affidavits
supporting the candidacies of Gloria LaRiva for President and Eugene Puryear
for Vice-President on September 2. That office accepted by hand delivery
qualifying papers for both the Democratic and Republican parties on September
5. That office also accepted filings made by mail and commercial carrier.


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      Although an executive order was issued closing non-essential state offices
from September 2 through September 8, the election filing office of the Secretary
of State of Louisiana remained open. The State Chairman of the Libertarian
Party testified that he called the Secretary of State’s office prior to September
2 to inquire what contingency plans were being made for Hurricane Gustav. He
was told that none were being made and that “we would have to have them [all
necessary filing papers] in by the Tuesday. No exceptions.” The Chairman also
testified that he did not have all the affidavits he needed to file on the
September 2 deadline.      The national Libertarian Party did not have the
necessary affidavits on September 5. The evidence is also undisputed that at
least one of the necessary affidavits was not ready for filing by September 2,
September 5, or even September 8 for reasons unrelated to the Secretary of
State’s office or Hurricane Gustav. One of the electors, who lived in Shreveport,
forgot to mail his affidavit to the Chairman. The Chairman drove to Shreveport
on September 8 to obtain it when he learned of this fact. The notary date on the
affidavit is September 8. The record is devoid of any evidence that this affidavit
would have been timely executed or timely filed had Hurricane Gustav not
occurred.
      For the foregoing reasons, IT IS ORDERED that appellant's motion for
stay of injunction pending appeal is GRANTED.




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