          United States Court of Appeals
                        For the First Circuit

No. 20-1753

   COMMON CAUSE RHODE ISLAND; LEAGUE OF WOMEN VOTERS OF RHODE
      ISLAND; MIRANDA OAKLEY; BARBARA MONAHAN; MARY BAKER,

                        Plaintiffs, Appellees,

                                  v.

NELLIE GORBEA, in her official capacity as Secretary of State of
  Rhode Island; DIANE C. MEDEROS, in her official capacities as
     member of the Rhode Island Board of Elections; JENNIFER L.
     JOHNSON, in her official capacities as member of the Rhode
   Island Board of Elections; ISADORE S. RAMOS, in his official
   capacities as member of the Rhode Island Board of Elections;
  LOUIS A. DIMONE, JR., in his official capacities as member of
   the Rhode Island Board of Elections; WILLIAM E. WEST, in his
     official capacities as member of the Rhode Island Board of
    Elections; RICHARD H. PIERCE, in his official capacities as
 member of the Rhode Island Board of Elections; DAVID H. SOLES,
 in his official capacities as member of the Rhode Island Board
                            of Elections,

                        Defendants, Appellees,

REPUBLICAN NATIONAL COMMITTEE; REPUBLICAN PARTY OF RHODE ISLAND,

                         Movants, Appellants.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary S. McElroy, U.S. District Judge]


                                Before

                   Torruella, Thompson, and Kayatta,
                            Circuit Judges.
     Michael Courtney Keats, with whom Christopher H. Bell,
Nicholas Carre, Avani Uppalapati, Jonathan Diaz, Fried Frank
Harris Shriver & Jacobson LLP, Julie A. Ebenstein, Dale E. Ho,
American Civil Liberties Union Foundation, Inc., Lynette J.
Labinger, American Civil Liberties Union Foundation of Rhode
Island, Jonathan Diaz, Danielle Lang, Paul March Smith, and
Campaign Legal Center were on brief, for appellees Common Cause
Rhode Island, League of Women Voters of Rhode Island, Miranda
Oakley, Barbara Monahan, and Mary Baker.
     Angel Taveras, with whom Gustavo Ribeiro, Elliot H. Scherker,
and Greenberg Traurig LLP were on brief, for appellee Nellie M.
Gorbea.
     Raymond A. Marcaccio, with whom Oliverio & Marcaccio LLP was
on brief, for appellees Diane C. Mederos, Jennifer L. Johnson,
Isadore S. Ramos, Louis A. DeSimone, Jr., William E. West, Richard
H. Pierce, and David H. Sholes.
     Cameron Thomas Norris, with whom Thomas R. McCarthy, Patrick
N. Strawbridge, Consovoy McCarthy PLLC, Brandon S. Bell, Fontaine
Bell, Joseph S. Larisa, Jr. were on brief, for appellants
Republican National Committee and Republican Party of Rhode
Island.




                         August 7, 2020
            Per curiam.        In an action brought by Common Cause Rhode

Island, the League of Women Voters of Rhode Island, and three

individual Rhode Island voters against the Rhode Island Secretary

of State and members of its Board of Elections, the district court

denied a motion to intervene filed by the Republican National

Committee    and   the   Republican      Party    of    Rhode   Island   (jointly

referred to here as the "Republicans").                Following briefing and a

hearing   at   which     the    court   nevertheless      let   the   Republicans

participate more or less as if they had been allowed to intervene,

the court entered on July 30 a consent judgment and decree.

Effective for the September and November 2020 elections, the decree

suspended the state's requirements that a voter using a mail ballot

mark the ballot (and sign its envelope) in the presence of two

witnesses or a notary; and that the witnesses or notary, in turn,

sign the envelope, provide their addresses, and affirm in the space

provided that "Before me . . . personally appeared the above named

voter, to me known and known by me to be the person who affixed

his or her signature to this ballot envelope."               See R.I. Gen. Laws

§§   17-20-2.1(d)(1),          17-20-2.1(d)(4),    17-20-2.2(d)(1),       17-20-

2.2(d)(4), 17-20-21 and 17-20-23(c).

            The Republicans promptly appealed the denial of their

motion to intervene and the entry of the consent judgment and

decree.     They also filed a motion to intervene to appeal and to

stay the district court's judgment and decree pending a decision


                                        - 3 -
on the merits of the appeal.         After receiving expedited briefing

and hearing oral argument on the motion to intervene and stay, we

now reverse the denial of the motion to intervene for the purposes

of appeal only (we otherwise refrain from deciding the full scope

of   intervention   until    we    review    this   case   on   its   merits).

We deny the Republicans' motion to stay the judgment and decree

pending the outcome of the appeal.

             In reviewing a motion to stay a consent judgment and

decree pending appeal, we consider the following factors:                "(1)

[W]hether the stay applicant has made a strong showing that it is

likely to succeed on the merits, (2) whether the applicant will be

irreparably injured absent a stay, (3) whether [the] issuance of

the stay will substantially injure the other parties interested in

the proceeding, and (4) where the public interest lies."              Nken v.

Holder, 556 U.S. 418, 426 (2009) (quoting Hilton v. Braunskill,

481 U.S. 770, 776 (1987)).          The first two factors "are the most

critical."     Id. at 434.        "It is not enough that the chance of

success on the merits be better than negligible. . . . By the same

token, simply showing some possibility of irreparable injury fails

to satisfy the second factor."              Id. at 434–35 (citations and

internal quotation marks omitted).

             The parties agree that, at least in the first instance,

the likelihood of success turns in great part on whether enforcing

the two-witness or notary requirement in the midst of the pandemic


                                    - 4 -
is constitutional.    The First and Fourteenth Amendments prohibit

states from placing burdens on citizens' rights to vote that are

not   reasonably   justified     by   states'      "important     regulatory

interests."    Anderson v. Celebrezze, 460 U.S. 780, 788–89 (1983);

see also Burdick v. Takushi, 504 U.S. 428, 430 (1992) (ruling that

Hawaii's    prohibition   of   write-in   voting    did   not   unreasonably

burden Hawaii citizens' constitutional rights).                 So under the

Anderson-Burdick framework we weigh the "character and magnitude

of the asserted injury to" the voters' rights against the "precise

interests put forward by the State as justifications for the burden

imposed."     Anderson, 460 U.S. at 789.           We note as preliminary

matters first that the burdens imposed in this case may affect

more fundamental rights than those at issue in Anderson and Burdick

-- that is, they affect the voter's ability to actually cast a

ballot, not just the procedures for getting candidates on a ballot.

And second, unlike the process contemplated by the Court in

Anderson, we are unable to consider the "justifications put forward

by the State" here, as the "State" of Rhode Island has not objected

to the consent decree in any way.

            The burden imposed by these requirements in the midst of

a pandemic is significant.      First, many more voters are likely to

want to vote without going to the polls and will thus only vote if

they can vote by mail.     Second, many voters may be deterred by the

fear of contagion from interacting with witnesses or a notary.


                                  - 5 -
Could a determined and resourceful voter intent on voting manage

to work around these impediments?              Certainly.1        But it is also

certain that the burdens are much more unusual and substantial

than those that voters are generally expected to bear.                   Taking an

unusual and in fact unnecessary chance with your life is a heavy

burden to bear simply to vote.

            Turning    to    the   other    side    of   the     Anderson-Burdick

scales, we agree with the Republicans that, in the abstract, the

broader    regulatory       interest   --   preventing         voting   fraud   and

enhancing the perceived integrity of elections -- is substantial

and important.        But the incremental interest in the specific

regulation at issue (the two-witness or notary rule) is marginal

at best.    Only two other states have such a rule, and only a total

of twelve require even one witness.                 In the current COVID-19

pandemic, Rhode Island may be the lone state where the election

laws still facially require the voter to mark his or her ballot

(as well as sign the envelope) before two witnesses or a notary.

Cf. Ala. Code § 17-11-10(b); N.C. Gen. Stat. Ann. § 163-231(a)(1);

N.C. Session Law 2020-17 § 1.(a) (reducing North Carolina's two-

witness    requirement      to   one   witness     for   the    2020    elections).


     1 For example, counsel for the Republicans suggested at
argument that senior voters, facing a higher risk of COVID-19
complications, could ask food delivery drivers to act as witnesses.
Of course, this suggestion would require that another witness be
available simultaneously with the food delivery driver, and that
the food delivery driver be able to certify the voter's identity.


                                       - 6 -
Moreover, Rhode Island just successfully completed an election

without the two-witness or notary requirement in which over 150,000

mail-in ballots were requested and no evidence of fraud resulted,

much less material evidence of the type of fraud that could be

prevented by the two-witness or notary requirement in the first

place. So the state itself views the rule as -- at best -- required

in only some elections, with no coherent view (that we have heard)

about which elections those might be.        And Rhode Island officials

charged with the conduct of fair elections apparently view the

regulation's possible benefits as far outweighed by its burdens in

this unusual circumstance.       Indeed, no Rhode Island official has

stepped forward in these proceedings, even as amicus, to tout the

need for the rule.     This silence certainly does not mean that the

rule is not current Rhode Island law.        But it does fairly support

the view that the rule is not of great import for any particular

regulatory purpose in the eyes of Rhode Island officials and

lawmakers.

             The   Republicans   also     struggle    to   establish   any

significant likelihood of irreparable harm.          They claim that their

candidates may be the victims of fraudulent ballots.              This is

surely correct as a matter of theory.          But it is dubious as a

matter of fact and reality.      It is not as if no protections remain.

Rhode Island law provides for a local board of canvassers which

ensures that the signature on all mail ballot applications (which


                                  - 7 -
must be signed by the voter) matches the signature on the voter's

registration card.        R.I. Gen. Laws. § 17-20-10.             Once a voter

submits their ballot, the Board of Elections "[c]ompare[s] the

name, residence, and signature [on the ballot] with the name,

residence, and signature on the ballot application for mail ballots

and satisf[ies] itself that both signatures are identical."                   R.I.

Gen. Laws. § 17-20-26 (c)(2).2

           Given    the    Nken    standard,    and    given     the   deference

accorded   to   a   district       court's    exercise    of     its   equitable

discretion, Purcell v. Gonzalez, 549 U.S. 1, 5 (2006) (per curiam)

(explaining that it is "necessary, as a procedural matter, for the

Court of Appeals to give deference to the discretion of the

District   Court"),       the     foregoing    would     normally      doom    the

Republicans' motion for a stay.          The Supreme Court, however, has

offered a special caution about the perils of federal courts

changing the rules on the eve of an election.                  Republican Nat'l

Comm. v. Democratic Nat'l Comm., 140 S. Ct. 1205, 1207 (2020)

("This Court has repeatedly emphasized that lower federal courts

should ordinarily not alter the election rules on the eve of an


     2 The Republicans also argue that they will suffer irreparable
harm without a stay because allowing the elections to move forward
per the consent decree will effectively moot their challenge to
it. Without passing on whether this alleged harm is an appropriate
one    to    consider    for   the    purposes    of    irreparable
injury, see Providence Journal Co. v. F.B.I., 595 F.2d 889, 890
(1st Cir. 1979), we note that the appellees would face precisely
the same harm if we were to grant the stay.


                                     - 8 -
election."    (citing   Purcell,     549    U.S.    at    4–5   ("Court   orders

affecting elections, especially conflicting orders, can themselves

result in voter confusion and consequent incentive to remain away

from the polls."))).          Given those admonishments we would be

inclined to grant the stay requested -- especially as to the

September primaries -- but for two unique factors in this case.

             First,   even    in   the   wake      of    this   much-publicized

litigation, Rhode Island itself has voiced no concern at all that

the consent judgment and decree will create any problems for the

state or its voter. To the contrary, the elected constitutional

officers charged with ensuring free and fair elections favor the

consent judgment and decree and credibly explain how setting aside

the consent judgment and decree would confuse voters.               Nor has any

other Rhode Island government entity sought to intervene or make

its opinion known.      This fact materially distinguishes this case

from every other case the Republicans cite to illustrate the

"Purcell principle."         See Republican Nat'l Comm., 140 S. Ct. at

1205 (Wisconsin legislature joining with the Republican National

Committee to challenge the district court's order); Purcell, 549

U.S. at 2 (State of Arizona and four counties seeking relief from

a Ninth Circuit injunction); People First of Ala. v. Sec. of State

for Ala., 2020 WL 3478093, at *1 (11th Cir. June 25, 2020) (State

of Alabama and Alabama Secretary of State seeking stay of district

court injunction), rev'd 2020 WL 3604049, at *1 (U.S. July 2, 2020)


                                    - 9 -
(staying      the    district      court's      preliminary     injunction            pending

appeal); League of Women Voters of N.C. v. North Carolina, 769

F.3d 224, 248 (4th Cir. 2014) (ordering the district court to enter

a preliminary injunction challenged by the State of North Carolina

and members of its Board of Elections enjoining legislation setting

forth new voting rules), stayed at 574 U.S. 927 (2014); Ohio State

Conf. of N.A.A.C.P. v. Husted, 768 F.3d 524, 561 (6th Cir. 2014)

(affirming district court injunction enjoining the Ohio Secretary

of    State    from        preventing      individual       counties      from        setting

additional voting hours, challenged by Secretary of State and Ohio

Attorney General), stayed at 573 U.S. 988 (2014); Perry v. Perez,

835   F.   Supp.      2d    209    (W.D.    Tex.    2011)    (adopting         an     interim

redistricting plan against the objections of the state of Texas),

stayed at 565 U.S. 1090 (2011).

              Second, Rhode Island just conducted an election without

any attestation requirement, in which 150,000 mail-in ballots were

requested.      So the status quo (indeed the only experience) for

most recent voters is that no witnesses are required. Instructions

omitting the two-witness or notary requirement have been on the

state's    website         since   at   least      mid-July.       See        Rhode   Island

Department      of    State,       Vote    from     Home    with     a    Mail        Ballot,

https://vote.sos.ri.gov/Voter/VotebyMail.                      And       to    the     extent

certain voters expect the two-witness or notary requirement, we

cannot imagine that it will pose any difficulty not to have to


                                           - 10 -
comply with it.     For this reason, the consent judgment and decree

poses no conflict with the sort of expectations that concerned the

court in Purcell and no substantial specter of confusion that might

deter voters from voting.         To the contrary, in the absence of the

consent decree, it is likely that many voters will be surprised

when they receive ballots, and far fewer will vote.             Perhaps as a

result, the Republicans make no claim that the decree will cause

a decrease in election participation.

            Because of the unusual -- indeed in several instances

unique -- characteristics of this case, the Purcell concerns that

would    normally   support   a    stay    are   largely   inapplicable,   and

arguably militate against it.             Moreover, our reliance on Rhode

Island's passive reaction to the litigation precludes our holding

from being relied upon to open any floodgates.              To the contrary,

as experience shows, states will be quick to defend election laws

that they see as important and worth keeping, even when they might

burden voting.

            We have paid attention, too, to the possibility that

this litigation is collusive, with defendants having agreed to

judgment just days after the suit was filed.                A state official

unhappy with the lawful decisions of the state legislature should

not be able to round up an agreeable plaintiff who then uses

collusive litigation to "force" the state to do what the official

wants.    Here, though, all other representatives of Rhode Island's


                                    - 11 -
government have gone silent, voicing no objection at all to the

consent judgment and decree.       Furthermore, if state officials

fairly conclude, as credibly happened here, that enforcement of a

law is unconstitutional in certain circumstances, one can hardly

fault them for so acknowledging.     Indeed, the Secretary of State

and Board of Elections are obligated to enforce Rhode Island's

voting laws, provided those laws are not deemed unconstitutional.

R.I. const. art. III, § 3; R.I. const. art. IV, § 12. 17 R.I. Gen.

Laws §§ 17-7-4, 17-7-5.   Notice, too, was given to the attorney

general, who by law is obligated to act as legal advisor for all

state agencies and officers acting in their official capacity and

to defend them against suit, R.I. Gen. Laws § 42-9-6, and who

advised the defendants, herein, throughout the proceedings below.

And it would be odd indeed to say that a plaintiff cannot get

relief from an unconstitutional law merely because the state

official charged with enforcing the law agrees that its application

is unconstitutional.   Finally, there is no claim that the details

of the consent decree were not negotiated at arm's length.   All in

all, we see no collusion, and counsel for the Republicans expressly

so agreed at argument.

          Finally, as to the Republicans' status as intervenors in

this case, the district court's order denying intervention is

reversed in part, only for purposes of appeal, and the motion for

stay pending appeal is denied.


                               - 12 -
