Wednesday, October 26, 2022
Arizona GOP Chair Kelli Ward filed an Emergency Application for Stay with Justice Kagan (as Ninth Circuit Justice), seeking to halt a subpoena by the January 6 Commission for her cell-phone records.
UPDATE: Justice Kagan issued a stay and ordered the Committee to respond by Friday.
After the Committee subpoenaed Ward's cell-phone provider, Ward filed for an injunction. The district court dismissed her case, and rejected her motion for an injunction pending appeal. A divided panel of the Ninth Circuit affirmed. The two rulings meant that Ward's cell-phone provider would have to comply with the subpoena pending her appeal on the merits.
Ward argued that the subpoena violates her First Amendment associational rights. Here's what the district court said about that, in its denial of Ward's motion for an injunction pending appeal:
[T]he Court finds Plaintiffs have not presented a serious legal question regarding the merits of Plaintiffs' First Amendment claims. Although Plaintiffs discuss at length the application of the exacting scrutiny standard in their briefing and how this case mirrors Republican National Committee v. Pelosi, the Court already found Plaintiffs failed to raise a viable First Amendment claim because of the speculative nature of their alleged harm. Indeed, the Court noted that Plaintiffs "provided no evidence to support their contention that producing the phone numbers associated with this account will chill the associational rights of Plaintffs or the Arizona GOP" and that "'absent objective and articulable facts' otherwise, the Court finds Plaintiffs' arguments constitute 'a subjective fear of future reprisal' that the Ninth Circuit has held as insufficient to show an infringement of associational rights."
Ward contends that the lower courts didn't properly account for Americans for Prosperity v. Bonta. (Bonta struck a state law requiring charitable organizations to disclose their "major donors.") In short, she says that under Bonta, disclosure requirements are subject to heightened scrutiny even if a plaintiff demonstrates no burden. According to Ward, that means that a majority of justices would likely vote to reverse the lower courts. And she says that she meets the other requirements for emergency relief, too.
Justice Kagan could order the Committee to respond, and she could rule on the motion herself, or she could refer it to the entire Court. A ruling could come sooner, or later.