Charlie Buttrey

July 6, 2020

I suspect that the 2020 election will be decided not so much by which candidates get the most votes but, rather, by how many voters candidates can stop from voting.

It may get ugly.

On Friday, a divided Supreme Court granted a request by Alabama to temporarily freeze a lower-court ruling, issued as a result of the COVID-19 pandemic, that would make it easier for voters in the state to cast absentee ballots in the state’s upcoming primary election runoff, which is scheduled for July 14. By a vote of 5-4, the justices put the order by a federal district court in Alabama on hold while the state appeals to the U.S. Court of Appeals for the 11th Circuit and, if necessary, the Supreme Court. The court’s four more liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – indicated that they would have allowed the balloting accommodations to remain in place.

The ruling comes six days after the Court turned down a request from the Texas Democratic Party to temporarily reinstate a lower-court ruling that would have allowed all voters in the state to vote by mail without an excuse because of the COVID-19 pandemic. It also comes on the same day that the justices denied the Texas Democrats’ request to fast-track their petition for review of their claims, an order that all but eliminated the prospect that the justices will weigh in on the merits of that dispute before the 2020 election in November.

In view of the pandemic, Alabama is allowing all registered voters to cast absentee ballots in the runoff, which was moved to July from its originally scheduled date of March 31. But several Alabama voters who are at high risk of serious illness if they are exposed to COVID-19, as well as three groups with high-risk members, filed a lawsuit in federal district court challenging provisions in state election law that, they argued, “pose severe obstacles to voting” in these times of  pandemic. The district court agreed and, on June 15, entered an injunction that barred election officials in three counties from requiring high-risk voters to have their absentee ballot envelopes witnessed or notarized and to mail in a copy of their photo ID. The district court also blocked the state from enforcing a ban on curbside voting, although it did not require curbside voting.

After the 11th Circuit declined to put the district court’s order on hold, the Supreme Court granted the request in a brief, unsigned, order. At the beginning of April, the court – also divided 5-4 – blocked a lower-court order that had extended the deadline for absentee ballots for Wisconsin’s primary election. In an unsigned opinion, the majority reiterated that “lower federal courts should not ordinarily alter the election rules on the eve of an election.” Although the justices did not explain their ruling tonight, the same principle likely was persuasive for the majority – and may well play a key role in future COVID-related election cases that come to the court.

© 2020 Charlie Buttrey Law by Nomad Communications