CNN reported last week that the Supreme Court, without opinion or explanation, granted a request by Alabama to prevent voters from dropping off their ballots by handing them to an election official at the curbside. https://cnn.it/3osEjJB The decision in an unsigned 5-3 order, to which Justices Sotomayor, Kagan and Breyer dissented, addressed a permissive ruling by a federal District Court judge permitting, but not requiring, willing Alabama counties to allow curbside voting, as they have done in prior elections in 2016 and 2018. The District Court judge’s opinion was upheld by the United States Court of Appeals for the 11th Circuit in Atlanta.
The District Court judge reached the following conclusions issued in conjunction with a lengthy set of Findings of Fact & Conclusions of Law:
1. As applied during the COVID-19 pandemic to voters who are particularly susceptible to COVID-19, the requirement under Ala. Code §§ 17-11-7, 17-11-9, and 17-11-10 that absentee ballot affidavits be witnessed and signed by a notary public or two adult witnesses violates the First and Fourteenth Amendments.
- As applied during the COVID-19 pandemic to voters who are particularly susceptible to COVID-19 complications because they are either age 65 or older or disabled or have underlying medical conditions that make them susceptible to COVID-19 complications, the requirement under Ala. Code §§ 17-9-30(b), (d), and 17-11-9 that absentee voters provide a copy of their photo identification with their absentee ballot applications violates the First and Fourteenth Amendments.
- As applied during the COVID-19 pandemic to voters who are particularly susceptible to COVID-19 complications, the curbside voting ban violates the First and Fourteenth Amendments.
- As applied during the COVID-19 pandemic to voters with disabilities who cannot safely obtain a copy of their photo ID, the requirement under Ala. Code §§ 17-9-30(b), (d), and 17-11-9 that absentee voters provide a copy of their photo identification with their absentee ballot applications violates the ADA.
- As applied during the COVID-19 pandemic to voters with disabilities, the curbside voting ban violates the ADA.
- As applied during the COVID-19 pandemic, the requirement under Ala. Code §§ 17-11-7, 17-11-9, and 17-11-10 that absentee ballot affidavits be witnessed and signed by a notary public or two adult witnesses violates the Voting Rights Act.”
For the highly determined, the court papers may be read at: https://bit.ly/3opiLgI
The Court of Appeals reversed all of the District Court’s conclusions except for the curbside voting issue.
In a classic Trump Republican fashion, Alabama Attorney General Steve Marshall argued that “Some level of risk is inherent in life and in voting.” Stated differently, if voting in person ends up killing you (there are no mask requirements in Alabama), well, that’s life. The Alabama Secretary of State had earlier expressed concern about the security of ballots because voters “wouldn’t be able to physically put their ballot into the machines that read the ballot since they’re held indoors.” Apparently, the Alabama Secretary of State does not trust the poll workers that the counties employ for the purpose of assisting voters.
Justice Sotomayor’s dissent said, in part, “We should not substitute the District Court’s reasonable, record-based findings of fact with our own intuitions about the risks of traditional in-person voting during this pandemic or the ability of willing local officials to implement adequate curbside voting procedures.”
The Supreme Court’s decision is remarkable insofar as it permits a state to disallow voting practices that, at least in a pandemic, could reduce vulnerable voters’ exposure to sometimes deadly health risks, especially for older and health-vulnerable voters. The ultimate rationale for the state’s inexplicable overturning of prior practice was the Republican Attorney General’s view, in effect, that “life’s a bitch and then you die, so who cares?”
In truth, the state position is a form of voter suppression directed at a segment of the population more-likely-than-not to vote Democratic. These types of decisions, especially unexplained, are particularly problematic when considered against the anti-democratic decision of the Supreme Court in the landmark Shelby County v. Holder, 570 U.S. 529 (2013) that gutted the pre-clearance requirements of the Voting Rights Act of 1965. Those provisions compelled certain states to seek prior approval of the Justice Department for any new election or voting laws, because of those states’ prior history of voter suppression.
Shelby County involved one of the worst examples of judicial legislating ever seen, as evidenced by Chief Justice John Roberts’ explanation of the decision:
A statute’s “current burdens” must be justified by “current needs,” and any “disparate geographic coverage” must be “sufficiently related to the problem that it targets.” The coverage formula met that test in 1965, but no longer does so.
Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.
As reported in The Atlantic, https://bit.ly/34uqn9C,
The results have been predictable. Voter-identification laws, which experts suggest will make voting harder especially for poor people, people of color, and elderly people, have advanced in several states, and some voting laws that make it easier to register and cast ballots have been destroyed. For many of the jurisdictions formerly under preclearance, voting became rapidly more difficult after the Shelby County decision, particularly for poor and elderly black people and Latinos.
Decisions like the Alabama curbside voting case are the predictable consequence of the Supreme Court’s conservative majority inserting its judgment, without explanation, where only the legislature should go. At the risk of repetition, the current decision affirms the elimination, for partisan political purposes, of a health-based practice that was permitted in two prior elections.
This is what we have to look forward too as the Republican majority of Trump enablers in the Senate affirms yet another right-wing judge to the high court this very day. I don’t know what the solution to the Supreme Court dilemma is, but Joe Biden’s thoughtful and measured approach seems the right way to move forward, provided his commission acts swiftly. The issue has been exhaustively analyzed by many constitutional scholars so we’re not going into new territory here. The composition of the Court has changed before and the nation survived. It’s less clear today that the Republican approach to governance is survivable by anything resembling a democratic republic. Time is therefore of the essence once the Democrats take control of the government in January.