Voting is an inviolable right, occupying a sacred place in the lives of those who fought to secure the right and in our democracy, because it is “preservative of all rights.”1 The parties do not dispute those fundamental truths. The parties’ dispute centers instead on whether three provisions of Alabama’s election laws—the requirement that a notary or two witnesses sign absentee ballot affidavits, the requirement that absentee voters submit a copy of their photo ID with an absentee ballot application, and the de facto ban on curbside voting2—violate the right to vote in light of the COVID-19 pandemic.
The plaintiffs assert that the defendants’ enforcement of the Challenged Provisions during the pandemic compels voters to risk exposure to COVID-19 in order to exercise their right to vote, leading to potentially deadly consequences for vulnerable voters whose age, race, disabilities, or health conditions place them at heightened risk from the virus. The plaintiffs contend that forcing voters to bear that risk runs afoul of their fundamental right to vote and violates federal law, and they seek an order barring the defendants from enforcing the Challenged Provisions for the general election in November. Without this relief, the plaintiffs believe voters will face an impossible choice between jeopardizing their health by engaging in person-to-person contact they would not otherwise have or sacrificing their right to vote during the COVID-19 pandemic.
Sotomayor wrote:
This stay application arises from the Alabama secretary of state’s decision to ban curbside voting despite the ongoing COVID–19 crisis and the willingness of certain Alabama counties to assist voters with disabilities. Following a lengthy trial and resting on an extensive record, the District Court found, among other things, that the secretary’s ban violates the Americans with Disabilities Act (ADA) by forcing voters with disabilities, for whom COVID–19 is disproportionately likely to be fatal, to risk unnecessary exposure to the virus if they wish to vote in person. The District Court enjoined the secretary’s ban, thus allowing counties that are ready to adopt curbside voting to do so.
She concluded:
The injunction lifts burdensome requirements rather than imposing them, and permits county officials to help educate voters about whether curbside voting is available in their county. Moreover, the injunction neither invalidates state law nor prohibits the secretary from issuing guidance consistent with the District Court’s ruling. Plaintiff Howard Porter, Jr., a Black man in his seventies with asthma and Parkinson’s Disease, told the District Court: “‘[S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time.’”
Election officials in at least Montgomery and Jefferson Counties agree. They are ready and willing to help vulnerable voters like Mr. Porter cast their ballots without unnecessarily risking infection from a deadly virus. This Court should not stand in their way. I respectfully dissent.
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Article I, Section 4 of the Constitution lays responsibility for organizing elections on the states. It provides:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
As is typical when it issues stay orders the Supreme Court majority does so without opinion. We learn therefore from the occasional dissenting opinion how the majority may have reached its conclusion. It may be inferred that the heart of the rationale is that a federal court should not intervene in state's management of its election procedures at a time close to the election. This is commonly called the Purcell principle.
One must ask - what are the interests that drive such a ruling? Is it the business of the United States courts to maximize or ease the path to voting? Or is the court properly limited by the Constitution to stand off? Is the convenience of persons with disabilities affecting ability to stand or walk a relevant consideration? If a state decides that assuring the security and reliability of the election is more important than easing the burdens of voting is there any ground for the federal government to intervene in such a judgment? Is there any relevance of the Fifteenth Amendment to analysis of the burdens of notarized ballots, and limiting the places and methods by which votes may be cast? The 15th Amendment provides "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." In the absence of proof of discriminatory intent does the Amendment count for anything? Should disparate impact be enough ground to act? Is the tortured history of Alabama's constitutional efforts to suppress the African American vote relevant?
Are the considerations different in immigration cases? In Wolf v. Cook County, Illinois the Supreme Court stayed an order - upheld by the 7th Circuit [over an Amy Coney Barrett dissent] which blocked enforcement of the public charge rule which bars from immigration anyone whom the government thinks may at some point claim public benefits such as for medicaid. Is deference to Executive branch policy choices an appropriate stance for a court to embrace?
In Wolf the court begins it's opinion by saying
Like most people, immigrants to the United States would like greater prosperity for themselves and their families. Nonetheless, it can take time to achieve the American Dream, and the path is not always smooth. Recognizing this, Congress has chosen to make immigrants eligible for various public benefits; state and local governments have done the same.
Is it improper for a court - perhaps out of personal sympathies - reject such a rule as inconsistent with the Asylum law, and a tradition of welcoming as refugees people suffering from climate disasters [Haiti], anti-semitism [Russian Jews], or dictatorship [Cuba]?
- GWC
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