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The United States Supreme Court is avoiding getting involved in key voting cases in 2020, raising concerns that it will continue to sit on the sidelines as Election Day approaches this November. NPR’s Nina Totenberg has more:
Voting rights advocates are batting 0-4 at the U.S. Supreme Court so far this year.
A record number of election-related lawsuits are piling up in courts around the country as concerns mount about the safety of voting in person because of the coronavirus and the availability and reliability of voting by mail. With a pandemic raging and uncertainty brewing, some fear the Supreme Court’s chilly attitude toward election lawsuits may add yet another obstacle to a free and fair election in November.
The Court declined to change voting rules in the face of the coronavirus in a key case from Wisconsin in April:
The court’s most visible decision on voting this year came in April, when, on the eve of the Wisconsin primary election, the five conservative justices voted to reverse a federal judge’s order to expand the state’s window for receiving absentee ballots.
That lawsuit was brought in response to the coronavirus pandemic, as voters fearful of voting in person unleashed an “avalanche of absentee ballots,” in the words of the federal judge, that threatened to overwhelm the state’s election system. Thanks to the Supreme Court’s decision, thousands of ballots were thrown out for arriving too late.
Justice Ruth Bader Ginsburg dissented forcefully in that case and was joined by her liberal colleagues. She wrote that the court’s decision “boggles the mind” as “a voter cannot deliver … a ballot she has not yet received. Yet tens of thousands of voters who timely requested absentee ballots” were asked to do just that.
That reticence has continued regarding cases seeking to expand vote-by-mail in the face of the pandemic:
The Supreme Court also demurred in two other pandemic-related election cases ahead of primary elections.
In June, the court rejected a bid by the Texas Democratic Party to remove some barriers to absentee voting, particularly for voters under 65.
Earlier this month, the court refused to make it easier for voters in three Alabama counties to use absentee ballots, keeping in place a requirement that voters submit an affidavit signed by a notary public or two adult witnesses. That decision blocked an opinion out of the normally conservative 11th Circuit Court of Appeals allowing relief to go forward.
Most recently, the Court let stand a Florida ruling extending state-enacted restrictions on voting for people with former felony convictions:
Last week, in a case from Florida, the justices preserved a last-minute order by the 11th Circuit that will bar hundreds of thousands of formerly incarcerated people from voting in the Aug. 18 primary and possibly the November general election as well. That litigation, unlike those involving the pandemic, involves a 2018 constitutional referendum to expand voting rights and the GOP-controlled state government’s efforts to circumvent it.
Justice Sonia Sotomayor, joined by Ginsburg and Justice Elena Kagan, accused the court of a “trend of condoning disenfranchisement.”
Some advocates see partisan overtones in the trend:
With the exception of the Texas vote, which had no noted dissents, the decisions in these election cases fell largely along partisan lines with the court’s five conservative and Republican appointees voting to deny relief that would make it easier to vote and most or all of the court’s liberal and Democratic appointees noting their dissent.
“We know that we’re always in an uphill fight in the Roberts court when we’re fighting for voting rights,” says Dale Ho, director of the Voting Rights Project at the ACLU. But because of the “emergency posture that we’re going to be in between now and November … however steep our hill is in normal circumstances, it’s only going to be steeper.”
A big issue is whether or not the Court should intervene in cases arising close to election – an approach that divides observers:
Looming over these recent decisions is a Supreme Court precedent dating back to 2006, Roberts’ first year as chief justice. That decision said that federal courts should be wary of intervening in elections at the last minute because, the court said, disturbing the status quo can lead to confusion among voters that may deter them from turning out.
That decision, unsigned but likely written by Roberts, amounted to just five pages and garnered no noted dissents. Initially, it was quite limited but appears to have been greatly expanded, especially by the court’s conservatives, to be far more wide-ranging.
“The reluctance of the court to do anything does make some sense,” says John Fortier, the director of governmental studies at the Bipartisan Policy Institute. “Last minute changes close to the deadline … really do risk the possibility of making an election hard to run or messy or calling into doubt … the outcome.”
Danielle Lang, co-director for Voting Rights and Redistricting at the progressive Campaign Legal Center, says she agrees that in theory, refraining from disrupting elections at the last second is an “unremarkable” principle. But, in practice, it has become a “magic word … to get to a preferred outcome in election law cases,” she says.
Thus, in Wisconsin, the court said, it was too late to change election rules. But in the Florida case, the court allowed the circuit court to upset the legal status quo, creating confusion about who was eligible to vote.
That seemingly selective application of an otherwise uncontroversial principle has advocates like Lang worried, especially because the court seldom explains its reasoning very thoroughly in emergency decisions like these; instead, if there is any explanation at all, it is usually in a brief, unsigned opinion.
“We need to get back to first principles” by also considering whether court orders create or alleviate voter uncertainty “rather than just narrowly looking at how many days before an election we’re at,” says Lang.
Moreover, as Lang and other voting rights advocates point out, the first pandemic in a century is a natural and obvious exception to the general principle that courts shouldn’t intervene close to Election Day. “We are facing kind of unprecedented uncertainty in our country.” she says. “The court will have to grapple more with how to make sure that voters have confidence in the election come November.”
As always, the courts, especially the Supreme Court, will play a crucial role this fall – with Election Day just 99 days away. Advocates on both sides will be watching closely to see if the Court’s stance continues, which could have a significant impact on the “rules of the road” for voting this fall, Stay tuned …