Supreme Court in Unsigned Order on 5-3 Vote Reinstates Alabama Ban on Curbside Voting; Justice Sotomayor Writes Dissent for Three Liberal Justices; What It Means | Election Law Blog

Order and dissent: Merrill, Secretary of State v. People First of Alabama  

Breaking: Supreme Court in Unsigned Order on 5-3 Vote Reinstates Alabama Ban on Curbside Voting; Justice Sotomayor Writes Dissent for Three Liberal Justices; What It Means | Election Law Blog

By Rick Hasen (UC Irvine) October 21, 2020)

I am not at all surprised by this ruling, even though I agree 100% with Justice Sotomayor’s disssent. If you look at the two main statements of the Court in these emergency covid election cases, from Wisconsin and South Carolina, it is clear that the conservative Justices believe that it is up to states, rather than federal courts, to decide how to best balance health concerns related to voting during the pandemic with burdens on voting rights. These Justices also seem to have adopted a strong view of the Purcell Principle against changes in voting rules by federal courts close to the election. (Chief Justice Roberts, who was in the majority in both of those cases and the Pennsylvania state case seems to believe in great deference to states—even state courts—in deciding how to balance these health and safety concerns.)

This would seem to bode poorly for the attempts by Democrats and voting rights groups petitioning the Supreme Court to reinstate the extension of voting deadlines in Wisconsin, which a district court had granted and the 7th Circuit had reversed, citing the Supreme Court precedents. Any more federally ordered voting changes that make their way to the Supreme Court before the election face a steep uphill climb.

The liberals, as expressed in the Wisconsin dissent by Justice Ginsburg and the Sotomayor dissent today would, as I believe they should, put a thumb on the scale favoring voting rights during the pandemic. It is quite clear that the right to vote is too weakly protected in the U.S. even during the pandemic.

Sotomayor concludes:

The District Court’s modest injunction is a reasonable accommodation, given the short time before the election. It does not require all counties to adopt curbside voting; it simply gives prepared counties the option to do so. This remedy respects both the right of voters with disabilities to vote safely and the State’s interest in orderly elections. The District Court’s compromise likewise does not risk creating “voter confusion and consequent incentive to remain away from the polls.” Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam).