Tonight 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 Supreme 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.

Tonight’s order involved a dispute over the requirements for absentee voting in Alabama, where the July 14 primary election runoffs will determine the Republican candidate for the U.S. Senate, among other races. The Senate runoff pits former U.S. Attorney General Jeff Sessions against former Auburn University football coach Tommy Tuberville, who has been endorsed by President Donald Trump. The winner will face Sen. Doug Jones, a Democrat, in the general election in November.

Because of the COVID-19 pandemic, the state 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 light of the 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 state came to the Supreme Court, asking the justices to step in. The district court’s order, the state told the court, “rewrites Alabama’s election law by prohibiting election officials in three counties from enforcing modest anti-fraud requirements for absentee voting” and by requiring election officials to allow curbside voting, even though Alabama officials had “concluded that trying out a brand-new voting procedure during a pandemic would create more logistical and safety problems than it would fix and is likely unlawful in any event.” More broadly, the state added, the Supreme Court’s “precedent prohibits federal courts from changing the rules of an ongoing or rapidly approaching election.” Tonight the justices granted the state’s request in a brief, unsigned order.

In its request to stay the lower court’s order, the state warned the justices that “[l]ower courts across the nation are facing a flood of requests for, and appeals of, preliminary injunctions challenging States’ election laws in light of COVID-19.” 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.

This post was originally published at Howe on the Court.

Posted in Featured, Election litigation, Emergency appeals and applications

Recommended Citation: Amy Howe, Court grants Alabama’s request to block ruling on COVID-related accommodations for upcoming runoff election, SCOTUSblog (Jul. 2, 2020, 10:18 PM), https://www.scotusblog.com/2020/07/court-grants-alabamas-request-to-block-ruling-on-covid-related-accommodations-for-upcoming-runoff-election/