Conservative Supreme Court justices could complicate voter protection efforts in 2020

The right to vote is protected by the United States Constitution. Safeguarding it in the midst of a pandemic poses countless difficult challenges.

It is easy to imagine many requests to the courts to take action to protect the ability of people to vote without putting their health in danger. There will be issues of ensuring the availability and counting of absentee ballots, the location and availability of polling places and much more. But the five conservative Supreme Court justices have strongly indicated that the solutions are not to come from the federal courts, notwithstanding the Constitution’s protection of voting as a fundamental right.

This was initially apparent on April 6, 2020, in Republican National Committee v. Democratic National Committee. The Wisconsin primary was to be held on Tuesday, April 7. Under Wisconsin law, an absentee ballot had to be received by April 7 in order to be counted. But, understandably, many more absentee ballots were requested than ever before. Many had not been delivered and were unlikely to be received and sent back in time for the deadline.

Five days before the scheduled election, the federal district court ordered that absentee ballots be counted so long as they had been returned by April 13. But the Supreme Court in a 5-4 decision stayed this order. The opinion was on behalf of Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh. The Court said this extension “fundamentally alters the nature of the election.” The court, citing Purcell v. Gonzalez, said, “This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

Purcell v. Gonzalez, in 2006, involved a preliminary injunction order from the United States Court of Appeals for the Ninth Circuit, two weeks before an election, to halt a requirement for photo identification for voting. The Supreme Court said: “Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules.”

Opinion

This is now referred to as the “Purcell principle” that federal courts should not alter the rules of the election soon before it is to occur. The court never has explained the basis for this rule or why judicial non-interference is more important than judicial protection of the right to vote.

Justice Ginsburg, writing for the four dissenters in the Wisconsin case, strongly objected: “Either (voters) will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance — to the constitutional rights of Wisconsin’s citizens, the integrity of the state’s election process, and in this most extraordinary time, the health of the nation.”

In other cases, too, the Supreme Court has kept lower federal courts from protecting the right to vote. On June 26, 2020, in Texas Democratic Party v. Abbott, the Supreme Court again stayed a district court ruling that sought to protect the right to vote. Texas law allows only those over 65 to automatically receive an absentee ballot; all others must provide a reason why they cannot go to the polls. The federal district court, to protect the right to vote, ordered that Texas provide an absentee ballot to all who request it in light of the COVID-19 pandemic. The Supreme Court, 5-4, kept this order from going into effect.

In Merrill v. People First of Alabama, on July 2, 2020, the Supreme Court again stayed a federal district court order making it easier for people to vote absentee. Alabama changed its rules for its primary election to allow anyone to vote absentee. But it required that individuals have their absentee ballot envelopes witnessed or notarized and to mail in a copy of their photo ID. A federal district court enjoined this and the federal court of appeals declined to stay this order. But the Supreme Court, 5-4, stopped this from going into effect.

What are the lessons to be drawn from all of these rulings? The five conservative justices — Roberts, Thomas, Alito, Gorsuch and Kavanaugh — strongly disfavor judicial action to protect the right to vote that changes rules for an election. They are unpersuaded that protecting the right to vote in a pandemic justifies judicial action. The four liberal justices — Ginsburg, Breyer, Sotomayor and Kagan — are willing to uphold district court orders to protect the ability of people to vote without endangering their health.

It should be the role of the federal courts and the Supreme Court to protect the right to vote. Whether they will do so could be enormously important in November and even decide the election.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.