On Thursday, March 12, the Supreme Court announced that because of covid-19 it would close its doors to the public “until further notice,” out of concern for the health and safety of both the public and Supreme Court employees. Scheduled sittings of the Court in March and April were cancelled. In May, oral arguments in 10 cases were heard by telephone instead of in the Court’s majestic courtroom; oral arguments in the rest of the 2019 Term’s open docket were re-scheduled for the fall. Opinions in decided cases were released by the Court’s clerk without the usual oral commentaries provided by the Justices themselves in open court. Especially for a very traditionally oriented institution, these accommodations because of coronavirus risks could be described as nothing short of momentous.
Likewise, because of widespread health concerns, lower federal courts around the country began to fashion various accommodations modifying normal state election procedures because of the negative impact those procedures would have on the election process given the pandemic. However, in a series of recent emergency orders, a slim majority of the Court has rejected these election-related accommodations, ostensibly on the grounds that federal courts should not “ordinarily” alter the rules close to an election. In the cases where the votes of individual Justices have been announced, the five votes to reject these accommodations have been by the four more conservative Justices on the Court — Thomas, Alito, Gorsuch, and Kavanaugh — joined by Chief Justice Roberts.
The first of these cases involved a Wisconsin election scheduled for Tuesday, April 7. In the weeks leading up to the election, the covid–19 pandemic had become a public health crisis. On March 24, the governor ordered Wisconsinites to stay at home until April 24 to slow the spread of the disease. Because gathering at the polling place posed obvious health risks, an unprecedented number of Wisconsin voters — with the encouragement of public officials — turned to voting by absentee ballot. The surge of absentee ballot requests heavily burdened election officials, resulting in a severe backlog of ballots requested but not promptly mailed to voters.
Several weeks before the scheduled vote, a group of individual Wisconsin voters, community organizations, and the state and national Democratic parties filed lawsuits seeking several forms of relief, all aimed at easing the effects of the covid–19 pandemic on the upcoming election. The state and national Republican parties intervened in opposition. On April 2, the District Court ruled that the existing deadlines for absentee voting would unconstitutionally burden the right to vote. The deadline for election officials to receive completed absentee ballots was extended from 8 p.m. on election day, April 7, to 4 p.m. on April 13, regardless of the postmark date. The District Court also ruled that no reports of polling results could be released before the new absentee-voting deadline. On appeal by the Republican parties, the Seventh Circuit Court of Appeals upheld the extended absentee-ballot deadline.
The Republican parties then sought emergency relief in the Supreme Court and, the day before the election, the Court by a 5-4 vote determined that only ballots postmarked by election day could be counted. In an unsigned opinion, the majority determined that lower federal courts should “ordinarily” not alter the election rules on the eve of an election. Justice Ginsberg dissented, joined by Justices Breyer, Sotomayor and Kagan. For the dissenters, the question was whether tens of thousands of Wisconsin citizens could safely vote in the midst of a pandemic. “Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they 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.”
Republican National Committee v. Democratic National Committee
(April 6, 2020).
Similar results occurred in several later cases, all following a similar pattern.
Merrill, AL Sec. of State v People First of Alabama
(July 2, 2020): The Supreme Court rejected a lower court ruling that would make it easier for voters in the state to cast absentee ballots in the primary election runoff.
Bradley Little, Governor of Idaho v. Reclaim Idaho
(July 30, 2020): The Supreme Court overturned a lower court ruling to extend the deadline for accepting ballot-initiative signatures and permitting digital collection of signatures.
Clarno, OR Sec. of State v. People Not Politicians
(August 11, 2020): The Supreme Court denied the state’s request to relax requirements for placing a proposed amendment to the state’s constitution on the ballot in the November election.
Most recently, in the only one of this series of emergency orders to uphold a lower court order, the justices rejected a request by the Republican National Committee and Rhode Island Republicans to freeze a lower-court order. The order approved an agreement between state election officials and civic groups waiving a requirement that absentee ballots be signed in the presence of either two witnesses or a notary. A one-paragraph, unsigned order explained that “unlike in other recent election-law cases here the state election officials support the challenged decree.“ Three Justices – Thomas, Alito, and Gorsuch – indicated that they would have granted the Republicans’ request.
Republican Nat. Committee v. Common Cause RI
(August 13, 2020).
Collectively, these cases display a slim majority of the Court unwilling to accept changes in state election procedures born out of covid-19 concerns endorsed by lower federal courts. The sole exception to date appears only when state election officials themselves buy on to the proposed modifications, a probably unique circumstance. These are hardly “ordinary” times, and the conservative hostility to these kinds of accommodations is ironic in light of the health risks the Court acknowledged with respect to its own internal operations.
John Christie
was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.