SCOTUS to Alabama: Skip the court-ordered curbside voting in the primary

In fact, pretty much skip everything lower courts told Alabama to do related to its upcoming primary in light of the COVID-19 pandemic, the Supreme Court ordered last night. On a stay issued with a relatively rare recorded vote, the justices blocked lower-court orders that would have forced Alabama to change its election rules with less than two weeks to go before the election. The terse order didn’t include the majority’s reasoning, but the precedent of Wisconsin earlier in this term with the same 5-4 split seems to be the likeliest explanation:


A sharply divided Supreme Court stepped in on Thursday night to block a judge’s order requiring Alabama to allow some curbside voting and lift absentee-ballot witness requirements for the Republican Senate primary runoff set to take place on July 14.

The justices voted, 5-4, along ideological lines to block the lower-court ruling, allowing Alabama to carry out the election under its usual rules. …

The Supreme Court’s ruling on Thursday in the Alabama case appeared to echo its decision on a 5-4 vote in April to overturn a federal judge’s order requiring Wisconsin officials to count primary ballots received after Election Day.

In that case, the court’s majority declared: “This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

Alabama, the Washington Post noted, has perhaps the most stringent requirements for absentee balloting. The state explicitly forbids curbside pickup, for one thing, but also requires witnesses to sign the ballots and photocopies of IDs to accompany them. The NAACP sued to lift those restrictions, claiming that they created “nearly insurmountable obstacles” to voting by mail during the pandemic, and some derisive comments by Alabama’s secretary of state didn’t help matters much either:

A district judge in the state last month loosened the state’s strict requirements for casting a mail-in ballot in three counties where plaintiffs lived, including two that contain the state’s largest cities, Birmingham and Mobile. He also lifted the state’s ban on counties offering curbside ballot pickup, although he did not mandate they offer it.

“The court finds that the burdens imposed by the challenged election laws on voters at high risk of severe complications or death from COVID-19 are not justified by the state’s interests in enforcing the laws,” wrote Judge Abdul K. Kallon. …

The state said it was not a great obstacle even for someone who has self-quarantined to ask masked neighbors to witness the application. But the courts in their orders mentioned dismissive comments of Secretary of State John H. Merrill when he was asked by a voter on social media how to comply with the photo ID requirement.

“When I come to your house and show you how to use your printer I can also show you how to tie your shoes and to tie your tie,” Merrill said. “I could also go with you to Walmart or Kinko’s and make sure that you know how to get a copy of your ID made while you’re buying cigarettes or alcohol.”


That didn’t impress the district or appellate court, but it didn’t matter much to the Supreme Court — nor should it. Merrill’s statement may have been impolitic but it was also largely correct. People never have been completely locked down, and now states are reopening on a broad scale. There has always been access to places with photocopiers, and to post offices and mailboxes too for that matter. This primary isn’t different in those regards than any other, although the witnessing requirement might need a little more forethought and care than usual.

If this set of restrictions are too tight, that’s a matter for the state legislature, not the courts, and the time to address it is well before an election. This is even less urgent than in Wisconsin, when the court slapped down an order by a district judge changing election rules in the first week of April. That actually took place at the apex of shutdown restrictions, when government action really did throw up extraordinary obstacles to voting. The issue in Alabama was nowhere near as acute as it was in Wisconsin at that time, so an order telling lower courts to obey precedents is hardly surprising now.

Expect to hear lots and lots of hue and cry over “vote suppression,” but stare decisis was popular enough last week. Don’t expect it to be as popular today.

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