On Wednesday, the court decided 5 to 3 in favor of Alabama banning curbside voting. The majority didn’t explain its reasoning, but the three liberal justices argued in a dissent that the other five failed to take into account that voting will inherently be different in a pandemic and that some people may not want to go directly into the voting booth (or may be unable to because of disabilities).
Voting rights advocates and Democrats are concerned, because they see a court willing to make it harder for people to vote, by following voting laws on the books pre-pandemic.
“I think the Supreme Court’s decisions raise serious concerns,” said Wendy Weiser of the Brennan Center for Justice, which is advocating for expanded mail voting during the pandemic.
Weiser was troubled with the Pennsylvania case, even though it technically favored voting rights advocates and Democrats, whose causes are often aligned on this issue. Four conservative justices signaled they agree with at least some of Republicans’ arguments that late-arriving ballots shouldn’t count. We don’t know what part they agreed with, since they didn’t explain their reasoning (nor did they have to in an emergency ruling, which is much more rushed than a regular one).
But one argument Republicans presented to the justices was that Election Day means Election Day, Weiser said. The justices being open to that argument could greatly narrow whose votes count in this election and future ones, including in two pending cases in major presidential swing states.
There are more than 20 states, including Pennsylvania, that are accepting late-arriving ballots in 2020. On Thursday, just days after the Pennsylvania ruling, Republicans in North Carolina asked the Supreme Court to weigh in on that state accepting ballots that arrive after Nov. 3. Any day now the court is expected to issue a decision in Wisconsin in part on whether to count late-arriving ballots.
Even if something doesn’t reach the Supreme Court, lower courts take their cues from these high-court rulings. One such case decided by the Supreme Court early this month in South Carolina had immediate ramifications across the rest of the country.
The court upheld a South Carolina law requiring absentee voters to get a witness’s signature, despite some lower courts agreeing with Democrats that a witness’s signature was an unnecessary burden in a pandemic.
Justice Brett M. Kavanaugh wrote that it was too close to an election to change the law that has been on the books since before the pandemic.
“I think the South Carolina case sent a strong signal that the easing of rules during the pandemic, if they’re opposed by the state, are likely to be rejected,” Rick Hasen, an election-law expert at the University of California at Irvine, told The Washington Post.
Weiser said that had an immediate effect on voting rights victories across the country. As advocates’ victories in Texas, Georgia, Ohio and Arizona got appealed to higher courts, those judges sided with Republicans by returning to the states’ original laws, arguing it was just too close to an election to change what the law says. (Though the “election date” is as fuzzy as ever this year — early-vote totals, 11 days before Election Day, have already surpassed the number of early votes cast in 2016.)
Also of note in that South Carolina witness case, four conservative justices said they would have been willing to rule in such a way that tens of thousands of South Carolina ballots submitted under the old rule — no witness requirement — would not have been counted.
The end result in South Carolina and lower-court rulings in other states is that the rules for how people vote were changed as people were voting.
In South Carolina, there was no witness requirement for the primary, and there wasn’t a witness requirement until two days after the court’s Oct. 5 ruling went into effect. It meant some ballots mailed out hours or a day earlier without a witness signature counted, while later ones didn’t.
All these cases are happening before the election and don’t necessarily tell us how the justices — including a more-conservative court with Judge Amy Coney Barrett’s likely confirmation next week — might rule on disputes about who won in certain states. But it does portend a court that, beyond 2020, is open to raising the bar for whose votes count, and that is more in line with Republicans’ philosophies than those of Democrats.