The vote was 5 to 3, with the court’s liberals dissenting.
“We should not substitute the district court’s reasonable, record-based findings of fact with our own intuitions about the risks of traditional in-person voting during this pandemic or the ability of willing local officials to implement adequate curbside voting procedures,” wrote Justice Sonia Sotomayor, who was joined by Justices Stephen G. Breyer and Elena Kagan.
The majority that granted the stay did not explain its reasoning, which is common in emergency actions.
The Supreme Court has not met in person since March because of the pandemic. But in this election year, the justices have found themselves refereeing a number of coronavirus-related legal battles over election procedures, and there are more to come. Earlier this week, an evenly divided court left in place a Pennsylvania Supreme Court ruling that extended the time for counting mail-in ballots because of the surge in voters who want to vote remotely.
In Alabama, a U.S. district judge had said there was nothing in state law that restricts local jurisdictions from offering the curbside accommodation and approved it along with other coronavirus provisions. A panel of the U.S. Court of Appeals for the 11th Circuit put most of the judge’s order on hold but not the provision on curbside voting.
Alabama Secretary of State John H. Merrill (R) said that was a mistake. In July, in advance of the state’s primary, the Supreme Court said the state did not have to loosen any of its restrictions, which also involved a photo ID requirement for absentee voting and a witness requirement for such ballots.
“Secretary Merrill has concluded that offering curbside voting would not comport with state law,” Alabama Attorney General Steve Marshall (R) said in a petition to the Supreme Court. “In addition, the Secretary determined that curbside voting would conflict with other state election laws that protect ballot secrecy and require the voter to personally sign the poll list and place the ballot in the tabulation machine.”
But the plaintiffs — at-risk voters, those with disabilities, and a coalition of civil rights groups — said there was good reason the appeals court left the curbside voting accommodation as an option.
Merrill’s prohibition is “found nowhere in state law,” according to a brief filed by the NAACP Legal Defense and Educational Fund. “The injunction does not require applicants to provide curbside voting; it merely lifts a legally unfounded, unilaterally imposed prohibition, and thereby allows those counties that are able and willing to provide curbside voting to do so.”
Some of the counties surrounding the state’s largest jurisdictions provided curbside voting in 2016 and 2018 “without any evidence of voter confusion,” the groups said.
In previous cases, the Supreme Court has been resistant to federal judges intervening in election decisions to compensate for the dangers and complications brought on by the pandemic.
Sotomayor wrote that Merrill “does not meaningfully dispute that the plaintiffs have disabilities, that COVID-19 is disproportionately likely to be fatal to these plaintiffs, and that traditional in-person voting will meaningfully increase their risk of exposure.”
She noted that one of the plaintiffs is Howard Porter Jr., a Black man in his 70s with asthma and Parkinson’s disease. He told the district judge: “So many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that — we’re past that time.”
She said some local jurisdictions were willing to make accommodations for voters such as Porter. “This court should not stand in their way,” she wrote.
The case is Merrill v. People First of Alabama.