Supreme Court Blocks Judge-Imposed Drive-up Voting in Alabama Runoff

Those who wish to vote for Tommy Tuberville or Jeff Sessions will have to walk to the mailbox.

POLITICO (“Supreme Court blocks judge’s order loosening Alabama voting requirements due to virus“):

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.

None of the justices issued any statement explaining the decision, so its import for future court rulings on judicially mandated voting changes because of the dangers of the coronavirus is murky.

Experts said the most likely explanation was a 2006 Supreme Court precedent viewed as discouraging late changes to voting procedures because of the possibility for voter confusion.

It’s also possible the ruling could signal a hostility from the high court’s Republican-appointed majority to any judge-ordered changes due to Covid-19. However, it’s not clear that all of those five justices would go that far, and a defection by any one of them might tip the balance of the court in favor of allowing such changes when an election is further away.

“Supreme Court majority is not siding with voters, even during (especially during) a pandemic. This is a big deal,” Rick Hasen, a University of California law professor, wrote on Twitter.

Absent written opinions—which is standard in these emergency appeals—we’re free to make up our own rationales for why Justices voted as they did.

The usual concerns about voter suppression are absent in this particular case, in that there’s no reason to think one side of a run-off in a Republican Senate primary run-off will be disadvantaged.

Still, the ruling echoes one we discussed here in April:

Acting on a lawsuit filed by civil rights groups citing coronavirus dangers, Birmingham-based U.S. District Court Judge Abdul Kallon issued an order on June 15 lifting what the groups said was in practice a statewide ban on curbside voting at polling places. The Obama-appointed judge said he’d permit willing counties to allow drive-up voting, but he stopped short of requiring such an accommodation.

Because of the virus, Alabama officials are allowing any registered voter to cast an absentee ballot in the upcoming election without having to cite a valid reason. Absentee voters are also required by state law to submit a copy of a photo ID and to have their ballots signed off by two witnesses or a notary public, but Kallon set aside those requirements in the three counties that were the focus of the lawsuit.

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.”

It will not surprise regular readers that I agree with that principle. It’s up to elected officials, usually state legislatures, to create the rules under which our elections are held. Judges should intervene only when there is clear violation of the state or federal constitution or other state or federal law.

Obviously, a global pandemic is not an “ordinary” case. Still, the Alabama legislature has had plenty of time to come up with new rules. Indeed, they approved open-ended absentee voting in direct response to the crisis.

I see no reason why “drive-up voting” is required, much less why a judge should be allowed to impose it.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Just nutha ignint cracker says:

    The Obama-appointed judge said he’d permit willing counties to allow drive-up voting, but he stopped short of requiring such an accommodation. [emphasis added]

    I see no reason why “drive-up voting” is required, much less why a judge should be allowed to impose it. [emphasis added]

    Ruling and the interpretation seem different to me.

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  2. James Joyner says:

    @Just nutha ignint cracker: Yes, fair. But the judge is still allowing local officials to change the rules. The Supreme Court agreed with a petition saying he can’t do that.

  3. Just nutha ignint cracker says:

    @James Joyner: Yes. And I also will agree that the decision the Supremes made is probably legally and Constitutionally correct. I just wish that they hadn’t had to rule against making casting a ballot easier and endorse the right of the state to hinder election districts via one-size-fits-no one rules. Oh well…

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  4. MarkedMan says:

    @James Joyner: You can find reasons to justify the decision. Or you could just note that once again Republicans Justices on the Supreme Court ruled against making it easier and safer to vote. Which happens to coincide with the only aim Republicans leaders have with respect to voting. Amazing how they never, ever find a case where the correct outcome is to make it easier to vote. Quite the coincidence, that…

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  5. HarvardLaw92 says:

    @MarkedMan:

    To be honest, I view this as more the justices voting to preserve state control of election procedures. Ie more of a smackdown of judicial overreach. The proper venue for this action should have been the Alabama court system. I’m all for increased access to voting, and I will agree that Alabama should probably consider permitting this, but I’m with James here: I start getting indigestion when federal judges improperly insert themselves into state matters just because somebody filed a petition.

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  6. James Joyner says:

    @MarkedMan: I know so little about drive-up voting that I have no opinion on it whatsoever. I tend to side with @HarvardLaw92 that we should tilt toward making voting easier and more reflective of popular will and would personally favor all manner of rather radical policy changes to that end. I just don’t think judges get to make up their own rules for how to do that.

  7. Just nutha ignint cracker says:

    @James Joyner:

    I know so little about drive-up voting that I have no opinion on it whatsoever.

    We have drive-up voting in my county in Washington; in fact, I live a block away from the drive-up polling station. It’s just like drive-up mailboxes–you drive up to where the slot in the box is and stick the mailing envelope with your ballot in it in the slot. At this time because the county tax offices are not allowing walk-in customers, they’re using it to take property tax payments, too. (Some people still don’t trust mortgage company escrow accounts.)