Supreme Court, on 5-4 Vote, Blocks Federal District Courts Rules Easing Voting in Alabama Primary in Light of COVID-19

The Court’s order is here, breaking along ideological/party lines.

I expected this. See my earlier post, Alabama Goes to Supreme Court to Reverse Lower Court Orders Making Voting Easier During Pandemic (and I Expect Alabama Will Win)

These changes are coming close to the election, so they implicate the Purcell principle. But beyond that, they show the conservative majority on the Supreme Court is not going to put a thumb on the scale favoring voters in this election and instead will view the pandemic-created dislocations in the voting process as not enough of a reason to depart from usual voting rules when states fail to bend their rules to accommodate voter safety and convenience during the pandemic. It is of a piece with the 5-4 decision in RNC v. DNC.

I explore these themes, and the increasing party divide in the courts on the COVID cases, in Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them (manuscript under review) (June 2020 draft available) (forthcoming Election Law Journal). This is what I wrote there about RNC v. DNC:

Beyond the sloppiness, and most troubling, is the cavalier nature of the Supreme Court’s opinion. It ignored the pandemic and treated the situation as ordinary litigation in an ordinary time. It failed to even mention the voting rights that the plaintiffs were seeking to vindicate. The opinion sent a message that the Court cares little about the voting rights of people in the state, especially AfricanAmerican voters in Milwaukee who had been facing great risk related to the virus.

In this extraordinary time of a pandemic, the Supreme Court chose to vote remotely for safety reasons while denying some Wisconsin voters a chance to do the same. Not only did the Court’s opinion show a nonchalance about the importance of voting rights in the most dire circumstances. It demonstrated that the Court majority could not build a bridge for a unanimous compromise opinion. The signal it sends is that there may well be have partisan warfare at the Court over election issues in the upcoming election, which is already shaping up to be one conducted under conditions of deep polarization and a pandemic.

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