Experts said the most likely explanation was a 2006 Supreme Court precedent viewed as discouraging late changes in voting procedures due to the potential for voter confusion.
It is also possible that the ruling signals hostility from the Republican-appointed high court majority to any change ordered by a judge due to Covid-19. However, it is not clear that those five judges go as far, and a defection by any one of them could tip the balance in favor of allowing such changes when an election is further away.
“The majority of the Supreme Court is not on the side of the voters, even during (especially during) a pandemic. This is a big problem, ”wrote Rick Hasen, professor of law at the University of California, on Twitter.
In Alabama’s second round to take place later this month, former Senator Jeff Sessions faces Tommy Tuberville, a former Auburn soccer coach.
President Donald Trump is supporting Tuberville over Sessions, who was one of Trump’s early supporters and served as Trump’s first attorney general, but who has sparked the President’s unrelenting anger at refraining from making decisions on the federal investigation into alleged links between the Trump campaign and Russia.
Acting in a lawsuit filed by civil rights groups citing the dangers of the coronavirus, Birmingham-based US District Court Judge Abdul Kallon issued an order on June 15 lifting what the groups said which was in effect a state ban on voting at the polling stations. The Obama-appointed judge said he would allow counties willing to allow early voting, but did not require such an accommodation.
Due to the virus, Alabama officials are allowing any registered voter to cast an absentee vote in the upcoming election without having to cite a valid reason. State law also requires absentee voters to present a copy of a photo ID and for two witnesses or a notary public to sign their ballots, but Kallon dropped those requirements in the three counties that were sued.
The Supreme Court ruling Thursday in the Alabama case seemed to echo his decision on a 5-4 vote in April to overturn a federal judge’s order requiring Wisconsin officials to count primary ballots received after the Election Day.
In that case, the majority of the court stated: “This court has repeatedly emphasized that lower federal courts should not normally alter electoral rules on the eve of an election.”
Republican-appointed judges insisted they were not taking a position on the merits of the Wisconsin ruling, but simply the timing. However, the judges appointed by Democrats noted that due to the emerging nature of the pandemic, such orders are likely to be issued fairly close to Election Day.
