The Supreme Court issued two brief, unsigned orders on Friday about restrictions states may impose on absentee voting during the coronavirus pandemic. Although neither order is a final judgment: one grants a temporary stay of a first instance court decision, the other denies expedited review of a major voting rights case; The practical impact of both orders is that Alabama and Texas voters will have a harder time casting a ballot during the pandemic.
Texas’ order is particularly sinister because it suggests that Texas may enforce electoral rules that ensure Republican-leaning older voters have an easy time voting, while younger voters may be forced to risk infection to vote.
The Alabama Case
Alabama’s case is Merrill v. Alabama People First. Alabama law allows anyone to cast an absentee vote during the pandemic, but it also imposes certain restrictions on those voters. Among other things, absentee voters must provide a copy of their photo identification, and their ballot must be signed by two witnesses or a notary public.
A lower court blocked these restrictions “for voters who are unable to securely obtain the signatures of two witnesses or a notary public due to the COVID-19 pandemic” and “for absentee voters who are over 65 or disabled and They are unable to obtain a secure copy of their photo identification due to the COVID-19 pandemic. But the Supreme Court suspended that lower court decision, ensuring that, at a minimum, the restrictions will apply to the July 14 second-round primary election in Alabama.
In particular, the order of the Supreme Court in Merrill only the five Republicans on the Court joined. The four named Democrats disagreed. Neither party explained why they voted the way they did.
The Texas case
The Texas case, meanwhile, is Texas Democratic Party v. Abbott, and what is at stake in that case is simply enormous.
Texas law allows voters over 65 to request absentee ballots without difficulty. But most voters under the age of 65 are not allowed to vote absentee. During a pandemic election, that means older voters, a demographic group that has historically favored Republicans over Democrats, will have a fairly easy time to participate in the November elections. But younger voters will likely have to risk infection at a polling place in person if they want to cast a vote.
This agreement is difficult to reconcile with the 26th Amendment, which states that “the United States or any state in which the citizens of the United States, who are 18 years of age or older, cannot deny their right to vote.” account of age. “
The court order in Texas Democratic Party it’s subtle, but chances are Texas can deny or restrict voting rights by age, at least during the November election.
Last month, the conservative United States Court of Appeals for the Fifth Circuit blocked the order of a trial judge that would have allowed younger Texans to vote absentee. Although this Fifth Circuit order is not the final word of the appeals court in this case, it is quite unlikely that the plaintiffs in Texas Democratic Party it will prevail before the Fifth Circuit, which is among the most conservative courts in the country.
The plaintiffs then asked the Supreme Court to hear their case expeditiously. On Friday, the Supreme Court denied that request. As a practical matter, writes Amy Howe of SCOTUSBlog, this refusal to accelerate Texas Democratic Party The case “almost eliminated the possibility of judges weighing on the merits of that dispute before the 2020 elections in November.”
Therefore, even if the Supreme Court finally decides that Texas age discrimination violates Amendment 26, that decision will surely come too late to benefit someone in November.
Supreme Court orders on Merrill and Texas Democratic Party conform to a pattern. Last April, in Republican National Committee v. Democratic National Committee, the Supreme Court accepted a request from the Republican Party and ordered that all ballots mailed after a certain date in the April Wisconsin election be thrown out, a decision that, in practice, likely forced thousands of voters to risk infection to cast a vote. -person ballot.
The Court’s decision in Republican national committee It was also 5-4, with the five Republican judges in the majority and the four Democrats disagreeing.
In recent weeks, the Court has issued a handful of left-leaning decisions, including a limited decision that temporarily preserves the Deferred Action for Childhood Arrivals (DACA) program and an even more restricted decision that overrides a law Louisiana pro-lifeguard.
But on the most important issue in a democracy, if citizens have the power to elect their own leaders, this Supreme Court remains unsympathetic to parties seeking to protect the right to vote, despite the greatest public health crisis in more than a century.
