Voting rights advocates are batting 0-4 at the Supreme Court so far this year. A record number of election-related lawsuits are piling up in courts around the country as concerns mount about the safety of voting in person because of the coronavirus and the availability and reliability of voting by mail. With a pandemic raging and uncertainty brewing, some fear the Supreme Court's chilly attitude toward election lawsuits may add yet another obstacle to a free and fair election this November.
Supreme Court Declines To Intervene
The court's most visible decision on voting this year came in April, when, on the eve of the Wisconsin primary election, the five conservative justices voted to reverse a federal judge's order to expand the state's window for receiving absentee ballots.
That lawsuit was brought in response to the coronavirus pandemic, as voters fearful of voting in person unleashed an "avalanche of absentee ballots," in the words of the federal judge, that threatened to overwhelm the state's election system. Thanks to the Supreme Court's decision, thousands of ballots were thrown out for arriving too late.
Justice Ruth Bader Ginsburg dissented forcefully in that case and was joined by her liberal colleagues. She wrote that the court's decision "boggles the mind" as "a voter cannot deliver...a ballot she has not yet received. Yet tens of thousands of voters who timely requested absentee ballots" were asked to do just that.
The Supreme Court also demurred in two other pandemic-related election cases ahead of primary elections.
In June, the court rejected a bid by the Texas Democratic Party to remove some barriers to absentee voting, particularly for voters under 65.
Earlier this month, the court refused to make it easier for voters in three Alabama counties to use absentee ballots, keeping in place a requirement that voters submit an affidavit signed by a notary public or two adult witnesses. That decision blocked an opinion out of the normally conservative 11th Circuit Court of Appeals allowing relief to go forward.
Last week, in a case from Florida, the justices preserved a last-minute order by the 11th Circuit that will bar hundreds of thousands of formerly incarcerated people from voting in the Aug. 18 primary and possibly the November general election as well. That litigation, unlike those involving the pandemic, involves a 2018 constitutional referendum to expand voting rights and the GOP-controlled state government's efforts to circumvent it.
Justice Sonia Sotomayor, joined by Ginsburg and Justice Elena Kagan, accused the court of a "trend of condoning disenfranchisement."
With the exception of the Texas vote, which had no noted dissents, the decisions in these election cases fell largely along partisan lines, with the court's five conservative and Republican appointees voting to deny relief that would make it easier to vote, and most or all of the court's liberal and Democratic appointees noting their dissent.
"We know that we're always in an uphill fight in the Roberts court when we're fighting for voting rights." Says Dale Ho, director of the Voting Rights Project at the ACLU. But because of the "emergency posture that we're going to be in between now and November... however steep our hill is in normal circumstances, it's only going to be steeper."
Voting Rights on the Roberts Court
Chief Justice John Roberts has long been skeptical of voting rights claims, a view that has been on full display this term and will likely weigh heavily on the court's behavior this November.
When he was nominated to join the bench, Roberts famously promised to call "balls and strikes," which, says Duke Law Professor Guy-Uriel Charles, should include "patrolling the boundaries of the political process."
Instead, under Roberts, Charles says we have a "court that says, 'You know what, we're not going to get involved.'" Ultimately, this may give rise to concerns about an "unregulated democratic process and ... democratic legitimacy of the election."
In 2013, the chief justice wrote the court's 5-to-4 opinion striking down a major provision of the 1965 Voting Rights Act, effectively gutting the law. In his opinion, Roberts said that because "the conditions that originally justified these measures no longer characterize voting" in states and cities with a history of discriminating against black voters, those jurisdictions could now be trusted to pass new voting regulations and create new congressional districts without fear of discrimination.
That prophecy proved incorrect. The decision immediately ushered in a bevy of state laws designed to decrease the voting power of minorities and make it harder to vote. Ginsburg, joined by her fellow liberal justices, predicted just such a result in her dissent, saying that taking away voting rights protections because black voters were now voting in large numbers was akin to "throwing away your umbrella in a shower because you are not getting wet."
Roberts' antipathy toward the Voting Rights Act long predates his time on the bench. As a young assistant in the Department of Justice during the Reagan Administration, Roberts waged a months-long crusade against strengthening the Voting Rights Act when it was set for reauthorization in 1982. Roberts lost that battle, but not before authoring dozens of memos warning that Congress should not make claims of racial discrimination in voting cases "too easy to prove."
Roberts was also a behind-the-scenes player in perhaps the court's most prominent election decision: Bush v. Gore. According to The New York Times, Roberts advised then-Florida Gov. Jeb Bush during Florida's recount of the 2000 vote and later helped the George W. Bush campaign's lawyers prepare their arguments.
Justice Brett Kavanaugh was also on the Bush campaign's legal team in that case.
Court Wary Of Last-Minute Election Action
Looming over these recent decisions is a Supreme Court precedent dating back to 2006, Roberts' first year as Chief Justice. That decision said that federal courts should be wary of intervening in elections at the last minute because, the court said, that disturbing the status quo can lead to confusion among voters that may deter them from turning out.
That decision, unsigned but likely written by Roberts, amounted to just five pages and garnered no noted dissents. Initially, it was quite limited but appears to have been greatly expanded, especially by the court's conservatives, to be far more wide-ranging.
"The reluctance of the court to do anything does make some sense," says John Fortier, the director of governmental studies at the Bipartisan Policy Institute. "Last minute changes close to the deadline ... really do risk the possibility of making an election hard to run or messy or calling into doubt ... the outcome.".
Danielle Lang, co-director for Voting Rights and Redistricting at the progressive Campaign Legal Center, says she agrees that in theory, refraining from disrupting elections at the last second is an "unremarkable" principle. But, in practice, it has become a "magic word... to get to a preferred outcome in election law cases" she says.
Thus, in Wisconsin, the court said it was too late to change election rules. But in the Florida case, the court allowed the circuit court to upset the legal status quo, creating confusion about who was eligible to vote.
That seemingly selective application of an otherwise uncontroversial principle has advocates like Lang worried, especially because the court seldom explains its reasoning very thoroughly in emergency decisions like these; instead, if there is any explanation at all, it is usually in a brief, unsigned opinion.
"We need to get back to first principles," by also considering whether court orders create or alleviate voter uncertainty "rather than just narrowly looking at how many days before an election we're at," says Lang.
Moreover, as Lang and other voting rights advocates point out, the first pandemic in a century is a natural and obvious exception to the general principle that courts shouldn't intervene close to election day. "We are facing kind of unprecedented uncertainty in our country." she says. "The court will have to grapple more with how to make sure that voters have confidence in the election come November."
Election Lawsuits Pile Up
The Supreme Court's decisions so far have arisen out of primary elections. But there is a growing tsunami of voting rights litigation ahead of the November general election, which could see as many as 150 million voters turn out, with an unprecedented number attempting to vote by mail.
"The fact that we are trying to conduct our election in the midst of a pandemic is going to cause a continued increase in the amount of election litigation that we're going to see through this season." Says Rick Hasen, a law professor at University of California, Irvine.
According to Hasen's Election Law Blog, there have been 163 election-related lawsuits filed in 41 states and D.C. in response to the coronavirus alone. And experts had already expected 2020 to shatter records for the number of voting rights lawsuits even before the pandemic.
Much of that covid-19 litigation is spurred when "states don't make accommodations to their normal voting rules" raising questions "about whether or not people are going to be able to vote safely in the midst of a pandemic," Hasen says.
But not every lawsuit is brought by voters hoping to force their state to make it easier and safer to vote. Several states, such as Pennsylvania and Nevada, have affirmatively sought to expand access to mail-in voting, prompting conservative groups to challenge those measures.
"The real question with absentee and mail-based voting isn't should we do it? Of course we should do it. The question is, how should we do it safely?" says Michael Morley, a law professor at Florida State University.
Some states, like Colorado, have had success running all-mail elections for years, verifying the security of their ballots by matching signatures, scanning barcodes on ballots at multiple junctures, and working cooperatively with the Post Office.
But Morley warns that asking states without a history of running elections by mail to suddenly expand their capacity to accept mail-in ballots could strain the election system past the breaking point, possibly raising questions about the integrity of the outcome itself. He says courts expanding access to mail-in ballots without a proper plan are pulling "pieces out of the Jenga tower of election administration."
Those concerns prompted the Trump campaign to challenge the security of Pennsylvania's new vote-by-mail scheme in court, suing to require the state to take additional measures to prevent fraudulent voting. A federal judge agreed to expedite that litigation, with arguments set to begin on September 22.
President Trump has been a vocal skeptic of voting by mail, repeatedly claiming without evidence that mail-in ballots are vulnerable to theft, tampering, and outright fraud.
Meanwhile, Trump has publicly resisted any attempt to infuse the cash-strapped U.S. Postal Service with much-needed federal funds, even as it teeters on the edge of insolvency as soon as October. While Congress approved a $10-billion dollar loan in an early coronavirus relief bill, the postal service has yet to access those funds, due to conditions imposed by the Treasury Department that Democrats say would effectively hand Treasury Secretary Steve Mnuchin control of the postal service.
Trump's hostility toward mail-in voting, combined with his attacks on the post office, led Democratic presidential candidate Joe Biden to accuse Trump of sabotaging the post office to disrupt mail-in voting at a digital campaign event in June featuring former President Obama.
Voting By Mail Necessary, But Not Always Reliable
While the president's claims of voter fraud are unfounded, even voting rights advocates acknowledge there is reason for caution when it comes to states hastily building out their capacity to receive votes by mail.
A recent NPR analysis found that thousands of mail-in ballots have been rejected already this year. Sometimes ballots are tossed out for irregularities or mistakes, but often votes are not counted simply because they arrive too late or never arrive at all, frequently through no fault of the voter.
The percentage of rejected ballots is low in most states but could prove crucial in a close election. Moreover, rejected ballots are disproportionately likely to belong to voters using mail-in voting for the first time, and there likely will be many more first-time voters casting their ballots by mail.
The ACLU's Dale Ho notes several onerous requirements in some state mail-in voting regimes that his voting rights litigation team has or may challenge ahead of November, including obtaining a witness signature, providing an excuse for voting absentee, submitting a photo ID, meeting early deadlines, and lacking an opportunity to "cure" defects in submitted ballots.
Thus, while increased access to mail-in ballots may be an important measure for expanding access to a safe and fair election this November, the specter of voter disenfranchisement is omnipresent, with numerous pitfalls threatening to keep voters from having their ballots counted. Even so, says Ho, "We're really trying to make sure that everyone can vote safely, and that's primarily through mail."