WASHINGTON — The US Supreme Court voted 5–3 late Wednesday to allow Alabama to ban local election officials from offering curbside voting on Election Day to people with disabilities that put them at higher risk from the coronavirus.
In an order released Wednesday night, the court’s conservative-leaning justices voted to block a lower court injunction that would have permitted counties to offer curbside voting on Nov. 3 because of the risks presented by indoor voting during the pandemic. Curbside voting typically involves poll workers delivering a ballot to a person in their car and then collecting it to bring back inside when the voter is done filling it out. The Alabama attorney general’s office asked the Supreme Court to intervene after the US Court of Appeals for the 11th Circuit declined to put the injunction allowing Alabama counties to offer curbside voting for the November election on hold.
The majority didn’t offer an explanation for its decision, although it’s not the first time the court sided with Alabama and allowed the state to enforce its curbside voting ban — in July, the justices voted 5–4 to block an injunction that would have allowed counties to adopt the practice for a primary election runoff.
Natasha Merle, a lawyer with the NAACP Legal Defense and Educational Fund who worked on the Alabama case, told BuzzFeed News that the Supreme Court’s order was “disheartening and concerning” since Alabama’s mask order during the pandemic doesn’t apply to polling sites.
Justice Sonia Sotomayor, joined by Justices Stephen Breyer and Elena Kagan, wrote a dissenting opinion that accused the court’s conservative arm of standing in the way of counties that were “ready and willing to help vulnerable voters.” Those three justices, along with the late justice Ruth Bader Ginsburg, had voted against Alabama in July as well.
Sotomayor quoted Howard Porter Jr., a Black man in his seventies who has asthma and Parkinson’s disease, who testified during a trial in the case in September that, “[S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that — we’re past that time.”
“Election officials in at least Montgomery and Jefferson Counties agree. They are ready and willing to help vulnerable voters like Mr. Porter cast their ballots without unnecessarily risking infection from a deadly virus. This Court should not stand in their way. I respectfully dissent,” Sotomayor wrote.
According to a friend-of-court brief filed by groups that advocate on behalf of people with disabilities and elderly Americans, there are at least 29 states that offer some form of curbside voting, usually for voters with disabilities that prevent them from going inside a polling site. The brief noted that the Justice Department had endorsed curbside voting in the past as one way for local governments to fix voting-related violations of the Americans with Disabilities Act.
In Texas, Republicans are challenging plans by county election officials to offer curbside voting for the 2020 election; there’s also a lawsuit pending in Arizona brought by an advocacy group for people with disabilities that is challenging a ban on the practice in Cochise County.
In a 197-page opinion following a trial, US District Judge Abdul Kallon blocked Alabama’s curbside voting ban, as well as the state’s requirement that residents send a copy of a photo ID when they apply for an absentee ballot and that absentee voters have a notary or two witnesses sign their ballot. On Oct. 13, an 11th Circuit panel granted Alabama’s request to stop Kallon’s order on the photo ID and witness requirements from taking effect while the state appeals but declined to do so for the curbside voting issue.
Merle of the NAACP LDF said that Porter, the Alabama voter quoted by Sotomayor, had tried to vote absentee during the primary election and put his ballot in the mail before the deadline, but it was rejected because it arrived too late. She said he would likely try to vote absentee for the November election because he was worried about contracting COVID-19 if he went in person, given the mask exception at polls.
“He cannot put himself in that kind of danger,” Merle said.
The Alabama attorney general’s office argued in its brief before the Supreme Court that curbside voting “comes with a host of logistical, safety, and ballot secrecy concerns.” The state legislature hadn’t voted to adopt the practice, so the Alabama Secretary of State determined it wasn’t legal.
In response to the Supreme Court’s order, Alabama Attorney General Steve Marshall said in a statement that “the specter of voters’ cars backed up further than a Chick-fil-A drive-thru” hung over the prospect of curbside voting.
“Just as important, when States decide to authorize curbside voting, they typically do so through legislation and with months or years of careful planning. They don’t throw it together in a matter of weeks in the middle of a pandemic. That is a recipe for chaos that could end up making it harder, not easier, for people to vote,” Marshall said. “Fortunately, with the Supreme Court’s action tonight, those risks have been averted.”