By Lisa Soronen
Parties can ask the Supreme Court on an emergency basis to reverse a lower court’s preliminary ruling. When the court “stays” or “refuses to stay” a lower court order it isn’t ruling on the merits of the case.
The court has received a ton on these emergency requests for stays and injunctions related to COVID-19.
However, in a 5-4 vote the Supreme Court stayed a federal district court order requiring absentee election managers (AEMs) to not enforce a number of absentee ballot requirements in three counties in Alabama and lifting a prohibition against curbside voting in the state.
In response to COVID-19, Alabama Governor Kay Ivey moved the runoff primary election from March 31 to July 14. Alabama’s Secretary of State Merrill promulgated an emergency regulation allowing all voters to cast absentee ballots. However, they had to comply with existing absentee ballots rules including submitting a copy of their photo ID and having two witnesses or a public notary sign their ballot.
A number of Alabamians sued AEMs in three counties and other Alabama state defendants. They challengers claimed the two absentee voter requirements and Merrill’s refusal to allow curbside voting were unconstitutional and/or violated the Americans with Disabilities Act. In issuing a preliminary injunction the federal district court agreed with the challengers that most of their claims were likely to succeed.
The court ordered the AEMs to allow absentee voters to forego the witness requirement if they were able to provide a written statement that they suffer from “an underlying medical condition that the Centers for Disease Control has determined places individuals at a substantially higher risk of developing severe cases or dying of COVID-19.”
The court also exempted from the photo ID requirement “absentee voters who are over the age of 65 or disabled who determine it is impossible or unreasonable to safely satisfy that requirement in light of the COVID-19 pandemic.” Finally, the court ordered the state’s “de facto prohibition on curbside voting” to not be enforced.
The Eleventh Circuit denied a motion to stay the federal district court’s order but the Supreme Court granted it.
Interestingly, the AEMs have complied with the district court order; only the state defendants asked the Eleventh Circuit and the Supreme Court for a stay. The challengers claimed the state defendants only have standing to appeal the lifting of the ban on curbside voting.
Among other arguments, the state defendants claimed the district court’s order should be enjoined because “while absentee voting is already taking place it seriously threatens the integrity of the election, undermines voter confidence in that election, and creates an unworkable mishmash of law that cannot be uniformly administered.”
Justice Clarence Thomas received the application for a stay and referred it to the entire court. No justice wrote a statement regarding his or her vote, but Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elise Kagan indicated they would have denied the application.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.