By Lisa Soronen
The U.S. Supreme Court refused to overturn a consent decree in which Rhode Island state government officials agreed, due to COVID-19, to not enforce state law requiring the signature of two witnesses or a notary public for mail ballots.
The court issued a statement noting that it stayed a court order in a case from Alabama similar to the consent decree in this case. However, according to the court, in this case no state officials object to the consent decree and in the recent primary the witness requirement wasn’t enforced, which may lead voters think no witnesses is the status quo.
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated they would have stayed the consent decree.
Rhode Island Governor Gina Raimondo (D) issued an executive order suspending state law requiring the signature of two witnesses or a notary public for mail ballots for the presidential primary, which she moved from April to June 2, 2020. The state legislature failed to adopt proposed legislation to suspend the witness requirement for the September or November elections.
Common Cause Rhode Island sued the Rhode Island secretary of state and members of the state elections board asking the court to prevent enforcement of the witness requirement for elections in September and November. A federal district court approved a consent agreement where Rhode Island officials agreed with Common Cause’s request.
The Republican National Committee (RNC) sought to intervene in the case and asked the 1st Circuit to put the consent decree on hold. The 1st Circuit refused to freeze the consent decree.
While the 1st Circuit agreed with the RNC “in the abstract” that “preventing voting fraud and enhancing the perceived integrity of elections” is “substantial and important,” “the incremental interest in the specific regulation at issue (the two-witness or notary rule) is marginal at best.” According to the court, “[i]n the current COVID-19 pandemic, Rhode Island may be the lone state where the election laws still facially require the voter to mark his or her ballot (as well as sign the envelope) before two witnesses or a notary.”
The Supreme Court will freeze a lower court ruling on an emergency basis when there is a “reasonable probability” that it will grant certiorari later in the litigation and a “fair prospect” that it will reverse the lower court decision.
The RNC asked the Supreme Court to stay the consent decree in this case noting that “[t]his Court has already determined that it would likely review, and likely reverse, an injunction against Alabama’s witness requirement,” which Rhode Island “mirrors.”
Common Cause and the state officials opposed the stay noting that injunctions and consent decrees are different. An injunction is an “extraordinary remedy” derived from the “full coercive powers” of a court. By contrast, the parties’ agreement is the source of a court’s authority to enter a consent decree so consent decrees must merely not be “unlawful.”
Common Cause pointed out the RNC hasn’t “cited a single case suggesting that it would be unlawful for Rhode Island to change its two witness/notary requirement, by means of a consent judgment or otherwise.”
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog.