By Lisa Soronen
The U.S. Supreme Court has frozen a district court order that lifted Alabama’s ban on curbside voting. As a result, Alabama must halt curbside voting.
Alabama law is silent on curbside voting. A number of Alabama counties were offering it due to COVID-19. Alabama Secretary of State John Merrill took the position that curbside voting violates state law and banned it. A federal district court ruled that the ban on curbside voting violates the Americans with Disabilities Act (ADA).
The ADA requires that if people with disabilities are “excluded from participation in or . . . denied the benefits” of a government program, such a voting, because of a disability, they are entitled to a “reasonable accommodation.” The plaintiffs, disabled Alabama voters, argued they were excluded from in-person voting. They claim it is too risky for them given that 96.2 percent of Alabamians who have died of COVID-19 had underlying health conditions. They requested curbside voting as a reasonable accommodation.
Merrill argued the plaintiffs weren’t excluded from voting because they could vote absentee. The district court rejected this argument noting, “based on the ADA’s broad remedial purpose, if a state provides voters with a choice between in-person and absentee voting, then the ADA mandates that both options be accessible to voters with disabilities.” The court concluded absentee voting isn’t accessible for all voters with disabilities. Some voters with disabilities “require assistance to vote and should not be forced to give up their privacy to obtain help from someone who, unlike a poll worker, does not have an affirmative obligation to maintain their ballots’ secrecy.”
The 11th U.S. Circuit Court of Appeals refused to freeze the district court’s holding allowing curbside voting. Merrill asked the Supreme Court to freeze it on an emergency basis. While the Supreme Court agreed to do so, Justices Sonia Sotomayor, Stephen Breyer and Elena Kagan dissented.
Sotomayor said she wouldn’t have granted Merrill a stay of the lower court decision because she found it contained no “legal error.” Like the district court, she rejected the secretary’s argument that the only “benefit” under the ADA is “voting generally, not in-person voting specifically, and that absentee voting ensures access to that benefit.” She noted “[i]n-person voters receive assistance from poll workers; need no witnesses, notaries, or copies of their photo IDs, as Alabama law requires for absentee ballots; and know their ballot will not arrive too late or be rejected for failure to comply with absentee ballots’ many requirements.”
Sotomayor also reasoned that the district court decision should stand because it doesn’t require curbside voting, isn’t likely to create “voter confusion and consequent incentive to remain away from the polls,” and “neither invalidates state law nor prohibits the secretary from issuing guidance consistent with the District Court’s ruling.”
This piece is part of NCSL’s yearlong celebration of ADA30, and ongoing partnership with the U.S. Department of Labor Office of Disability Employment Policy’s State Exchange on Employment & Disability (SEED). SEED partners with intermediary organizations like NCSL to ensure that state and local policymakers have the tools and resources they need to develop and disseminate meaningful policies related to disability-inclusive workforce development.
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.