Recent SCOTUS actions involving COVID-19 and elections

By

Jerrick Adams

On June 25 and June 26, the Supreme Court of the United States declined to intervene in two lawsuits involving COVID-19 and election administration. The first was a suit out of Ohio involving remote signature gathering for ballot initiatives. The second was a suit out of Texas dealing with absentee voting eligibility.

Thompson v. DeWine

On April 27, three registered Ohio voters and ballot initiative petition circulators (Chad Thompson, William Schmitt, and Don Keeney) filed suit against the state in federal district court, alleging that Ohio’s in-person signature collection and witnessing requirements for ballot measures were unconstitutional in light of the COVID-19 outbreak. The plaintiffs petitioned the court either to direct state officials to place the initiatives on the ballot directly or suspend prohibitions against remote signature collection and extend filing deadlines.

On May 19, Judge Edmund Sargus issued an order directing state officials to suspend enforcement of in-person signature requirements and extend filing deadlines for the initiative campaigns involved in the suit. Sargus wrote, “[This] court finds that in these unique historical circumstances of a global pandemic and the impact of Ohio’s stay-at-home orders, the state’s strict enforcement of the signature requirements for local initiatives and constitutional amendments severely burden plaintiffs’ First Amendment rights as applied here.”

On May 21, Ohio Attorney General Dave Yost (R) appealed that decision to the United States Court of Appeals for the Sixth Circuit. On May 26, a three-judge appellate panel, composed of Judges Jeffrey Sutton, David McKeague, and John Nalbandian, stayed the district court’s decision. In a per curiam opinion, the court wrote:

“ Whether this intermediate burden on plaintiffs’ First Amendment rights passes constitutional muster depends on whether the state has legitimate interests to impose the burden that outweigh it. Here they offer two. Defendants claim the witness and ink requirements help prevent fraud by ensuring that the signatures are authentic. And the deadlines allow them time to verify signatures in an orderly and fair fashion, while also providing initiative proponents time to challenge any adverse decision in court. These interests are not only legitimate, they are compelling.[1] ”

The plaintiffs appealed the appellate panel’s decision to the U.S. Supreme Court. On June 25, Associate Justice Sonia Sotomayor, who fields such requests for the Sixth Circuit, referred the matter to the full court, which declined to vacate the stay without noted dissent.

Texas Democratic Party v. Abbott

On May 19, Judge Samuel Biery, of the United States District Court for the Western District of Texas, ordered that all eligible Texas voters be allowed to cast absentee ballots in order to avoid transmission of COVID-19. In his opinion, Biery wrote, “The Texas Election Code allows citizens over 65 without a disability to vote by mail. Thus, the Texas vote-by-mail statute provides for the health safety of mail ballots for those 65 years of age and older but not those 64, 364 days and younger. The court finds no rational basis for such distinction and concludes the statute also violates the clear text of the Twenty-Sixth Amendment under a strict scrutiny analysis.” Biery also construed lack of immunity to, and fear and anxiety over, COVID-19 as disabilities within the context of the state election code and the state’s absentee voting eligibility criteria.

Texas Attorney General Ken Paxton (R) appealed the decision to the United States Court of Appeals for the Fifth Circuit. On June 4, a three-judge appellate panel stayed Biery’s order. Judge Jerry Edwin Smith wrote the following in the court’s opinion:

“ In an order that will be remembered more for audacity than legal reasoning, the district judge intervenes just weeks before an election, entering a sweeping preliminary injunction that requires state officials, inter alia, to distribute mail-in ballots to any eligible voter who wants one. But because the spread of the Virus has not given ‘unelected federal jud[ges]’ a roving commission to rewrite state election codes, we stay the preliminary injunction pending appeal.[1] ”

Judge James Ho wrote a concurring opinion. Judge Gregg Costa wrote an opinion concurring in the judgment only.

On June 16, the Democratic Party of Texas appealed the decision to the Supreme Court, asking that the court lift the appellate panel’s stay and set an expedited briefing schedule for consideration of the case. Justice Samuel Alito, who fields such requests for the Fifth Circuit, referred the matter to the full court, which declined to vacate the stay without noted dissent. Associate Justice Sonia Sotomayor issued a statement: “This application raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment. I do not disagree with the decision to refrain from addressing them for the first time here, in the context of an emergency application to vacate a stay of an injunction. But I hope that the Court of Appeals will consider the merits of the legal issues in this case well in advance of the November election.” The case now returns to the Fifth Circuit for further proceedings.

Absentee/mail-in voting modifications

Since our June 17 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • New Mexico: On June 26, Gov. Michelle Lujan Grisham (D) signed SB4 into law, authorizing county clerks to mail absentee ballot applications automatically to registered, mailable voters in the Nov. 3 general election.
  • Texas: On June 26, the Supreme Court of the United States declined to reinstate a district court order that had expanded absentee voting eligibility in Texas, as noted above. An appeals court stayed the district court’s order, a decision that was allowed to stand as a result of the Supreme Court’s decision not to intervene.
  • Alabama: On June 25, a three-judge panel of the United States Court of Appeals for the Eleventh Circuit declined to stay a lower court order barring Alabama election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14 runoff elections.
  • Iowa: On June 25, Gov. Kim Reynolds (R) signed HF2486 into law, barring the secretary of state from mailing absentee ballot request forms to all voters without first obtaining approval from the state legislature. The legislation also barred county officials from decreasing the number of polling places by more than 35 percent during an election.
  • Tennessee: On June 24, the Tennessee Supreme Court declined to stay a lower court order that had extended absentee voting eligibility to all voters during the pandemic.
  • California: On June 18, Gov. Gavin Newsom (D) signed AB860 in law, requiring county election officials to mail absentee/mail-in ballots to all registered voters in the Nov. 3 general election. On May 8, Newsom had issued an executive order to the same effect.
  • Wisconsin: On June 17, the Wisconsin Election Commission voted unanimously to send absentee/mail-in ballot applications automatically to most registered voters in the Nov. 3 general election.

To date, 35 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:

  • Automatic mail-in ballots: Five states (California, Maryland, Montana, Nevada, and New Jersey) have opted to automatically send mail-in ballots to all eligible voters in certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Fifteen states (Connecticut, Delaware, Georgia, Idaho, Illinois, Iowa, Michigan, Nebraska, New Mexico, New York, North Dakota, Rhode Island, South Dakota, West Virginia, and Wisconsin) have opted to automatically send mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Nine states (Indiana, Kentucky, Massachusetts, Missouri, New Hampshire, Oklahoma, South Carolina, Tennessee, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below.
  • Deadline extensions: Four states (Minnesota, Ohio, Pennsylvania, and Utah) have opted to extend absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below.
  • Other process changes: Two states (Alabama and North Carolina) have made other modifications to their absentee/mail-in ballot procedures in certain elections. These states are shaded in gray in the map below.
M3Ydp-absentee-mail-in-voting-procedure-changes-in-response-to-the-coronavirus-pandemic-2020 (8).png

Litigation tracking

To date, we have tracked 118 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent events in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to a case out of Alabama, People First of Alabama v. Merrill.

  • Case name: People First of Alabama v. Merrill
  • Case number: 20-12184 (district court case number: 2:20-cv-00619)
  • State of origin: Alabama
  • Court: U.S. Court of Appeals for the Eleventh Circuit
  • Summary: On June 25, a three-judge panel of the United States Court of Appeals for the Eleventh Circuit declined to stay a lower court order barring election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14, 2020, runoff elections. The panel, comprising Judges Robin Rosenbaum, Jill Pryor, and Britt Grant, voted unanimously on the matter. The lower court had ordered the state to waive the witness requirement for any voter who provides a written statement, signed under penalty of perjury, that he or she suffers from an underlying medical condition that places the individual at higher risk for contracting a severe case of COVID-19. The lower court had also ordered the state to waive the photo ID requirement for any voter who is either over the age of 65 or disabled who signs a written statement to that effect. The lower court also enjoined the state from enforcing its de facto prohibition against curbside voting.
  • Court documents:

Legislation tracking

To date, we have tracked 237 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.

Legislation related to elections and COVID-19, 2020