Policy Summary: Over the last few weeks the U.S. Supreme Court issued two orders regarding voting rights, which could have an effect on the November 2020 election. On June 26, 2020 the Supreme Court issued their order in Texas Democratic Party v. Abbott. The case started when the Texas Democratic party initiated a lawsuit to force Texas Governor Abbott and the Texas Attorney General Ken Paxton to permit all eligible Texas voters to vote by mail regardless of their age or physical condition. Because of COVID-19 Governor Abbott had postponed the July 2020 runoff elections and doubled the time period for early voting by personal appearance. However, Texas Democrats did not feel that this went far enough to protect citizens from voting during the worldwide pandemic. They brought suit to suspend current rules on mail – in voting and make the option available to every Texas citizen who wanted to vote by mail. The case went through the Texas judiciary system where the Texas Supreme Court ultimately stayed the preliminary injunction granted to the Texas Democratic Party pending the outcome of the case in federal district court where a connected proceeding was in progress. The federal district court again sided with the plaintiffs. The case was appealed to the Circuit Court of Appeals for the Fifth Circuit which ruled against the plaintiffs resulting in an appeal to the U.S. Supreme Court. The Supreme Court issued an unsigned order upholding the order issued against the plaintiff’s claims although the order did include a minimal one-line comment from Justice Sotomayor.
On July 2, 2020 the Supreme Court issued an order in Merril v. People First of Alabama. The case originated when a number of civil rights groups brought a lawsuit to help lift usual voting restrictions for voters who wanted to vote but had concerns about voting in person during the COVID-19 pandemic. U.S. District Judge Abdul Kallon ruled that curbside voting would be permitted (where voters can drive up, receive a ballot, fill it out in their car and give it back to an election worker). And, he ruled that the rules in Alabama for absentee ballots requiring two witnesses to sign off would not be required. The case was then appealed to the U.S. Supreme Court which blocked Judge Kallon’s orders, ruling 5 – 4 along conservative lines. LEARN MORE, LEARN MORE
Policy Analysis: The orders issued by the Supreme Court are notable because of the legal issues they deal with and the near lack of explanation or legal analysis explaining the rationale for the decision. Both cases are voting rights cases during the time of the COVID-19 pandemic and deal with whether or not voters in Texas and Alabama will be able to cast a ballot without having to put their health at risk. The options offered in Texas and Alabama were actually good options that were designed to let people vote safely while allowing the elections to be conducted efficiently. The Democratic Party in Texas sought to include every eligible voter who wanted to vote by mail. And Alabama was set to allow voters to vote in their cars without ever leaving their car and to do away with witness requirements for absentee ballots. But the Supreme Court did not let any of these temporary measures go into effect and simply issued an order without the usual long opinion to explain why.
But even if the Court did not lay out their reasoning the reason for the Court’s decision can likely be found in the Court’s voting rights opinion from Wisconsin that they issued this last May in Republican National Committee v. Democratic National Committee and in a little known legal doctrine called the “Purcell Principle.” The basis of the Purcell Principle is simple – courts should not issue orders which change election rules in the close period of time before an election. In the Wisconsin case, the Court reasoned that changing the rules so close to election time might cause confusion for voters and might even be a reason for voters not to vote. There, the Court ruled that changing the rules to the absentee ballot rules would violate this principle but instead their ruling had the perverse effect of having a significant number of voters not have their absentee ballots counted. The situations in Texas and Alabama are nearly the same – voters are worried about being infected with COVID-19 and had an option to vote remotely and yet the Supreme Court nixed those efforts with unexplained orders. It seems highly likely the Court relied on the Purcell principle. Shouldn’t the Court have at least explained and put pen to paper the merits of the Purcell Principle and the rationale for relying on the Purcell Principle in a COVID-19 situation? The right to vote is one of the most cherished fundamental rights but with the issuance of these two orders the Court instead looks biased when the rule it relied on prevented thousands of people from voting and looks even worse when it failed to give a full explanation for blocking the efforts to help them vote. While the Supreme Court in the Wisconsin decision said that it wanted to prevent confusion among voters its efforts here have instead caused more unnecessary confusion. The states still have a chance to make the necessary changes to the absentee voting rules before November and hopefully Texas and Alabama can make things right and expand access to the ballot box for their state’s most vulnerable voters. LEARN MORE, LEARN MORE, LEARN MORE
- Reigning In The Purcell Principle – Florida State University Law Review Article on the Purcell Principle.
- Excess of Democracy Blog – blog post commenting on the Purcell Principle.
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact Rod@USResistnews.org.