October 8, 2020; Slate
The US Supreme Court, minus the recently departed Justice Ruth Bader Ginsburg, is in session, and the country needs to batten down the hatches and prepare for a year unlike any other.
These days, voting rights seem to dominate the news, since the 2020 election looms large on the horizon. We are dealing with a Court that, in 2013’s Shelby County v. Holder, cut the heart out of the 1965 Voting Rights Act by doing away with the need for federal government preapproval for some states (mostly in the South) to change their voting laws. This opened the floodgates for voter ID laws and other measures that have disenfranchised Black, Latinx, rural, and low-income populations. And the Court has continued to keep the door open when it comes to making it hard for voters to exercise this right.
Last July, there was a dizzying lineup of cases at both the appellate and Supreme Court levels that eviscerated voting rights in different ways for different populations. Writing for Slate, Mark Joseph Stern sums it up in this way:
One appeals court allowed Wisconsin to reinstate its dramatic cutback on early voting in a startling opinion that explicitly authorizes lawmakers to manipulate election laws for partisan gain. Another appeals court blocked a lower court decision that protected indigent ex-felons’ ability to vote in Florida. The Supreme Court also delivered a one-two punch, first allowing Texas to impose discriminatory limits on mail-in voting, then reversing a decision that eased voting restrictions in Alabama due to the pandemic. Taken together, these moves indicate that a growing number of federal judges—and five justices on the Supreme Court—have simply abdicated their responsibility to safeguard voting rights.
Skip to now. Early voting is already underway in many states, and the US Supreme Court is eyeing mail-in ballots as another way to use its power to disrupt voting rights. In the past week, the Supreme Court reinstated South Carolina’s witness signature requirement for mail-in ballots. With a close Senate race involving Lindsay Graham, chair of the Senate Judiciary Committee, no one should be surprised. What this means is that even those who are ill with COVID-19 will need a witness to sign their ballot and that thousands of South Carolinians may have their votes nullified. The witness requirement had been suspended since May, so tens of thousands of South Carolinians had already submitted ballots without a witness signature.
Fortunately, despite dissents from justices Samuel Alito, Clarence Thomas and Neil Gorsuch, the order states that any ballots cast before October 5th and received by October 7th “may not be rejected for failing to comply with the witness requirement.” It should be noted that many of those voters who would have been disenfranchised were Black. Also, South Carolina does not notify voters if their ballots are rejected. Had the Court not made this concession, even more voters would have lost their right to vote without their knowledge. It is little wonder that Slate’s Mark Joseph Stern refers to the Supreme Court as “the place where voting rights go to die.”
But states seem to be competing for who can impose the most draconian voter restrictions that courts will uphold. Texas sought to limit early voting sites and drop off sites for vote-by-mail ballots to one site per county, no matter what the population. That might have put them ahead in the war to discourage voter participation. But on October 9th, a federal judge ruled that Texas must reinstate its voting drop-off sites.
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In his decision, Judge Robert Pitman from the District Court of the Western District of Texas stated that the governor’s rule would negatively impact voters by “creating voter confusion,” “causing absentee voters to travel further distances,” “causing absentee voters to wait in longer lines,” and “causing absentee voters to risk exposure to the coronavirus when they hand deliver their absentee ballots on Election Day.” This was a win for the voters in Texas but will most likely be appealed and could end up in the Supreme Court.
Meanwhile, Wisconsin “scored” a win for voting restrictions in the 7th circuit appellate court, which could disenfranchise tens of thousands of voters. Remembering the chaos that plagued the Wisconsin primary, a US District Court ruled on September 21st that maintaining the status quo for voting would unconstitutionally infringe on the right to vote. This district court ruling would have extended the deadline to register by mail or online from October 14 to October 21, ordered the state to count absentee ballots postmarked by November 3 and received by November 9, and allowed residents to work at polls outside their county of residence.
Republican legislators appealed, and last week, by a 2-to-1 vote, the 7th Circuit Appellate Court reversed this decision. The majority opinion deferred to the legislature as the authority on making adjustments to elections during a pandemic, not the judiciary.
Judge Ilana Rovner wrote in dissent about her colleagues’ indifference to what will ultimately result from this ruling—a bureaucratic nightmare (again) and thousands of citizens denied the right to vote. She eloquently makes her case and concludes:
I am dismayed to be dissenting. It is a virtual certainty that current conditions will result in many voters, possibly tens of thousands, being disenfranchised absent changes to an election code designed for in-person voting on election day. We cannot turn a blind eye to the present circumstances and treat this as an ordinary election. Nor can we blindly defer to a state legislature that sits on its hands while a pandemic rages….Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices.
Good luck and G-d bless, Wisconsin. You are going to need it.
The message could not be clearer. In too many states and often in the federal judiciary, voting rights are being gravely affected.—Carole Levine