This piece was featured by SCOTUSblog.com on August 14, 2020, it was originally published at Howe on the Court.
The Supreme Court on Thursday refused to intervene in a dispute over absentee ballots for the upcoming elections in Rhode Island. The justices rejected a request by the Republican National Committee and Rhode Island Republicans to freeze a lower-court order that approved an agreement between state election officials and civic groups to waive a requirement that absentee ballots be signed in the presence of either two witnesses or a notary. In a one-page order, the justices took the relatively unusual step of providing an explanation for a decision issued in an emergency appeal. The one-paragraph, unsigned explanation said that – unlike in other recent election-law cases – state officials in this case support the agreement that the RNC and the Rhode Island GOP asked the court to block. Three justices – Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have granted the Republicans’ request.
The order came in a dispute that began in July, when civic groups, including the League of Women Voters and Common Cause, went to court to challenge the witness requirement, arguing that it violated the Constitution by making it too risky to vote during the coronavirus pandemic. Rhode Island election officials did not defend the witness requirement; instead, they negotiated a consent decree, which a federal district court approved, that suspended the witness requirement for the upcoming elections. The RNC and the Rhode Island GOP, which had tried unsuccessfully to intervene in the case, then appealed to the U.S. Court of Appeals for the 1st Circuit, which rejected their request to put the district court’s order approving the consent agreement on hold until the appeal is resolved.
The RNC and the Rhode Island GOP went to the Supreme Court on Monday, asking the justices to intervene. They argued that the district court’s order approving the consent agreement should be put on hold because the justices had blocked a similar order, barring election officials in Alabama from requiring voters to have their absentee ballots witnessed or notarized, in July. Moreover, they argued, the consent agreement came too close to the upcoming elections and thus violates the Purcell principle – the Supreme Court’s admonition that lower courts should not normally change the rules of elections at the last minute.
The civic groups and state election officials urged the justices on Tuesday to stay out of the dispute. They stressed that this case is “entirely different” from the Alabama one because that case involved a district court’s order requiring election officials to relax state laws during the pandemic in ways that the officials opposed. The Rhode Island case, in contrast, involved a “negotiated settlement” between election officials and the civic groups. That settlement, the civic groups continued, “reflects the considered judgment of Rhode Island election officials that, in light of the COVID-19 pandemic, voters should not have to face a choice between their health and their fundamental right to vote.” The Supreme Court, the civic groups cautioned, “should be very reluctant to upend the considered decision of the State’s elected officials responsible for running the election about what is required during the pandemic to ensure a meaningful opportunity to vote.”
The civic groups and election officials also pushed back against the Republicans’ argument that the consent agreement came too close to the upcoming elections. The Republicans did not explain, the state emphasized, “how any voter will be confused if the return envelope for their mail-in ballot does not require signature lines for two witnesses or a notary.” The Purcell principle, the state added, “is not, and has never been, a strait jacket on [a] state’s own authority to effect changes to their election laws.”
The justices on Thursday morning turned down the Republicans’ request. Although the Supreme Court rarely provides an explanation for its rulings in emergency appeals, the order denying the Republicans’ request noted that this case was different from the Alabama case “and other similar cases where a State defends its own law” because the Rhode Island election officials supported the consent decree waiving the witness requirement, and no other state official had opposed it. Moreover, the court added, because the state had waived the witness requirement in its June election, that is the status quo, “and many Rhode Island voters may well hold that belief.” Although brief, the court’s explanation may have been intended not only to outline its reasoning in this case, but also to provide some guidance for lower courts in the election-law cases that are certain to come over the next few months.
Steven Huefner and Edward Foley, election-law experts at The Ohio State University’s Moritz College of Law, described Thursday’s order as a “significant development.” It shows, they observed, that the court “will apply the ‘Purcell’ principle” “in light of specific facts.” And as the order notes, they added, the “state government’s own view of the matter” is likely to play a central role in the court’s decision-making process.
Amy Howe, Court denies Republicans’ request to reinstate witness requirement for Rhode Island absentee ballots, SCOTUSblog (Aug. 13, 2020, 2:24 PM), https://www.scotusblog.com/2020/08/court-denies-republicans-request-to-reinstate-witness-requirement-for-rhode-island-absentee-ballots/