U.S. Supreme Court

Chemerinsky

Erwin Chemerinsky. Photo by Jim Block.

There now have been six instances in which the U.S. Supreme Court has dealt with issues concerning COVID-19 and the election process. The court repeatedly has made clear that it does not want the federal courts changing the rules of an election, even when necessary to protect the right to vote in a pandemic.

As we get closer to the Nov. 3 election, countless issues are likely to arise about how to safeguard the ability of people to vote without endangering their health. There will be issues about ensuring the availability and counting of absentee ballots, the location and availability of polling places and much more.

The five conservative justices have strongly indicated that the solutions are not to come from the federal courts, notwithstanding the Constitution’s protection of voting as a fundamental right.

The justices rely on a 2006 ruling in Purcell v. Gonzalez as establishing that a federal court should not change the rules concerning an election soon before the election. The case involved a preliminary injunction order from the 9th U.S. Circuit Court of Appeals at San Francisco two weeks before an election to halt a requirement for photo identification for voting.

The Supreme Court said: “Given the imminence of the election and the inadequate time to resolve the factual disputes, our action today shall of necessity allow the election to proceed without an injunction suspending the voter identification rules.”

This is now referred to as the Purcell principle that federal courts should not alter the rules of the election soon before it is to occur. The court never has explained the basis for this rule as a matter of constitutional or remedies law. Purcell, like the recent cases, involved a request for a Supreme Court stay of a lower court order; there was no briefing, oral argument or full opinion.

Nor has there been such a case since when the Purcell principle has been applied. The high court never has explained why judicial noninterference is more important than judicial protection of the right to vote. Nor has the court answered questions about what is too soon before an election for the Purcell principle to apply or what circumstances would justify an order modifying election practices so as to protect the right to vote.

Court rebuffs orders to safeguard voting

Yet, in many cases over the last few months, the Supreme Court repeatedly has invoked the Purcell principle to overturn efforts by lower federal courts to safeguard the right to vote amidst of the COVID-19 pandemic. Initially this occurred on April 6, in Republican National Committee v. Democratic National Committee. The Wisconsin primary was to be held on Tuesday, April 7.

Under Wisconsin law, an absentee ballot had to be received by April 7 in order to be counted. But, understandably, many more absentee ballots were requested than ever before. Many had not been delivered and were unlikely to be received and sent back in time for the deadline.

Five days before the scheduled election, the federal district court ordered that absentee ballots mailed and postmarked after election day, April 7, still be counted so long as they were received by April 13. But the Supreme Court in a 5-4 decision stayed this order. The court said this extension “fundamentally alters the nature of the election.” The court, citing Purcell v. Gonzalez, said, “This court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

The opinion was per curium, on behalf of Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito, Neil M. Gorsuch and Brett M. Kavanaugh. Justice Ruth Bader Ginsburg, writing for the four dissenters, strongly disagreed.

She wrote: “Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the nation.”

On June 26, in Texas Democratic Party v. Abbott, the court again stayed a district court ruling that sought to protect the right to vote. Texas law allows only those over 65 to automatically receive an absentee ballot; all others must provide a reason why they cannot go to the polls. The federal district court, to protect the right to vote, ordered that Texas provide an absentee ballot to all who request it in light of the COVID-19 pandemic. The 5th Circuit at New Orleans stayed this order, and the Supreme Court denied relief. Unlike the Wisconsin case, there was no elaboration as to the reasons.

In Merrill v. People First of Alabama, on July 2, the court again stayed a district court order making it easier for people to vote absentee. Alabama changed its rules for its primary election to allow anyone to vote absentee. But it required that individuals have their absentee ballot envelopes witnessed or notarized and also mail in a copy of their photo ID. A federal district court enjoined this and the 11th Circuit declined to stay this order. But the Supreme Court, 5-4, issued a stay. Neither the majority nor the dissent offered explanation.

In two cases, Clarno v. People Not Politicians Oregon, on Aug. 11, and Little v. Reclaim Idaho, on July 30, the court stayed district court orders relaxing signature requirement for initiatives to qualify for the ballot. The former case involves an Oregon law that requires 150,000 signatures for an initiative to be on the ballot. A federal district court judge said that an initiative could qualify with 59,789 signatures. The Supreme Court, 7-2 with Justices Ginsburg and Sotomayor dissenting, stayed the district court’s order.

In Little v. Reclaim Idaho the district court ordered Idaho either to certify an initiative for inclusion on the ballot without the requisite number of signatures, or to allow the initiative sponsor additional time to gather digital signatures through an online process of solicitation and submission. The court, again 7-2, stayed the order.

Roberts wrote a concurring opinion (there was no majority opinion), joined by Justices Alito, Gorsuch and Kavanaugh in which he found that the court was likely to grant certiorari on the issue, that there was a “fair prospect” that it would reverse, and that the state would suffer irreparable harm without review.

Just one exception

There is only one case—Republican National Committee v. Common Cause Rhode Island on Aug. 13—where the Supreme Court has allowed a change from usual election procedures, and in that instance it was by action of the government officials, not a court order. Election officials in Rhode Island agreed to suspend the requirement that absentee ballots be signed in the presence of either two witnesses or a notary. In an agreement with civic groups, Rhode Island officials agreed to suspend this requirement.

The Republican National Committee sought, and was denied, a stay by both the federal district court and the U.S. Court of Appeals for the 1st Circuit. The Supreme Court, too, denied a stay and in a brief order explained why this was different from the other cases: “Unlike Merrill v. People First of Alabama, and other similar cases where a State defends its own law, here the state election officials support the challenged decree, and no state official has expressed opposition.” Justices Thomas, Alito and Gorsuch would have granted the stay.

What are the lessons to be drawn from all of these rulings? The five conservative justices—Roberts, Thomas, Alito, Gorsuch and Kavanaugh—strongly disfavor judicial action to protect the right to vote that changes rules for an election. They are unpersuaded that protecting the right to vote in a pandemic justifies judicial action.

The four liberal justices—Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan—are willing to uphold district court orders to protect the ability of people to vote without endangering their health. And the court seems inclined to allow government officials on their own to modify its rules.

This is an election where Republicans, led by President Donald Trump, are seeking to limit absentee ballots, and Democrats expand them. It is one where Democrats are likely to bring lawsuits to enlarge the ability of people to vote and Republicans are likely to oppose them. At this point, it seems clear that the justices are lining up in the same way. Whether this will matter, and perhaps even decide the 2020 presidential election, is the crucial question for the coming election.


Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014). His latest book, We the People: A Progressive Reading of the Constitution for the Twenty-First Century, was published in 2018.