Voting rights in a pandemic: Supreme Court reimposes witness requirement, creating a significant barrier for voters and risking public safety

Before we start, one of the key legal issues at hand is called the “Purcell principle,” a legal doctrine based on a 2006 Supreme Court case, Purcell v. Gonzalez, that warns courts against making changes to voting rules and procedures close to an election. But with so many more voters casting their ballots early this year because of the pandemic, courts are grappling with how to balance the Purcell principle with making sure the right to vote is protected.

Losses for voting rights

South Carolina: The Supreme Court on Monday reinstated the witness requirement for South Carolina mail ballots after lower courts ruled that having the requirement created risk during the pandemic. As usual for a shadow docket case, it didn’t explain its decision.

Ballots received within two days of the order will be accepted without a witness signature. Three conservative justices – Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch – would have allowed South Carolina to apply the witness signature rule retroactively, nullifying tens of thousands of ballots already cast. Furthermore, South Carolina has no ballot “cure” procedure: Voters aren’t notified when their ballots are tossed, and they don’t get an opportunity to fix any defects.

Wisconsin: A three-judge panel of the 7th Circuit Court of Appeals split 2-1 in favor of staying a lower court’s order, which would have allowed for ballots postmarked by Election Day to be received by Nov. 9, six days later, in order to be counted. The stay also suspended an order extending the deadline for online and mailed-in voter registration from Oct. 14 to Oct. 21, and it stopped potential electronic delivery of certain ballots.

  • Judge Frank Easterbrook (Reagan appointee) and Amy St. Eve (Trump appointee) were in the majority. Judge Ilana Rovner (George H. W. Bush appointee) dissented, writing that “no citizen should have to choose between her health and her right to vote.”

Texas The Texas Supreme Court ruled Wednesday that Harris County, one of the largest in the country, cannot mail out applications for absentee ballots to all of its 2.4 million registered voters. The court is completely staffed with Republican appointees. The state sued County Clerk Chris Hollins in August. Both the state district judge and panel of three state appellate judges (all Democrats) ruled in favor of Hollins.

Georgia: A three-judge panel of the 11th U.S. Circuit Court of Appeals decided 2-1 to grant a stay of a judge’s ruling to count ballots postmarked by Nov. 3 and received at county election offices by the following Friday. Under the new order, ballots must be received by 7pm on Election Day, no matter the postmark.

  • Trump Trump appointees were in the majority: Judge Britt Grant and Barbara Lagoa. Judge Charles Wilson (Clinton appointee) dissented, writing that the lower court’s order allowing ballots to be received for a couple extra days was “reasonable: It imposes a small burden on the state in order to avoid a more substantial burden on an individual’s right to vote.”

Indiana: A three-judge panel of the 7th Circuit Court of Appeals upheld a lower court ruling that the state’s restrictions on allowing mail-in voting are constitutional. A coalition of voting rights groups and concerned voters has sued to extend the no-excuse mail-in balloting that Indiana allowed for the spring primary to the general election.

“The court recognizes the difficulties that might accompany in-person voting during this time,” the ruling said. “But Indiana’s absentee-voting laws are not to blame. It’s the pandemic, not the State, that might affect Plaintiffs’ determination to cast a ballot.”

  • A Trump appointee, Michael Scudder, and two Reagan appointees – Kenneth Ripple and Michael Kanne – were unanimous in their ruling.

Wins for voting rights

Pennsylvania: Judge Gary Glazer (Pennsylvania Court of Common Pleas) rejected a bid by Trump’s campaign to force Philadelphia to allow campaign representatives to monitor people registering to vote or filling out mail-in ballots in election offices in Philadelphia. Trump sent unautohrized poll watchers to the city’s satellite election offices but they were barred by city election officials.

  • Trump and his supporters spread false claims that the city workers are biased against Trump and trying to steal the election.

Ohio: U.S. District Judge Dan Polster (Clinton appointee) blocked Ohio Secretary of State Frank LaRose’s order prohibiting off-site drop boxes for absentee ballots. LaRose tried to limit ballot drop boxes to one location per county: a county’s election office. A three-judge panel of the 10th Circuit had previously ruled that county elections officials are allowed to establish off-site drop boxes but LaRose did not comply.

“The Secretary is continuing to restrict boards from implementing off-site collection, and he appears to be doing so in an arbitrary manner,” Polster wrote. “The Court has given the Secretary every opportunity to address the problem … and he has been unwilling or unable to do so.”

Montana: Supreme Court Justice Elena Kagan on Thursday denied a request from Republicans to block Montana Gov. Steve Bullock’s directive last month allowing counties to send mail-in ballots to all registered voters amidst the coronavirus pandemic. Kagan, who has jurisdiction over the lower court involved in the case, turned down the request without referring the petition to her colleagues or asking the other side for its views.

Michigan: Michigan Governor Gretchen Whitmer signed into law a bill that gives clerks in larger cities of the battleground state an extra 10 hours to open and sort, but not count, absentee ballots in a move to speed the Election Day counting process on Nov. 3.

Iowa: State Judge Robert Hanson (elected) blocked Iowa’s secretary of state Monday from enforcing an order that barred counties from sending absentee ballot applications to voters with their personal information already filled in. Republican groups, including the RNC and Trump’s campaign, have appealed the decision to the Iowa Supreme Court.

Arizona: U.S. District Judge Steven Logan (Obama appointee) on Monday granted a last-minute extension of the deadline for Arizona residents to register to vote – moving the deadline to 5 p.m. on Oct. 23.

Texas: The Texas Supreme Court declined a case by the Republican Party of Texas to reverse a proclamation by Gov. Greg Abbott that extended the early voting period. Gov. Abbott issued the proclamation in July to extend the early voting period six days from Oct. 13-30 due to COVID-19.

Texas: U.S. District Judge Robert Pitman (Obama appointee) granted an injunction barring enforcement of Gov. Greg Abbott’s Oct. 1 proclamation that limited counties to one mail-in ballot drop-off location. Texas Attorney General Ken Paxton, whose office defended Abbott’s order, has already appealed the decision to the 5th Circuit.

New Jersey: District Judge Michael Shipp (Obama appointee) ruled against the Trump campaign’s attempt to stop the state from allowing election officials to process ballots received by mail 10 days before Election Day and those received two days after Election Day even if those ballots don’t have a postmark.

Keep an eye on…

USPS: The U.S. Postal Service is blocking members of Congress from inspecting postal facilities, citing the Hatch Act and the proximity to the election. Three Democrats — Reps. Jared Huffman (Calif.), Debbie Wasserman Schultz (Fla.) and Bill Pascrell Jr. (N.J.) — have been denied access to postal buildings in their home states in the past six weeks.

USPS: Sen. Peters released an update on USPS performance. The report shows that while on-time mail delivery improved following Congressional oversight efforts at the end of the summer, delivery performance has fluctuated in recent weeks, and declined overall during the month of September.

Intimidation: A private security company is recruiting former U.S. military Special Operations personnel to guard polling sites in Minnesota on Election Day, an effort the chairman of the company said is intended to prevent left-wing activists from disrupting the election but that the state attorney general warned would amount to voter intimidation and violate the law.

  • If you or someone else is being harassed or threatened at the polls, let a poll worker know. Then call and report it to the Election Protection Hotline (1-866-OUR-VOTE) or the US Department of Justice voting rights hotline (1-800-253-3931). You should also contact your state board of elections.
  • Georgetown Law created fact sheets for all 50 states explaining the laws barring unauthorized private militia groups and what to do if groups of armed individuals are near a polling place or voter registration drive.

Justice Department: A Justice Department lawyer in Washington said in a memo to prosecutors on Friday that they could investigate suspicions of election fraud before votes are tabulated. That reversed a decades-long policy that largely forbade aggressively conducting such inquiries during campaigns to keep their existence from becoming public and possibly “chilling legitimate voting and campaign activities” or “interjecting the investigation itself as an issue” for voters.

  • The exception allows investigators to take overt investigative steps, like questioning witnesses, that were previously off limits in such inquiries until after election results were certified. The move also allows prosecutors to make more of a spectacle of election fraud in the weeks before the vote on Nov. 3.

Kansas: Kansas Senate President Susan Wagle told a conservative group that Republicans need to win two-thirds majorities in both houses of the Kansas Legislature this year so her party can rig the redistricting process to elect and protect Republican candidates.

“During redistricting, I need to give (my potential successor) some more Republican neighborhoods in order to make sure she stays elected,” Wagle said. “I guarantee you, we can draw four Republican congressional maps,” Wagle said. “But we can’t do it unless we have a two-thirds majority in the (state) Senate and the House.”