Will SCOTUS Let AL Election Chief Impose His De Facto Ban On Curbside Voting?

MONTGOMERY, AL - DECEMBER 12:  John  Merrill, Secretary of State of Alabama, speaks to the media in the Capitol building about the possible recount to determine the winner between Republican Senatorial candidate Roy Moore and his Democratic opponent Doug Jones on December 12, 2017 in Montgomery, Alabama. Mr. Moore and Mr. Jone are locked in a race that is too close to call in the special election to replace Attorney General Jeff Sessions in the U.S. Senate.  (Photo by Joe Raedle/Getty Images)
MONTGOMERY, AL - DECEMBER 12: John Merrill, Secretary of State of Alabama, speaks to the media in the Capitol building about the possible recount to determine the winner between Republican Senatorial candidate Roy ... MONTGOMERY, AL - DECEMBER 12: John Merrill, Secretary of State of Alabama, speaks to the media in the Capitol building about the possible recount to determine the winner between Republican Senatorial candidate Roy Moore and his Democratic opponent Doug Jones on December 12, 2017 in Montgomery, Alabama. Jones has been declared the winner but Moore has not conceded and may request a recount. (Photo by Joe Raedle/Getty Images) MORE LESS
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October 6, 2020 11:14 a.m.

Alabama’s election chief is fighting in court to implement a prohibition on curbside voting during the pandemic, despite there being no explicit ban on the practice in state law.

The case, which also concerns Alabama’s absentee witness and photo ID requirements, has flown somewhat under the radar. But it is part of a trend that has played out in federal court fights throughout the pandemic: In several election disputes, most recently in a Monday night order the Supreme Court issued reinstating South Carolina’s witness requirement, the high court has set aside assessments by lower courts that certain barriers to the ballot should be removed during a pandemic.

In Alabama, when the individual voters and civil rights groups first sued to relax the voting restrictions ahead of the state’s July 14 run-off, they secured victories at the district and appellate court level, only to see the Supreme Court reverse those decisions in an unexplained order two weeks before the election.

A nine-day trial, nonetheless, was held on the restrictions in early September. The district court produced last week a 197-page opinion on the merits loosening Alabama’s voting rules due to COVID-19. The cycle stands to repeat itself. Secretary of State John Merrill has again appealed the case up to the U.S. Court of Appeals for the 11th Circuit, with the intent to go to the U.S. Supreme Court if need be.

In an interview with TPM Tuesday, Merrill defended his willingness to fight in court efforts to make voting easier during the pandemic. He called the concerns about the obstacles they imposed to the ballot a “manufactured need” being pushed by liberal groups to further a “narrative” about Alabama.

“For whatever reason, the plaintiffs are interested in breaking Alabama law,” Merrill told TPM. The changes to the election rules being sought, he claimed, do not “enhance the spirit of safe, secure, sound, and free elections in the state of Alabama.”

The changes that he’s appealing are quite narrow.

U.S. District Judge Abdul Kallon ordered that absentee voters who are at heightened risk because of the coronavirus be allowed to submit statements if it’s not feasible for them to comply with the state’s witness mandates (which require either a notary or the signature of two witnesses) or the photo ID mandate (which requires voters to print copies of their IDs to send with their absentee ballot applications). He also ordered that counties be allowed the option to set up curbside in-person voting.

But the Supreme Court’s Monday night move in the in South Carolina case is yet another indication that conservative justices on the high court will likely allow Merrill to implement de facto curbside voting ban and the other restrictions. These emergency moves by the Supreme Court only rarely include an explanation for the court’s decision-making.

Since 2016, Merrill and his deputies have repeatedly shut down attempts by local election officials to offer curbside voting. Alabama has conceded that no state law expressly bans the practice. The state argues that because the law does not explicitly allow it, either, Merrill is allowed to prohibit the practice.

Judge Kallon disagreed, ruling that as long as the service complies with other Alabama rules for in-person voting, counties should not be prohibited from offering it.

As for the absentee voting rules, Kallon ruled that the state’s justification for its requirements was not strong enough to offset the burden the full enforcement of the mandates placed on voters during the pandemic.

Kallon said that the state had not provided enough evidence of the voter fraud that would be supposedly prevented by the requirements.

Asked by TPM about that lack of evidence, Merrill shot back by citing trends pointing towards a record-breaking number of Alabamans using absentee voting this year.

“Let me tell what there’s not enough evidence of,” he said. “There’s not enough evidence of people not being able to cast their ballot for the candidate of their choice for Judge Kallon’s ruling to make any sense to anybody who is impartial.”

The case was brought by community groups and civil rights organizations, as well as several individual voters who suffered serious medical conditions that had made them extremely wary of leaving quarantine during the pandemic.

Howard Porter, who is in his 70s and suffers from Parkinson’s disease, testified that he preferred curbside voting because he has ambulatory issues that make it impossible to guarantee that he’d be able to stay 6 feet away from other people in his polling place. (Merrill is not requiring masks for voting and had compared such a mandate to a poll tax.)

Annie Carolyn Thompson, a 68-year-old with diabetes and high blood pressure, testified that she did not have the computer equipment that would allow her to print the copy of her ID that was required for her to vote absentee. Because she is self-quarantining during the pandemic, she is also struggling to meet the witness requirement, as she is not regularly in contact with two people at the same time.

To defend the restrictions, state election officials testified about their willingness to help voters in situations like those faced by the challengers. They said they would send staff to voters’ homes to serve as their witnesses, and that if voters texted or emailed photos of their IDs, the state elections office would print and send them the needed copy.

Kallon’s opinion noted that the state had not provided evidence of how widely such workarounds are being used, nor whether such services are being advertised.

Merrill told TPM that “several dozen” voters had reached out for help with printing IDs, while his staff had gone to at least two homes to serve his witnesses. He confirmed that his website didn’t advertise that voters could reach out to him for that kind of help.

“It’s not advertised because it’s not a need. I mean if there’s only been the few examples that I’ve given you, then it’s obviously not a need,” Merrill claimed. “Now it’s a manufactured need by some liberal special interest groups and liberal individuals that are trying to promote a narrative that doesn’t exist in Alabama. But we have to fight that all the time, so we just tell those people to wait in line.”

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