For better and for worse, the Court tends to defer to state officials in pandemic-related cases.
The Supreme Court just handed a defeat to the Republican Party, rejecting the GOP’s effort to make it harder for voters to cast absentee ballots in Rhode Island. Only three justices publicly dissented in Republican National Committee v. Common Cause Rhode Island — Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.
Republican National Committee is the GOP’s most recent effort to make it harder for voters to cast absentee ballots amid a pandemic that’s likely to discourage many voters from gathering at the polls.
Ordinarily, Rhode Island law requires absentee ballots to be signed by two witnesses or a notary. In a normal election, this is a fairly minor restriction on voters: Most individuals will have a fairly easy time finding two friends, neighbors, or coworkers who can act as witnesses — and fewer voters typically request absentee ballots in the first place when it is safe to go to the polls. During a time of social distancing, however, many voters could struggle to find the required witnesses.
Significantly, Rhode Island’s top election officials all agreed with the plaintiffs in this case that the witness requirement should be suspended during the state’s upcoming elections. After two voting rights groups and three voters sued Secretary of State Nellie Gorbea and the seven members of Rhode Island’s board of elections, seeking to waive the witness requirement in these elections, Gorbea and her fellow defendants consented to a federal court order — known as a “consent judgment” — giving the plaintiffs the relief they seek.
The only reason this case was in front of the justices is that the Republican Party, which isn’t even a party to the lawsuit, asked the Court to block this consent judgment. (Federal rules of judicial procedure sometimes allow a non-party to “intervene” in a lawsuit, and even to appeal a judgment that the parties do not wish to appeal.)
But a majority of the Supreme Court rejected the GOP’s arguments. “The state election officials support the challenged decree, and no state official has expressed opposition.” the Court’s brief order in Republican National Committee explains. Under those circumstances, the GOP lacks “a cognizable interest” in forcing the state to enforce a requirement that its own top elections officials wish to suspend.
In brief orders such as the one handed down in Republican National Committee, the Court does not always disclose how each justice voted. We know that at least five justices voted against the GOP, because at least five votes are necessary to form a majority. And we know that Thomas, Alito, and Gorsuch voted with the GOP because they chose to publicly dissent. We don’t know, with certainty, how the other six justices voted.
Nevertheless, it is very likely that Chief Justice John Roberts voted with the majority. Though Roberts did not disclose his vote, the Court’s decision in Republican National Committee is consistent with Roberts’s prior decisions in Covid-related cases. And the parties defending the consent judgment all relied heavily on Roberts’s previous opinions in their briefs.
Though Roberts is a conservative Republican, he votes with his liberal colleagues more often than any other member of the Court’s conservative bloc.
Roberts’s Covid-related opinions emphasize that courts should defer to “the politically accountable officials of the States” when those officials announce public health policies related to the pandemic. The Court’s decision in Republican National Committee, which turns on the fact that Rhode Island’s election officials agree with the plaintiffs, is consistent with Roberts’s prior calls for deference to state officials.
Roberts’s deference to state officials often cuts against voting rights.
Just last month, in Merrill v. People First of Alabama, the Supreme Court blocked a lower court order halting an Alabama witness requirement that is quite similar to the one in Rhode Island. That decision was 5-4, with all five Republicans voting in the majority, including Roberts.
The primary difference between Merrill and Republican National Committee, however, is that state officials supported the plaintiffs in the later case, while Alabama state officials chose to defend their absentee ballot rules in court. “Unlike Merrill v. People First of Alabama, and other similar cases where a State defends its own law,” the Court’s order in Republican National Committee explains, “here the state election officials support the challenged decree, and no state official has expressed opposition.”
As mentioned above, Roberts’s pandemic-related opinions often focus on his belief that courts should defer to “the politically accountable officials of the States.” Indeed, less than two weeks ago, in Little v. Reclaim Idaho, Roberts faulted a lower court for failing to “accord sufficient weight to the State’s discretionary judgments about how to prioritize limited state resources across the election system as a whole” in the midst of the pandemic.
That means that Republican National Committee is likely to be a very narrow victory for voting rights. Roberts’s deference to state officials suggests he is likely to vote in favor of voting rights only in cases involving states led by people who already support voting rights. When state officials resist voting rights, Roberts is likely to defer to those officials.
Moreover, when state officials are divided on whether to alter their ordinary elections practices in order to prevent voters from being infected with Covid-19, Roberts has shown little sympathy for voting rights.
Consider, for example, Republican National Committee v. Democratic National Committee, an April case where the Supreme Court’s Republican majority effectively ordered Wisconsin to toss out many absentee ballots. Though many Wisconsin officials supported a lower court order that would have ensured that many of those ballots were counted, the state’s Republican-controlled legislature did not.
Roberts sided with the GOP legislature in that case.
The Rhode Island decision, in other words, suggests that the Supreme Court will not act entirely as a rubber stamp for the Republican Party when the GOP asks the Court to limit voting rights. But that decision should provide little comfort to most voting rights plaintiffs.
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Author: Ian Millhiser
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