Disability Voting Rights Setback in Alabama by 5-3 Partisan Supreme Court

With voting already underway in Alabama, a 5-3 partisan Supreme Court issued an unexplained emergency stay Wednesday night, effectively permitting the state to require disabled people voting by mail to obtain witnesses or notaries on ballots, and to permit the state to ban “curbside voting,” overturning lower court rulings.

Alabama Secretary of State John Merrill banned counties from offering curbside voting even though the practice was not prohibited under state law. Curbside voting is a safer option for those over age 65 or disabled in the pandemic.

The trial court and the appeals court both agreed: They threw out the Merrill ban against local governments offering curbside voting. The courts found that the voting restriction was not required under state law, that localities could follow all applicable state laws, and the restriction violates the Americans with Disabilities Act (ADA).

The case was appealed to the Supreme Court. Five Republican appointees overturned lower courts without comment, reinstating the voting restriction 12 days before the 2020 election ends.

Dissenting with the three Democratic appointees, Sonia Sotomayor had things to say:

Following a lengthy trial and resting on an extensive record, the District Court found, among other things, that the secretary’s ban violates the Americans with Disabilities Act (ADA) by forcing voters with disabilities, for whom COVID–19 is dis-proportionately likely to be fatal, to risk unnecessary expo-sure to the virus if they wish to vote in person…

Based on the trial evidence, the District Court concluded, in relevant part, that the secretary’s ban on curbside voting violated the ADA and that a policy al-lowing, but not requiring, counties to implement curbside voting was a reasonable accommodation…

The District Court’s modest injunction is a reasonable accommodation, given the short time before the election. It does not require all counties to adopt curbside voting; it simply gives prepared counties the option to do so…

Howard Porter, Jr., a Black man in his seventies with asthma and Parkinson’s Disease, told the District Court: “‘[S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time.'”

Citing the lower court record, Sotomayor also discussed absentee voting versus curbside voting. Absentee voting in Alabama requires contact with witnesses or notaries, so it presents its own dangers for disabled people. Under the ADA, disabled people should be able to choose between absentee voting and curbside voting (where available) just like other voters do:

The District Court for good reason found that the secretary’s ban deprives disabled voters of the equally effective opportunity to participate in the benefit of in-person voting. The secretary does not meaningfully dispute that the plaintiffs have disabilities, that COVID–19 is disproportionately likely to be fatal to these plaintiffs, and that traditional in-person voting will meaningfully increase their risk of exposure. He argues only that the relevant benefit under the ADA is voting generally, not in-person voting specifically, and that absentee voting ensures access to that benefit. But under the ADA, the benefit itself cannot be defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled. In-person voters receive assistance from poll workers; need no witnesses, notaries, or copies of their photo IDs, as Alabama law requires for absentee ballots; and know their ballot will not arrive too late or be rejected for failure to comply with absentee ballots’ many requirements. Absentee and in-person voting are different benefits, and voters with disabilities are entitled to equal access to both. (Citations and quotations omitted.)

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