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Alabama asks Supreme Court to review COVID-19 election ruling

State official says election confusion will not end without firm guidance from the justices

Tourists take photos on the steps of the U.S. Supreme Court on March 12.
Tourists take photos on the steps of the U.S. Supreme Court on March 12. (Bill Clark/CQ Roll Call file photo)

Alabama officials asked the Supreme Court to step into the debate over how to conduct election laws in the midst of a national health crisis, in a legal dispute over absentee ballot requirements in three of the state’s largest counties.

Alabama Secretary of State John Merrill filed an application to the high court Monday to overturn a lower court’s injunction that found that the requirements could violate the constitutional right to vote for some elderly and disabled voters during the COVID-19 pandemic.

Merrill points out that federal district and appeals courts nationwide are dealing with similar requests to change state election laws because of the health concerns — and ruling in different ways. Voters across the country have looked to cast ballots without the risk of going to public polling places and possibly exposing themselves to the novel coronavirus that causes some severe illness and death.

“This confusion in the lower courts will not end without firm guidance from this Court,” the application states. “And as election dates draw nearer, culminating in the 2020 presidential election on November 3, these challenges to the constitutionality of election practices during the COVID-19 pandemic will only increase.”

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At issue in Alabama are two requirements that the state officials say combat voter fraud. Voters must submit a copy of their photo ID with their absentee ballot application, and absentee ballots must contain a voter affidavit that is either notarized or signed by two witnesses.

But a lower court judge ordered that officials in Jefferson, Mobile and Lee counties could not enforce the witness requirement for any voters who decide it is unsafe to comply and declare in writing that they are at a substantially higher risk of developing a severe case of COVID-19.

And the order precludes officials from enforcing the photo ID requirement for voters who are over 65 years old or have a disability and determine they can’t safely satisfy that requirement.

The judge decided that “the photo ID requirement could present some elderly and disabled voters who wished to vote absentee with the burden of choosing between exercising their right to vote and protecting themselves from the virus, which could dissuade them from voting.”

The injunction also allows local election officials to offer curbside voting at in-person polling locations.

Merrill told the Supreme Court that the injunction changes the law in three counties while absentee voting is already ongoing, and leaves the law in place in Alabama’s remaining 64 counties. “How is that not going to confuse voters?” the application states.

The election was delayed from March to July, so voters have had more than three additional months to address these easy-to-satisfy requirements, the application states.

And the injunction could undermine confidence in the elections and lead to a different type of voter disenfranchisement, Merrill argues.

“These provisions were enacted by the Legislature precisely to combat claims of absentee-voter fraud; with their sudden enjoinment, voters could wonder if fraud will increase and if their votes will really make a difference, perhaps leading them not to vote at all,” the application states.

President Donald Trump repeatedly has raised unsubstantiated claims that mail-in ballots will lead to fraud in the election, while Attorney General William Barr has said the increase in mail-in voting “opens the floodgates to fraud.”

On Friday, the Supreme Court declined a request from Texas Democrats to reinstate a lower court’s order to allow all voters to vote by mail if they feared they would catch the coronavirus at a polling place.

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