The Slatest

Supreme Court Conservatives Agree With Alabama Conservatives: Voting Should Be Dangerous and Difficult, as the Founding Fathers Intended

Voters huddled around voting booths to fill out their ballots
Voting in the Democratic primary in Selma, Alabama, in March. Reuters/Michael A. McCoy

In an unsurprising twist, the state of Alabama has moved to make it harder to vote in next month’s election by prohibiting curbside voting. On Wednesday, the conservatives on the U.S. Supreme Court unsurprisingly agreed that forcing at-risk voters into the polling booth during a pandemic was how the Founding Fathers would have wanted it—you know, original intent and all. The Supreme Court’s conservatives ruled 5 to 3 on an emergency application to block a lower court decision that said counties in the state could offer curbside voting if they wanted to. The court sided with Alabama’s Republican secretary of state, John Merrill, who barred counties from allowing a form of contactless curbside voting that is being allowed in various forms across the country, including notoriously vote-suppressing states like Texas. “Some level of risk is inherent in life and in voting, pandemic or no,” Merrill argued.

Alabama law does not weigh in on curbside voting, and it’s a practice that some counties in the state have used in the past. When Merrill decided, at the height of the pandemic, to prohibit the practice of essentially dropping off your vote with an election worker, rather than waiting in line and doing the same act inside a fire station or elementary school, several Alabamians sued on the grounds that the prohibition violated the Americans With Disabilities Act by not providing a reasonable accommodation for vulnerable voters. Those voters are primarily elderly residents and those with health conditions that make them high-risk if they contract the coronavirus. Last month, a federal court agreed that a curbside accommodation—that was optional, not required—was reasonable.

“The plaintiffs have shown that the curbside voting ban imposes a significant burden on vulnerable voters during the Covid-19 pandemic,” Judge Abdul Kallon wrote. “Curbside, or drive-up, voting is a form of in-person voting (which state law of course permits)—the practice involves a voter who is present in person to sign the poll book, complete a ballot and give it [to] a poll worker, who then inserts it into a tabulation machine.” A divided appeals court didn’t stay Kallon’s order, so Merrill took his case directly to the Supremes.

Merrill’s rationale for disallowing voters from handing over their vote, beyond his “inherent risk” argument, is purely logistical. “For instance,” Merrill’s brief said, “how will local election officials who wish to experiment with curbside voting ensure that it is done in a manner that preserves ballot secrecy? How will they acquire the extra equipment necessary to implement curbside voting? How will they deal with traffic? How many additional poll workers will be required?” Traffic. He said, what about traffic. Yes, how on earth could we solve all of these profoundly solvable problems if we refuse to even try?

“If those vulnerable voters wish to vote in person, they must wait inside, for as long as it takes, in a crowd of fellow voters whom Alabama does not require to wear face coverings,” Justice Sonia Sotomayor wrote for the three liberal justices in dissent. “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. This remedy respects both the right of voters with disabilities to vote safely and the state’s interest in orderly elections.”

“Tonight’s ruling in favor of election integrity and security is once again a win for the people of Alabama,” Merrill said in a statement on the ruling. When in doubt, Alabama’s gonna Alabama.