No matter how disappointed conservatives have been with the Roberts Court, there’s one area of Supreme Court jurisdiction where they’ve had no reason to complain: voting rights. The biggie, of course, was the 5-4 decision in Shelby County v. Holder (2013), gutting enforcement of the Voting Rights Act, with Chief Justice John Roberts writing the majority opinion. More recently, Roberts was again the author of a 5-4 decision slamming the door on any judicial interference with partisan gerrymandering, a major vehicle for thwarting voting rights in the states.
This year the Court has refused to intervene against state voting restrictions that denied relief to voters fearing COVID-19 infections (in both Alabama and Texas), or that saw voters not receiving mail ballots in time to cast them (in Wisconsin). As recently as yesterday the Supreme Court rejected an effort to force Oregon to reduce the number of petitions needed to place a constitutional amendment on the state’s November ballot.
Now, however, a small breach in the wall of Supreme Court–majority hostility to voting rights has appeared, as a 6-3 majority upheld Rhode Island’s right to relax witnessing requirements for mail ballots in light of COVID-19. The Washington Post’s Robert Barnes explains:
The Supreme Court on Thursday rebuffed the Republican Party and allowed a consent decree to go forward so that Rhode Island voters during the coronavirus pandemic could cast mail-in ballots without in-person witness verification.
It was the first time the justices had agreed to a pandemic-related voter-relief effort. But they explained in a short, unsigned order that state officials had agreed to relax the rules, and the change already had been implemented during the June primary.
So even a couple of conservative justices (e.g., Roberts and Justice Brett Kavanaugh) went along with COVID-19 voting accommodations when the state was supporting rather than resisting them. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch indicated without elaboration that they would have supported the GOP’s petition to stop the relief measure.
This wasn’t a great victory for voting rights, since it depended on a state’s interpretation of its own laws, and you don’t have to be a liberal zealot to understand that securing ballot witnesses when friends and neighbors are avoiding physical contact is a mite burdensome. But those struggling to hold a fair election this November will be grateful for whatever they can get.