Pandemic lawsuits from voters, worshipers, prisoners meet roadblock at Supreme Court
Chief Justice John Roberts has been a conservative vote in important past rulings, but recent decisions have some wondering if he's now a swing vote. USA TODAY
WASHINGTON – The coronavirus pandemic has fueled an outbreak of lawsuits from voters, church worshipers, prisoners and others challenging public health policies, but the Supreme Court is proving to be a roadblock.
With the virus circulating in Wisconsin in April, the court refused to extend absentee voting beyond the date of the primary election, forcing those who had not received their ballots to go to the polls or be disenfranchised.
In May, the court turned down a California church's challenge to the state's reopening guidelines, which imposed tighter restrictions on the number of worshipers allowed to attend religious services than on most commercial establishments.
In June, the justices refused to force federal prison officials to begin moving more than 800 inmates from an Ohio prison because of a COVID-19 outbreak, giving the Trump administration more time to challenge a lower court's order.
Earlier this month, the court refused to make it easier for voters in three Alabama counties to use absentee ballots, keeping in place a requirement that voters submit an affidavit signed by a notary public or two adult witnesses.
And last week, the court set aside its usual support for religious freedom and denied petitions from spiritual advisers seeking to delay two federal executions until they could safely attend.
Some of the actions have been unanimous. Others were decided by 5-4 votes, with conservatives and liberals coming out on top in different cases. Only Chief Justice John Roberts has yet to register a dissent.
Taken together, the high court's actions signal a desire to leave the pandemic in public officials' hands – an effort that may prove difficult as Election Day draws near.
“This is the most litigious year I’ve ever experienced on voting rights," said Dale Ho, director of the voting rights project at the American Civil Liberties Union, which has filed 15 lawsuits so far. “COVID has turbocharged these controversies and has created more emergencies around the country than we’ve ever had in an election year.”
From prayer to prisons
The Supreme Court historically has been careful when asked to weigh in on new issues, such as modern technology. But the justices can't avoid them for long.
Since March, the pandemic has upended most Americans' way of life, making it dangerous in many instances to enter a polling place or remain in prison. But the rules put in place by elected officials often conflict with basic constitutional rights.
That was the argument raised by a Pentecostal church in California protesting Gov. Gavin Newsom's limits on worshipers. The court, which recently issued three major decisions supporting religious freedom, sided with the state.
Roberts wrote that elected officials "should not be subject to second-guessing by an 'unelected federal judiciary,' which lacks the background, competence, and expertise to assess public health and is not accountable to the people."
Although the court's other four conservatives disagreed, Roberts noted that the pandemic "has killed thousands of people in California and more than 100,000 nationwide. At this time, there is no known cure, no effective treatment, and no vaccine."
The court also turned aside two spiritual advisers in their 60s who wanted to be with federal prisoners as they were executed last week. In the past, the justices have been supportive of prisoners' rights to have spiritual advisers present.
Richard Garnett, a professor at Notre Dame Law School with expertise in religion, said religious freedom "is not inconsistent with carefully targeted, temporary restraints on certain kinds of dangerous behavior.”
“It is in the First Amendment," Garnett said. "But that doesn’t mean it’s absolute.”
The court also has protected the rights of criminal defendants, but it has not second-guessed prison officials' refusal to move elderly or medically compromised inmates threatened by the COVID-19 virus in Texas, Louisiana and Ohio.
In the Texas case, however, Associate Justice Sonia Sotomayor warned that "while states and prisons retain discretion in how they respond to health emergencies, federal courts do have an obligation to ensure that prisons are not deliberately indifferent in the face of danger and death." She was joined by Associate Justice Ruth Bader Ginsburg.
Scores of election cases
The most frequent virus-related lawsuits to reach the high court concern the right to vote, and they are likely to multiply in the months to come.
Justin Levitt, a professor at Loyola Law School in Los Angeles who specializes in voting rights, has counted 163 cases in 41 states and the District of Columbia. Most deal with rules for voting by mail or gathering signatures on petitions.
The Supreme Court's rulings on voting rights have been among its most controversial. After Roberts' 2013 opinion in an Alabama case wiped out the key section of the Voting Rights Act, several Southern states with a history of discrimination immediately imposed new restrictions. Just last week, the court allowed Florida to bar felons who have completed their sentences from voting until they have paid all fees, fines and restitution.
“They have certainly not declared themselves to be voter-friendly," Levitt said. "They have amply signaled that they’re not going to be riding to the rescue of voters.”
In most cases, the court seeks to leave in place established voting procedures on the eve of an election. But in some, those rules have changed back and forth based on lower court decisions.
Whether its rulings are based on ideology, precedent or process, the court often has expressed its hesitance to second-guess how public officials are battling the pandemic.
In the Wisconsin case from April, the court ruled 5-4 along conservative-liberal lines that mail ballots must be postmarked by the date of the primary. A district court had allowed an additional six days of voting.
"The court’s decision ... should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate," the unsigned opinion said. "That point cannot be stressed enough."