Supreme Court Allows Alabama Curbside Voting Ban to Stand

The Supreme Court has frozen a district court order that lifted Alabama’s ban on curbside voting. As a result, curbside voting must discontinue in Alabama.

Alabama law is silent on curbside voting. A number of Alabama counties were offering it due to COVID-19. Alabama’s Secretary of State, John Merrill, has taken the position that curbside voting violates state law and has banned it. A federal district court ruled that the ban on curbside voting violates the Americans with Disabilities Act (ADA).

The ADA requires that if persons with disabilities are “excluded from participation in or . . . denied the benefits” of a government program, such a voting, because of a disability, they are entitled to a “reasonable accommodation.” The plaintiffs, disabled Alabama voters, argued they were excluded from in-person voting. They claim it is too risky for them given that 96.2 percent of Alabamians who have died of COVID-19 had underlying health conditions. They requested curbside voting as a reasonable accommodation.

Secretary Merrill argued that plaintiffs weren’t excluded from voting because they could vote absentee. The district court rejected this argument noting, “based on the ADA’s broad remedial purpose, if a state provides voters with a choice between in-person and absentee voting, then the ADA mandates that both options be accessible to voters with disabilities.” The court concluded absentee voting isn’t accessible for all voters with disabilities. Some voters with disabilities “require assistance to vote and should not be forced to give up their privacy to obtain help from someone who, unlike a poll worker, does not have an affirmative obligation to maintain their ballots’ secrecy.”

The Eleventh Circuit refused to freeze the district court’s holding allowing curbside voting. Secretary Merrill asked the Supreme Court to freeze it on an emergency basis. While the Supreme Court agreed to do so, Justices Sotomayor, Breyer, and Kagan dissented. 

Justice Sotomayor stated she wouldn’t have granted Secretary Merrill a stay of the lower court decision because she found it contained no “legal error.” Like the district court, she rejected the Secretary’s argument that the only “benefit” under the ADA is “voting generally, not in-person voting specifically, and that absentee voting ensures access to that benefit.” She noted “[i]n-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.”

Justice Sotomayor also reasoned that the district court decision should stand because it doesn’t require curbside voting, isn’t likely to create “voter confusion and consequent incentive to remain away from the polls,” and “neither invalidates state law nor prohibits the secretary from issuing guidance consistent with the District Court’s ruling.”