
WASHINGTON — The Supreme Court on Thursday rejected a request from Republicans to block a trial judge’s ruling making it easier for voters in Rhode Island to cast absentee ballots during the coronavirus pandemic. The judge’s ruling suspended a requirement that voters using mailed ballots fill them out in the presence of two witnesses or a notary.
The Supreme Court’s unsigned order included an explanation, which is unusual when its acts on emergency applications. The case differed from similar ones in which state officials had opposed changes to state laws ordered by federal judges, the order said. “Here the state election officials support the challenged decree,” the order said, “and no state official has expressed opposition.”
The order added that Rhode Island’s last election was conducted without the witness requirement, meaning that instituting a change now could confuse voters.
Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.
Last month, dividing 5 to 4, the court issued an order in a case from Alabama that rejected a trial judge’s ruling suspending the witness requirement. In that case, though, it was Alabama officials who objected to the ruling. In the new case, the objections came solely from Republican groups.
In the Rhode Island case, state officials responded to a suit from groups challenging the state law by negotiating a settlement. The parties submitted a consent decree to Judge Mary S. McElroy of the Federal District Court in Rhode Island, who approved it.
In endorsing the consent decree, she wrote that the state’s requirement “places an unconstitutional burden on the right to vote” given the realities of the pandemic.
A unanimous three-judge panel of the United States Court of Appeals for the First Circuit, in Boston, refused to stay Judge McElroy’s ruling while an appeal moved forward.
In an unsigned opinion, the panel said the witness requirement interfered with the right to vote. “First, many more voters are likely to want to vote without going to the polls and will thus only vote if they can vote by mail,” the panel wrote. “Second, many voters may be deterred by the fear of contagion from interacting with witnesses or a notary.”
“Could a determined and resourceful voter intent on voting manage to work around these impediments?” the panel asked. “Certainly. But it is also certain that the burdens are much more unusual and substantial than those that voters are generally expected to bear. Taking an unusual and in fact unnecessary chance with your life is a heavy burden to bear simply to vote.”
In asking the Supreme Court to intervene, the Republican National Committee and the state’s Republican Party wrote that the Rhode Island case was indistinguishable from the Alabama one. The witness requirement, they said, imposed only a slight burden.
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“Rhode Island gives voters nearly a month to find two witnesses or one notary,” they wrote. “Witnesses can be family, friends, co-workers, congregants, teachers, waiters, bartenders, gym goers, neighbors, grocers and more. And every bank, credit union, U.P.S. and FedEx has a notary.”
In separate briefs, state officials and groups challenging the witness requirement urged the Supreme Court not to intercede. The officials asked the court to respect their considered judgments about how best to address a health crisis.
The groups — the state affiliates of Common Cause and the League of Women Voters — wrote that the June presidential primary was conducted without the witness requirement, that 83 percent of voters had cast their ballots by mail and that the election had been conducted without incident.
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