The Republican National Committee and Rhode Island Republicans asked the Supreme Court on Monday to block an order by a federal district court that relaxed the state’s witness requirement for absentee ballots. The two groups argued that the relief they have requested – putting the lower court’s ruling on hold – was compelled by the Supreme Court’s ruling in July in a similar case from Alabama.
Under Rhode Island law, voters who opt to submit absentee ballots must sign their ballots in the presence of either two witnesses or one notary. The state’s governor, Democrat Gina Raimondo, waived the witness requirement for the June presidential primary, but she opted not to do so for either the September primary election or the November general election.
Civic groups, including the League of Women Voters, went to court in late July, arguing that the witness requirement was unconstitutional because of COVID-19. Secretary of State Nellie Gorbea did not defend the witness requirement. Instead, the challengers and Gorbea worked together to negotiate a consent decree that suspended the witness requirement for all Rhode Island voters for the upcoming elections.
At a hearing on the consent agreement, the district court rejected a request by the RNC and the Rhode Island GOP to intervene in the case, concluding that they had waited too long and that their interests were, in any event, already represented by the state officials who were named as defendants. The district court approved the agreement, finding that the witness requirement “places an unconstitutional burden on the right to vote” during the pandemic. The RNC and the Rhode Island GOP appealed to the U.S. Court of Appeals for the 1st Circuit, which declined to put the district court’s order on hold until the appeal is resolved.
The RNC and the Rhode Island GOP went to the Supreme Court on Monday, asking the justices to step in. Because “Rhode Island’s witness requirement mirrors Alabama’s,” and their case presents the same issues as in the Alabama case, in which the Supreme Court granted the state’s request for a stay, the district court’s order in this case should also be put on hold, they contended.
The consent agreement was also put in place too close to the September and November elections, the RNC and the Rhode Island GOP told the justices. That conflicts with the principle – known as the Purcell principle – that the lower courts should normally not change the rules of an election at the last minute. Although the 1st Circuit suggested that voters would not expect the witness requirements to be in effect because they had been waived for the June election, the RNC and the Rhode Island GOP said, election officials had made clear at the time that the June waiver was a “one time emergency response” to the pandemic.
The Republican groups asked the justices to decide quickly, telling them that ballots for the September election are scheduled to go out on Thursday, Aug. 13. The groups also warned, more broadly, that “until this Court addresses the merits” of COVID-related election disputes “in a written opinion,” “it will see many more.”
Update (Monday 10 p.m. EDT): Justice Stephen Breyer, who handles emergency appeals from Rhode Island, has called for a response in the case by 5 p.m. EDT on Tuesday, Aug. 11.
This post is also published on SCOTUSblog.