President Donald Trump and former President Barack Obama spoke loud and clear Thursday about voting rights, highlighting their polar positions on an issue that has only become more fraught with the backdrop of the coronavirus pandemic.
Trump suggested the presidential election should be delayed "until people can properly, securely and safely vote" and Obama, speaking at the funeral of civil rights legend Rep. John Lewis, said that those in power are "attacking our voting rights with surgical precision."
Attention will increasingly turn to the courts. But the Supreme Court, which often splits 5-4 on election related issues, has not seemed receptive to pleas to address the intersection between a plethora of voting rights issues including absentee ballots, polling place hours and voter ID with the age of Covid-19.
The court has shown little inclination this year to ease ballot rules in states such as Wisconsin, Texas, Alabama and Idaho. It's a trend dating back to 2013, when Chief Justice John Roberts wrote an opinion invalidating a key part of the Voting Rights Act, a decision Obama referenced Thursday.
"So far plaintiffs in voting rights cases haven't had much success convincing the court that legal rules governing the voting process need to be modified in light of the pandemic," said Dale Ho of the American Civil Liberties Union. "My hope is that the court will at some point acknowledge reality which is that the pandemic is forcing voters to choose between keeping themselves and their communities safe and exercising their fundamental right to vote."
Voting rights experts believe that as the stakes rise and the election approaches, sooner or later the court is going to have to say more about health risks and voting.
Thursday, as the current and past presidents were battling it out on the public stage, the Supreme Court justices blocked a lower court order that eased requirements in Idaho for ballot initiatives during the pandemic. Reclaim Idaho, a political action committee that seeks to increase funding in K-12 education, was trying to use online signatures in place of having to physically collect them during the pandemic
The state of Idaho challenged the practice, and Roberts agreed. "Reasonable, nondiscretionary restrictions are almost certainly justified by the important regulatory interest in combating fraud and enduring that ballots are not cluttered with initiatives that have not demonstrated sufficient grassroots support," the chief justice wrote.
Justin Levitt, a professor at Loyola Law School, believes that the Idaho case is particularly troublesome because the lower courts had responded to the realities of Covid-19.
"The Supreme Court is not just sitting on the sidelines, it is reaching out to block attempts to adapt to the pandemic," he said.
In April a 5-4 court split along ideological lines when it blocked a lower court order in Wisconsin that extended the deadline for absentee ballots to allow them to be postmarked after elections on April 7 because of the pandemic.
Justice Ruth Bader Ginsburg wrote an impassioned dissent noting that gathering at polling places was posing "dire health risks" causing Wisconsin voters to turn in unprecedented numbers to voting absentee. She castigated the conservatives for holding that the situation was not "substantially different" from an "ordinary election." That reasoning "boggles the mind," she said.
"The court's order, I fear, will result in massive disenfranchisement," Ginsburg added.
In June, the court denied a request from Texas Democrats to expand access to vote-by-mail in the state amid the coronavirus pandemic. There were no noted dissents.
In a case out of Alabama in July, the four liberals dissented again when the court temporarily blocked a lower court order that would have cleared the way for more people in three Alabama counties to vote by absentee ballot during Covid-19.
Also in July, the court said that Florida could enforce a law barring ex-felons from voting if they still owe court fines or fees that they are unable to pay associated with their convictions. The case did not touch on Coronavirus concerns, but reflects the court majority's overall unwillingness to get involved with expanding voting rights.
Liberal Justices Sonia Sotomayor, Elena Kagan and Ginsburg again dissented.
"This Court's order prevents thousands of otherwise eligible voters from participating in Florida's primary election simply because they are poor," Sotomayor wrote.
In his speech, Obama was critical of the Roberts court. He noted that after the 2013 decision "some state legislatures unleashed a flood of laws designed specifically to make voting harder," and he pointed to a decision last term that where a 5-4 majority held that federal courts must stay out of disputes concerning when politicians go too far in drawing district lines for partisan gain.
Levitt points out that the recent cases and the cases to come in the months before the election will all arrive to the court as emergency last minute petitions, not as opinions after oral arguments and briefs.
"The court does not do its best work in an emergency," Levitt said. He hopes that the justices will leave "fact bound determinations about how to vote in the pandemic to the courts best able to process those facts: district courts."
"I'm worried that the pandemic is fast, and that the Supreme Court is slow and does not appreciate the pace of the change that we need to vote safely this fall," he said.