Steve August 13, 2020
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The U.S. Supreme Court on Thursday declined to block a lower court ruling that makes it easier to vote by mail in Rhode Island, allowing that ruling to remain in effect.

The court rejected a request from Republicans who said there’s nothing unconstitutional about enforcing the state’s mail ballot requirements, even during a pandemic. It was a departure from a series of Supreme Court decisions this spring that had refused to ease restrictions on voting procedures in light of the spread of COVID-19.

Thursday’s action keeps a Rhode Island law on hold that said absentee ballots must be signed by two witnesses or a notary public, as well as by the voter. The requirement was suspended for a June primary election, but Gov. Gina Raimondo, a Democrat, and the state legislature decided to enforce it for a second state primary in September and the general election in November.

In response to a lawsuit, Secretary of State Nellie Gorbea, also a Democrat, entered into an agreement with Common Cause and other groups to suspend the requirement for both of the coming elections, and a federal judge approved it. The Supreme Court has now kept that agreement, known as a consent decree, intact.

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Rhode Island Republicans sued to block its effect. They said the pandemic did not make the signature rule an unconstitutional burden.

“When ballots are cast remotely, no one is watching, which increases the risk of fraudulent and illegal voting,” they told the Supreme Court. And they noted that residents concerned about having contact with other people can get a notary’s approval through a video conference call.

Gorbea urged the Supreme Court to keep the witness requirement on hold, given that many in the state want to maintain social distancing. “Must these voters to choose between their health and their vote?” As for getting a notary’s approval online, ” Even this purported solution has its problems because it assumes that a voter has access to the Internet.”

In explaining its action Thursday, the court’s brief order said “state election officials support the challenged decree, and no state official has expressed opposition.” Given its normal reluctance to change the rules close to an election, the court said, “the status quo is one in which the challenged requirement has not been in effect, given the rules used in Rhode Island’s last election, and many Rhode Island voters may well hold that belief.”

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted the Republican Party’s request to keep the witness requirement in effect.

Steven Brown of the American Civil Liberties Union of Rhode Island praised the court’s action.

“We are very pleased that the Republican Party’s efforts to turn the fundamental right to vote into an episode of ‘Survivor’ has failed,” he said.

Since the spring, the Supreme Court has dealt with a half dozen emergency appeals seeking to put state voting rules on hold in light of the coronavirus pandemic, but has repeatedly declined to do so.

It rejected requests to loosen signature requirements for voter initiatives in Oregon and Idaho, to extend the mail ballot deadline in Wisconsin, and to remove restrictions on mail voting in Texas. In early July, by a 5-4 vote, the justices blocked a lower court order that would have suspended a witness requirement for mail-in ballots in Alabama.

And in a case unrelated to the pandemic, the court turned away an effort to make it easier for convicted felons to conform to a new state law in Florida allowing them to vote.

Pete Williams

Pete Williams is an NBC News correspondent who covers the Justice Department and the Supreme Court, based in Washington.

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