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Supreme Court social-distances from coronavirus decisions

Whether it's voting access, attendance limits on churches or prison crowding, the court -- steered by Chief Justice John Roberts -- is not yet stepping in to second-guess state or local officials.

The current track could make it harder for Republicans and President Donald Trump to stop states from expanding absentee voting in blue states and could hurt Democrats and liberals in red states who want to loosen voting restrictions due to coronavirus.

So far, however, the pattern has mainly benefited GOP interests and generally limited voting access. But on Thursday, the justices again backed a state's position when they sided with Rhode Island to turn away a Republican attempt to block an agreement to no longer require two signatures to vote absentee. It's the first time the court came down on the side of expanding voting access after several rulings going the other way in GOP-controlled states like Alabama, Idaho, Texas and Wisconsin.

Danielle Lang, the co-director of voting rights litigation at the Campaign Legal Center, called the Rhode Island ruling a "big relief" given the previous partisan trend.

"Up until today, we were seeing a disconcerting trend of the court deciding to step in when it was doing so in a way that would limit access and refusing to step in when they were being asked of broadening access," Lang told CNN.

Roberts, who is the swing vote between the liberal and conservative wings, has been consistent in deferring to states more broadly, whether they are run by Democrats or Republicans.

Along with the liberal wing, Roberts upheld California's and Nevada's restrictions on church attendance over the visceral objection of conservative justices. With justices from both sides, the court has sided with several states that are fighting changes to their election rules. And the court also has been reluctant to act to change how prisons are run during the pandemic.

"The common thread is that he is exhibiting a lot of deference to state officials right now about health and safety and how to accommodate that, whether they are relaxing rules that would normally apply, like in the Rhode Island context, or whether they are enforcing new restrictions, like in the church case," said Dale Ho, director of the American Civil Liberties Union's Voting Rights Project.

An uneasy bargain?

The court generally does not explain why it rejects an emergency petition or reveal the vote breakdown. At times, however, justices will make their disagreements public, and in some cases it's clear there's an unhappy 4-4 ideological split with Roberts in the middle as the decider.

In one case, Roberts, rejecting a petition from the South Bay United Pentecostal Church against California's attendance limits in May, stressed the need for local decision-making.

Limits "should not be subject to second-guessing by an 'unelected federal judiciary,' which lacks the background, competence, and expertise to assess public health and is not accountable to the people," the chief justice wrote.

The stand-back approach hasn't sat well at times with the other justices, suggesting it's an uneasy bargain the court's struck.

In April, Justice Ruth Bader Ginsburg objected when the court declined to extend Wisconsin's absentee voting deadlines due to coronavirus-related demand for ballots and fears of voting in person.
"The court's suggestion that the current situation is not 'substantially different' from an 'ordinary election' boggles the mind," Ginsburg wrote at the time. (More than 1,000 people have now died in Wisconsin due to Covid-19, according to the Johns Hopkins University Coronavirus Resource Center.)
Last month, when the court allowed Nevada to limit attendance at churches, Justices Samuel Alito and Neil Gorsuch were livid.
"A public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists," Alito wrote in a dissent.

"The world we inhabit today, with a pandemic upon us, poses unusual challenges," Gorsuch wrote. "But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel."

Vice President Mike Pence, meanwhile, alluded to the stakes of this election, which will certainly end up changing the makeup of the court. Pledging that Trump will continue in his vein of nominating conservative candidates to the bench, Pence cited the Nevada ruling in an interview with CBN News, where he called Roberts a "disappointment to conservatives."

Looking ahead

With a flood of pandemic and election lawsuits coming this fall, there's no telling if the court will stick to its current pattern or at the very least step out and explicitly explain its thinking and provide a road map. Until then, there's a high bar for entry.

The court has sought to avoid destabilizing the electoral process at the last minute, to avoid confusing voters, said Ned Foley, director of the election law program at Ohio State University, noting the so-called "Purcell Principle," referring to a 2006 decision. But "it's been a challenge to apply this year because Covid itself has caused change."

Previously this year, the justices also 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. In Texas, the court denied a request from state Democrats to expand access to mail-in voting. And in Idaho, the justices ruled against an interest group was trying to use online signatures in place of having to physically collect them during the pandemic for a ballot initiative on education funding.

"They're not slamming the door closed to litigation, but saying there's a very strong presumption to let state officials decide how to run their own election," Foley said. "Anyone who wants to change what the state is doing at the last minute bears a heavy burden."

If the court's consistent rulings continue during the pandemic, there may be a new "Purcell Principle" for years to come.

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