Dying to Vote: Merrill v. People First of Alabama
December 22, 2021
By: Shelly Vallone
“[S]o many of my [ancestors] even died to vote. And while I don’t mind dying to vote, I think we’re past that – we’re past that time,” plaintiff Howard Porter, Jr. told the District Court when he and his co-plaintiffs, other at-risk Alabama voters and associated organizations, filed suit to compel state officials to make absentee and in-person voting more accessible in light of COVID-19. Mr. Porter suffers from asthma and Parkinson’s disease, placing him at higher risk of contracting COVID-19, especially in a public setting.
Alabama law is notably silent on the matter of curbside voting, neither prohibiting not requiring it. Jefferson and Montgomery counties tried to implement curbside voting to accommodate at-risk voters. However, Alabama’s Secretary of State John Merrill banned counties from adopting curbside voting in the 2020 election. Merrill did not object to counties’ voluntary curbside voting in 2016 or 2018 elections. Secretary Merrill’s argument is rooted in an effort to “offer safe and secure voting methods – including through the in-person and mail-in processes” which he did through “expand[ing] absentee voting, while also maintaining the safeguards put into place by the state Legislature.” Alabama Attorney General Marshall argued that other states that have curbside voting adopted it through legislation and had longer than a “matter of weeks in the middle of the pandemic.” The Attorney General defended the ban by discussing the risks associated with curbside voting, such as poll workers mishandling votes and the voters’ inability to see their ballot successfully cast.
The District Court ruled that the Secretary’s ban on curbside voting violated the Americans with Disabilities Act, explaining that a reasonable accommodation could be made by allowing, but not mandating, counties to implement curbside voting. The District Court found that Secretary Merrill’s ban deprived at-risk and disabled voters of the “‘opportunity to participate’ in the ‘benefit’ of in-person voting,” and was not supported by any state law. The Secretary argued that the “benefit” is not exclusive to in-person voting, but only in the ability to cast a vote generally. The ruling was upheld by the U.S. Court of Appeals for the 11th Circuit, then appealed by Alabama to the Supreme Court.
The Supreme Court issued its ruling on October 21, 2020, with no explanation, granting the state’s request to uphold the ban on curbside voting for the November 3rd election. Justice Sotomayor, writing for the dissent, noted that curbside voting was recommended by the Centers for Disease Control and Prevention. She also reasoned that curbside voting is easier than voting by mail in Alabama because a ballot does not need to be notarized or witnessed, and voters do not need to present copies of their photo IDs. Justice Sotomayor did not believe the Supreme Court should “stand in the way” of counties’ attempts to accommodate voters in the pandemic. The dissent further stated that the Supreme Court should instead defer to the District Court’s original fact-finding based on state law instead of the Court coming to their own conclusions about the dangers of curbside voting administered by Alabama counties.
Democratic supporters of curbside voting in Alabama introduced Senate Bill 370 on April 1, 2021, which would authorize curbside voting in all Alabama counties. The bill died in the Senate Committee on Governmental Affairs. House Bill 102, which would establish widespread procedures for early voting in elections, was introduced on February 2, 2021, but died in the Committee on Constitution, Campaigns, and Elections.