Jenny Lux didn’t want to risk her life to vote. Her acute respiratory distress syndrome puts her at a high risk for dangerous complications related to COVID-19, compelling her to take quarantine seriously.
So when the 39-year-old read Alabama’s requirements for voting by mail this election cycle, she was stunned. While Alabamians no longer needed to give a reason for requesting a mail-in absentee ballot, they still need to either have their mail ballot notarized or witnessed by two adults simultaneously, as well as include a copy of their photo ID when applying for the ballot. Lux lives alone with her 17-year-old son, and suddenly faced an impossible choice: either risk COVID-19 exposure at a notary service or and allow two adults into her home to witness her ballot.
“My reaction [was], ‘Wow, really? You’re going to do this to me?’” she says. “I just can’t risk it. It’s life and death that we’re talking about here… Why should I jump through all these hoops?”
Lux considered other options, including curbside voting, which many states have adopted this year amid COVID-19. But while Alabama law does not prohibit the service, the state has gone to great lengths to prevent counties from offering it this year. Alabama Secretary of State John Merrill said explicitly that curbside voting would not be allowed under the state’s law. On Oct. 21, the Supreme Court ruled that Alabama’s de facto ban on curbside voting could stand, reversing a lower court’s ruling that the restriction violated the Constitution and the Americans with Disabilities Act. It was the latest instance of a conservative court upholding Republican-backed voting restrictions in the final weeks before Election Day.
That court decision, combined with Alabama’s requirements that mail ballots be notarized or witnessed, and include a copy of an ID with the application, collectively create an extremely high burden to vote amid the pandemic—particularly for disabled, elderly and other high-risk people.
“Alabama voters are going to have to decide whether they want to vote in person or not vote at all because some of them will have a very difficult time complying with the absentee ballot requirements,” says Sarah H. Brannon, a managing attorney with the American Civil Liberties Union’s (ACLU) Voting Rights Project, which helped bring the suit against Alabama’s rules.
In May, several Alabama voters challenged the state’s de facto ban on curbside voting, as well as its witness and voter ID requirements, arguing that the rules posed a threat to their health. In September, a federal district court agreed with the plaintiffs, ordering Alabama to allow curbside voting and suspending the witness and ID rules for elderly voters or those with underlying medical conditions. Alabama appealed the case and earlier this month, the 11th Circuit Court of Appeals handed Alabama Republicans the victory: the appellate court reversed the lower court decision, reinstating the witness and ID requirements.
The court drama continued. The 11th Circuit Court of Appeals ruling left open the option that counties could offer curbside voting, and two of the state’s most populous counties—Jefferson County and Montgomery County—took steps to implement the service. But Alabama appealed again and the Supreme Court decided in its favor. Curbside voting will not be an option for Alabama voters this year.
After the prolonged litigation battle, Alabama voters who are disabled, elderly or have underlying conditions were back where they started: deciding whether to put their health at risk to fulfill the witness and ID requirements or vote in person—or not vote at all. “Nobody should have to make a decision between being able to vote and protecting yourself from COVID-19,” says Michelle Bishop, voting rights specialist at the National Disability Rights Network.
Lux, who is legally blind, is a member of the disability rights advocate group People First of Alabama, the plaintiff in the suit, and testified in the trial. “I know if I’m affected by it, there are thousands others like me affected,” she says. “It’s a fight for social justice.”
Americans with disabilities and chronic illnesses have already been disproportionately impacted by COVID-19. And as they prepared to vote this year, many found that their states’ procedures did not take into account their needs, prompting cases like this around the country. Voters with disabilities sued in North Carolina, Virginia and Texas, and advocates sued South Carolina over a witness requirement for absentee ballots in that state.
In Alabama, where coronavirus cases have been on the rise, the issue is particularly acute. The state has a history of voter suppression and a high proportion of Black and disabled voters, all of whom are disproportionately affected by both the pandemic and voting rights issues. There are 748,000 eligible voters with disabilities in Alabama, representing 20% of the state’s electorate, according to data from researchers Douglas Kruse and Lisa Schur at Rutgers University. Alabama’s population is among the highest risk for heart disease, stroke and has the highest rate of diabetes in the country. Over 40% of its coronavirus deaths have been people with diabetes. Many high-risk voters are taking the threat seriously.
Tonja Leath, 57, usually votes by mail from her home in Hoover, Ala. because of a disability that makes it difficult for her to stand for long periods of time. But when she realized she would still need to fulfill the witness and photo ID requirements during the pandemic, she was frustrated. “Why with this election? It does not make any sense. They’re inconveniencing people, especially the disabled and the elderly,” she says. Leath says she wishes her county offered curbside voting.
In Montgomery, 37-year-old Terri Flowers has also been trying to stay home because her daughter has asthma. Flowers has decided to have her daughter attend school virtually for the foreseeable future to protect her from any exposure to the virus. “If I’m going to keep her from going to school because of [the virus],” she says, “it doesn’t make sense for me to go out and be exposed to COVID and potentially bring it back to her.”
To avoid concerns about voting by mail, both Leath and Flowers decided to vote “in-person absentee,” a process that allowed them to go to their absentee ballot manager’s office, apply for an absentee ballot in person, fill out their absentee ballot and then have it notarized. While they made their situations work, not all voters will be able to do so, as the method still requires voters to risk COVID-19 exposure at their absentee ballot manager’s office, which can be difficult to access for disabled or rural voters.
The other state requirement for voting by mail—that Alabama residents include a copy of their photo ID in their ballot application—can also present obstacles for lower income voters who might not have regular internet access or printers at home.
Alabama argued that the laws in question were necessary to prevent voter fraud and preserve confidence in the upcoming election. It also said that the restrictions did not place an undue burden on the plaintiffs. “The photo ID and witness requirements are necessary deterrents for those looking to commit voter fraud, and I am glad the 11th Circuit has recognized their importance in safeguarding the elections process,” Merrill said in an Oct. 13 statement. Evidence has repeatedly shown that voter fraud in the U.S. is nearly nonexistent.
Caren Short, a senior staff attorney with the Southern Poverty Law Center, which jointly filed the suit against Alabama, says the 11th Circuit’s ruling allowing the vote-by-mail laws to stand “demonstrates part of a trend where unfortunately more conservative state election officials are leaning heavily on the myth of voter fraud to justify onerous and unnecessary restrictions on voting to essentially suppress votes.”
Maia Fleischman, a voting rights fellow with the Alabama Disabilities Advocacy Program (ADAP), which also jointly filed the suit, adds that while she found the 11th Circuit’s ruling disappointing, it “pretty much aligned with what we’ve been seeing in the courts the last month.” She said that, in her opinion, the group chose not to appeal the 11th Circuit’s ruling on the absentee ballot laws after looking at how the Supreme Court has ruled in similar voting rights cases this year. “We don’t also want to make things harder for voting rights cases in the future,” she says.
She added, “We decided to focus our on the argument that the curbside voting ban is unconstitutional and it is a proper ADA accommodation. We think curbside voting would have benefited thousands of Alabamians this upcoming election day in light of COVID-19.”
The Supreme Court did not offer an opinion explaining its decision to stay the 11th Circuit’s ruling this week, and only the three liberal justices dissented. With Justice Ruth Bader Ginsburg’s death last month, the Supreme Court now has a conservative majority, and if President Donald Trump’s nominee Judge Amy Coney Barrett is confirmed as expected, that will cement the court’s rightward tilt. Trump has also appointed roughly a quarter of all federal appeals court judges during his time in office, meaning that cases are now more likely to be heard by conservative judges on appeal.
Disability and voting rights advocates say that impact of a conservative-leaning bench will affect civil rights litigation long past Nov. 3. “We have to file cases at the trial level, because voting is a constitutional right and the foundation of our democracy,” says Christina Brandt-Young, a managing attorney at Disability Rights Advocates, which signed onto an amicus brief in the Alabama case. “But if appeals are less and less attractive, that will push us back into other kinds of advocacy.”
After much deliberation, Lux was able to vote this year. She found a notary who was willing to come to her house, wear a mask, and certify her ballot, so she didn’t have to risk a trip to the county elections office. She’s since mailed her ballot and received a notification that it was received. But the process left a bitter taste in her mouth. “I feel marginalized,” she says. “It’s like I’m being swept under the rug.”
She also recognizes that many voters won’t be able to find the same work-around like she did. As Supreme Court Justice Sonia Sotomayor pointed out in her dissent on the high court’s ruling, one of the plaintiffs, Howard Porter, Jr.—a Black man in his 70s with both asthma and Parkinson’s Disease—described the state voting restrictions as a question of life or death.
“‘[S]o many of my [ancestors] even died to vote,” Porter testified before the lower court. “And while I don’t mind dying to vote, I think we’re past that—we’re past that time.’”