Not helping democracy amidst pandemic is the United States Supreme Court. On Tuesday, or the fifth time this year, the high Court reversed a lower court’s order intended to cut voters some slack due to the obstacles to political action created by the coronavirus that Republicans like Donald Trump and Kristi Noem are unwilling to tackle.
Wait—coronavirus makes it harder for people to participate in elections, and Republicans choose not to fight coronavirus. Could there be a connection?
In Tuesday’s ruling, the Supreme Court blocked an Oregon District court order that extended the deadline and lowered the number of signatures necessary to place an initiated constitutional amendment on Oregon’s November ballot. Oregon law requires that amendment initiators submit signatures from 8% of qualified electors (based on how many people voted in the last gubernatorial election) by four months prior to the election. Backers of an amendment to create a citizens’ redistricting commission to draw the maps for Congressional and legislative districts needed about 150,000 signatures by July 2, due to the difficulty of circulating petitions amidst sensible public health precautions, the amendment sponsors collected only 64,000 signatures. They sued and got the District Court to lower the signature threshold to under 58,000 and extend the petition deadline to August 17, giving the petitioners a fair shot at collecting some cushion signatures and making the ballot.
But Oregon’s Democratic officials—Democrats, dagnabit!—put power over principle and fought the coronavirus accommodation:
Following the 2020 Census, Democrats in the Legislature and governor’s office are poised to have sole control over those changes for the first time in modern Oregon history. Control over redistricting could help Democrats maintain their three-fifths supermajority in the Legislature, which allows them to raise taxes without needing Republican votes. It also helps give Democrats a better shot at winning a new congressional seat that Oregon is expected to get after redistricting.
The redistricting measure is sponsored by a coalition of government watchdog groups and business organizations that are politically close to Republicans. The two chief sponsors represent the Oregon League of Women Voters and the Oregon Farm Bureau [Jeff Mapes, “Oregon Attorney General Takes Fight Against Redistricting Initiative to US Supreme Court,” Oregon Public Broadcasting, updated 2020.07.30].
Oregon’s redistricting reformers can still fight for leniency in appeals court, but time is not on their side; they’d need the appeals court and possibly the Supreme Court to rule on the merits of the signature and deadline accommodations by September 3, when the Oregon Secretary of State must finalize measures for the statewide ballot.
Amy Howe of SCOTUS Blog lists this Oregon ruling among the five that the Supreme Court has issued this year in stubborn refusal to bend democratic processes for the contingencies of coronavirus and notes a sixth case, another Republican effort to make absentee voting harder, is on their docket:
Tuesday’s order was the most recent in a series of rulings by the Supreme Court in which the justices have intervened to block lower-court orders that would have loosened state election procedures in light of the pandemic. On July 30, the justices put on hold rulings by a federal court in Idaho that would have given a group backing a ballot initiative in that state more time to collect signatures for an initiative and required the state to accept electronic signatures. The justices have also blocked a ruling in Alabama that would have made it easier for voters to cast absentee ballots, denied a request from the Texas Democratic Party to allow voters to cast ballots by mail without an excuse and froze an order that had extended the deadline for the submission of absentee ballots in Wisconsin’s April election. The justices are currently considering a request by the Republican National Committee and Rhode Island’s Republican Party to reinstate that state’s witness requirements for absentee ballots [Amy Howe, “Court Reinstates Oregon Ballot-Initiative Rules,” SCOTUS Blog, 2020.08.11].
Yes, the rule of law must persist, even during a national emergency. But the rule of law is based on democracy, on the ability of citizens to participate and legitimate the law. When a contagious disease turns the normal safeguards of the democratic system into undue burdens the suppress participation, the courts should give wide berth to states making good-faith efforts to restore that participation.
Related Appeals: For those of you waiting to hear what the Eighth Circuit has to say about South Dakota’s and my cross-appeals of the HB 1094 lawsuit, note that advocates for democracy in Oregon are contending that the state could reasonably, practically set its petition deadline at August 17 and that two and a half weeks is enough time for the Secretary of State to validate 58,000 signatures. In my suit against South Dakota’s petition laws, I’m contending that there’s no need for the state to set the petition deadline a full year prior to the election and that the Secretary of State doesn’t need nine months to validate 34,000 signatures.