Supreme Court Watch: Public Safety vs Voting
John Christie • September 1, 2020
On Thursday, March 12, the Supreme Court announced that because of covid-19 it would close its doors to the public “until further notice,” out of concern for the health and safety of both the public and Supreme Court employees. Scheduled sittings of the Court in March and April were cancelled. In May, oral arguments in 10 cases were heard by telephone instead of in the Court’s majestic courtroom; oral arguments in the rest of the 2019 Term’s open docket were re-scheduled for the fall. Opinions in decided cases were released by the Court’s clerk without the usual oral commentaries provided by the Justices themselves in open court. Especially for a very traditionally oriented institution, these accommodations because of coronavirus risks could be described as nothing short of momentous.
Likewise, because of widespread health concerns, lower federal courts around the country began to fashion various accommodations modifying normal state election procedures because of the negative impact those procedures would have on the election process given the pandemic. However, in a series of recent emergency orders, a slim majority of the Court has rejected these election-related accommodations, ostensibly on the grounds that federal courts should not “ordinarily” alter the rules close to an election. In the cases where the votes of individual Justices have been announced, the five votes to reject these accommodations have been by the four more conservative Justices on the Court — Thomas, Alito, Gorsuch, and Kavanaugh — joined by Chief Justice Roberts.
The first of these cases involved a Wisconsin election scheduled for Tuesday, April 7. In the weeks leading up to the election, the covid–19 pandemic had become a public health crisis. On March 24, the governor ordered Wisconsinites to stay at home until April 24 to slow the spread of the disease. Because gathering at the polling place posed obvious health risks, an unprecedented number of Wisconsin voters — with the encouragement of public officials — turned to voting by absentee ballot. The surge of absentee ballot requests heavily burdened election officials, resulting in a severe backlog of ballots requested but not promptly mailed to voters.
Several weeks before the scheduled vote, a group of individual Wisconsin voters, community organizations, and the state and national Democratic parties filed lawsuits seeking several forms of relief, all aimed at easing the effects of the covid–19 pandemic on the upcoming election. The state and national Republican parties intervened in opposition. On April 2, the District Court ruled that the existing deadlines for absentee voting would unconstitutionally burden the right to vote. The deadline for election officials to receive completed absentee ballots was extended from 8 p.m. on election day, April 7, to 4 p.m. on April 13, regardless of the postmark date. The District Court also ruled that no reports of polling results could be released before the new absentee-voting deadline. On appeal by the Republican parties, the Seventh Circuit Court of Appeals upheld the extended absentee-ballot deadline.
The Republican parties then sought emergency relief in the Supreme Court and, the day before the election, the Court by a 5-4 vote determined that only ballots postmarked by election day could be counted. In an unsigned opinion, the majority determined that lower federal courts should “ordinarily” not alter the election rules on the eve of an election. Justice Ginsberg dissented, joined by Justices Breyer, Sotomayor and Kagan. For the dissenters, the question was whether tens of thousands of Wisconsin citizens could safely vote in the midst of a pandemic. “Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others’ safety. Or they will lose their right to vote, through no fault of their own.” Republican National Committee v. Democratic National Committee (April 6, 2020).
Similar results occurred in several later cases, all following a similar pattern.
Merrill, AL Sec. of State v People First of Alabama (July 2, 2020): The Supreme Court rejected a lower court ruling that would make it easier for voters in the state to cast absentee ballots in the primary election runoff.
Bradley Little, Governor of Idaho v. Reclaim Idaho (July 30, 2020): The Supreme Court overturned a lower court ruling to extend the deadline for accepting ballot-initiative signatures and permitting digital collection of signatures.
Clarno, OR Sec. of State v. People Not Politicians (August 11, 2020): The Supreme Court denied the state’s request to relax requirements for placing a proposed amendment to the state’s constitution on the ballot in the November election.
Most recently, in the only one of this series of emergency orders to uphold a lower court order, the justices rejected a request by the Republican National Committee and Rhode Island Republicans to freeze a lower-court order. The order approved an agreement between state election officials and civic groups waiving a requirement that absentee ballots be signed in the presence of either two witnesses or a notary. A one-paragraph, unsigned order explained that “unlike in other recent election-law cases here the state election officials support the challenged decree.“ Three Justices – Thomas, Alito, and Gorsuch – indicated that they would have granted the Republicans’ request. Republican Nat. Committee v. Common Cause RI (August 13, 2020).
Collectively, these cases display a slim majority of the Court unwilling to accept changes in state election procedures born out of covid-19 concerns endorsed by lower federal courts. The sole exception to date appears only when state election officials themselves buy on to the proposed modifications, a probably unique circumstance. These are hardly “ordinary” times, and the conservative hostility to these kinds of accommodations is ironic in light of the health risks the Court acknowledged with respect to its own internal operations.
John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
Common Sense for the Eastern Shore
Megan Outten, a lifelong Wicomico County resident and former Salisbury City Councilwoman, officially announced her candidacy recently for Wicomico County Council, District 7. At 33, Outten brings the energy of a new generation combined with a proven record of public service and results-driven leadership. “I’m running because Wicomico deserves better,” Outten said. “Too often, our communities are expected to do more with less. We’re facing underfunded schools, limited economic opportunities, and years of neglected infrastructure. I believe Wicomico deserves leadership that listens, plans ahead, and delivers real, measurable results.” A Record of Action and A Vision for the Future On Salisbury’s City Council, Outten earned a reputation for her proactive, hands-on approach — working directly with residents to close infrastructure gaps, support first responders, and ensure everyday voices were heard. Now she’s bringing that same focus to the County Council, with priorities centered on affordability, public safety, and stronger, more resilient communities. Key Priorities for District 7: Fully fund public schools so every child has the opportunity to succeed. Fix aging infrastructure and county services through proactive investment. Keep Wicomico affordable with smarter planning and pathways to homeownership. Support first responders and safer neighborhoods through better tools, training, and prevention. Expand resources for seniors, youth, and underserved communities. Outten’s platform is rooted in real data and shaped by direct community engagement. With Wicomico now the fastest-growing school system on Maryland’s Eastern Shore — and 85% of students relying on extra resources — she points to the county’s lagging investment as a key area for action. “Strong schools lead to strong jobs, thriving industries, and healthier communities,” Outten said. “Our schools and infrastructure are at a tipping point. We need leadership that stops reacting after things break — and starts investing before they do.” A Commitment to Home and Service Born and raised in Wicomico, Megan Outten sees this campaign as a continuation of her lifelong service to her community. Her vision reflects what she’s hearing from neighbors across the county: a demand for fairness, opportunity, and accountability in local government. “Wicomico is my home; it’s where I grew up, built my life, and where I want to raise my family,” Outten said. “Our county is full of potential. We just need leaders who will listen, work hard, and get things done. That’s what I’ve always done, and that’s exactly what I’ll continue to do on the County Council.” Outten will be meeting with residents across District 7 in the months ahead and unveiling more details of her platform. For more information or to get involved, contact info@meganoutten.com
Way back in 1935, the Supreme Court determined that independent agencies like the Consumer Product Safety Commission (CPSC), the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) do not violate the Constitution’s separation of powers. Humphrey’s Executor v. United States (1935). Congress provided that the CPSC, like the NLRB and MSPB, would operate as an independent agency — a multi-member, bipartisan commission whose members serve staggered terms and could be removed only “for neglect of duty or malfeasance in office but for no other cause.” Rejecting a claim that the removal restriction interferes with the “executive power,” the Humphrey’s Court held that Congress has the authority to “forbid their [members’] removal except for cause” when creating such “quasi-legislative or quasi-judicial” bodies. As a result, these agencies have operated as independent agencies for many decades under many different presidencies. Shortly after assuming office in his second term, Donald Trump began to fire, without cause, the Democratic members of several of these agencies. The lower courts determined to reinstate the discharged members pending the ultimate outcome of the litigation, relying on Humphrey’s , resulting in yet another emergency appeal to the Supreme Court by the administration. In the first such case, a majority of the Court allowed President Trump to discharge the Democratic members of the NLRB and the MSPB while the litigation over the legality of the discharges continued. Trump v. Wilcox (May 22, 2025). The majority claimed that they do not now decide whether Humphrey’s should be overruled because “that question is better left for resolution after full briefing and argument.” However, hinting that these agency members have “considerable” executive power and suggesting that “the Government” faces greater “risk of harm” from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty,” the majority gave the President the green light to proceed. Justice Kagan, joined by Justices Sotomayor and Jackson, dissented, asserting that Humphrey’s remains good law until overturned and forecloses both the President’s firings and the Court’s decision to award emergency relief.” Our emergency docket, while fit for some things, should not be used to “overrule or revise existing law.” Moreover, the dissenters contend that the majority’s effort to explain their decision “hardly rises to the occasion.” Maybe by saying that the Commissioners exercise “considerable” executive power, the majority is suggesting that Humphrey’s is no longer good law but if that is what the majority means, then it has foretold a “massive change” in the law and done so on the emergency docket, “with little time, scant briefing, and no argument.” And, the “greater risk of harm” in fact is that Congress provided for these discharged members to serve their full terms, protected from a President’s desire to substitute his political allies. More recently, in the latest shadow docket ruling in the administration’s favor, the same majority of the Court again permitted President Trump to fire, without cause, the Democratic members of another independent agency, this time the Consumer Product Safety Commission (CPSC). Trump v. Boyle (July 23, 2025). The same three justices dissented, once more objecting to the use of the Court’s emergency docket to destroy the independence of an independent agency as established by Congress. The CPSC, like the NLRB and MSPB, was designed to operate as “a classic independent agency.” In Congress’s view, that structure would better enable the CPSC to achieve its mission — ensuring the safety of consumer products, from toys to appliances — than would a single-party agency under the full control of a single President. “By allowing the President to remove Commissioners for no reason other than their party affiliation, the majority has negated Congress’s choice of agency bipartisanship and independence.” The dissenters also assert that the majority’s sole professed basis for the more recent order in Boyle was its prior order in Wilcox . But in their opinion, Wilcox itself was minimally explained. So, the dissenters claim, the majority rejects the design of Congress for a whole class of agencies by “layering nothing on nothing.” “Next time, though, the majority will have two (if still under-reasoned) orders to cite. Truly, this is ‘turtles all the way down.’” Rapanos v. United States (2006). * ***** *In Rapanos , in a footnote to his plurality opinion, former Supreme Court Justice Scalia explained that this allusion is to a classic story told in different forms and attributed to various authors. His favorite version: An Eastern guru affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant, he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies "Ah, after that it is turtles all the way down." John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
Marylanders will not forget this vote.
More than 30,000 of our neighbors in Maryland’s first congressional district will lose their health insurance through the Affordable Care Act and Medicaid because of provisions in the GOP’s heartless tax cut and spending bill passed last week.
Right now, Congress is working on a fast-track bill that would make historic cuts to basic needs programs in order to finance another round of tax breaks for the wealthy and big corporations.
The House Agriculture Committee recently voted, along party lines, to advance legislation that would cut as much as $300 million from the Supplemental Nutrition Assistance Program. SNAP is the nation’s most important anti-hunger program, helping more than 41 million people in the U.S. pay for food. With potential cuts this large, it helps to know who benefits from this program in Maryland, and who would lose this assistance. The Center on Budget and Policy Priorities compiled data on SNAP beneficiaries by congressional district, cited below, and produced the Maryland state datasheet , shown below. In Maryland, in 2023-24, 1 in 9 people lived in a household with SNAP benefits. In Maryland’s First Congressional District, in 2023-24: Almost 34,000 households used SNAP benefits. Of those households, 43% had at least one senior (over age 60). 29% of SNAP recipients were people of color. 15% were Black, non-Hispanic, higher than 11.8% nationally. 6% were Hispanic (19.4% nationally). There were 24,700 total veterans (ages 18-64). Of those, 2,200 lived in households that used SNAP benefits (9%). The CBPP SNAP datasheet for Maryland is below. See data from all the states and download factsheets here.
