Andino v. Middleton ( 2020 )

Cite as: 592 U. S. ____ (2020) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
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No. 20A55
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MARCI ANDINO, ET AL. v. KYLON MIDDLETON, ET AL.
ON APPLICATION FOR STAY
[October 5, 2020]
The application for stay presented to THE CHIEF JUSTICE
and by him referred to the Court is granted in part, and the
district court’s September 18, 2020 order granting a prelim-
inary injunction is stayed pending disposition of the appeal
in the United States Court of Appeals for the Fourth Circuit
and disposition of the petition for a writ of certiorari, if such
writ is timely sought. Should the petition for a writ of cer-
tiorari be denied, this stay shall terminate automatically.
In the event the petition for a writ of certiorari is granted,
the stay shall terminate upon the sending down of the judg-
ment of this Court.
The order is stayed except to the extent that any ballots
cast before this stay issues and received within two days of
this order may not be rejected for failing to comply with the
witness requirement.
JUSTICE THOMAS, JUSTICE ALITO, and JUSTICE GORSUCH
would grant the application in full.
JUSTICE KAVANAUGH, concurring in grant of application
for stay.
The District Court enjoined South Carolina’s witness re-
quirement for absentee ballots because the court disagreed
with the State’s decision to retain that requirement during
the COVID–19 pandemic. For two alternative and inde-
pendent reasons, I agree with this Court’s order staying in
part the District Court’s injunction.
First, the Constitution “principally entrusts the safety
2 ANDINO v. MIDDLETON
KAVANAUGH, J., concurring
and the health of the people to the politically accountable
officials of the States.” South Bay United Pentecostal
Church v. Newsom, 590 U. S. ___, ___ (2020) (ROBERTS,
C. J., concurring in denial of application for injunctive re-
lief) (slip op., at 2) (internal quotation marks and alteration
omitted). “When those officials ‘undertake[ ] to act in areas
fraught with medical and scientific uncertainties,’ their lat-
itude ‘must be especially broad.’ ” Ibid. (quoting Marshall
v. United States, 414 U. S. 417, 427 (1974); alteration in
original). It follows that a State legislature’s decision either
to keep or to make changes to election rules to address
COVID–19 ordinarily “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.” South Bay,
590 U. S., at ___ (slip op., at 2) (citing Garcia v. San Antonio
Metropolitan Transit Authority, 469 U. S. 528, 545 (1985)).
The District Court’s injunction contravened that principle.
Second, for many years, this Court has repeatedly em-
phasized that federal courts ordinarily should not alter
state election rules in the period close to an election. See
Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam). By en-
joining South Carolina’s witness requirement shortly be-
fore the election, the District Court defied that principle
and this Court’s precedents. See ___ F. 3d ___, ___–___
(CA4 2020) (Wilkinson and Agee, JJ., dissenting from de-
nial of stay).
For those two alternative and independent reasons, I
agree with this Court’s order staying in part the District
Court’s injunction.