`Cite as: 592 U. S. ____ (2020)
`SOTOMAYOR, J., dissenting
`No. 20A67
`[October 21, 2020]
` The application for stay presented to JUSTICE THOMAS
`and by him referred to the Court is granted, and the district
`court’s September 30, 2020 order granting a permanent in-
`junction is stayed pending disposition of the appeal in the
`United States Court of Appeals for the Eleventh Circuit and
`disposition of the petition for a writ of certiorari, if such writ
`is timely sought. Should the petition for a writ of certiorari
`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 judgment of
`this Court.
`JUSTICE KAGAN join, dissenting from grant of stay.
` This stay application arises from the Alabama secretary
`of state’s decision to ban curbside voting despite the ongo-
`ing COVID–19 crisis and the willingness of certain Ala-
`bama counties to assist voters with disabilities. Following
`a lengthy trial and resting on an extensive record, the Dis-
`trict Court found, among other things, that the secretary’s
`ban violates the Americans with Disabilities Act (ADA) by
`forcing voters with disabilities, for whom COVID–19 is dis-
`proportionately likely to be fatal, to risk unnecessary expo-
`sure to the virus if they wish to vote in person. The District
`Court enjoined the secretary’s ban, thus allowing counties
`that are ready to adopt curbside voting to do so. I would not


`SOTOMAYOR, J., dissenting
`upset the District Court’s record-based, reasoned, and nar-
`rowly tailored judgment, which the Court of Appeals for the
`Eleventh Circuit let stand.1
` The severity of the COVID–19 pandemic should, by now,
`need no elaboration. As of October 20, 2020, Alabama’s De-
`partment of Public Health has identified 174,528 cases of
`COVID–19 in the State, leading to 19,801 hospitalizations
`and 2,805 deaths.2 Those figures include about 37,000 new
`cases and 400 more deaths since the District Court issued
`its findings of fact less than a month ago. See ___ F. Supp.
`3d ___, ___, 2020 WL 5814455, *2 (ND Ala., Sept. 30, 2020).
`COVID–19 presents particularly serious risks for those
`with chronic medical conditions. As Alabama State Health
`Officer Dr. Scott Harris warned, “ ‘[c]hronic disease factors
`are a real risk for dying from this disease, and chronic dis-
`eases are found in about a third of our citizens.’ ” Id., at *4.
`Over 95 percent of Alabamians who have died from
`COVID–19 had underlying health conditions that made
`them especially vulnerable to that virus. Ibid.
` To combat the spread of COVID–19, the Centers for Dis-
`ease Control and Prevention recommend that States con-
`sider curbside voting, that is, permit voters to vote from
`their car by handing their ballot to a poll worker. Id., at
`*34. This is no radical recommendation: The Department
`of Justice has sanctioned curbside voting as a remedy to
`ADA violations, see Dept. of Justice, Project Civic Access
`Fact Sheet,, and some 28
`States and the District of Columbia already permit curbside
`voting, see App. to Brief for American Diabetes Association
`1 The District Court also held that the ban on curbside voting violates
`the plaintiffs’ fundamental right to vote under the First and Fourteenth
`Amendments. Because I believe the injunction was appropriate under
`the ADA, I do not address the constitutional issues.
`2 Alabama Dept. of Public Health, Characteristics of COVID–19 Cases
`(Oct. 20, 2020),


`Cite as: 592 U. S. ____ (2020)
`SOTOMAYOR, J., dissenting
`et al. as Amici Curiae 1–3. The Alabama secretary of state,
`however, has prohibited counties from offering curbside
`voting, even for voters with disabilities for whom COVID–
`19 is disproportionately likely to be fatal. If those vulnera-
`ble voters wish to vote in person, they must wait inside, for
`as long as it takes, in a crowd of fellow voters whom Ala-
`bama does not require to wear face coverings. See ___ F.
`Supp. 3d, at ___, 2020 WL 5814455, *8.
` On May 1, 2020, several at-risk Alabama voters and as-
`sociated organizations sued to enjoin that ban, along with
`other restrictive voting laws not at issue here. The District
`Court expedited discovery and held a trial from September
`8 to 18. Id., at *2. Based on the trial evidence, the District
`Court concluded, in relevant part, that the secretary’s ban
`on curbside voting violated the ADA and that a policy al-
`lowing, but not requiring, counties to implement curbside
`voting was a reasonable accommodation. The Eleventh Cir-
`cuit upheld that portion of the District Court’s injunction.
`See People First of Ala. v. Secretary of State for Ala., 2020
`WL 6074333, *1 (CA11, Oct. 13, 2020). The secretary,
`among others, now seeks a stay of that decision.
` I would deny the stay. The secretary has not shown any
`legal error below. We should not substitute the District
`Court’s reasonable, record-based findings of fact with our
`own intuitions about the risks of traditional in-person vot-
`ing during this pandemic or the ability of willing local offi-
`cials to implement adequate curbside voting procedures.
` The District Court for good reason found that the secre-
`tary’s ban deprives disabled voters of the equally effective
`“opportunity to participate in” the “benefit” of in-person vot-
`ing. 28 CFR §35.130(b)(1)(ii) (2019). The secretary does not
`meaningfully dispute that the plaintiffs have disabilities,
`that COVID–19 is disproportionately likely to be fatal to
`these plaintiffs, and that traditional in-person voting will
`meaningfully increase their risk of exposure. He argues
`only that the relevant “benefit” under the ADA is voting


`SOTOMAYOR, J., dissenting
`generally, not in-person voting specifically, and that absen-
`tee voting ensures access to that benefit. But under the
`ADA, “[t]he benefit itself . . . cannot be defined in a way that
`effectively denies otherwise qualified handicapped individ-
`uals the meaningful access to which they are entitled.” Al-
`exander v. Choate, 469 U. S. 287, 301 (1985). In-person vot-
`ers receive assistance from poll workers; need no witnesses,
`notaries, or copies of their photo IDs, as Alabama law re-
`quires for absentee ballots; and know their ballot will not
`arrive too late or be rejected for failure to comply with ab-
`sentee ballots’ many requirements. ___ F. Supp. 3d, at ___,
`2020 WL 5814455, *59–*60. Absentee and in-person voting
`are different benefits, and voters with disabilities are enti-
`tled to equal access to both.
` The District Court’s modest injunction is a reasonable ac-
`commodation, given the short time before the election. It
`does not require all counties to adopt curbside voting; it
`simply gives prepared counties the option to do so. This
`remedy respects both the right of voters with disabilities to
`vote safely and the State’s interest in orderly elections. The
`District Court’s compromise likewise does not risk creating
`“voter confusion and consequent incentive to remain away
`from the polls.” Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006)
`(per curiam). The injunction lifts burdensome require-
`ments rather than imposing them, and permits county offi-
`cials to help educate voters about whether curbside voting
`is available in their county. See ___ F. Supp. 3d, at ___,
`2020 WL 5814455, *44. Moreover, the injunction neither
`invalidates state law nor prohibits the secretary from issu-
`ing guidance consistent with the District Court’s ruling.
`Id., at *45, *61–*62.
` Plaintiff Howard Porter, Jr., a Black man in his seventies
`with asthma and Parkinson’s Disease, told the District
`Court: “ ‘[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.’ ” Id., at *11, *15. Election officials in


`Cite as: 592 U. S. ____ (2020)
`SOTOMAYOR, J., dissenting
`at least Montgomery and Jefferson Counties agree. They
`are ready and willing to help vulnerable voters like Mr. Por-
`ter cast their ballots without unnecessarily risking infec-
`tion from a deadly virus. This Court should not stand in
`their way. I respectfully dissent.

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