Top SC lawmakers tell federal court not to intervene on absentee voting lawsuit

Two top South Carolina lawmakers are seeking to intervene in a federal legal action where some South Carolinians are hoping to convince a federal judge that the coronavirus pandemic is so dangerous that all voters should have the right to vote absentee in the November election.

In legal papers filed in U.S. District Court last week, Republicans House Speaker Jay Lucas, of Darlington County, and Senate President Harvey Peeler, of Cherokee County, told Judge Michelle Childs that they are opposed to any federal intervention.

“President Peeler believes that the issues of this case are political questions that are exclusively committed to the South Carolina General Assembly for resolution as a matter of constitutional law,” said Peeler’s response.

As of late Wednesday, Childs had not ruled on their request to intervene.

However, Peeler this week called the chamber’s 46 senators back to Columbia on Sept. 2 to address voting issues related to COVID-19. Lucas said the House will stick to its already scheduled return on Sept. 15.

But already that legal action between Kylon Middleton and others against Marci Andino, who heads the S.C. Election Commission, has generated hundreds of pages of legal briefs, responses and court exhibits. More than 15 lawyers have made nearly 90 separate filings.

The plaintiffs in that action allege numerous provisions of S.C. election laws are unconstitutional and cite S.C. Department of Health and Environmental Control statistics that show the virus is particularly deadly to Black Americans. All six voter plaintiffs in the lawsuit are Black.

A major allegation in the lawsuit is that South Carolina’s election law restricts the right to an absentee ballot to about 15 specific categories, including being 65 or older. It asserts the age limitation is unconstitutional and discriminatory.

“Under the current circumstances, as a global pandemic unprecedented in our time infects thousands more Americans daily and shows few signs of abating, the absentee ballot age restriction also imposes unconscionably severe burdens on voters that cannot be justified...,” the plaintiffs’ complaint said.

The state’s Election Commission has filed a lengthy reply, arguing that current voting laws are constitutional and protections against coronavirus are in place for those who will cast ballots in person. Ample precedents exist for setting age limitations on who is eligible to vote absentee, the commission argues.

The federal lawsuit is one of several major legal and political controversies swirling around South Carolina ballot issues.

They include a petition to the S.C. Supreme Court, where two voters said they are at “high risk” for catching COVID-19 and are asking the court to implement early voting, drop-box absentee returns, more curbside voting and expanded absentee voting.

The high court said Wednesday it has formally accepted the case for arguments.

South Carolina’s absentee ballot laws differ from some other states, including Colorado and Utah, where each voter is mailed a ballot.

In South Carolina, absentee ballots can be issued only to those who fall into certain specific categories, including age, disability or whether someone is away at college or in the military. Absentee ballots can be returned either by mail or in person.

With the COVID-19 outbreak in mind, South Carolina lawmakers in May expanded absentee voting for any S.C. voter registered to cast a ballot in the June primary. But that relief has not yet been extended to the November general election.

In July, Andino sent a letter to Lucas and Peeler, expressing concerns about how the coronavirus could cause serious issues on Election Day. She asked legislators to give local election officials enough time to prepare ahead of Nov. 3, since county election offices are likely to be overwhelmed with a large amount of absentee ballots and a shortage of poll workers, many of whom are vulnerable to contracting the potentially fatal virus.

“While there were isolated issues, the primaries were successful overall as voters were able to vote in a timely and efficient manner, and election officials were able to count those votes and report totals on election night,” Andino wrote then. “However, success in June does not necessarily translate to success in November.”

This story was originally published August 19, 2020 at 5:16 PM with the headline "Top SC lawmakers tell federal court not to intervene on absentee voting lawsuit."