SC absentee voters must get witness signature despite COVID-19, US Supreme Court says

The U.S. Supreme Court reinstated a South Carolina election law Monday night that requires voters who mail in their absentee ballots to have someone witness their vote by signing their name on the back of the mail-in ballot envelope.

The high court issued a unanimous ruling after-hours Monday night, overturning a decision made last month by U.S. District Judge Michelle Childs of Columbia. Childs had prohibited the S.C. Election Commission from enforcing a state law that required a witness signature.

The two-page decision ends a weeks-long, on-again, off-again court battle — one that progressed from Childs’ court in Columbia to the 4th Circuit Court of Appeals in Richmond to the U.S. Supreme Court in Washington — over whether South Carolina absentee voters would need someone to witness their signature on their mail-in ballot envelopes.

Childs wrote in her decision that she was persuaded by scientific evidence that the highly contagious COVID-19 posed a particular danger to elderly and medically vulnerable voters who, in many cases, would have to expose themselves to potential infection by seeking out a witness to get their signature.

In a small carve-out, or exception, to its otherwise unanimous ruling, a five-justice majority of the eight-person court ruled 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,” the ruling said.

According to the S.C. Election Commission, the Supreme Court’s decision means that any mail-in ballots that come in without a witness signature before close of business Wednesday will be counted, said commission spokesperson Chris Whitmire.

“Beginning Thursday, when a mail-in ballot comes into the county election office, it must have a witness signature,” Whitmire said.

However, the commission’s board will meet Wednesday afternoon to discuss what, if anything, can be done with mail-in absentee ballots without a signature that were mailed before the US. Supreme Court decision but arrive on Thursday or later, Whitmire said.

Up to 1 million South Carolina voters are expected to cast absentee ballots. Voters can vote absentee in person at designated polling places. Anyone, including a spouse, friend or a child, can be a witness and sign the voter mail-in envelope along with their address. No notary or any other type of authorization is required. To prevent voter fraud of any kind, every mailed-in absentee ballot has a bar code. The code will prevent any voter from voting both absentee and in person at a polling place, where information is available on who has already voted absentee.

In a short explanation of the Supreme Court’s reasoning, Associate Justice Brett Kavanaugh said that Childs’ decision overreached. He wrote that she should not have engaged in “second guessing” South Carolina’s state Legislature because unelected judges traditionally lack “the background, competence and expertise to assess public health” and are not accountable to the people.

Secondly, Kavanaugh wrote, federal courts ordinarily should not alter state election rules so close to an election. “The District Court defied that principle,” he wrote.

Six Democrats and several Democratic organizations had sued the S.C. Election Commission in an effort to get the witness signature requirement waived for this election. The Election Commission, which is controlled by Republicans, mounted an aggressive defense and was joined by the S.C. Republican Party, Senate President Harvey Peeler, R-Cherokee, and House Speaker Jay Lucas, R-Darlington.

In issuing her 71-page ruling in mid-September, Childs reviewed hundreds of pages of documents from the various parties. Her ruling, she said, only applied to the upcoming Nov. 3 election and was influenced by the rising dangers of the coronavirus, a contagious respiratory viral infection that so far has killed more than 209,000 Americans and 3,200 South Carolinians.

Childs’ ruling also said Republicans had produced scant evidence of any serious voting fraud in absentee ballots in the last 40 years and noted that Marci Andino, executive director of the S.C. Election Commission, had urged lawmakers to do away with the witness signature requirement in a letter Andino wrote last summer.

Republicans were elated by the Supreme Court ruling.

“It’s a great day for people who care about ballot security and the integrity of our elections,” said Drew McKissick, chairman of the SC Republican Party. “Democrats have been attempting to hijack the COVID-19 pandemic and use it to meddle in our elections, causing widespread voter confusion in the process. But despite their radical efforts, they lost.”

House Speaker Lucas issued a statement saying the Supreme Court’s ruling “corrected the overstepping of Judge Childs’ initial order and the procedural mischief and political gamesmanship of the Fourth Circuit Court of Appeals. The Supreme Court decision is a victory for representative democracy and the rule of law and should serve as a clear indication to federal judges that they cannot replace the decisions of elected officials to protect the integrity of elections in South Carolina with their own policy preferences.”

Trav Robertson, executive director of the S.C. Democratic Party, a plaintiff in the case, said, “Obviously we are disappointed.” The witness requirement harms not only voters of color but also the elderly of all colors, Robertson said. “That is why the AARP weighed in on this.”

The AARP, the nation’s largest group that represents nearly 38 million citizens nationwide and 608,000 in South Carolina, had filed a friend of the court brief with the Supreme Court. AARP’s brief said the SC law requiring witness signatures in a time of COVID-19 “poses great risks to all older voters.”

Robertson said lawyers are still exploring how to react to the decision. However, although there may be technical avenues left for appeal, Monday night’s solid ruling by the Supreme Court majority made it clear that any appeal to change the status of its witness signature ruling before Nov. 3 would have little to no chance of success.

Chief Justice John Roberts joined with Kavanaugh, but they did not agree with Associate Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, who said specifically they objected to giving even two days of relief to voters whose absentee ballots fail to contain a witness signature.

The names of Associate Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan were not on the opinion. But they were not recorded as dissenting either.

Reporter Maayan Schechter contributed.

This story was originally published October 5, 2020 at 10:33 PM with the headline "SC absentee voters must get witness signature despite COVID-19, US Supreme Court says."