Citing COVID-19 threat to African Americans, 3rd lawsuit filed to expand SC mail voting

Alleging drastic circumstances — especially heightened dangers to African Americans — in the time of the coronavirus, a third lawsuit seeking to expand all voters’ rights to vote absentee in South Carolina’s June 9 primary and November general election was filed Friday in U.S. District Court in Columbia.

This lawsuit — brought by the Democratic National Campaign Committee, the Democratic National Committee and the S.C. Democratic Party — is the third in two weeks seeking expanded absentee ballot rights. The lawsuit alleges that racial bias in S.C. laws and history make it difficult for African Americans to vote, especially during the threat of the coronavirus pandemic.

It’s also the second suit filed by the DCCC the S.C. Democratic Party, which a week earlier filed a suit with the S.C. State Supreme Court asking for an expansion of mail-in voting along with two S.C. Democratic candidates running in contested primaries in June.

All lawsuits cite medical authorities who say the elderly and African Americans are particularly susceptible to catching the highly contagious COVID-19 virus and, once having caught it, are dying in disproportionate numbers compared to the percentage in the general population. Especially vulnerable are those age 60 and above.

The lawsuits also say it is difficult to maintain social distancing, which lessens the possibility of coronavirus infection,while standing in voting lines.

“We won’t allow this pandemic to be used as an excuse to undermine our democracy,” said DNC chairman Tom Perez in a statement. “It’s the job of our leaders to defend our right to vote, not to create unnecessary, unconstitutional burdens.”

Also Friday, the S.C. Attorney General’s Office urged the S.C. Supreme Court to quickly take up the DCCC’s state-filed lawsuit without having it heard in lower courts. The state lawsuit seeks to have the high court greatly expand voters’ access to cast a mail-in, absentee ballot in South Carolina. The threat posed to voters by the highly contagious COVID-19 virus is cited as a main reason for seeking relief in that lawsuit.

The S.C. Supreme Court has not yet said it would take up the lawsuit. If the Attorney General’s Office participated, it would do so as a friend of the court — or as an interested party wanting to have a say in the matter. Attorney General Alan Wilson’s office represents the S.C. state government and, by extension, the state’s people.

In its Friday filing, the Attorney General’s Office indicated it would possibly support expanding some absentee voting rights because of the pandemic, but the office would not take such a radical position as to advocate that anyone who wanted to for any reason could vote absentee.

Under current S.C. law, only people who meet defined legal criteria such as those serving in the military, having a disability or being out of the country are allowed to vote absentee.

“The public health emergency which South Carolina currently faces is unquestionably unprecedented in this State’s history. The State’s upcoming primary elections require construction and application of South Carolina’s absentee ballot laws ... in light of a pandemic of unimaginable proportions,” the Attorney General’s filing said.

“Voting in a pandemic presents difficult obstacles to the voter who wishes to exercise the franchise, but may be afraid to do so. Yet, this Court is not a ‘super legislature,’“ the Attorney General’s filing continued. “The fundamental right to vote should be protected, certainly, but in a manner that does not construe the absentee ballot statute completely out of existence.”

The federal lawsuit filed Friday from the DCCC, DNC and S.C. Democratic Party was also brought by six Lowcountry residents, including the Rev. Kylon Middleton, the pastor of Mother Emanuel AME Church, where white supremacist Dylann Roof shot and killed nine unarmed black worshipers at a 2015 prayer meeting. Roof, who had hoped to start a race war, is now on federal death row. Middleton is also a Democratic candidate for Charleston County Council.

The defendants in the case are S.C. State Election Commission executive director Marci Andino and members of the commission board.

A commission representative could not be reached for comment Friday night.

The lawsuit notes numerous alleged shortcomings of S.C. election law, shortcomings that purportedly pose hardships to voting by the poor, elderly and those who live alone.

Friday’s lawsuit also alleges that not allowing African Americans, who are killed at higher rates than the rest of the population by coronavirus, to vote by mail in the June 9 primary forces them and all voters to choose between exercising their right to vote or “avoiding needless and serious risk to their health, the health of their friends and family and the broader community.”

The Democrats’ earlier lawsuit before the state Supreme Court, brought by Democratic candidates and Democratic party groups, also cites the danger from coronavirus. It seeks a ruling from the high court that would, at least during the pandemic, allow state elections officials to be more flexible in granting a voter the right to vote by mail.

Yet anotherfederal lawsuit, brought by the S.C. ACLU, the national ACLU and the NAACP Legal Defense Fund also seeks the same ends because of the pandemic — at the least, making South Carolina’s elections law allow more voters to vote by mail.

Defendants in the ACLU lawsuit are the S.C. State Election Commission and S.C. Gov. Henry McMaster.

The S.C. Republican Party has granted permission to intervene as an interested party in the state case before the S.C. Supreme Court.

The S.C. Republican Party on Friday also filed a motion to intervene in the ACLU-brought federal lawsuit before U.S. Judge Michelle Childs. But Childs has not yet ruled on that motion.

The state GOP and a spokesman for McMaster also did not response to requests for comment Friday.

This story was originally published May 2, 2020 at 8:47 AM.