SC Democrats, Republicans to clash in court over absentee voting in time of COVID

When the state Supreme Court hears arguments Tuesday on a historic question — whether to expand absentee ballot voting in upcoming elections during the COVID-19 pandemic — the arguments themselves will be historic.

“These arguments will be the first time the court has used video web conferencing to conduct an argument,” a note on the Supreme Court Judicial Branch website said.

All or most of the lawyers and justices will be in separate locations and visible on a computer screen.

The issue has come before the court because of the highly contagious and sometimes fatal virus, as well as the increased threat the disease poses to people in their sixties and older and others with underlying health conditions.Moreover, African Americans have been stricken and have died at significantly higher rates than people of other races. The virus is easily spread by small droplets in infected peoples’ breaths, coughs and sneezes.

The dangers from COVID-19 means the high court should interpret existing law to make it clear that people wanting to stay away from large gatherings for fear of getting sick should be allowed to do so, Democrats say.

Republicans say the legislature should decide whether to expand absentee balloting.

Tuesday’s arguments will bring into focus the positions of four major interests: Democratic candidates and party organizations, the S.C. Republican Party, the State Election Commission and the S.C. Attorney General’s office. The attorney general’s office filed a friend of the court brief, but its lawyers are not expected to make an oral argument.

Here are the main positions:

▪ Two Democratic candidates, Rhodes Bailey and Robert Wehrman, filed the case in the Supreme Court and were joined by S.C. Democratic Party and the national Democratic Congressional Campaign Committee. The Democrats brought the legal action against the State Election Commission, asserting that COVID-19 is so serious, and so contagious that any voter who is practicing the recommended social distancing — staying six feet or more away from others — should be able to vote absentee.

“The risks posed by this still mysterious disease are immense,” says one Democratic filing, which includes an affidavit by Dr. Robert Ball, a South Carolina infectious disease expert who says that social distancing can’t easily be practiced when numerous people are congregating at polls.

▪ The S.C Republican Party, which wants the justices to throw out the Democrats’ lawsuit. The Legislature, and not the Supreme Court, is the proper branch of government to make a change in the law that would expand the more than a dozen established categories of voters who may cast a mail-in absentee ballot, the Republican Party says in a filing.

Democrats “should be focusing their efforts on lobbying ... for a change in the law, not this court,” the Republicans said. They also asserted that the State Election Commission is taking numerous steps to provide a COVID-19 free environment at polling places.

▪ State Attorney General Alan Wilson, who noted in his brief that the S.C. Constitution guarantees a “free and open” election but said the high court should not issue an opinion so broad that any eligible voter would be able to vote absentee.

On the other hand, Wilson said in his opinion, the justices might consider allowing persons diagnosed with COVID-19, persons awaiting COVID-19 test results and persons with conditions that place them at a higher risk for severe illness to cast absentee ballots.

The question of what to do with an election during a pandemic has bedeviled state elections officials for more than a month.

On March 30, State Election Commission executive director Marci Andino wrote Gov. Henry McMaster; state Senate President Sen. Harvey Peeler, R-Cherokee; and House Speaker Jay Lucas, R-Darlington.

“We respectfully ask that sincere consideration be given to making emergency changes to our election process,” Andino wrote. “There is no single or easy solution to protecting more than three million voters and election workers during or following a pandemic,” she wrote.

“The main issue is that our elections, as currently prescribed by law, require large numbers of people to congregate in one place — something that everyone is currently being asked not to do by public safety and health officials,” Andino wrote.

Among the options available to South Carolina are expanding absentee voting, putting in place early voting prior to election day and voting by mail, Andino wrote.

Up to now, the Legislature has not taken action on any changes in state voting laws related to COVID-19.

The internet site to see and hear the arguments live, which begin at 11 am, is https://www.sccourts.org/SCvideo. A recorded version of the arguments will be posted several hours later.