COVID fears, laws, politics collide as SC justices weigh expanding absentee voting

Whether the fear of catching the highly contagious and sometimes deadly COVID-19 virus would suffice to allow a voter to avoid the polls by casting an absentee ballot in this year’s elections was just one of numerous questions raised in opposing arguments Tuesday before the five S.C. Supreme Court justices.

In a lengthy hearing, justices heard opposing arguments from Democrats, who — because of the pandemic that has killed 80,000 Americans in the last two months — want the court to allow any voter who fears catching COVID-19 to request an absentee ballot, and Republicans, who don’t want the court to expand existing absentee ballot qualifications.

There was an irony to Tuesday’s hearing: As lawyers and justices wrestled with the concept of allowing more voters to be absent from the polls on voting days because of COVID-19, the lawyers and justices themselves were appearing online, separating themselves so as not to be infected, or infect others, with the virus.

Late Tuesday afternoon, hours after the high court arguments, the S.C. House and Senate voted to allow any South Carolinian registered to vote in the June 9 primary who fears voting in-person due to the COVID-19 outbreak to request an absentee ballot. Gov. Henry McMaster is expected to sign the legislation. It is unclear what effect that bill’s becoming law will have on Supreme Court deliberations in the case justices heard earlier Tuesday.

The hearing was the first in one of three lawsuits brought against the state in an effort to expand ballot access so that South Carolinians, fearful of catching the coronavirus or infecting others, can vote without worry. The other two lawsuits have a hearing scheduled in federal court on Friday.

People who fear catching the coronavirus, which causes the COVID-19 disease, are advised to practice social distancing — staying six feet apart — and that is not possible in a voting setting where people stand in long lines for hours and touch surfaces around them, said Bruce Spiva, a lawyer for Democratic candidates and party groups.

But Grayson Lambert, lawyer for the S.C. State Election Commission, said the Democrats’ quest for a broader interpretation of existing state law concerning absentee voting would allow even a “hypochondriac” to get an absentee ballot.

The hearing was originally scheduled to last only 40 minutes, but the justices questioned lawyers for the three parties — Democrats, the S.C. Republican Party and the State Election Commission — to present their cases over a session that lasted an hour and 16 minutes.

The hearing touched on a wide variety of subjects: whether it was the Legislature’s or the Supreme Court’s job to liberalize existing absentee ballot law, statistics that show African Americans have a greater chance of being infected with and dying of COVID-19 than whites, the recent Wisconsin primary where dozens of people are said to have contracted COVID-19 due to voting in person, and S.C. Gov. Henry McMaster’s decision to open restaurants to indoor dining.

During the hearing, Chief Justice Donald Beatty referred favorably several times to a “friend of the court” brief filed last week in the case by the state’s Republican Attorney General Alan Wilson.

Wilson’s brief suggested that justices might consider an interpretation of existing elections law that would allow persons in three categories — those 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.

Spiva stressed to the justices that Democrats were not looking for a ground-breaking new ruling.

The term “physically disabled person” — one of the specific legal categories for getting an absentee ballot — can be interpreted in such a way as to justify the granting of an absentee ballot, said Spiva.

The definition of “physically disabled” is sufficiently broad to encompass a person who can’t go to the polls on election day because they are practicing social distancing to safeguard their health and the health of the community, Spiva said.

Attorney Rob Tyson, who represented the S.C. Republican Party in the case, told the justices that the Democrats who brought the lawsuit “want to read the absentee statute into oblivion.” Across the nation, Democrats are launching concerted legal attacks to weaken absentee voting laws, Tyson said.

Tyson’s assertion was assailed by some justices. Associate Justice George James asked “What is wrong with a coordinated strategy? Isn’t that what organization is all about?.... The National Republican Party has a purpose and a coordinated strategy about many things.”

Tyson said, “To try to use the pandemic as an excuse to justify why these rules need to be changed, we believe is inappropriate.”

Tyson, who told the justices that people asking for an absentee ballot had to sign an affidavit, came into grilling from Associate Justice John Few, who told him there’s no requirement to sign an affidavit.

“Where on the planet do you get the requirement that a voter has to sign an affidavit to get an absentee ballot?” asked Few. “It looks like your client (the Republican Party) is looking for ways to make it more difficult even as you contend that the other side is looking for ways to make it easier to vote.”

Tyson replied that his client supports absentee ballots “but it has to be consistent with state law.”

Few didn’t let up, telling Tyson that he was merely asking the lawyer “why it seems to me that you are trying to make it so difficult for someone to vote.”

Other high points during the hearing:

▪ Spiva said the attorney general’s opinion is “commendable” but doesn’t go far enough. A key point cited by the Centers for Disease Control and Prevention is “people should not be gathering together for long periods of time such as would be necessary if everybody has to go to the polls,” Spiva told Beatty at one point.

Spiva also said anyone with a fear of being infected — a group that includes documented high-risk individuals such as people with underlying health conditions or who are African American — should be allowed to vote absentee.

▪ Associate Justice Kaye Hearn asked Election Commission lawyer Lambert to explain the “change of heart” by commission executive director Marci Andino, who on March 30 wrote a letter to Gov. Henry McMaster and leaders of the General Assembly asking them to consider emergency measures including expanding absentee voting to protect voters and poll workers.

But in a recent court filing, Andino did “such an about face” and now wants a strict interpretation of the state absentee ballot law, Hearn said. “Can you help me with that?...She no no longer embraces any of those solutions she set forth in her letter?”

Lambert replied that he would address Hearn’s question in a written answer to the justices after the hearing that would set forth “why she sent the letter, what she was intending by it and the role in which she was doing it.”

▪ Under questioning by Beatty, Lambert agreed that “anyone who is at high risk of contracting the virus or having some detrimental impact as a result of contacting someone with the virus would be eligible for an absentee ballot.”

At hearing’s end, Beatty said the court would issue a ruling as soon as possible.

Primaries are scheduled for June 9 across South Carolina, and any ruling by the high court would likely affect who would be allowed to vote absentee in that election.

However, Spiva said that the Democrats’ lawsuit argues that all South Carolina elections in 2020, while the pandemic rages, should allow all voters to have expanded absentee ballot privileges.

The hearing had a historic side — it was the first argued before the high court where, because of the pandemic and the contagious nature of COVID-19, everyone was in a separate location and connected by video and the internet. Three of the justices were in the Supreme Court building in downtown Columbia, but they were in separate rooms.

“This is our maiden voyage, if you will,” Beatty said to start the hearing. Except for a few glitches — a few unintelligible words, some frozen screens and briefly malfunctioning audio and video while Associate Justice John Kitredge was questioning a lawyer — the experiment went well.

This story was originally published May 12, 2020 at 2:42 PM.