SC absentee ballot deadline, witness rule argued in federal court

After more than three hours of legal arguments Friday, a federal judge is now set to decide whether, because of the dangers of COVID-19, to eliminate two of South Carolina’s strict requirements concerning absentee ballots for the upcoming June 9 primary.

“We are going to do our best to turn this around quickly because we know there’s a lot at stake for all the people involved,” said U.S. District Judge Michelle Childs to a more than dozen lawyers in a near empty courtroom and on a remote video hookup.

There are two questions before Childs:

▪ Whether to set aside the state legal requirement that a voter’s absentee ballot envelope must contain the signature and address of a witness to the voter’s ballot.

▪ Whether to allow mailed-in ballots to still be counted if they reach elections officials after 7 p.m. on the day of an election. Currently, mailed-in absentee ballots must get to elections officials by that time or they aren’t counted.

Lawyers for the ACLU, the NAACP Legal Defense and Education Fund and various Democratic Party groups and voters argued those two requirements were unconstitutional in light of dangers to voters from the highly contagious and sometimes deadly COVID-19 virus. Judge Childs should grant a preliminary injunction and require the state to drop them for the June 9 primary, they said.

Making it easier to vote absentee would give an extra measure of safety to more than 500,000 voters, many of whom are African Americans, who have special fears of going to the polls because they are dying from COVID-19 in disproportionately high numbers, those lawyers said.

“Our clients clearly will suffer irreparable harm if they are going to have to choose between catching a deadly illness on one hand, and casting a ballot on the other,” said Deuel Ross, a lawyer for the NAACP Legal and Educational Fund.

Requiring a voter to get a witness signature is overly burdensome, especially to elderly and African American voters, many of whom live alone and may well be averse to asking a stranger to sign their name and address to a ballot envelope, the Democratic lawyers said.

But those arguments were countered by Election Commission attorney Liz Crum, who told Childs that the U.S. Constitution reserves to states the right to conduct elections and set the “time, place and manner” of elections.

South Carolina will be spending an additional $7.6 million in mostly federal funds to make the polls extra safe in light of the COVID-19 threat, Crum said.

And the request to extend the receipt of ballots by 10 or even six days would undermine other laws that set up a timetable for things like certifying the vote, hearing protests and printing up ballots for any runoff, Crum said. “Any request for extension contravenes numerous state laws.”

One of the purposes of having a witness sign a voter’s envelope is to prevent fraud, Crum said, saying she was “old enough to remember” the 1980 voting fraud scandal in Dillon County, when more than 35 people pleaded guilty in a vote buying scheme.

In any case, she said, with the General Assembly’s passage this week of a bill allowing absentee voting by just about any registered voter, “the plaintiffs are basically getting what they want.”

But Bruce Spiva, attorney for Democratic Party interests, said election fraud was not a real threat in South Carolina, stressing that Crum had to go back 40 years to find a case.

Judge Childs appeared skeptical that people who live alone and are intent on social distancing would want to ask a stranger to be a witness and put their name and address on a voting envelope.

Originally, Childs had been scheduled to hear arguments on numerous issues regarding the constitutionality of numerous S.C. absentee ballot requirements and the 15 different reasons voters could be allowed to vote absentee.

But earlier in the week, the Legislature passed, and Gov. Henry McMaster signed into law, a bill allowing anyone planning on voting in the June 9 primary, including anyone fearful of catching the coronavirus at the polls, to receive an absentee ballot while the state is under an emergency order.

Lawmakers and McMaster said they were responding to fears expressed by numerous citizens and poll workers about catching the highly contagious and sometimes fatal COVID while standing in long voting lines. More than 86,000 Americans and 380 South Carolinians have been killed by the disease in the last two months.

The Legislature’s sweeping measure on Tuesday left only two contested issues for Friday’s hearing — the witness requirement and the mail-in deadline that requires elections officials to get the absentee ballots by 7 p.m. on election day.

“The witness requirement is not especially effective in preventing fraud,” said Adriel Cepeda of the ACLU. Even a child can serve as a witness, said Cepeda.

Spiva originally asked for a 10-day extension for election officials to receive a mailed in absentee ballot, but said he would not object to a six-day extension.

Because of the COVID-19 threat, most in-person federal court proceedings around the state have been canceled. But judges can make exceptions for important non-jury issues. Persons at the hearing had to wear masks, except for individual lawyers when they were presenting their case and the judge, who was asking questions.