Federal judge cites COVID-19 in nixing SC witness requirement for absentee ballots

A federal judge on Monday ruled that, because of the dangers posed by the coronavirus pandemic, the state of South Carolina cannot require voters sending in absentee ballots for the June 9 primary to have their ballot mail-in envelopes signed by a witness.

The ruling, in the form of a preliminary injunction issued by U.S. District Judge Michelle Childs, can be appealed by one or both of the losing parties: the State Election Commission and Gov. Henry McMaster.

In her 56-page ruling, Childs noted that the COVID-19 virus is the “worst pandemic this state, country, and planet has seen in over a century” and that the Centers for Disease Control and Prevention is calling for social distancing — something difficult to do if someone is getting a witness to sign a ballot envelope for an absentee voter.

Childs also said that the state requirement that absentee ballot voters find a witness for their ballot would mean that an absentee voter who is infected with the virus would “risk exposing the witness and whoever comes in contact with the witness” to the virus.

That would not be “in the best interests of the public during a pandemic of this nature,” Childs wrote.

The COVID-19 virus is a highly contagious respiratory disease that is spread mainly through people’s normal exhalations, sneezes or coughs. It can be fatal, especially to people over 60, African Americans and those with underlying physical conditions, such as high blood pressure. Since early March, nearly 100,000 Americans have died from the virus.

Childs also ordered the S.C. Election Commission to “immediately and publicly inform South Carolina voters about the elimination of the witness requirement for absentee voting...”

At a hearing in federal court in Columbia earlier this month, lawyers for the S.C. Democratic Party, national Democratic groups, and various Democratic candidates for office across South Carolina had argued to Judge Childs that requiring voters — especially the homebound elderly, African Americans and others who have been shown to be vulnerable to the COVID-19 virus — to hunt around for a witness was overly burdensome in a time of pandemic.

Many elderly voters live alone without a wide circle of friends or family and do not have the ability to go out and hunt for someone to witness their signature, lawyers for the Democratic interests argued at that hearing.

In her ruling, Childs noted that the mission of the S.C. Election Commission is to “ensure that every eligible citizen has the opportunity to register to vote and participate in fair and impartial elections with the assurance that every vote will count.”

Childs also noted that the Democratic groups and interests had met the burden of showing they are “likely to succeed” on the merits of their case if further court proceedings are held.

Childs ruled against the Democratic groups and individuals on another issue: whether to allow mailed-in ballots to be counted if they reached elections officials after 7 p.m. on the day of the primary. Democrats had sought to roll back the deadline by at least six days by which absentee ballots could be counted.

But during the hearing, on May 15, the key issue for the Democrats was clearly the witness requirement, according to their lawyers who argued that requirement was unconstitutional in light of dangers to voters from the highly contagious and sometimes deadly COVID-19 virus.

At that hearing, Judge Childs told the more than a dozen lawyers and the lone reporter present, from The State newspaper, that would she would “turn this around quickly because we know there’s a lot at stake for all the people involved.”

Under federal rules, nearly everyone in the courtroom wore masks and sat at least six feet apart because of the pandemic.

In her ruling, Childs stressed the dangers of the disease, noting such events such as South Carolina’s closing all public schools for the school year and the high numbers of elderly and African Americans who were being stricken.

“During this pandemic, absentee voting is the safest tool through which voters can use to effectuate their fundamental right to vote,” Childs wrote.

Noting that the Election Commission lawyers had argued that the possibility of voter fraud made the witness requirement necessary, Childs said they had offered no evidence that voting fraud existed in South Carolina other than a mention of a “voter-buying scandal from the 1980s.”

The S.C. Republican Party was not a named participant in the two lawsuits argued on May 15, but Childs let lawyers for the GOP make presentations as a friend of the court in which the Republican Party argued against lifting the witness requirement. She also noted that because of the pandemic, the S.C. General Assembly had voted on May 12 to allow any voter to request an absentee ballot for the June 9 primary.

Officials for Gov. McMaster, the state Republican Party and the State Election Commission could not be reached.

Trav Robertson, S.C. Democratic Party chairman, said that despite the lawsuits’ pitting one party against another, “This is not a victory for a political party. This is a victory for the people of South Carolina, and a victory for those people concerned about their health while exercising their right to vote.”

This story was originally published May 25, 2020 at 4:24 PM.