In time of COVID-19, federal judge ponders expanding voter access in SC’s election

After a hearing on how COVID-19 may affect voting in the upcoming Nov. 3 election, a federal judge has begun weighing arguments on whether she should expand voter access in that election to possibly allow more votes to be counted and, if she does intervene, to what extent.

For nearly three hours Friday, U.S. District Judge Michelle Childs heard first from a lawyer representing Democratic Party interests and voters, then from opposing lawyers representing the S.C. State Election Commission, the S.C. Republican Party, State Senate President Harvey Peeler, R-Cherokee, and State House Speaker Jay Lucas, R-Darlington.

“I have lots of work to do,” said Childs at the end of the hearing in a nearly deserted courtroom at the federal courthouse in downtown Columbia. About a dozen lawyers and a reporter from The State newspaper attended. Noting the election is less than two months away, the judge said, “I understand the urgency of the case.”

Childs said she would wait to see what the S.C. House did before she issued any orders along the lines of what the Democratic lawyer, Bruce Spiva, was asking her to do. His main goal is to persuade Childs that fears about COVID-19 should allow any voter to vote absentee if they want to.

The S.C. House meets on Tuesday and will consider passing a bill that would do just that. The State Senate has already passed a bill allowing any voter who wants to avoid the polls to cast an absentee ballot instead.

“If they (the House) fail to act, your Honor, we think the court should act,” Spiva said.

Because of the threat to health posed by the highly contagious and potentially fatal COVID-19, elections officials predict many more voters than usual will want to vote absentee this year, state officials say. The threat from the virus is magnified when people have to stand for hours in long voting lines, exposing themselves to potentially infected people. In the last six months, more than 192,000 Americans have died from the virus.

Spiva’s other goals included persuading Childs:

▪ To rule that the state’s regulation that permits only voters age 65 or older to vote absentee based on their age is unconstitutional. Voters of any age should be able to vote absentee, Spiva said.

▪ To do away with a state requirement that anyone voting absentee should have someone else witness and sign the mail-in ballot — a requirement Spiva contends is burdensome when the COVID-19 virus is spreading and an absentee voter might have to risk catching the virus to find a witness. A witness isn’t needed because there has been no serious voting fraud in the state for 40 years, he said.

▪ To extend the time by which a mailed-in absentee ballot has to reach the election board. Currently, to be counted, all ballots have to be in by 7 p.m. on election day. The Postal Service is having serious delays these days, and an estimated 13,000 ballots will arrive after the election day deadline, Spiva said.

Opposing lawyers attacked Spiva’s positions.

Speaking for the State Election Commission, attorney Grayson Lambert told the judge that Spiva was raising a false “doomsday” scenario and the rate of COVID-19 infections in the state had just dropped to its lowest in months and finding someone to witness an absentee ballot “can be done safely through mask wearing and social distancing.”

Legendary South Carolina lawman and current State Law Enforcement Division agent Pete Logan, who in a 60-year career investigated the Kennedy assassination and the Ku Klux Klan, had submitted a deposition in which he said that measures preserving the security of absentee ballots were worthwhile because those absentee ballots “remain the largest source of potential voting fraud” in the state, Lambert said.

Moreover, the Postal Service handles 182 million pieces of mail a day, so delays should be minimal because the Post Office should be able to handle the relatively small increase in mail caused by absentee voting, Lambert said.

State Republican Party lawyer Carlisle Traywick told the judge to keep the requirement that absentee ballots be witnessed because the state has a compelling interest in voting security. “Voter fraud is real, it’s out there,” he said.

Another GOP lawyer, Robert Tyson, said “there’s no evidence in this case that any plaintiff has specifically been harmed by the 7 p.m. (election day) deadline.” People still have the choice of not choosing mail and bringing the ballots to the election board, he said.

Susan McWilliams, representing Speaker Lucas, told Childs that the General Assembly is the best institution to evaluate what measures should be taken about ballot issues.

Although Spiva had made a July letter from Election Commission executive director Marci Andino about likely Nov. 3 election problems a centerpiece of his argument, McWilliams told the judge that Andino never said in that letter that any of those issues pose a “constitutional challenge” to peoples’ rights to vote.

In that July 17 letter, Andino urged Senate President Peeler and Speaker Lucas to expand voter access to absentee ballots and remove the witness requirement. “(W)e respectfully ask that immediate action be taken so election officials have as much time as possible to ensure we can rise to the greatest challenge to our election system our state has ever seen,” Andino wrote.

Kevin Hall, lawyer for Senate President Peeler, told the judge that she should not give Andino’s letter much weight.

“Poor Mrs. Andino. Her name is invoked again and again,” Hall said. “But her job title does not change the fact that she does not make election law in South Carolina.”

Reminding Childs that there is public sentiment against “unelected federal judges” injecting themselves into political matters, Hall urged the judge to let the Legislature deal with the absentee ballot and other issues. “It is the court’s job to apply the law and not to be lured into the quicksand of cases like these,” Hall said.

In late May, as COVID-19 raged across the state, Childs intervened in a limited way in the state’s then upcoming June 9 primary, issuing an order that allowed absentee voters not to be required to find a witness for their ballots.

Although Democratic lawyers had asked her in May to allow all registered voters to have the choice of voting absentee, Childs was able to avoid ruling on that issue because the Legislature passed an emergency measure that did the same thing.

No one at Friday’s hearing disagreed when attorney Lambert said the goal is to have an election that is “as accessible as it can be, while ensuring that the election results are something we can trust.”