Citing COVID-19, federal judge strikes down SC absentee ballot witness requirement

A federal judge ruled Friday that because of the dangers of the COVID-19 pandemic, the S.C. Election Commission is prohibited from enforcing the requirement that a person who votes absentee must have someone witness their signature.

In a 71-page opinion heavy with details of medical and other evidence of how contagious the coronavirus is, U.S. District Judge Michelle Childs of Columbia said that voters who vote absentee have a greater chance of catching the sometimes fatal virus if they have to find someone to witness their signature.

Childs said her order only applies to the upcoming election, and “were it not for the current pandemic, this ... may have cut the other way.” She described the pandemic as “the worst ... this state, country and planet has seen in over a century.”

The judge, whose opinion was made public Friday night on the federal public court docket, also ordered the Election Commission to “immediately and publicly” begin to notify state voters about the elimination of the witness requirement for absentee voting.

“Such public campaign shall include providing updated information regarding the instant injunction on all relevant websites, social media outlets (i.e., Facebook, Instagram, Twitter, etc.), and other means of public dissemination as appropriate,” the judge wrote.

Childs made her ruling exactly one week after a three-hour hearing at the federal courthouse in Columbia during which she heard lengthy arguments on waiving the witness requirement and other related issues.

Arguing on Sept. 11 against waiving the witness requirement were lawyers representing the State Election Commission, the S.C. Republican Party, House Speaker Jay Lucas, R-Darlington, and Senate President Harvey Peeler.

Childs was no stranger to the arguments. Last spring, many of the same issues were argued before her by many of the same parties. On May 25, she issued a ruling waiving the absentee ballot witness requirement for the then-upcoming June Democratic and Republican primaries.

In her Friday order, Childs noted that the death toll and number of coronavirus cases have continued to rise in South Carolina and around the nation since her May 25 order. And since March 13, Childs noted, S.C. Gov. Henry McMaster had issued 12 successive two-week state of emergency declarations.

Last May, South Carolina had only 435 COVID-19 deaths and 10,096 cases. This week, South Carolina has more than 3,000 deaths and more than 134,000 cases, Childs wrote.

In her order, Childs quoted a plaintiffs’ witness, Medical University of South Carolina epidemiologist Dr. Joseph John, who said in an affidavit that “to a reasonable degree of medical certainty, a voter will reduce his or her risk of catching or transmitting COVID-19 by minimizing their contacts with individuals outside of the home.

“In the context of voting, this means that voting by mail carries less risk than voting in person. For those voters who live alone, casting a ballot without a witness signature carries less risk than casting a ballot with a witness signature,” Dr. John wrote.

Childs also noted that only 24 % of all S.C. counties and only 23% of all S.C. municipalities have mandatory social distancing and mask requirements — two measures that have been shown effective in preventing the COVID-19 spread — and voters face a higher risk of catching COVID-19 in many parts of the state.

Evidence in the case also showed that some members of the public, including those with underlying medical conditions, the disabled and racial and ethnic minorities were being particularly hard-hit by COVID-19, Childs wrote.

Although the defendants in the case alleged that widespread fraud could result if the witness requirement were lifted, Childs said that the defendants had presented “scant underlying evidence” of fraud in South Carolina.

Another issue before Childs in the current case was whether to allow universal absentee ballot voting for all people, not just voters 65 and older. But earlier this week, the S.C. General Assembly passed a law allowing that, because of the threat posed by the pandemic, any voter who wanted could vote absentee.

Some three million voters are expected at the state’s polls on Nov. 3, and many hundreds of thousands are expected to vote absentee.

The election law that Childs is prohibiting the state from enforcing required a voter who wanted to vote absentee to find someone to witness the voter’s signature on the absentee ballot envelop. If a witness signature was not there, the vote would not be counted, the law said.

This story was originally published September 19, 2020 at 5:00 AM.