COVID-haunted election ‘chaos’ possible if SC Supreme Court doesn’t act, lawyers say

Key questions about absentee ballots and other voting issues caused by this year’s coronavirus pandemic must be settled by the S.C. Supreme Court if the Nov. 3 general election in South Carolina is not to descend into “chaos,” according to a legal filing Thursday with the high court. The filing seeks a rehearing of a dismissed case.

“The Court’s intervention is needed now more than ever,” says a motion with the State Supreme Court seeking a rehearing in a lawsuit asking the court to order no-excuse absentee voting in the Nov. 3 election. The high court, which had agreed to hear arguments in the case, formally dismissed it Wednesday, citing the state’s recently adopted new law allowing for any registered S.C. voter to cast a ballot absentee in November without an excuse.

Thursday’s motion for a rehearing is the latest legal action casting uncertainty around South Carolina’s upcoming Nov. 3 general election as the state takes steps to keep people safe at the polls from the coronavirus, a severe and sometimes fatal virus the likes of which the country has not seen in 100 years. COVID-19 has already killed more than 200,000 Americans and more than 3,100 South Carolinians since March. Because of its highly contagious nature, hundreds of thousands more S.C. voters than normal are expected to vote absentee this year to avoid standing in line with others who might be infected.

In Virginia, a 4th Circuit Court of Appeals three-judge panel on Thursday overturned an injunction issued last week by U.S. Judge Michelle Childs of Columbia that would have allowed no-excuse absentee voting in South Carolina’s Nov. 3 election. Childs’ ruling was appealed by Republicans and the State Election Commission. Now absentee voters will have to find someone to witness their signature before mailing in an absentee ballot.

“Without action by this Court there remains a clear and present danger of precisely what Petitioners have warned: chaos, chaos, and more chaos. Respectfully, rehearing should be granted,” said the Thursday filing by Columbia attorney Chris Kenney and Shaundra Scott Young on behalf of two voters, Regina Duggins and Chaunta Hamilton, whose lawsuit said they had underlying health conditions that put them at risk of catching COVID-19 if they cast ballots under the usual voting laws.

Defendants in the case were the S.C. Election Commission, House Speaker Jay Lucas, R-Darlington, and Senate President Harvey Peeler, R-Cherokee.

In their dismissal, justices said the issues raised by the Duggins case didn’t exist anymore because the General Assembly recently passed legislation to amend the election laws to broaden access to absentee voting and “pave the way for South Carolinians to safely exercise their right to vote in November despite the challenges presented by COVID-19.“

“The Governor signed the bill into law on Sept. 16, 2020. In light of these actions, we dismiss this case,” the justices said.

Thursday’s petition for a rehearing challenged the justices’ dismissal, saying although the new law allows for an extension of absentee voting to all voters, that extension is only valid during a governor-declared “state of emergency.”

But Gov. McMaster’s current declared state of emergency “risks providing no relief at all” because his gubernatorial states of emergency are only good for 15 days at a time and could expire through inaction of the governor, the petition said. Since March, McMaster has issued more than a dozen successive 15-day emergency declarations.

Moreover, McMaster’s power to issue states of emergency is being challenged in a lawsuit now pending in civil court in Spartanburg County, “thus posing a high-risk that (the election relief bill McMaster signed) will provide no relief at all and that the election will be thrown into chaos,” the petition said.

That lawsuit, called Ike’s Korner Grille et al. v. South Carolina and Gov. Henry McMaster, was filed last weekend and seeks a court declaration that the governor’s rolling states of emergency are unlawful. A main argument in that lawsuit is that the General Assembly has never approved those states of emergency, approvals the lawsuit contends are required to make the states of emergency lawful.

Ike’s Korner Grille is an “iconic bar and grill in Spartanburg County” that has operated 60 years and is now operated by a third-generation family owner, Neil Rodgers, the lawsuit said.

The lawsuit said that Rodgers has been harmed by the governor’s allegedly unlawful states of emergency and executive orders that have forced the bar and grill to only offer take-out food.

Moreover, the lawsuit, the State Law Enforcement Division, the Spartanburg County Sheriff’s Department and the OSHA have all issued citations to Ike’s, using the governor’s states of emergency and his subsequent executive orders curtailing restaurant and bar hours as justification.

Rodgers “is in his prime working years. These Executive Orders have damaged his business at a time when he should be setting money aside for retirement. Even being allowed to reopen, he must re-build his customer base while complying with restrictive orders regarding limited occupancy, limited hours, social distancing, and other anti-viral mandates,” the lawsuit said.

Asked for comment on the Ike’s Korner Grille lawsuit, McMaster spokesman Brian Symmes said that, “I won’t comment on any specific litigation, but I can say that as a former U.S. Attorney and Attorney General who has practiced law for over forty years, the Governor is confident in the constitutionality of the targeted, deliberate and limited measures that have been put in place to help stop the spread of the virus.”

This story was originally published September 24, 2020 at 3:04 PM.