Election limbo: SC absentee voters should get witness signature while appeal goes on

South Carolina election officials hope to ask the United States Supreme Court to weigh in next on whether a federal judge was right to toss a requirement for S.C. voters to have a witness sign their absentee ballot envelopes.

In the meantime — while the legal process unfolds and while that witness requirement has been nullified, at least temporarily, for the November general election — state elections officials are urging S.C. voters to get a witness to sign their ballots anyway.

The latest development in the legal saga over the state’s absentee ballot witness requirement came late Monday when, after consulting with its lawyers, the S.C. Election Commission agreed to continue with its appeal of a federal judge’s ruling that would allow South Carolina absentee voters to cast a ballot without having a witness sign the mail-in envelope.

The ruling in question is Judge Michelle Childs’ order earlier this month saying the state cannot enforce the witness signature requirement. Childs cited the ongoing pandemic and the risks interacting with others to get a witness signature would pose to the state’s most vulnerable citizens.

After a three-judge 4th Circuit panel threw out Childs’ ruling, the full 4th Circuit reinstated it, causing yet another change to the state’s election laws and confusion about what voters will and will not be required to do.

The Election Commission’s urging voters to get a witness signature, regardless of what the law at present requires, is an effort to ensure all votes count in the event the higher court decides the signature requirement stands.

“That is just to be on the safe side,” election commission spokesman Chris Whitmire said Monday.

The matter is complicated because at present, the commission can’t appeal because there is nothing in writing for the commission to appeal to the U.S. Supreme Court.

To understand the current situation, it is necessary to go back 11 days.

On Sept. 18, U.S. District Judge Childs issued an injunction prohibiting the Election Commission from enforcing a state law that requires all absentee voters to get a witness to sign their name and address on the back of the absentee voter’s mail-in envelope. The witness can be anyone — a spouse, or even a child — so long as the witness’ signature and address are on the envelope.

Within days, the Election Commission appealed Childs’ decision striking down the witness requirement to the 4th U.S. Circuit Court of Appeals, where it was assigned to a three judge panel.

On Sept. 23, the three-judge panel ruled 2-1 to overturn Childs’ injunction and reinstate the state law requiring a witness signature.

Two days later, last Friday, a majority of the 15-judge 4th Circuit Court of Appeals vacated — or nullified — the decision by the three-judge panel.

In its decision, the majority of the 4th Circuit issued no written ruling. Neither did the majority say when they might hold a hearing or review the issue.

Consequently, South Carolina is in the unusual position of waiting to see what happens next in the on-again, off-again and on-again saga of Judge Childs’ injunction barring South Carolina from enforcing the state’s witness requirement for absentee votes.

So meanwhile, Childs’ decision doing away with the witness requirement stands.

Childs made her decision after hearing detailed arguments by six Democratic plaintiffs and three Democratic organizations about how contagious the sometimes-fatal coronavirus is.

The virus, which has killed more than 200,000 Americans and more than 3,000 South Carolinians since March, is believed to be spread through tiny droplets in people’s breath. There is no vaccine and no effective treatment. It is safer for absentee voters not to risk catching COVID-19 if they don’t have to round up a witness, Childs ruled.

Her decision was basically the same decision she made last May striking down the witness requirement for the S.C. June primaries. No one appealed that decision.

But this time, the Election Commission appealed. It was joined by the S.C. Republican Party, State House Speaker Jay Lucas, R-Darlington, and State Senate President Harvey Peeler, R-Cherokee. The commission’s governing board is chosen by Gov. Henry McMaster, a Republican.

The Republicans’ and the commission’s arguments were that a state should be free to run its elections without federal judicial interference. They also argued that having a witness sign the voter’s mail-in envelope increases ballot security, though Republicans produced scant evidence of any serious voter fraud in the state for the last 40 years.

Election officials estimate that up to 1 million South Carolinians could vote absentee this year.

This story was originally published September 29, 2020 at 5:00 AM.