Witness signature now required on SC absentee ballots, federal appeals court rules

UPDATED: The U.S. Supreme Court says absentee ballots submitted by mail in South Carolina must have a witness signature. This story has been updated to reflect that decision.

An injunction by a Columbia federal judge to allow easier absentee voting during the coronavirus pandemic was overturned Thursday by a three-judge panel of the 4th Circuit Court of Appeals in Richmond.

Separately, on Oct. 5, the U.S. Supreme Court stepped in and ruled that South Carolina voters must get a witness signature on their absentee ballot.

The injunction by U.S. Judge Michelle Childs had prohibited the S.C. Election Commission from enforcing a requirement that anyone voting absentee must find and have a witness sign the envelope verifying the ballot cast by the absentee voter.

But the panel, by a 2-1 vote, essentially froze Childs’ order pending any appeal of her order. As a practical matter, that means everyone voting absentee in the Nov. 3 general election must have a witness signature on their ballot.

The 4th Circuit judges did not explain their decision. Their order did say, “Opinions will follow shortly.”

The S.C. Election Commission later Thursday released this statement: “South Carolinians voting absentee by mail must now have their signatures on ballot return envelopes witnessed after the United States 4th Circuit Court of Appeals today issued an order reversing a lower court’s ruling.

“ On Sept. 19, the U.S. District Court (in Columbia) ordered the witness requirement to be suspended for the 2020 General Election. The 4th Circuit order stays the District Court order. The Election Commission will continue to the notify the public of any changes to the witness requirement through the media and at scvotes.gov.”

The lawsuit before Childs had been brought by six Democratic plaintiffs and several Democratic organizations including the S.C. Democratic Party.

They had sued the S.C. Election Commission. Various Republican interests including State Senate President Harvey Peeler, R-Cherokee, State House of Representatives Speaker Jay Lucas, R-Darlington, and State Attorney General Alan Wilson filed legal briefs supporting the Election Commission’s effort to keep the witness requirement.

In her Sept. 18 ruling, Childs cited evidence produced by the Democratic plaintiffs saying that due to the highly contagious and sometimes deadly nature of COVID-19, it was overly burdensome for many absentee voters this year to seek out someone to verify their ballot safely in a pandemic. Childs also stressed that Republicans opposing her ruling had produced no evidence of any serious voter fraud in South Carolina in the last 40 years.

Democrats in their legal arguments had also cited a July letter by Election Commission executive director Marci Andino urging various reforms — including doing away with the witness requirement — in voting this November due to the contagious nature of the coronavirus.

Republicans, who had opposed Childs’ order, hailed the 4th Circuit’s decision. Republicans had argued that decisions about absentee ballots should be left to the Legislature and the absence of a witness signature could lead to voter fraud.

“I am pleased that the United States Court of Appeals stopped Judge Childs’ order. I appreciate the fact the Court agrees with the South Carolina General Assembly that we have protected the voter and the vote in the November election,” said State Senate President Peeler.

Wilson released a statement saying, “This is a victory for state’s rights and the rule of law. State lawmakers had a chance to remove the witness signature requirement and they chose not to.”

State Democratic Party chair Trav Robertson issued a statement saying in part, “Our goal has been to afford people during a pandemic the opportunity cast a vote without risking his/her life. ... We believe that the witness signature requirement for South Carolina absentee ballots is a wholly unnecessary burden on people trying to vote safely.”

Robertson said one option is to appeal to the U.S. Supreme Court. But in the meantime, he advised absentee voters to have a witness sign their envelope.

Fourth Circuit Judges ruling against Judge Childs’ injunction were J. H. Wilkinson, appointed in 1984 by President Ronald Reagan, and Steven Agee, appointed in 2008 by President George W. Bush.

The judge ruling to uphold Childs’ injunction was Robert King, appointed in 1998 by President Bill Clinton.

This story was originally published September 24, 2020 at 6:39 PM.