Could SC voters’ absentee ballots be thrown out? Republicans appeal judge’s order

The S.C. Election Commission and top Republican state officials will appeal last week’s coronavirus-related decision by a federal judge to allow South Carolina voters in the upcoming Nov. 3 election to vote absentee without getting a witness signature.

The appeal to the U.S. 4th Circuit Court of Appeals could potentially affect the legitimacy of hundreds of thousands of absentee votes that South Carolina’s voters are expected to cast if a higher court — including the U.S. Supreme Court — eventually overturns last week’s ruling by U.S. Judge Michelle Childs.

As of Tuesday, there were 43 days to go until the Nov. 3 election. Although Childs’ ruling is still in effect, a final court decision on whether a witness signature is required may not come for weeks.

Because of the uncertainty now hanging over whether Childs’ decision striking down the witness requirement rule will stand, Election Commission officials and others urged anyone who votes absentee to comply with the witness signature requirement.

“Our board voted yesterday to join in the appeal,” said Election Commission spokesman Chris Whitmire. “Since it was going to be appealed anyway, we decided we wanted a seat at the table.” The vote was not unanimous, he said.

Whitmire said that absent a final court decision on whether a witness signature is required, he is advising everyone to get a witness signature. “We know what the law is today, but that could change tomorrow ... Our advice is to go ahead and get the witness.”

Counties are already mailing out ballots today, Whitmire said.

Joining the Election Commission in the appeal are the S.C. Republican Party; State Senate President Harvey Peeler, R-Cherokee; and S.C. House Speaker Jay Lucas, R-Darlington. They oppose the plaintiffs in the original case — six Democrats and various Democratic Party interests, including the S.C. Democratic Party — who filed suit to overturn the witness requirement and other laws they alleged made it burdensome to vote absentee during the life-threatening pandemic.

Stuart Andrews, vice-president of the American Civil Liberties Union, which brought a companion case in S.C. federal court seeking relief from the witness requirement rule similar to the issue Childs ruled on, said that because of the uncertainty, voters casting absentee ballots should probably get a witness for their ballots.

“It’s better safe than sorry,” Andrews said. “While we believe that the (Childs) decision is well-reasoned and well-grounded, we of course cannot be sure of the results on appeal. If the decision is reversed, there is a possibility that absentee ballots without witness signatures may be invalidated.”

In a 71-page Friday ruling, Childs struck down a state requirement that people who vote absentee have to find someone to witness their mail-in ballot.

In the ruling, Childs said the state could not enforce the witness signature requirement because of the dangers posed by COVID-19, the highly contagious and sometimes fatal virus that has killed 200,000 Americans including more than 3,000 South Carolinians since March.

Voters, especially the elderly and those with underlying medical conditions, would have to put their health in jeopardy by getting someone to sign as a witness, Childs wrote.

Republicans who are now appealing had opposed Childs’ ruling, saying that the issue of whether to nullify the witness requirement was a matter for the Legislature and not the federal courts. Earlier this month, the General Assembly refused to pass a law that would have stricken the witness requirement.

Childs’ ruling 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.”

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.

That ruling was not opposed by Republicans or the Election Commission.

Last May, South Carolina had only 435 COVID-19 deaths and 10,096 cases. As of this past 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.

This story was originally published September 22, 2020 at 3:37 PM.