State Supreme Court: Governor doesn’t have to testify in SC voter privacy lawsuit

S.C. Gov. Henry McMaster doesn’t have to respond to a subpoena to testify in an ongoing lawsuit where a resident is contesting having some 3.3 million state voters’ personally identifiable information be turned over to the U.S. Department of Justice, the state Supreme Court ruled Thursday.

“No subpoena for his testimony may be issued without first demonstrating to the circuit court that the attendance of the Governor is warranted under law,” the high court’s six-page unanimous decision said.

The Supreme Court did not rule on the voter privacy lawsuit brought by Anne Crook, a retired president of Orangeburg-Calhoun Technical College.

The merits of Crook’s lawsuit were not at issue. The case will now go forward along with its major questions: Does turning over personally identifiable information to the Justice Department violate privacy provisions in the state constitution, and will the Trump administration adequately safeguard any personal voter information that the Election Commission gives it?

However, the high court did take issue with key procedural and technical matters in the case involving things like temporary restraining orders, preliminary injunctions and change of venue.

In the process, justices criticized Crook’s attorneys as well as Circuit Court Judge Diane Goodstein for actions they should not have done.

Justices said Crook’s attorneys — State Sen. Brad Hutto, D-Orangeburg, and his son, Skyler Hutto — didn’t follow court rules in asking Goodstein for a temporary restraining order preventing the Election Commission from turning over voter information to the Justice Department. And justices also said Goodstein improperly granted a “clearly erroneous” temporary restraining order because it didn’t include enough detail.

Justices then reversed Goodstein’s order, but said the Huttos had the right to request another hearing, with proper notice to other parties, on the motion to prevent the Election Commission from giving voter information to the Department of Justice.

The information sought by the U.S. Justice Department includes the voter’s full name date of birth, residential address, his or her driver’s license number or the last four digits of the voter’s Social Security number.

Information such as the name, birth date and address are normally public, but driver’s license numbers and Social Security information are not.

South Carolina is one of numerous states being asked for voter identification data by the Trump administration.

The Justice Department has requested voter identification data from at least 33 states, including at least 16 Republican-controlled states, and at least 17 mostly Democrat-controlled or swing states, including Pennsylvania, Nevada, Wisconsin and New York, The New York Times reported earlier this week.

“Nearly every state has resisted turning over voter files with private, personally identifiable information on voters like driver’s license numbers or Social Security numbers,” the New York Times reported.

The Wall Street Journal reported that some states are rattled at the Trump administration’s request for voter data. Across the nation, state and federal officials are debating the best way to accomodate the government’s request for records but preserve voter privacy, the Journal reported.

Gov. McMaster has intervened in Crook’s lawsuit against the Election Commission.

In a Sept. 4 press conference, McMaster told reporters that the federal government wants the voter information to prevent voter fraud. South Carolina should cooperate, McMaster said, but said the state constitution gives residents the right to privacy and that right should be respected in whatever information it turns over.

Thursday’s opinion was preceded by a flurry of conflicting filings in the Supreme Court from Crook’s lawyers and attorneys on the Election Commission.

In a joint motion by Crook’s lawyers and four lawyers from the State Election Commission, the lawyers said they all had agreed to request a court order staying all “further proceedings in this action for a period of 60 days to provide additional time to facilitate the Parties’ attempt to resolve the dispute.” The commission’s lawyers were Elizabeth Crum, Michael R. Burchstead, Samantha Dorward and Thomas Nicholson. The motion, agreed to Tuesday, was filed Thursday morning by Crook’s lawyers.

However, in another filing, Burchstead notified the high court that the Election Commission would not be requesting a stay at all.

And in another filing, Commission lawyers told the high court they thought they had the authority to make an agreement with Crook’s lawyers, but were “mistaken” because they had not “received all necessary approvals from the Election Commission.”

Later Thursday, Skyler Hutto issued this statement: “We and Dr. Crook look forward to soon having a hearing on the merits of this matter ... Furthermore, we thank the State Election Commission for working so professionally and diligently on a resolution, and we hope to have the Governor’s Office’s blessing to put privacy safeguards in place.”

The Election Commission said in part in a statement Thursday evening that it “will continue working with the Department of Justice to develop a formal memorandum of understanding that ensures any data sharing is conducted in full compliance with the law while protecting the privacy of South Carolina voters.”

The next step in the lawsuit appears to be a hearing on a change of venue to Richland County. It is slated to take place Tuesday, Sept. 16.