Supreme Court looms as 4th Circuit warns of ‘mass voter confusion’ in SC order

To avoid “mass voter confusion,” South Carolinians voting absentee in the Nov. 3 general election do not have to get someone to witness their signature on the ballot envelope, the 4th Circuit Court of Appeals said in an opinion Wednesday afternoon.

But that ruling does not put the case to bed: State election officials on Monday said they intended to appeal the case to the U.S. Supreme Court. It was unknown Wednesday, however, whether they would revisit their plan to appeal.

In a 7-page ruling handed down shortly before 3 p.m. Wednesday, a 9-5 majority of the 4th Circuit explained why they last Friday night overturned a ruling by an earlier 4th Circuit three-judge panel that would have required South Carolinians voting absentee to get a witness for their ballot envelope.

That three-judge panel’s ruling overturned a still earlier ruling by U.S. District Judge Michelle Childs that said, because of the dangers of coronavirus, voters did not have to subject themselves to the dangers of going out and finding someone to witness their signature.

Anyone — a spouse or even a child — can be a witness to a voter’s signature, but Childs ruled that a certain number of voters might live alone or find it difficult to get a witness. Up to 1 million people are expected to vote absentee in South Carolina on Nov. 3, the state Election Commission has estimated.

In explaining the court’s decision, Majority Chief Judge Roger Gregory emphasized that the court “has preserved the electoral status quo in South Carolina — the status quo of not having a witness requirement during the COVID-19 pandemic.”

“In so doing, the court carefully weighed the competing interests and properly concluded that imposing the witness requirement now would likely unconstitutionally burden the fundamental right to vote, irreparably harm voters, and disserve the public interest.

“Indeed, to stay the injunction so close to the election would engender mass voter confusion and other problems” that the (U.S.) Supreme Court has warned about, the 4th Circuit said.

A spokesman for the S.C. Election Commission, which had appealed Judge Childs’ waiver of the witness requirement, could not be reached for comment.

Wednesday’s opinion was the latest event in a succession of appeals by the S.C. Election Commission, which seeks to reinstate a witness requirement for the November election after not appealing Judge Childs’ waiver of the witness requirement for the June primaries.

Earlier this month, in response to a lawsuit by six Democrats and several Democratic organizations, Childs reinstituted her waiver of her absentee ballot witness signature, for November. Ordinarily, a witness signature is required for an absentee vote to be valid.

In their Wednesday order, the 4th Circuit majority referred to Childs’ June waiver of the witness signature requirement and said that people were, in this time of the deadly contagious coronavirus pandemic, now used to not having to get a witness signature.

“The June primary was thus the first election for thousands of South Carolinians to vote by absentee ballot, and those citizens have only voted absentee when no witness was necessary,” the court wrote, adding, there is “a new status quo” in South Carolina.

The court underscored that while complying with the witness requirement would not be difficult for voters who expect it, the (reinstated) witness requirement “would likely ... confuse and deter voters” who, based on the rules of the June primary, expect not to need a witness signature in November.

The 4th Circuit majority also poked holes in the Election Commission’s reason — security — for wanting a witness signature, saying there was “an utter dearth of absentee fraud” and “scant evidence of any fraud during the June primary.”

Also, Marci Andino, the Election Commission executive director, has conceded the commission does not use the witness requirement to combat fraud, the majority found. The commission has other safeguards in place for ballot integrity, the court found.

“Strikingly, if the witness requirement were enforced during the November general election, even voters known to be sick with COVID-19 would have to procure a witness in order to vote absentee,” the majority wrote.

The court praised Childs’ opinion, calling it “measured, compelling, and soundly supported both factually and legally. It protects countless lawful voters who otherwise would have to choose between avoiding needless exposure to a deadly virus and exercising their fundamental right to vote.”

Childs’ 71-page opinion gave considerable weight to science and medical authorities and their findings on how deadly and contagious coronavirus is. Childs also noted that the disease has killed thousands more South Carolinians since May, when she wrote her opinion on the June primaries.

The majority judges were Chief Judge Roger Gregory, Diana Motz, Robert King, Barbara Keenan, James Wynn, Albert Diaz, Henry Floyd, Stephanie Thacker, and Pamela Harris. The minority judges were Harvie Wilkinson, Paul Niemeyer, Steven Agee, Marvin Quattlebaum, and Allison Rushing voted to grant the motion for stay.

Judge Jay Richardson of Columbia was recused for an unstated reason.

This story was originally published October 1, 2020 at 5:00 AM.