SC absentee ballot witness case lands in US Supreme Court: decision could be soon

A legal battle that pits Republicans against Democrats on whether witness signatures will be required for the hundreds of thousands of absentee ballots that South Carolinians are expected to cast in the Nov. 3 election is now in the U.S. Supreme Court, according to filings in that court.

Whatever happens now, the U.S. Supreme Court will be the final umpire in a contentious legal fight that began on Sept. 18 with a 71-page order by U.S. District Judge Michelle Childs of Columbia. Her ruling said, because of the dangers of the highly contagious and deadly COVID-19, South Carolinians voting absentee did not have to get a witness signature and address on their mail-in ballot envelope.

Her order was appealed to the U.S. 4th Circuit Court of Appeals by the S.C. Election Commission, whose governing board is majority Republican, and also the S.C. Republican Party, State Senate President Harvey Peeler, R-Cherokee, and State House of Representatives Speaker Jay Lucas, R-Darlington. The order had been sought by six Democratic voters and several Democratic organizations.

On Sept. 24, at the 4th Circuit, a three-judge panel by a 2-1 vote overturned Judge Childs order, saying it interfered with state rights to conduct elections and that requiring witness signatures was a legitimate security issue, despite a lack of evidence of voter fraud in South Carolina in 40 years.

On Sept. 25, without explanation, a majority of the full 4th Circuit Court of Appeals vacated the panel’s ruling and reinstated Judge Childs’ order allowing voters not to have to get a witness signature.

Last Monday, the Election Commission governing board voted to appeal the full 4th Circuit ruling to the U.S. Supreme Court.

On Wednesday, the full 4th Circuit, in a 9-5 vote, issued an opinion explaining its ruling. A key finding was that since Judge Childs’ Sept. 18 ruling doing away with the witness signature requirement was a continuation of a similar order she made for the June Democratic and Republican primaries, it would create “mass voter confusion” to reinstate a witness requirement for the November election.

On Thursday, lawyers for the Election Commission, the state Republican Party, Peeler and Lucas submitted a 37-page request for an emergency stay of Judge Childs’ order with the U.S. Supreme Court. Lawyers for the Democrats were given a 2 p.m. Saturday deadline to submit an opposing motion.

The first issue before the U.S. Supreme Court is whether to take the S.C. case. If it doesn’t, the full 4th Circuit ruling will be upheld and Childs’ order doing away with the witness requirement will stand. If the S.C. Supreme Court does take up the case, the opposing Republicans and Democrats will likely submit additional filings, fleshing out arguments on each side.

A major reason for reinstating the witness requirement is that to do without it for the November election would engender already growing voter confusion, the Republican brief filed Thursday said.

“First, the district court enjoined the witness requirement ... The Fourth Circuit rightly stayed that injunction ... Then, the next day, the Fourth Circuit sua sponte (acting on its own volition) reversed course and reinstated the injunction without any explanation. Hours after the Fourth Circuit changed its mind, a major newspaper (The State) published a story with a headline that reflects the likely confusion South Carolina’s voters are feeling: “On Again, Off Again: Court Nixes SC Witness Requirement on Absentee Ballots—For Now.”

The Republican motion went on to say that “Over 150,000 absentee ballots have been mailed out already, and each passing day increases the risk that ballots will be returned that, in mistaken reliance on the district court’s injunction, do not comply with the witness requirement.”

Exactly how this legal battle will affect the election is unknown, but pundits are already starting to speculate.

“The justices’ eventual ruling could influence the outcome in the state’s hard-fought U.S. Senate race, in which a poll released on Wednesday has incumbent Sen. Lindsey Graham, a Republican, tied with challenger Jaime Harrison,” wrote veteran lawyer-reporter Amy Howe on scotusblog, an authoritative news and commentary site on U.S. Supreme Court happenings.

“That sounds like conjecture to me,” said S.C. Democratic Party chairman Trav Robertson. “In fact, I think the Republican Party has always run a stronger absentee ballot program than Democrats.”

Chris Whitmire, a spokesman for the S.C. Election Commission, said Friday, “One thing we hope is for a quick resolution so we can have clarity.”

This story was originally published October 3, 2020 at 5:00 AM.