SC witness signature rule a ‘grave risk’ in COVID-19 era, AARP tells US Supreme Court

The nation’s largest senior citizen group is urging the U.S. Supreme Court to uphold a federal judge’s recent decision to allow any South Carolinian voting absentee to do so without getting a witness signature on their ballot envelopes.

“South Carolina law (requiring a witness signature) needlessly puts at great risk the health of medically vulnerable individuals,” said a filing in the U.S. Supreme Court by AARP, which has nearly 38 million members age 50 and over nationwide, and 608,000 in South Carolina.

“The state law at issue poses grave risks to all older voters,” the AARP filing said. AARP is not a direct party to the lawsuit before the high court, but is filing as a friend of the court — that is, an entity that claims it will be affected by the case and wants the court to take notice of its position.

Currently, an S.C. law about absentee voters and witness signatures has been waived. Under a federal judge’s mid-September order, anyone who votes absentee in the state can do so with having to get a witness signature. Under a decision by the Legislature last month, all of the South Carolina’s approximately 3 million voters can vote absentee and up to 1 million are expected to do so.

That court-ordered waiver of the witness requirement, which was sought by Democratic voters and groups, has been appealed to the U.S. Supreme Court.

The case, which the Supreme Court could rule on as early as this week, pits six Democratic voters and several Democratic groups against the Republican-controlled S.C. Election Commission, the S.C. Republican Party, state House Speaker Jay Lucas, R-Darlington, and Senate President Harvey Peeler, R-Cherokee.

On Sept. 18, in response to a lawsuit brought by the Democrats, U.S. District Judge Michelle Childs of Columbia ruled that 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.

Childs’ order was in effect a continuation of an order she issued in late May. The May order said that because of the dangers of COVID-19, absentee voters in the June 10 Republican and Democratic primaries did not have to get a witness signature on the absentee ballot envelope. At that time, neither the Election Commission nor Republicans appealed Childs’ order.

Childs’ Sept. 18 order was appealed to the 4th Circuit Court of Appeals by the Election Commission, the S.C. GOP, Peeler and Lucas.

On Sept. 24, a three-judge 4th Circuit 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. Then, on Sept. 30, the full 4th Circuit, in a 9-5 vote, issued an opinion explaining its ruling.

In that majority opinion, the 4th Circuit found that since Judge Childs’ Sept. 18 ruling doing away with the witness signature requirement was a continuation of the May 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.

The 4th Circuit also noted that since May, when Judge Childs’ issued her first order, the dangers from COVID “have worsened in South Carolina” and if the witness requirement were reinstated, “even voters known to be sick with COVID-19 would have to procure a witness in order to vote absentee.”

In a Sunday filing, the Republicans and the Election Commission urged the Supreme Court to act quickly and reinstate the witness requirement.

“Time is short. In-person absentee voting in South Carolina begins (Monday) and mail-in absentee voting has been underway this whole time,” the filing said. “In 2020 alone, as a result of federal interference in South Carolina’s elections, the State’s witness requirement has been on, off, on again, off again, on again, and off again. Federal courts have made more changes to the witness requirement in the past 16 days than the State has made in the last 40 years. It is time for this federal interference (and resulting voter confusion) to end.”

The Republican filing stressed that all three of South Carolina’s major branches of government — the State Supreme Court, the governor and the Legislature — supported keeping the witness requirement.

In its filing, AARP stressed keeping the witness requirement will mean many people will not vote because they will be worried about catching COVID-19 both from going to the polls and also from seeking out a witness.

“In the face of these risks, many medically vulnerable voters, and still other voters cohabiting with medically vulnerable persons, will simply decide not to vote because they cannot be sure of doing so safely,” the AARP filing said.

The court-ordered waiver of the witness requirement is in effect only for the Nov. 3 general election in South Carolina, and only because of the dangers of COVID-19.

Since last March, the coronavirus has killed more than 209,000 Americans and more than 3,400 South Carolinians. More than 7.4 million Americans, including President Trump who was hospitalized late last week, have been infected.

This story was originally published October 5, 2020 at 12:42 PM.