Supreme Court Sides With Republicans In Ballot Witness Row

By Hailey Konnath
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Law360 (October 5, 2020, 11:24 PM EDT) -- The U.S. Supreme Court on Monday temporarily reinstated South Carolina's requirement that absentee ballots be signed by witnesses, a Republican-backed measure that had been struck down by a pair of lower courts that had found the requirement would be risky for voters in the midst of COVID-19.

This year, the Palmetto State, like many others, substantially expanded absentee voting during the pandemic. Legislators deliberately chose not to do away with the witness requirement, deeming it key for deterring election fraud, according to the case before the high court.

The state's Democrats have argued that the witness requirement increases the risk of COVID-19 infection and transmission and unconstitutionally burdens the right to vote. There is no evidence that the requirement does anything for election security as election officials have no ability to verify witness signatures, Democrats argued.

And a South Carolina federal court agreed, enjoining the requirement twice: for the June primary and then for the November election. In late September, the Fourth Circuit preserved the latest order, rejecting the motion for a stay from the state's Republican Party and various Republican officials and legislators.

On Monday, the Supreme Court sided with the Republicans and granted a stay, though it also held that any ballots cast before the stay was issued may not be rejected for failing to comply with the witness requirement.

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch noted in the two-page order that they would've issued the stay in full without that exception.

And Justice Brett Kavanaugh penned a concurrence, writing that he agreed that the order should be stayed for two alternative reasons. Specifically, a state legislature's decision to keep or make changes to election rules to address the pandemic shouldn't be subjected to criticism from an unelected federal judiciary, he said.

And on top of that, "this court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election," Justice Kavanaugh wrote. "By enjoining South Carolina's witness requirement shortly before the election, the district court defied that principle and this court's precedents."

South Carolina GOP Chairman Drew McKissick said in a statement Monday that Democrats had attempted to "hijack a pandemic and use it to meddle with our election laws."

"We're pleased the Supreme Court reinstated the witness signature requirement and recognized its importance in helping to prevent election fraud," McKissick said.

The high court is poised to consider several voting and election matters as the November election looms. On Friday, the court said it would take up petitions from Arizona's attorney general and the Arizona Republican Party, which separately challenged a Ninth Circuit finding that two state voting regulations discriminated against minority voters.

Also last week, the Pennsylvania Senate's GOP majority leadership asked the Supreme Court to stay the state high court's recent ruling extending the deadline for receipt of mail-in ballots as a result of the coronavirus pandemic and reported postal service delays.

The South Carolina Democratic Party didn't immediately return a request for comment late Monday.

The Republicans were represented by Wm. Grayson Lambert, M. Elizabeth Crum and Jane W. Trinkley of Burr & Forman LLP, Karl Smith Bowers Jr. of Bowers Law Office, M. Todd Carroll and Kevin A. Hall of Womble Bond Dickinson LLP, Susan P. McWilliams of Nexsen Pruet LLC, Robert E. Stepp and Robert E. Tyson Jr. of Robinson Gray Stepp & Laffitte LLC and Thomas R. McCarthy and Cameron T. Norris of Consovoy McCarthy PLLC.

The Democrats were represented by Marc E. Elias, Bruce V. Spiva, Christopher J. Bryant and Sopen Shah of Perkins Coie LLP.

The case is Marci Andino et al. v. Kylon Middleton et al., case number 20A55, in the U.S. Supreme Court.

--Additional reporting by Emma Whitford and Matt Fair. Editing by Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Middleton et al v. Andino et al


Case Number

3:20-cv-01730

Court

South Carolina

Nature of Suit

Civil Rights: Voting

Judge

J Michelle Childs

Date Filed

May 01, 2020

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