Election officials and South Carolina Republicans went to the Supreme Court on Thursday, asking the justices to reinstate a state law that requires voters to sign absentee-ballot envelopes in the presence of a witness. The dispute is the latest in a series of election-law battles to come to the Supreme Court since the COVID-19 pandemic began in the spring. 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.
The lawsuit that led to the emergency appeal filed on Thursday began in May, in the run-up to the state’s June primary. The challengers, who include individual South Carolina voters, the South Carolina Democratic Party and the Democratic National Committee, argued that various provisions of South Carolina law, including the witness requirement for absentee ballots, were unconstitutional. U.S. District Judge J. Michelle Childs blocked the state from enforcing the witness requirement for the June primary. Childs then issued a similar order two weeks ago for the upcoming November election. In a 71-page decision, she concluded that the challengers were “substantially likely” to be able to show that the combination of the witness requirement and the “unique risks posed by the COVID-19 pandemic” infringe on the challengers’ constitutional right to vote. Childs directed the state to “immediately and publicly inform” voters that the witness requirement is not in effect, including on websites and through social media.
The state went to the U.S. Court of Appeals for the 4th Circuit. On Sept. 24, a panel of the appeals court put Childs’ order on hold. But four days later the full 4th Circuit temporarily reinstated Childs’ order and agreed to review the case. Judge J. Harvey Wilkinson wrote a sharp dissent from that decision, arguing that the challengers have a “legally unsupportable case” and that the majority’s “disregard for the Supreme Court” is palpable. More broadly, Wilkinson lamented what he characterized as the “deeply disturbing” “trend” of election-law cases filed by political parties “in an effort to gain partisan advantage.”
In its filing with the Supreme Court on Thursday, election officials and the South Carolina GOP told the justices that this dispute is a “poster child” for what the Supreme Court has instructed federal courts not to do – change the rules of an election shortly before the election, a doctrine known as the Purcell principle. They noted that the full 4th Circuit reinstated Childs’ order even though ballots had already been mailed. Moreover, they added, the Supreme Court earlier this year restored a witness requirement in Alabama after a federal court in that state put it on hold. The South Carolina officials and the state GOP urged the justices to act quickly, telling the court that more than “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.”
Chief Justice John Roberts, who handles emergency appeals from the geographic area that includes South Carolina, ordered the challengers to respond by Saturday, Oct. 3, at 2 p.m. EDT.
This post is also published on SCOTUSblog.