The Supreme Court on Monday gave election officials in South Carolina the green light to enforce a state law that requires voters to sign absentee-ballot envelopes in the presence of a witness. The lower courts had barred the state from imposing the witness requirement, concluding that doing so during the COVID-19 pandemic is likely to infringe on the right to vote. Despite reinstating the witness requirement, the Supreme Court made clear that ballots that have already been cast will still be counted, as long as they are received within the next two days.
The order came in a lawsuit filed in May by a group of South Carolina voters, the South Carolina Democratic Party and the Democratic National Committee. U.S. District Judge J. Michelle Childs barred the state from enforcing the witness requirement for the state’s June primary and again for the upcoming November election. She concluded that the challengers were “substantially likely” to be able to show that, because of the “unique risks posed by the COVID-19 pandemic,” the witness requirement would violate the challengers’ constitutional right to vote. After the full U.S. Court of Appeals for the 4th Circuit left Childs’ order in place, state election officials (along with Republican leaders of the state’s legislature and the South Carolina Republican Party) came to the Supreme Court last week.
In a filing on Thursday, the state officials argued that the lower-court orders are directly contrary to the Supreme Court’s admonition that federal courts should not change the rules shortly before an election, a doctrine known as the Purcell principle. The lower courts’ rulings also conflict with an order from the Supreme Court in July that restored a similar witness requirement in Alabama, the officials added.
The challengers urged the justices to leave the lower-court orders in place in their filing on Friday, citing “overwhelming and unrefuted evidence” that enforcing the witness requirement during the pandemic “increases the risk of COVID-19 infection and transmission and unconstitutionally burdens the right to vote.” Because thousands of voters have already returned their ballots, the challengers suggested, reinstating the witness requirement now would create the prospect of more confusion. And South Carolina’s case is “unique,” they added, because the head of the state’s election commission has said that the witness requirement does not help to deter voter fraud. Moreover, there was no evidence of any voter fraud during the June primary, when the state was also barred from enforcing the witness requirement.
The justices reinstated the witness requirement in a brief order on Monday night, putting Childs’ ruling on hold while the state’s appeals are pending. Three justices – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – indicated that they would have granted the state’s request in full, which would have allowed the state to reject any ballots that had already been cast and did not comply with the witness requirement.
Justice Brett Kavanaugh filed an opinion agreeing with the decision to grant the state’s request. He reiterated that state officials should have “especially broad” leeway when dealing with “areas fraught with medical and scientific uncertainty.” Therefore, he continued, federal judges – who are not public-health experts – normally should not second-guess any decisions that a state legislature makes (or opts not to make) to address COVID-19 and the upcoming elections. By prohibiting the state from enforcing the witness requirement, Kavanaugh stressed, Childs ran afoul of that principle. Childs’ order blocking the witness requirement in the run-up to the November election also violated the Purcell principle, Kavanaugh continued.
There were no recorded dissents from Monday’s order.
This article is also published on SCOTUSblog.