Supreme Court Reinstates South Carolina Ballot Witness Rule

(Bloomberg) -- The U.S. Supreme Court reinstated a Republican-backed South Carolina requirement that a witness sign each absentee ballot, rejecting Democratic contentions that the rule will make it harder for thousands of people to vote.

The justices, without any published dissents, on Monday blocked a federal judge's order that had lifted the signature requirement because of the Covid-19 outbreak.

The Supreme Court order is a blow to Democrats in a state where they are trying to unseat a high-profile senator -- Republican Lindsey Graham. Polls show Democrat Jaime Harrison in a close race with Graham in the Republican-leaning state.

The Supreme Court said its order -- and the witness requirement --wouldn't apply to ballots that have already been cast and arrive within two days. Officials have already received more than 8,000 ballots.

The court as a whole gave no explanation. In a concurring opinion, Justice Brett Kavanaugh said federal courts should defer to pandemic-related decisions made by state elections officials.

“A state legislature's decision either to keep or to make changes to election rules to address Covid–19 ordinarily should not be subject to second-guessing by an unelected federal judiciary,” Kavanaugh wrote.

Three conservative justices -- Clarence Thomas, Samuel Alito and Neil Gorsuch -- said they would have applied the witness requirement even to ballots that have already been cast.

Democrats said Supreme Court intervention so close to Election Day would inject confusion and potentially disenfranchise thousands of voters. South Carolina this year is letting every voter request a mail-in ballot for the first time, and more than 150,000 ballots have already been sent to people.

Changing the Rules

“Any voter who, to date, has returned their absentee ballot without a witness signature has done so lawfully,” the South Carolina Democratic Party and its allies argued in court papers. They said voters would “face certain disenfranchisement through no fault of their own.”

South Carolina has had a witness requirement for absentee ballots since 1953, though a judge put the rule on hold for the June primary, and Republicans didn't appeal that order.

Republicans told the Supreme Court that Democrats are the ones trying to change the rules at the last minute -- and usurp the power of the state's elected leaders. Republicans said the South Carolina legislature this year made a conscious decision to leave the witness rule in place, even while expanding mail-in voting because of the pandemic.

“Courts are not equipped to second guess the health and safety determinations of South Carolina's elected representatives, including the determination that the witness requirement can be satisfied safely,” a group including the South Carolina Republican Party argued.

Pennsylvania Deadline

The Supreme Court said in 2006 that judges should be wary of changing voting rules right before an election. That opinion, known as Purcell v. Gonzalez, has turned many election lawsuits into disputes over which side is trying to change the status quo.

The court's conservative majority invoked Purcell in April, when the justices voted 5-4 to block a trial judge's ruling and reinstate a deadline for mailing absentee ballots in the Wisconsin presidential primary.

The Supreme Court also is weighing a request to block a Pennsylvania court order that would allow the counting of mail-in ballots received up to three days after Election Day, even if they don't have a clear postmark showing they were mailed by the Nov. 3 deadline.

The legal challenges come as states are wrestling with how to conduct voting during the coronavirus pandemic. A significant increase in the number of mail-in ballots is expected nationwide.

The South Carolina case is Andino v. Middleton, 20A55.

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