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The Supreme Court Warned Against Changing Voting Rules Near Election Day And Then Did It Anyway

The justices reinstated South Carolina’s requirement that absentee voters have a witness sign their ballot. Sen. Lindsey Graham is in a close reelection race there.

Posted on October 6, 2020, at 12:31 p.m. ET

Win Mcnamee / Getty Images

Sen. Lindsey Graham

WASHINGTON — The US Supreme Court on Monday night issued an order warning lower courts against making big changes to state voting practices so close to Election Day — and, in the process, it did exactly that.

In a two-paragraph order, the court reinstated a South Carolina law that requires an absentee voter to have someone witness them signing their ballot and to prove it by having the witness sign the ballot, too. On Sept. 18, a federal district judge had blocked the state from enforcing the rule for the Nov. 3 election, citing the coronavirus pandemic and the fact that the witness requirement would force more in-person contact.

South Carolina is home to one of the election contests that could decide which party controls the Senate next year. Republican Sen. Lindsey Graham, a Trump ally, is facing a surprisingly close reelection race against Democrat Jaime Harrison. Recent polling has shown the race is tied.

The Supreme Court’s decision represents the final word on the South Carolina witness requirement through Election Day, but other legal fights over mail-in voting are pending across the country. The Supreme Court is poised to make more last-minute calls with less than a month until the election, and after mail-in voting is underway.

By the time the court issued its order on Monday night, absentee voting had already started in South Carolina. That left the justices in the awkward position of having to acknowledge that their decision could affect ballots that voters had already put in the mail. Their solution? They decided South Carolina would have to count ballots received in the next two days that lacked a witness signature, but the state could enforce the rule and reject ballots without a witness after that.

State election officials quickly posted an announcement about the change on the state’s voter information website and tweeted about it on Tuesday. Just over a week earlier, the state’s election commission tweeted that there was no witness requirement due to court orders, but cautioned that could change.

The Supreme Court didn’t issue an opinion explaining its decision on Monday. The order didn’t include a breakdown of how each justice voted, but there were no dissents. The order did note that Justices Clarence Thomas, Samuel Alito Jr., and Neil Gorsuch voted in favor of rejecting all ballots missing a witness signature, even those that were mailed before the court ruled.

Justice Brett Kavanaugh wrote a short concurring opinion to explain why he sided with South Carolina in reviving the witness requirement. He wrote that judges shouldn’t second-guess how state legislatures were handling the election during the pandemic, and that “federal courts ordinarily should not alter state election rules in the period close to an election.”

Kavanaugh cited Purcell v. Gonzalez, a 2006 Supreme Court decision where the justices cautioned against court-ordered changes to election procedures near an election.

In the South Carolina case, the lower court judges who sided with the challengers wrote that they believed they were following Purcell’s guidance in blocking the rule.

On Sept. 18, US District Judge J. Michelle Childs issued the order blocking the state from enforcing the witness requirement for the November election. It wasn’t the first time Childs had considered whether the state could enforce its witness requirement during a pandemic; she previously blocked the rule for the June primary.

In her opinion, Childs wrote that she was mindful of the fact that the Supreme Court had halted court orders in other states that extended the deadline for election officials to accept absentee ballots that arrived after Election Day. She denied a motion to extend the time frame in South Carolina by six days, writing that it would make it harder for state officials to meet other deadlines to certify the votes, consider protests to the result, handle any recounts, and resolve any other issues.

“At this point, an injunction changing election rules to effectively delay proceedings by six days could impact the state’s ability to efficiently administer the November 2020 General Election,” Childs wrote.

But blocking the witness requirement didn’t trigger the same concerns as extending Election Day deadlines, the judge wrote, because she’d already blocked the rule for the primary in June. No one appealed that order, and the judge concluded her original order had set a new status quo for South Carolina voters as long as there was still a pandemic. She noted that the state legislature had lifted the requirement that voters provide a reason for requesting an absentee ballot, which it had done for the June primary.

“Just as in the last election, voters will likely expect the same restrictions to be suspended for the November 2020 General Election, including the Witness Requirement,” Childs wrote.

State officials in South Carolina took the case to the US Court of Appeals for the 4th Circuit, asking that court to put Childs’ decision on hold. On Sept. 30, the court voted 9–5 to let the injunction stand. Judge Robert King wrote a concurring opinion that echoed Childs’ point that by blocking the witness requirement for the November election after already blocking it for the June primary, the court was preserving the status quo, not changing it.

“Put simply, the decision of the district court is measured, compelling, and soundly supported both factually and legally. It protects countless lawful voters who otherwise would have to choose between avoiding needless exposure to a deadly virus and exercising their fundamental right to vote,” King wrote.

Judges J. Harvie Wilkinson and G. Steven Agee, meanwhile, wrote a dissent claiming that their colleagues’ “disregard for the Supreme Court is palpable” and arguing that Childs’ order represented “stark interference with South Carolina’s electoral process right in the middle of the election season.” At the end of the dissent, they urged South Carolina officials to petition the Supreme Court to step in.

Kavanaugh cited Wilkinson and Agee’s dissent in his concurring opinion on Monday, writing that Childs had “defied” Supreme Court precedent.

“[F]or many years, this Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election,” Kavanaugh wrote.

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