The NCSL Blog

08

By Lisa Sorenen

In Andino v. Middleton the U.S. Supreme Court has continued its trend of striking down judge-made changes to state election laws in response to COVID-19.

The case in South Carolina was one of two related to November’s election pending before the high court. (Nati Harnik/AP)The Supreme Court froze in place a district court order which prohibited South Carolina from enforcing its ballot witness requirement. But the court stated that any ballots received within two days of its order can’t be rejected for failing to comply with the witness requirement.

As a result, going forward, absentee voters in South Carolina must return their ballots with a witness signature.   

Since 1953 South Carolina law has required absentee voters to have a witness. (Check out NCSL's resources on how states verify voted absentee ballots.) In response to the pandemic, the state legislature allowed everyone to vote absentee in the June primary and the November general election but didn’t eliminate the witness requirement. A federal district court prevented the requirement from going into effect during the primary, and South Carolina didn’t appeal.

On Sept. 18, the district court preliminarily suspended the witness requirement related to the November general election. The 4th Circuit ultimately let the district court decision stand.

The federal district court concluded the witness requirement likely violates the First Amendment because the burden of getting a witness “in the midst of a pandemic is significant” and not justified by South Carolina’s interest in investigating voter fraud. The court noted that the executive director of the South Carolina State Election Commission, and named defendant in this case, has stated the witness requirement “offers no benefit to election officials as they have no ability to verify the witness signature.”

In Purcell v. Gonzalez (2006), the Supreme Court instructed federal courts not to “alter the election rules on the eve of an election.” In its emergency motion, South Carolina elected officials describe this case as a “poster child for what Purcell says not to do.” They echo the words of dissenting Judge J. Harvey Wilkinson III, who described the 4th Circuit’s decision to allow the district court order to stay in place as “a stark interference with South Carolina’s electoral process right in the middle of the election season.” South Carolina also argued this case is similar to another emergency stay application where the Supreme Court struck down a judge-made deletion of Alabama’s ballot witnesses requirement. 

The challengers in this case argue that the Purcell principle weighs in their favor because the election status quo is no witness requirement. In the most recent election, the June primary, the witness requirement wasn’t in effect.

The Supreme Court granted South Carolina’s application for an emergency stay freezing in place the district court’s decision. The emergency stay application went to Chief Justice Roberts. We don’t know how the Justices voted except that Justices Thomas, Alito and Gorsuch voted against the two-day grace period.

Also, Justice Brett Kavanaugh issued a very brief statement to explain the two reasons for his concurring vote in favor of the stay. First, “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,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.’” Second, Kavanaugh reasoned that the district court’s order violated the Purcell principle.

Technically, the stay is only in effect until the4th Circuit reviews the district court’s preliminary injunction. But it is unlikely that the Fourth Circuit can review it before the election. And absentee voting has already begun in South Carolina.

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.