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Law & the Courts

Supreme Court Sides with GOP, Reinstates South Carolina’s Ballot Witness Requirement

The Supreme Court of the United States in Washington, D.C., August 29, 2020. (Andrew Kelly/Reuters)

The Supreme Court on Monday reinstated a requirement that South Carolina residents who cast their votes by mail must get a witness to sign their ballots after lower courts had suspended the requirement, saying it would increase the threat of spreading the coronavirus.

Republicans have argued that the witness requirement will serve as a safeguard against voter fraud, while Democrats pushed to suspend the requirement amid the pandemic. Roughly a dozen states require mail-in ballot envelopes to be signed by one or more witnesses or a notary.

While a lawsuit over the issue proceeds, the Court’s order sets aside the lower court ruling that had suspended the requirement, effectively reinstating the mandate.

The high court granted an exception for ballots cast before the stay and received within two days. 

Voting has already begun in the state, with more than 200,000 absentee ballots having been mailed and 18,000 returned, according to the state’s election commission.

Though the justices did not explain their decision, as is typical in rulings made on an emergency basis, Justice Brett Kavanaugh defended the order only on his own behalf in saying the Supreme Court “has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election.” 

Kavanaugh cited the Purcell principle, which was born from a dispute over an Arizona voter identification law brought to the court on an emergency basis in 2006, and says that federal judges should typically refrain from creating confusion by changing voting rules in the run-up to an election.

The justice added that federal courts should allow a state’s government to “keep or to make changes to election rules to address COVID-19.”

There were no noted dissents, though Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated they would have allowed ballots already submitted that did not have a witness signature to be rejected.

State Republican Party Chairman Drew McKissick celebrated the decision as a win for voter fraud prevention.

“Despite the Democrats’ efforts to hijack a pandemic and use it to meddle with our election laws, they’ve lost,” he said in a statement. “We’re pleased the Supreme Court reinstated the witness signature requirement and recognized its importance in helping to prevent election fraud.”

The original case was brought by the state Democratic Party, the Democratic National Committee and the Democratic Congressional Campaign Committee.

State Democratic Party Chairman Trav Robertson expressed disappointment at the Court’s decision.

“Our hope is that no one gets COVID-19 trying to find a witness. We are disappointed but elections have consequences,” he said in a statement.

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