On October 5, 2020, the Supreme Court stayed the South Carolina Federal District Court’s September 18, 2020 order enjoining the South Carolina State Election Commission (“SCEC”) from enforcing the state’s witness requirement for absentee ballots. The witness requirement refers to South Carolina law that requires another person to witness an absentee voter’s signature on the absentee ballot envelope for the November 2020 general election. The law requires the witness to sign the absentee ballot envelop and provides that noncompliant absentee ballots “may not be counted.” However, the Supreme Court’s order granted a narrow exception for ballots if they were cast before the Court issued this stay and were “received within two days” of the order.

It would have been helpful if the Court’s majority had explained the rationale behind its order, given that it overturned both the district court and the Fourth Circuit, which had refused to stay the district court’s preliminary injunction when it considered the matter en banc. The only rationale in the Court’s opinion was provided by Justice Kavanaugh, who concurred with the majority based on “two alternative and independent reasons.” However, as shown below, Kavanaugh’s reasons alone do not seem to provide adequate justification for issuing the stay.

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