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Tag: witness requirement

Supreme Court Overturns Lower Courts’ Rulings on South Carolina’s Absentee Ballot Witness Requirement

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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U.S. District Court Changes South Carolina Absentee Ballot Witness Requirement

September was an eventful month for South Carolina’s absentee voting laws. On September 16, 2020, the Governor of South Carolina signed into law the state legislature’s bill H5305, which, in effect, permits all registered voters in South Carolina to vote by absentee ballot for the November 3, 2020 General Election. On September 18, 2020, the United States District Court for the District of South Carolina, Columbia Division, issued a preliminary injunction against the South Carolina State Election Commission (“SCEC”) in Middleton v. Andino, No. 3:20-CV-01730-JMC (D.S.C. Sept. 18, 2020). The court enjoined the SCEC from enforcing South Carolina law requiring another person to witness an absentee voter’s signature on the absentee ballot envelope for the November 2020 general election. South Carolina law requires absentee voters to sign an oath on their absentee ballot envelope in the presence of a witness, who must also sign and provide their address on the ballot envelope. Additionally, Section 7-15-420 of the South Carolina Code provides that an absentee ballot “may not be counted unless the oath is properly signed and witnessed.” Section 6(a) of the recently passed H5305 bill provides that the absentee ballot envelopes will be examined “in accordance with the requirements of Section 7-15-420.”

There are three reasons that the district court in Middleton reached the right result in issuing the preliminary injunction.

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