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.

Kavanaugh’s first reason was that the district court’s preliminary injunction had contravened the principle that“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.’” Kavanaugh’s description of the district court as seconding-guessing the South Carolina legislature is accurate because the South Carolina’s General Assembly made changes to its election laws by passing a bill permitting all South Carolina voters to vote by absentee ballot for the general election and because the General Assembly decided, after debate in both the House and Senate, to not eliminate the witness requirement. However, it is the role of federal courts to “second guess” a State legislature when such courts are protecting constitutional rights. Therefore, just because the district court’s order at issue here second guessed the legislature, that does not mean the order must necessarily be unconstitutional. In this case, the district court found that “the Witness Requirement, when coupled with the ongoing COVID-19 pandemic . . . implicates a purportedly unconstitutional burden on the fundamental right to vote,” and was therefore obligated to protect this right.

Kavanaugh’s second reason was that the district court defied a principle that stems from Purcell v. Gonzalez, 549 U. S. 1 (2006), that “federal courts ordinarily should not alter state election rules in the period close to an election.” Both the district court and the Fourth Circuit en banc thoughtfully considered this principle, but concluded that the electoral status quo during the pandemic was not having a witness requirement enforced for absentee voting because all South Carolina voters were allowed to vote absentee without having to comply with the witness requirement in the June primary. Thus, the Fourth Circuit reasoned that “to stay the injunction so close to the election would engender mass voter confusion and other problems that the Supreme Court warned against in Purcell v. Gonzalez,” because having the witness requirement “’would likely . . . confuse and deter voters’ who, based on the rules of the June primary, reasonably expect the witness requirement to be suspended for the November general election, too.” As a result, both Kavanaugh and the lower courts seem to be using Purcell differently. Unfortunately, however, Kavanaugh does not address the lower courts’ treatment of Purcell or explain why the approach they took in light of the unusual circumstances of the pandemic defied the Purcell principle.

Perhaps what persuaded the Court was the SCEC’s argument on appeal that the witness requirement did not actually impose a significant burden on the plaintiffs. The district court had found that the witness requirement burdens the ability of certain voters to exercise their right to vote, such as those who live alone and are at high-risk for COVID-19. However, according to the SCEC, most of the plaintiffs in this case “offered no evidence that they live alone and never interact with others,” and two of them “even said they wanted more interaction with voters (by collecting their absentee ballots).” Critically, the SCEC claimed that the only plaintiff who actually did live alone conducted, three days after the district court’s September 18, 2020 injunction, “a television interview about this lawsuit sitting shoulder-to-shoulder with her adult son” and that “[i]f she can sit next to her son (who is a state legislator) for a television interview, then she can also sit next to her son while he witnesses her absentee ballot.” As a result, although the witness requirement conceivably burdens the right of voters who live alone and have limited interactions with others, perhaps these claims by the SCEC influenced the Court in concluding that the requirement – as applied to the plaintiffs in this case – may not actually be all that burdensome.

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