On-again, off again: Court nixes SC witness requirement on absentee ballots — for now
The 4th Circuit Court of Appeals in Richmond has, at least temporarily, reinstated a ruling by a South Carolina federal judge that would allow S.C. voters who vote absentee to do it without having a witness signature.
The ruling was the latest major turn of the screw in a voting rights issue that ultimately could affect up to an estimated 1 million voters in the state who the S.C. Election Commission has said may vote absentee. South Carolina has approximately 3 million eligible voters.
The reversal and reinstatement of U.S. District Judge Michelle Childs’ Sept. 18 order came shortly after 8 p.m. Friday. Its effect was to waive the voter witness signature requirement and came over the heated written objections of two 4th Circuit judges, J. H. Wilkinson and Steven Agee.
The decision by a majority of the 4th Circuit judges to reinstate Judge Childs’ waiver of the witness requirement represents “a stark interference with South Carolina’s electoral process right in the middle of the election season,” wrote Willkinson and Agee in their dissent protesting the decision by a majority of the 4th Circuit to re-instate Childs’ waiver. Wilkinson was appointed by President Ronald Reagan, a Republican; Agee was appointed by President George W. Bush, a Republican.
On Thursday, Wilkinson and Agee were the majority of a three-judge panel that ruled, 2-1, that Childs’ ruling should be overturned. Childs was appointed to her seat by President Obama, a Democrat.
Often, a ruling by a three-judge panel ends the appeal of a matter.
But parties can appeal such a ruling to the full 4th Circuit, which has 15 judges. In this case, however, there apparently was no appeal — a majority of the 4th Circuit apparently decided on its own that the issues raised in the legal wrangling over Childs’ ruling were substantial enough to warrant a hearing by the full court.
“It’s an interesting and a positive step,” South Carolina Democratic Party chairman Trav Robertson told The State. “We believe that the witness signature line is not only a hindrance to people being able to cast their ballots but it’s also, you know, a throwback to a bygone era in the South. But at the end of the day, we just hope that there will be some clarity as not to confuse people.”
“We don’t comment on ongoing legal matters,” Claire Robinson, spokeswoman for the SC GOP, told The State.
Although a majority of the 4th Circuit said Friday night they were granting a “rehearing en banc,” it is not yet known whether that rehearing will involve oral arguments, or whether the judges will simply consider all or portions of the written record, which contains hundreds, if not thousands, of pages.
Although the full 4th Circuit has 15 active judges, one judge — Jay Richardson of Columbia — has recused himself, the 4th Circuit announced. The court gave no reason.
In any case, the matter is likely to be dealt with speedily. Under existing law, judges are not supposed to issue decisions that could interfere with rapidly approaching elections — a point made by Judges Wilkinson and Agee in their dissent.
“The Supreme Court has repeatedly cautioned us not to interfere with state election laws in the “weeks before an election,” wrote Wilkinson and Agee. “The district court (Judge Childs) failed to give this command proper weight.”
Underscoring their displeasure with the full 4th Circuit court’s decision to overturn their panel, Wilkinson and Agee wrote, “The majority’s disregard for the Supreme Court is palpable.”
But in her Sept. 18 decision, Childs too stressed she was only taking action because of the life-and-death threat to voters by COVID-19 and after official bodies, including the state Legislature, refused to protect voters by waiving the absentee voter ballot signature requirement.
Under SC law, voters wishing to vote absentee must secure the signature of a witness on the envelope they use to send in the ballot. The witness can be anyone, including a relative, and it does not have to be notarized or validated in any way. (Rules for absentee voting can be found at scvotes.gov )
Childs ruled that many absentee voters live alone and might have difficulty finding someone who is COVID-19 free to witness their signature. So, for this election only, she waived the absentee ballot requirement, she wrote.
In her ruling, Childs agreed with a lawsuit brought by six Democrats and several Democratic organizations, including the S.C. Democratic Party. They presented evidence about the medical dangers of coronavirus, a highly contagious and sometimes fatal disease that has killed more than 202,000 Americans and 3,200 South Carolinians since last March.
“The unfortunate part is this — that the (State House Speaker) Jay Lucas, and the (State Senate President) Harvey Peeler had the chance to fix this and they chose not to do it. And so the confusion really lies on the fact that the General Assembly which is controlled by the Republicans, led by Jay Lucas, led by Harvey Peeler, they refused to fix this problem and give people a safe avenue by which to vote,” said Robertson.
The Democrats were opposed by the S.C. Republican Party, Peeler, R-Cherokee, Lucas, R-Darlington, and the S.C. Election Commission, whose governing board is majority Republican. Their main arguments were that setting rules about voting is a matter for states, not the federal courts. They also argued that the witness requirement helped prevent voter fraud, even though they produced scant evidence of any voter fraud in South Carolina in the last 40 years.
This story was originally published September 25, 2020 at 10:32 PM with the headline "On-again, off again: Court nixes SC witness requirement on absentee ballots — for now."