The Supreme Court Just Mucked Up Mail Voting in South Carolina

The high court essentially sided with South Carolina GOP and state legislative leaders who said the requirement protects against voter fraud — despite virtually no evidence.
October 6, 2020, 4:55pm
Miami-Dade County Judges Eleane Sosa-Bruzon, left, and Victoria Ferrer, right, examine signatures on vote-by-mail ballots for the August 18 primary election as the canvassing board meets at the Miami-Dade County Elections Department, Thursday, July 30, 20

A Supreme Court decision Monday is making it harder to vote in South Carolina, by reinstating a witness requirement for signatures on mail-in ballots, after thousands of people have already voted.

The requirement is state law, but last month, U.S. District Court Judge J. Michelle Childs said that adhering to the law this year would “only increase the risk of contracting COVID-19 for members of the public with underlying medical conditions, the disabled, and racial and ethnic minorities.” The full Fourth Circuit Court of Appeals upheld Childs’ ruling in a decision last month.


The Supreme Court, however, granted the stay requested by South Carolina GOP and state legislative leaders and election officials, who said the requirement is a protection against voter fraud. The FBI said last month that it’s seen no evidence of a “coordinated national voter fraud effort” around mail-in voting, and cases of voter fraud in the past have been so rare that they’re practically nonexistent. 

“The order is stayed except to the extent that any ballots cast before this stay issues and received within two days of this order may not be rejected for failing to comply with the witness requirement,” the court ruled. This means ballots received through October 7 without the signature will be accepted. 

Justices Neil Gorsuch, Samuel Alito, and Clarence Thomas would have reinstated requirements for all of the ballots, which would have effectively thrown out the votes of thousands of people through no fault of their own. The state election commission had received more than 215,000 absentee ballot requests and more than 18,000 people had already voted as of Monday, according to the AP

Justice Brett Kavanaugh concurred with the stay, saying that Childs’ order violated the principle that public health should be “entrusted to politically accountable officials of the states,” and that federal courts shouldn’t “alter state election rules in the period close to an election.”

The ruling applies only to South Carolina. The Supreme Court granted a similar stay in Alabama in a 5-4 vote in July, but turned down a stay request from Rhode Island Republicans in August. The difference in the Rhode Island ruling, the court said, was that “the state election officials support the challenged decree, and no state official has expressed opposition,” though Gorsuch, Alito, and Thomas said they would have granted the stay in that case as well. 

Prior to the pandemic, 12 states had a witness or notary requirement for absentee ballots, but six states have since either relaxed or suspended that requirement, according to the Brennan Center for Justice.

While South Carolina has traditionally been a Republican state over the past half-century, this year’s election features several races that are expected to be close. Most recent polls in South Carolina’s Senate race, between Judiciary chairman and Trump ally Lindsay Graham and Democrat Jaime Harrison, have been within the margin of error.

A Quinnipiac poll last month also found that President Donald Trump had just a one-point lead over Democratic nominee Joe Biden, after winning the state by 15 percentage points in 2016.