There may only be eight justices currently serving on the Supreme Court, but they were able to quickly take action on an emergency request yesterday without getting hung up. A challenge to a South Carolina election law requiring mail-in ballots to carry the signature of a witness was terminated when the court sided with the state GOP, upholding the law. We don’t have an exact count on the vote and as is the case with emergency hearings, a full explanation was not offered by the court. However, Brett Kavanaugh issued a statement explaining that the court has traditionally not altered state election laws in the period close to an election. (Washington Times)
The Supreme Court on Monday reinstated a requirement that South Carolina residents voting by mail in November’s election get a witness to sign their ballots.
Democrats had sought to have the requirement put on hold because of the coronavirus pandemic, but Republicans had defended it as deterring fraud.
While the high court reinstated the requirement as a lawsuit over it proceeds, voters have already started returning ballots. More than 200,000 absentee ballots have been mailed and 18,000 returned, according to the state’s election commission.
The law in question applies to all mail-in and absentee ballots. The voter must affirm an oath saying that they are legally eligible to vote and that they are the person they say they are. This affirmation must be made before a witness who then signs the ballot in support of the voter’s identification.
This ruling doesn’t mean that the challenge to the law is over. The process will continue in the lower courts, but no decision will take effect prior to the general election on November 3rd. Kavanaugh’s explanation makes sense for a couple of reasons. In general, the courts have left the specifics of how elections are conducted up to the states unless it can be shown that a particular law or procedure violates the rights of voters or is otherwise unconstitutional. On top of that, even if you did want to change the law, doing so after the voting has already started could cause even more problems than you’re trying to solve.
That last concern was also addressed by Kavanaugh’s ruling. In a minor victory for the Democrats seeking to scrap the law, the court concluded that any ballots that have already been mailed and are received within two days of the order (by Wednesday) can not be rejected for lacking a signature. All ballots received after that will require the witness signature, however, or they will be cast out. It’s estimated that approximately 18,000 ballots have already been received in South Carolina, so those will all be counted regardless. The linked report indicates that several of the other justices, including Thomas, Alito and Gorsuch, would have preferred that all ballots require signatures, including those that have already been mailed.
In reality, the witness signature requirement isn’t particularly onerous for most people. After all, you can use a family member, friend, or neighbor as the signatory. It’s not as if you require a notary public to make it official. And while the concerns about spreading the plague while getting your ballot signed may trouble some people, a signature can be inscribed while observing social distancing. My wife and I recently had to go see our attorney about some changes to our wills and we wound up in a room with everyone wearing masks and the documents were exchanged by having the attorneys place them on the table while we stood six feet back, walking away, and waiting for us to approach to sign. It felt like a bit of overkill to me, but those were the rules and they seemed to work.
South Carolina has already sent out more than 200,000 ballots that were requested by voters. But keep in mind that more than three million people voted in the state in 2016 and the President carried it by fifteen percent. It’s a little tighter this year, but Donald Trump still seems to be holding onto a solid lead. I’m not sure that this number of mail-in ballots is going to make all that much of a difference or delay the results on November 3rd anyway.