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.
First, 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. Indeed, the district court in this case cited an expert’s declaration that “[f]or those voters who live alone, casting a ballot without a witness signature carries less risk than casting a ballot with a witness signature.” The court further found that the “risk of contracting COVID-19 when complying with the Witness Requirement” posed another burden to plaintiffs in this case, who included South Carolinian voters over sixty-five years of age. Furthermore, the court noted that “masks and social distancing based on CDC guidelines will be recommended—but not enforced—at many polling places in South Carolina” and that “[o]nly 24% of counties and 23% of municipalities in South Carolina have ordinances requiring the use of a face covering in public.” As a result, the court found that the plaintiff’s “only options to cast a ballot are to either vote absentee and risk COVID-19 exposure through a witness . . . or vote in person and risk exposure to potentially many more individuals who may not be required to socially distance or wear a mask.”
Second, the burdens imposed by the witness requirement do not appear to outweigh the state’s interest in investigating voter fraud. While prevention of voter fraud is certainly an important state interest, the district court found that South Carolina’s witness requirement provided ineffectual support towards this interest because witnesses are not required to verify or know the identity of the absentee voter and because South Carolina law permits “large swaths of eligible witnesses” who would likely not prove useful in assisting with absentee fraud investigations, such as eight-year-olds, white collar felons, and “those found mentally incompetent.” The court also found that the “utter dearth of absentee fraud” undercut the state’s interest in investigating absentee voter fraud.
Third, the witness requirement would have applied to absentee voters who are infected COVID-19. Individuals infected with COVID-19 might decide to forgo voting to avoid putting a witness at risk of exposure to the virus or may not be able to find a witness because others could seek to isolate themselves from that person because of their infection. Furthermore, a voter who is asymptomatic could unknowingly expose the witness to the virus as well as those who later come in contact with the witness.
Therefore, because the witness requirement burdens the ability of South Carolinian voters who are at high risk for COVID-19 and who live alone to exercise their right to vote, because this burden does not outweigh the state’s interest in investigating voter fraud, and because the witness requirement could increase public health risks by requiring voters infected with COVID-19 to comply with it, the district court was correct in ruling that it should not be enforced during the November 2020 general election occurring in South Carolina.