The legal battle over the mechanics of absentee mail-in voting in South Carolina is one of two voting cases Republicans have appealed to the Supreme Court in the weeks before the Nov. 3 contest. Earlier this week, Pennsylvania’s Republican legislative leaders asked the justices to block a decision to count ballots received by mail up to three days after Election Day.
South Carolina lawmakers told the Supreme Court that the legislature took steps to expand absentee voting because of the pandemic but intentionally did not suspend the witness requirement, “deeming it an important tool for deterring fraud and promoting confidence in this unprecedented election.”
More than 150,000 absentee ballots have already been mailed out, according to the request filed with Chief Justice John G. Roberts Jr., who oversees the Richmond-based 4th Circuit.
The appeals court warned in its order Wednesday that reinstating the rule now could lead to “mass voter confusion.”
The justices are typically hesitant to intervene in cases over voting so close to an election.
Marc Elias, an attorney for the plaintiffs, including the South Carolina Democratic Party and individual voters, said in a tweet that he would “continue to fight for SC voters.”
Roberts called for a response to be filed by Saturday afternoon.
A federal judge initially struck down the requirement in September, after also blocking the measure for the June primary election. U.S. District Judge Michelle Childs said requiring voters to get a witness signature would likely confuse and deter voters, and that complying could increase their risk of exposure to the virus.
On Wednesday, a divided 4th Circuit maintained Childs’s order. The court majority said she had “properly concluded that imposing the witness requirement now would likely unconstitutionally burden the fundamental right to vote, irreparably harm voters, and disserve the public interest,” wrote Judge Robert King, a nominee of President Clinton.
King said the ruling “protects countless lawful voters who otherwise would have to choose between avoiding needless exposure to a deadly virus and exercising their fundamental right to vote.”
That drew a dissent from five judges, including J. Harvie Wilkinson III, who said the state’s law is sensible and designed to combat voter fraud.
“By substituting its own policy choice for that of the representatives of the Palmetto State, the district court’s injunction robs South Carolina of its sovereign prerogative to determine the rules for its elections,” wrote Wilkinson, a nominee of President Ronald Reagan.
Robert Barnes contributed to this report.