South Carolina ballot curbs revived by Supreme Court as roster of hot cases grows
The Supreme Court has reinstated witness requirements for mail-in ballots in South Carolina, furthering its nearly uninterrupted string of decisions against relaxed burdens on voting during the coronavirus pandemic.
Monday night's ruling brings to eight cases, out of nine considered this year, where the justices have come down on the side of making elections more complicated or restrictive rather than simpler and more open. Several more appeals are sure to be considered before the presidential contest ends in four weeks — including a ruling likely this week on whether ballots delayed in the mail in tossup Pennsylvania up to three days beyond Election Day should still count.
And lower state and federal courts continue to order more easements — some of which could also end up before the Supreme Court. Just Monday, judges put a halt on the witness mandate for mail ballots in Alaska, extended the registration deadline in battleground Arizona and relaxed absentee ballot rules in tossup Iowa.
These are details of the latest developments:
The high court reversed lower federal appeals and trial courts, which concluded the requirement that a mail ballot be countersigned should be suspended this fall because it would otherwise disenfranchise South Carolinians — by conditioning their ability to vote absentee on doing what physicians counsel against and coming in close physical contact with someone else.
The court did allow the tabulating of ballots already returned without a witness signature or already in the mail — although Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said those should be rejected as well.
It was the first Supreme Court ruling in an election case in eight weeks, since the primaries ended and since the death of Justice Ruth Bader Ginsburg.
The most recent, in August, was also about witness requirements but it is the only one where the court has come down on the side of easier voting this year. And that was only because, the justices said, the state of Rhode Island had agreed to relax its own rules in order to settle a lawsuit.
In South Carolina, by contrast, the Legislature just weeks ago had rejected a proposal to abandon the witness rule. That was one reason it should be allowed to remain, wrote Brett Kavanaugh, the only justice who offered a rationale for the court's decision
The other reason is similar to what has undergirded most of the other decisions this year allowing restrictive election rules to remain.
The Supreme Court "has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election," he wrote, citing what has become known as the Purcell Principle, a reference to a 14-year-old decision that an appeals court had waited too close to Election Day before striking down Arizona's voter ID law.
The ruling will change the rules for more than 150,000 ballots already mailed to voters. Although President Trump can count on the state's nine electoral votes, it is now hosting one of the most surprisingly competitive Senate races in the nation — between incumbent Republican Lindsey Graham and former state Democratic Party Chairman Jaime Harrison.
Finding a witness for mailed ballots in a pandemic "impermissibly burdens the right to vote," Superior Court Judge Dani Crosby said in ordering the state to quickly figure out how to tell voters they can skip the requirement in November.
Instead state officials signaled they would appeal to the Alaska Supreme Court, arguing the witness rule prevents fraud and that changing requirements so close to the election would cause unfair voter confusion. Ballot envelopes describing the requirement have already been printed.
The judge said there was no evidence the witness requirement had helped detect cheaters and that there are plenty of ways to educate voters the rule has been suspended.
The case was brought by Arctic Village Council, a tribal government, and two people who said they were too sick to find a witness.
Minnesota, Missouri, Oklahoma and Virginia have voluntarily relaxed notary or witness signature requirements for the year.
Trump seems assured of the state's three electoral votes, but the GOP is working harder than expected to hold a Senate seat and the state's single House seat.
The period for registering to vote in the state was to have ended Monday. But federal Judge Steven Logan of Phoenix extended the deadline 18 days, until Oct. 23, saying the added time was necessary to help in-person registration efforts stymied by fears of Covid-19. Online registration is insufficient, he said, because so many Arizonans lack easy or affordable access to the internet.
The Republican National Committee has already filed its appeal, arguing the pandemic was not the sort of big burden on voter registration drives described by the plaintiffs, Mi Familia Vota and Arizona Coalition for Change.
Secretary of State Katie Hobbs, a Democrat, also opposed moving the deadline, warning it would create too much work for local clerks because early in-person voting begins Wednesday — and huge complications fulfilling mail-in ballot applications that are part of new registration forms.
Arizona is one of the 15 states that have deadlines a month before Election Day. At the other end of the spectrum, 19 states allow citizens to both register and cast ballots on Election Day.
Former Vice President Joe Biden is ahead in the race for the state's 11 electoral votes, several recent polls show, and would be the first Democrat to carry the state in six elections. Republican Sen. Martha McSally has become an underdog in her race for reelection against the Democratic candidate, former astronaut Mark Kelly.
State Judge Robert Hanson said it was fine for county officials to fill in the name and address lines on absentee ballot applications before sending them to the voters who requested the forms.
That has been long-standing practice in much of the state, where voting by mail has not been widely used before this year. But the surge of remote voting because of the pandemic prompted Secretary of State Paul Pate, a Republican, to tell the local officials this summer they could send only blank applications. Predictably, he cited possible fraud as his rationale. Just as predictably, Democrats then sued.
"It completely escapes this court how the fairness and uniformity of the absentee ballot-application process could possibly be threatened by allowing county auditors to simply continue practices they had been following for some time," the judge ruled, and there is an "almost complete" lack of evidence more absentee voting would result in increased voter fraud.
Monday was the first day for early in-person voting in Iowa and the first day for sending out requested absentee ballots — more than 633,000 so far, smashing state records in large measure because the state's top two contests are highly competitive. Iowa's six electoral votes are a tossup, as is GOP Sen. Joni Ernst's battle for a second term against Democrat Theresa Greenfield.
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