Supreme Court restores witness signature rule for absentee ballots in South Carolina

WASHINGTON – The Supreme Court weighed in again Monday night on procedures for conducting mail-in voting this fall, reinstating South Carolina's requirement that absentee ballots include witness signatures.

The state's Republican election officials and Legislature asked the high court to intervene after two lower courts ruled that the requirement was a risky imposition during the COVID-19 pandemic.

In response, the high court temporarily reinstated the witness signature rule while the case progresses in court but said any ballots received in the next two days without the signature must be counted. Conservative Associate Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would not have added that concession.

It was the third time in recent months that the high court has dealt with witness signature rules, one of several issues pertaining to mail-in ballots that are working their way through federal and state courts. 

The justices upheld Alabama's witness signature rule in a 5-4 vote along conservative-liberal lines in July, but it ruled 5-3 in August against a similar rule in Rhode Island. The difference, the majority said in the latter ruling, was that Rhode Island's public officials had no objection to eliminating the witness requirement.

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In the latest case, not even the three liberal justices remaining after Associate Justice Ruth Bader Ginsburg's death announced any objections. On such emergency proceedings, the actual vote count is not revealed.

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South Carolina is one of many states that expanded absentee voting in light of the pandemic, but it said voters needed to get a witness's signature on the envelope before returning it. State officials said the requirement is intended to deter fraud, although there is little proof of such fraud.

More than 150,000 absentee ballots have been mailed out and several thousand returned in the state, where polls show a closer race than expected between President Donald Trump and former Vice President Joe Biden. Republican Sen. Lindsey Graham, chairman of the Senate Judiciary Committee that plans to conduct Supreme Court nominee Amy Coney Barrett's confirmation hearing next week, also is on the ballot.

"Each passing day increases the risk that ballots will be returned that, in mistaken reliance on the district court’s injunction, do not comply with the witness requirement," Republican officials said in court papers.

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State and federal Democratic Party leaders urged the justices to uphold the lower courts on the basis that "the witness requirement increases the risk of COVID-19 infection and transmission and unconstitutionally burdens the right to vote."

Democrats contended that requiring witness signatures is a particular burden for many African American voters "whose communities have been hit disproportionately hard by COVID-19." Graham's Democratic opponent in the Senate election, Jaime Harrison, is Black.

Nationwide, more than 300 election-related lawsuits have been filed, largely as a result of problems associated with COVID-19 and the expansion of voting by mail. Republicans, including Trump's reelection campaign, generally seek to limit such voting, while Democrats want to expand it.

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