In a victory for Republicans, the Supreme Court on Monday reinstated the witness requirement for South Carolina mail ballots after lower courts ruled that having that requirement created risk during the pandemic.
In an order issued on Monday evening, the high court set aside a lower court ruling that suspended the witness requirement, effectively restoring the mandate while arguments in the case are ongoing, granting an exception for ballots cast before the stay and received within two days.
There were no noted dissents, while Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have granted a stay application in full, meaning ballots already submitted that did not have a witness signature would have been rejected.
It is one of the first election-related cases that the Supreme Court has ruled on since the primaries and could suggest the justices will rein in lower courts that seek to alter the rules of an election, even if to expand access to voting as a result of the coronavirus pandemic.
The Supreme Court “has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election,” Kavanaugh wrote defending the court’s orders, citing the so-called “Purcell Principle,” in which the high court reinstated Arizona’s voter-ID law, which had been struck down by an appellate court just before the 2006 midterms. (No other justices signed on publicly to Kavanuagh’s rationale.)
Kavanaugh also indicated that federal courts should defer to a state’s government to “keep or to make changes to election rules to address COVID-19.”
“This sends a strong signal that the Supreme Court is going to be wary of federal court ordered changes close to the election, even those done to deal with burdens on voters created by the pandemic (like the need to get witness signatures),” Rick Hasen, a noted election law expert at the University of California-Irvine, wrote about the ruling. Hasen noted his support for not restoring the witness signature requirement in the state, citing potential voter confusion.
Though South Carolina is not a presidential battleground state, it is home to a surprisingly competitive Senate race between incumbent GOP Sen. Lindsey Graham and Democrat Jaime Harrison that has drawn intense national attention in recent weeks. The parties are also fighting over one of the state’s congressional districts, currently held by freshman Democratic Rep. Joe Cunningham.
The original case was brought by the state Democratic Party, the Democratic National Committee and the Democratic Congressional Campaign Committee.