The United States Law Week

South Carolina Leaves November Ballot Question to Legislature

May 27, 2020, 9:01 PM

The South Carolina Supreme Court declined on Wednesday to preemptively rule that the state should expand use of absentee ballots for the November election due to the coronavirus pandemic.

A May 25 order in a separate case blocked the state from requiring witness signatures on absentee ballots for the June primary, due to the health risks presented by the national health crisis. Virginia and Arkansas also face challenges to their absentee ballot requirements for upcoming elections.

Whether to change South Carolina’s election law to allow widespread absentee voting is a political question that rests with the legislature, the state’s high court said Wednesday in an unsigned opinion.

The state has already changed the law to allow more liberal use of absentee ballots for the June primary election, but the change is set to expire on July 1.

Two Democratic candidates for office had asked the court to decide if the provision allowing physically disabled voters to use an absentee ballot must be read as including all registered voters in South Carolina under the circumstances presented by Covid-19.

That answer is clearly “no,” given that the legislature revised the law after the lawsuit was filed so that voters subject to a stay-at-home order could use an absentee ballot, the court said.

The legislature has already said it will return in September to decide whether a similar revision should be made for the November general election, the court said.

The legislature may change the law, but the court will not, it said.

Judges John W. Kittredge, John C. Few, and George C. James voted to dismiss the lawsuit as not having presented a live controversy. The case was heard at the state supreme court as a matter of original jurisdiction.

Judge Kaye G. Hearn concurred in part and dissented in part, saying that the majority acted in “haste to dismiss” the Democratic candidates’ allegations that the state’s election code may affect free and fair elections in the fall.

“Were this court able to address the issue of statutory construction raised here, we would inevitably have to determine whether our interpretation is consistent with the free and open elections clause of our Constitution,” he said.

Chief Judge Donald W. Beatty joined Hearn’s opinion.

Burr & Forman LLP, Bowers Law Office, Robert Bolchoz LLC and in-house counsel represented the state election commission. Perkins Coie LLP represented the plaintiff-petitioners.

The case is Bailey v. S.C. State Election Comm’n, S.C., No. 2020-000642, 5/27/20.

To contact the reporter on this story: Porter Wells in Washington at pwells@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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