Supreme Court sides with South Carolina GOP, orders reinstatement of witness requirement for mail-in ballots

The high court made one concession, saying those ballots already sent in without a witness signature should be counted. Tens of thousands of ballots have been sent to voters across the state.

The court's brief order did not list objecting justices. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted the request in full, meaning the ballots already in without a witness signature would not be counted.

The request to the high court came after the U.S. Court of Appeals for the 4th Circuit last week left in place an order blocking the requirement because of the risks associated with in-person voting during the coronavirus pandemic.

It is one of several battles over voting procedure in the presidential election to already have made its way to the Supreme Court. The justices are also considering a request from Pennsylvania's Republican legislative leaders 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 Roberts, who oversees the 4th Circuit.

According to Monday night's order, any ballots cast before the court's action "and received within two days of this order may not be rejected for failing to comply with the witness requirement."

South Carolina Democrats said that because the witness requirement was not in place during the state's primary, imposing it in the general election "would risk substantial voter confusion."

As is usual in emergency orders, the court did not provide a reason for reimposing the requirement.

But Justice Brett Kavanaugh, writing only for himself, said there were two: respecting decisions of state officials and not interfering with election procedures close to the election.

He wrote that the "state legislature's decision either to keep or to make changes to election rules to address covid-19" should not be subject to second-guessing by the judiciary.

That reflects an earlier decision by the court keeping in place restrictions on worship services. Kavanaugh was a dissenter in that case, in which Roberts was joined by the court's liberals.

Kavanaugh also said the court's precedents say federal court should not intervene in state voting rules close to an election. "By enjoining South Carolina's witness requirement shortly before the election, the district court defied that principle and this Court's precedents," he wrote.

U.S. District Judge Michelle Childs said that requiring voters to get a witness signature would confuse and deter voters because of the rules in place during the primary, and that complying could increase their risk of exposure to the virus.