Judge made ‘numerous reversible errors’ in SC absentee witness case, Republicans say

A federal judge who last week ruled that because of the COVID-19 virus, SC absentee ballot voters don’t need to have a witness for their signature, committed “numerous reversible errors” in her decision, Republicans and the Election Commission have alleged.

The allegations against the ruling by U.S. District Judge Michelle Childs, who last Friday issued an injunction against the Election Commission, were made in a motion filed with the U.S. 4th Circuit Court of Appeals. It asks the appellate court to overturn Childs’ injunction.

But Wednesday afternoon, Democrats who won last week’s injunction by Childs fired back in their own brief in the 4th Circuit, asserting that Childs made the correct decision based on overwhelming evidence that during a pandemic, “the Witness Requirement unconstitutionally burdens the right to vote.”

The motion to overturn Childs’ ruling was filed electronically by the State Election Commission, the S.C. Republican Party, S.C. House of Representatives Speaker Jay Lucas, R-Darlington, and S.C. Senate President Harvey Peeler, R-Cherokee.

The answer to the Republicans’ allegations was also filed in the 4th Circuit, which is in Richmond, Va. The plaintiffs in the case are six Democratic voters and several Democratic organizations, including the S.C. Democratic Party.

In her 71-page ruling, Childs wrote issuing an injunction against the witness signature based on the proven contagiousness and dangers posed by the COVID-19 virus to absentee voters, many of whom would have to expose themselves to the potentially deadly disease to find a witness. Her ruling was for the Nov. 3 election only, she said.

Because of the ongoing legal battle, and the likelihood that a final decision in the matter may take weeks, observers and the Election Commission are advising anyone who votes absentee to comply with the witness requirement. That way, if higher courts eventually do overturn Judge Childs’ injunction, any voter who already has a witness sign their envelope won’t have his or her vote thrown out and not counted.

“The only thing we can tell voters now is assume you must have the signature,” said Lynn Teague, S.C. League of Women Voters vice president for issues and action.

“It is extremely unfortunate that they (the Election Commission and the Republicans) are appealing this, leaving voters up in the air so soon before the election when it’s been repeatedly pointed out by elections officials that the witness requirement is not useful for ballot security,” Teague said.

In their motion to overturn Childs’ injunction, the Election Commission and the Republicans said:

▪ The General Assembly has the power to make changes in state election law and earlier this month had debated and rejected motions to eliminate the witness requirement for this election.

▪ The issue is a legislative political matter that “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health.”

▪ Courts should not make substantial changes in voting procedure just weeks before an election.

▪ Although Childs was going to hold a brief trial in a similar election lawsuit that raised the absentee ballot witness requirement, she went ahead with her injunction without developing a full record on which to base her decision. “This is inappropriate. Courts should decide questions on a full record whenever possible. “

▪ Childs’ decision exaggerates the dangers of possible COVID-19 infection and ignores “how little time it takes to get a witness signature or how easily it can be done in compliance with CDC (Center for Disease Control and Prevention )safety guidelines. ... All that is required is for one person to watch a voter sign the envelope and then for that person to sign the envelope herself. All tolled, this process should take about sixty seconds.”

In a Wednesday afternoon filing, the Democrats disputed all those claims, saying:

▪ Childs did not act in haste and she was “intimately familiar” with the issue because she had dealt with it in May when the same issue came before her in connection with the June Democratic and Republican primaries. In May, she also waived the witness requirement, and it was not appealed.

▪ Childs issued her order Friday night only after giving the General Assembly a chance to act on the witness requirement. It did not act on the matter.

▪ The executive director of the Election Commission, Marci Andino, recommended that the witness requirement be waived due to the pandemic. It does not make absentee balloting more secure, Andino wrote in a letter to legislative leaders last summer.

▪ Evidence shows the risk of harm, if Childs’ injunction is quashed, ”is particularly acute for South Carolina’s African American population, who have been contracting and dying of COVID-19 at disparately high numbers, as well as other voters among South Carolina’s most vulnerable populations, including the elderly and those with preexisting conditions...”

University of Richmond Law School professor Carl Tobias, an authority on federal judges, predicted a 4th Circuit ruling sooner than later.

The issue will go to a three-judge panel that will likely decide on the basis of the written filings in the case. “It sounds like, based on the briefing schedule, there might even be a ruling this week,” Tobias said.

Under the section of S.C. election law that Childs froze, voters are to swear a written oath on the envelope they return their ballot in that they are “duly qualified” to vote, have not previously voted in this election and have received no unlawful assistance. That oath, pre-printed in full on the envelope, must be witnessed by one person, who signs below the voter’s signature and adds his or her (the witness’) address.

This story was originally published September 24, 2020 at 5:01 AM with the headline "Judge made ‘numerous reversible errors’ in SC absentee witness case, Republicans say."