Three Supreme Court Justices Just Showed They’re Willing to Throw Out Mail-In Ballots

A group of voters wearing masks waits outside a polling place. A "Vote Here" sign can be seen.
People stand in line outside of the Richland County Voter Registration & Elections Office on the second day of in-person absentee and early voting on Tuesday in Columbia, South Carolina. Sean Rayford/Getty Images

The Supreme Court reinstated South Carolina’s witness signature requirement for mail-in ballots on Monday night, a predictable blow to voting rights in a state with a close Senate race. Monday’s order certainly was bad news; it means that South Carolinians, including those infected with COVID-19, will once again need witnesses to sign their ballot envelopes. This administrative burden is potentially dangerous and totally pointless, and it will likely lead the state to nullify thousands of otherwise valid ballots.

But considering the court’s current composition, that decision was probably the best-case scenario. What’s frightening is how close the court came to triggering an election meltdown. Three conservative justices wouldn’t have just reinstated the witness signature rule but allowed South Carolina to apply it retroactively, nullifying tens of thousands of ballots already cast. Donald Trump has repeatedly said that he wants the Supreme Court to throw out mail-in ballots, which could overturn election results. It appears that three justices are ready to do just that.

Six states require absentee voters to procure a witness signature before sending back their ballot. A few other states jettisoned the requirement this year due to the pandemic, but not South Carolina. U.S. District Judge J. Michelle Childs nonetheless blocked the state’s witness rule for the June primary, finding that it unconstitutionally burdened the right to vote in light of COVID-19. South Carolina declined to appeal that decision, so the state held its primary with no witness requirement. On Sept. 18, Childs blocked this requirement for the November election as well. This time, South Carolina appealed. A panel of judges for the 4th U.S. Circuit Court of Appeals sided with the state, but the full court promptly vacated the panel’s decision and kept the requirement on hold. South Carolina then asked the Supreme Court to intervene on its behalf.

SCOTUS has become the place where voting rights go to die, so it was no surprise when the justices gave South Carolina most of what it wanted on Monday. With no noted dissents, the court let the state reimpose the witness rule—although, as usual for a shadow docket case, it didn’t explain its decision. Justice Brett Kavanaugh wrote a concurring opinion citing the notorious Purcell principle, which holds that courts should not alter voting laws in the runup to an election. But the lower courts did not actually alter the voting procedures currently in place; they simply preserved the status quo, since the witness requirement has been suspended since May. It was the Supreme Court that changed the status quo on Monday by imposing the witness requirement less than one month from Election Day, violating the principle that Kavanaugh claimed to vindicate.

Notably, however, the court did hand voters a significant concession: Its order stated that any ballots cast before Oct. 5 and received by Oct. 7 “may not be rejected for failing to comply with the witness requirement.” In other words, South Carolina must count ballots that were mailed back without a witness signature in accordance with a federal court order. This grace period might seem like an obvious concession to basic fairness, but three justices noted their disagreement: Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch dissented, stating that they would leave these voters in the lurch.

The dissenters’ position is shockingly extreme. South Carolina law declares unequivocally that “a ballot may not be counted” unless it is “properly … witnessed.” When absentee voting started, Childs prohibited election officials from applying that rule. Thomas, Alito, and Gorsuch would sweep away her order, effectively forcing election officials to reject all mail-in ballots that lack witness signatures—including those cast before this reversal of the status quo. As of Monday morning, nearly 15,000 South Carolina residents had mailed back their absentee ballots. (This figure excludes military and overseas voters, to whom different rules apply.) By Tuesday morning, that number jumped to nearly 38,000. At this rate, more than 60,000 South Carolinians may have sent in their ballots by Wednesday evening, the end of the court’s grace period. A large number of those ballots will lack witness signatures, which were not required when they were mailed back. Thomas, Alito, and Gorsuch would throw them all away.

Scrapping these ballots could have a material impact on South Carolina’s Senate race between Democrat Jaime Harrison and Republican incumbent Lindsey Graham. The candidates are in a dead heat, and the election could determine which party controls the Senate next year. And Black voters, who make up a majority of South Carolina’s Democratic electorate, are disproportionately affected by the witness requirement. In North Carolina, for instance, Black voters are four times more likely than white voters to have their ballots rejected due to a missing witness signature. Given that this racial disparity seems to exist in every diverse state, it’s safe to assume South Carolina’s witness requirement also disproportionately affects Black voters.

Had the dissenters prevailed, then, tens of thousands more voters would’ve been disenfranchised, a disproportionate number of them Black. Some might have overlooked the witness signature section or failed to find a willing witness in the midst of a pandemic. Others surely ignored the witness requirement in reliance on Childs’ order. Making matters worse, South Carolina has no ballot “cure” procedure: Voters aren’t notified when their ballots are tossed, and they don’t get an opportunity to fix any defects. So victims of this bait and switch would be out of luck. And in a tight race between Harrison and Graham, their votes could make the difference.

Over and over again, Trump has said that he wants federal courts to nullify mail-in ballots, which he (falsely) describes as “a disaster.” On Monday, Thomas, Gorsuch, and Alito sought to invalidate tens of thousands of ballots that, on the whole, probably favor Democrats. It is comforting that neither Kavanaugh nor Chief Justice John Roberts joined them. But if Amy Coney Barrett is confirmed before Nov. 3, she may join this far-right bloc, as she was hand-picked to do. At that point, either Kavanaugh or Roberts could cross over for a 2020 reprise of Bush v. Gore, but this time throwing out far more votes after the fact. It’s not yet time to panic. But it should not instill confidence that multiple justices are already willing to sabotage the election.

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