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SCOTUS reinstates South Carolina witness requirement for absentee ballots

SCOTUS reinstates South Carolina witness requirement for absentee ballots

Issues stay of District Court injunction pending appeal to the 4th Circuit. This Stay may signal a SCOTUS willingness to stop lower courts from rewriting election rules so close to the election.

There have been a series of district court and appeals court decisions (plus a Pennsylvania Supreme Court decision), in which the judiciary substitutes its judgment in place of state legislatures as to voting requirements for absentee and mail-in ballots. Extending ballot deadlines and waiting procedural safeguards have been part of the Democrat push to alter the rules by judicial fiat.

Those cases are working their way to the Supreme Court.

The Court just issued an Order in Andino v. Middleton, with no dissents, staying a district court order barring South Carolina from enforcing its witness requirement for absentee ballots pending an appeal to the 4th Circuit. So the case may be back in front of SCOTUS again before the election.

Justice Kavanaugh’s concurring opinion offers an explanation of the case background and the legal roadmap opponents of other lower court rulings can follow:

The application for stay presented to THE CHIEF JUSTICE and by him referred to the Court is granted in part, and the district court’s September 18, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Fourth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. The order is stayed except to the extent that any ballots cast before this stay issues and received within two days of this order may not be rejected for failing to comply with the witness requirement.

JUSTICE THOMAS, JUSTICE ALITO, and JUSTICE GORSUCH would grant the application in full.

JUSTICE KAVANAUGH, concurring in grant of application for stay.

The District Court enjoined South Carolina’s witness requirement for absentee ballots because the court disagreed with the State’s decision to retain that requirement during the COVID–19 pandemic. For two alternative and independent reasons, I agree with this Court’s order staying in part the District Court’s injunction.

First, the Constitution “principally entrusts the safety and the health of the people to the politically accountable officials of the States.” South Bay United Pentecostal Church v. Newsom, 590 U. S. ___, ___ (2020) (ROBERTS, C. J., concurring in denial of application for injunctive relief) (slip op., at 2) (internal quotation marks and alteration omitted). “When those officials ‘undertake[ ] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’” Ibid. (quoting Marshall v. United States, 414 U. S. 417, 427 (1974); alteration in original). It follows that a State legislature’s decision either to keep or to make changes to election rules to address COVID–19 ordinarily “should not be subject to secondguessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” South Bay, 590 U. S., at ___ (slip op., at 2) (citing Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985)). The District Court’s injunction contravened that principle.

Second, for many years, this Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election. See Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam). By enjoining South Carolina’s witness requirement shortly before the election, the District Court defied that principle and this Court’s precedents. See ___ F. 3d ___, ___–___ (CA4 2020) (Wilkinson and Agee, JJ., dissenting from denial of stay).

For those two alternative and independent reasons, I agree with this Court’s order staying in part the District Court’s injunction.

This Stay may signal a SCOTUS willingness to stop lower courts, at Democrats’ behest, from rewriting election rules so close to the election.


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Grrr8 American | October 5, 2020 at 9:01 pm

“… may signal a SCOTUS willingness to stop lower courts from rewriting election rules so close to the election.”

Oh, from your keyboard to God’s ears! For truly, this is battle between the righteous and the evil:

Watch out for Roberts! We sure wouldn’t want the court to be political, now would we?

MoeHowardwasright | October 5, 2020 at 9:29 pm

The Chief Justice referred the stay to the full court. It was approved with no dissent. To me, this signals the court is going to reign in these “political” district and appellate judges. The Supremes may be indicating that only they may be “political”.

notamemberofanyorganizedpolicital | October 5, 2020 at 9:51 pm

Wonder what is happening on that matter in the Yankee Carolina?

Good call.

If you paid attention to that scam in Minnesota by the Omar campaign, a witness is not that big of a deal and doesn’t solve that much.

    Milhouse in reply to healthguyfsu. | October 6, 2020 at 1:31 am

    Many measures don’t solve very much. Voter ID doesn’t solve very much, and that’s the excuse the Dems give to oppose it. But it costs very little and solves something, so it’s worth doing. So’s this. Every little bit helps.

      If you have a voter ID, you can use it to enter the DOJ building in DC

      CommoChief in reply to Milhouse. | October 6, 2020 at 12:55 pm

      Even if only a deterrent effect presenting a valid ID doesn’t seem burdensome at all. Many states offer a non DL version that is only for ID purposes. Can be had for minimal to zero cost.

      Obviously the ID requirement does more than deter fraud.

Good. I really hope that SCOTUS slaps down everything that is changing election law at such a late date.

I also hope that Bryer breaks with the other liberals and rules in favor of the current law.

I think Roberts will rule in favor of smashing Democrat shenanigans before the election if only because he wants to avoid as much as possible the court being the focus of things after the election. Especially once ACB takes her seat.

I don’t think Sotomayer and Kagan will do anything other than vote the left way.

    That they filed no dissent is interesting.

      ss396 in reply to rdm. | October 6, 2020 at 11:19 am

      Justice Sotomayor would have, but she no longer has her mentor to guide her. Never fear: the “wise Latina” will be the new RGB.

        Anonamom in reply to ss396. | October 7, 2020 at 11:16 am

        Only if someone hires some very clever law clerks to do the work for her. RBG, although not someone with whom I agreed, was brilliant. Sotomayor is…not.

Aside from the basic sense of not making attempts to change close to an election and the general doctrine of restraint by the judiciary there are basic constitutional aspects not touched upon.

Simply put each State legislature is charged with determining how to select presidential electors. That is clear and unambiguous constitutional text. It doesn’t say…with an assist from the judiciary or because of the Rona feel free to muck about or non legislative branch actors can make adjustments.

Maybe the alterations to conduct of the elections for state offices holds up. Maybe even Federal offices but I doubt it. Certainly not for the selection of presidential electors.

The d have been on this train to chaos despite folks telling them it’s a bad idea. Despite the clear constitutional text. They were he’ll bent on attempts to alter the way the 2020 election was conducted.

Unfortunately they decided to ignore the legislatures which were controlled in whole or in part by the r who would have had to be negotiated with to achieve a legislative solution.

The d know there is not a Rona exception. They acted in bad faith on this front and others.

Barry Soetoro | October 6, 2020 at 1:58 am

Looks like SCOTUS allowed a window within which the witness requirement is not in effect, which seems untenable.

So the Leftist injustices did not concur or dissent?

2smartforlibs | October 6, 2020 at 7:37 am

Why are we even here? Because the left spent 100 plus years attempting a takeover and they were one election away and we elected Trump.

Would it have been 8-1 or closer if Ginsberg were still breathing? Not sure Kagan and crew break ranks against her.

Make no mistake, if the 2020 election continues beyond Election Day into litigation to determine a winner, the primary focus of all the parties will initially be the elimination of mail-in ballots that do not meet the numerous statutory requirements to be counted. Mail-in ballots are the low-hanging fruit in an election contest and the easiest way to put the true outcome of an election in question and thereby allow the courts to determine the winner. This situation is easily remedied by Americans simply showing up at the polls and voting in person.

    CommoChief in reply to Neo. | October 6, 2020 at 1:10 pm


    Disagree. The d will try to push for extensions of time for counting. They will then push for a relaxation of ballot security measures; witness signatures etc. All in an attempt to create more d votes.

    They will likely not succeed if the courts begin to apply the simple standard that the state legislature is charged by our constitution to determine the process for selecting presidential electors.

    There isn’t a path around that obstacle. Where the executive or judicial branch has allowed creativity for Rona in making changes to election laws they will be stopped, at least in regard to presidential electors.

    Could some of these shenanigans stick for state offices? Maybe but maybe not.

    The d goal is to sow chaos. Folks are already submitting early mail in ballots. Now apply the similar witness requirements to in other states to these ballots. Lots of spoiled ballots.

    Oh the horror …your voices are being silenced… Trump is a dictator… etc. The scheme isn’t to have these illegitimate ballots counted, though the d would obviously take that outcome. The true goal is to create chaos and diminish a Trump victory.

    The d and the MSM can then set about their goals of obstruction and destabilizing the 2nd Trump term.

“should not be subject to secondguessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.

Apparently the bar to impeachment is set so high that even the Supreme Court can publicly announce that impeachment doesn’t really exist. What a fascinating reveal!

I can appreciate the strength of tenure needed in order to maintain in independent judiciary. But perhaps a rethink might be in order here. States appoint their judges, and those judges are then subject to repeated ‘retain or recall’ votes. Could there be some hybrid mix for the accountability of Federal judges, too?