The court said, however, that any ballots cast before it had acted, and received within two days of the order, cannot be rejected for failing to comply with the witness requirement. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated they would not have counted those ballots.
“This sends a strong signal that the Supreme Court is going to be wary of federal court-ordered changes close to the election, even those done to deal with burdens on voters created by the pandemic,” said election law expert Rick Hasen, who serves as a CNN election law analyst.
South Carolina law requires that voters casting mail-in absentee ballots swear an oath that they are qualified to vote and they received no assistance in voting when they seal and sign their ballots, and that oath must be witnessed by one other person, who must sign below the voter’s signature.
Democrats challenged the provision, arguing that because of the coronavirus outbreak there is “overwhelming and unrefuted evidence, that as applied during the pandemic, the witness requirement increases the risk of Covid-19 infection and transmission and unconstitutionally burdens the right to vote.” A lower court blocked the requirement.
Republicans argued to the Supreme Court that more than 150,000 absentee ballots “have been mailed out already, and each passing day increases the risk that ballots will be returned, that, in mistaken reliance on the district court’s injunction, do not comply with the witness requirement.”
They said, “Although COVID-19 might make in-person voting less desirable, courts cannot hold private citizens’ decisions to stay home for their own safety against the State.”
He said the lower court “defied that principle.”