U.S. Supreme Court Rules in Favor of Burr’s Petition for the South Carolina Election Commission: South Carolina’s Witness Requirement on Absentee Ballots is Here to Stay

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On October 5th, the Supreme Court reinstated the requirement that South Carolina’s absentee ballots must be accompanied by a witness’s signature in this year’s General Election. Under the law, voters returning mail-in ballots swear an oath printed on the return envelope that confirms they are eligible to vote and that the ballot inside is theirs. The oath has to be witnessed by another person with the witness’s signature and address below the voter’s.

South Carolina has had the witness requirement for absentee voters since 1953, but with the coronavirus pandemic underway, the law was challenged and ultimately put on hold by a federal district court on September 18th. A three-judge panel of the Fourth Circuit Court of Appeals stayed the effect of that injunction and reinstated the witness requirement on September 24th, only to have the full Fourth Circuit put the witness requirement on hold again the next day.

Burr & Forman’s legal team, composed of Grayson Lambert, Liz Crum, and Jane Trinkley, worked on behalf of the South Carolina Election Commission to ask the U.S. Supreme Court to stay the injunction and leave the witness requirement in effect for the November election. In the application to the Supreme Court, with Columbia Partner Grayson Lambert as the primary author, the Commission argued that Supreme Court precedent required that courts defer to decisions of state legislators about how best to respond to the pandemic and not change election rules on the eve of an election. The Supreme Court agreed and granted the application, restoring the witness requirement for absentee ballots. According to the order, any ballots cast before the Court’s action and received within two days of the order will still be counted and will not be rejected for failing to comply with the witness requirement.

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