In a year that has seen significant change in the way that we shop local stores, dine out at restaurants, and even the way that our children attend school, it’s no surprise that voting in this year’s election looks a lot diﬀerent here in South Carolina.
The biggest change in the November 3, 2020 general election is that every registered voter in South Carolina is permitted to participate in absentee voting. In response to public health concerns about voting in the midst of the Covid-19 pandemic, the South Carolina General Assembly passed and Governor Henry McMaster signed into law 2020 Act No. 143, which suspended for this election the requirement that a voter have one of seventeen qualifying reason listed in S.C. Code Section 7-15-320 to vote by absentee. Examples of valid reasons in the statute are if voters are 65 or older, if they are active duty serving overseas, or if they are on vacation during election day. Act 143 addedan 18th category which is “if the qualified elector’s place of residence or polling place is located in an area subject to a state of emergency declared by the Governor” within 46 days of the election.
Accordingly, while roughly 10% of voters were previously eligible to vote absentee, the passage of Act 143 allowed 100% of voters were allowed to cast an absentee ballot.).
What does this mean for South Carolina?
Absentee ballots were mailed out to those who had requested them in mid-September and in-person absentee voting locations opened up on Monday, October 5. As of October 20, 2020, an SC record of 535,000 voters had already cast their absentee ballots and oﬃcials were expecting over 1 million ballots to be cast prior to Election Day on Tuesday, November 3. That’s nearly half of the number of votes that were cast in the 2016 election! Voters have been turning out in record numbers this year to vote absentee, and to get their votes in before polls oﬃcially open.
In the months leading up to the election, the issue of absentee voting in the context of a pandemic has been the subject of much litigation.
Absentee ballots have several requirements, including that ballots must be signed by the voter and that signature must have a witness (who must also sign the ballot).Requiring a witness in the midst of a pandemic was challenged in the U.S. District Court for the District of S.C., going through the 4th Circuit Court of Appeals, then all the way to the US Supreme Court, which ultimately upheld the validity of the witness requirement. The legal appeals process resulted in confusion among voters, as there were twice court rulings that no witness was required before the US Supreme Court ruled otherwise. As part of its ruling, the US Supreme Court ruled that any absentee ballots that were mailed in from September 26 until October 7 without a witness signature would still count as valid ballots for the election, but those received October 8 or afterwards would not count.
As South Carolina voters head to the polls, the Government, Ethics, and Compliance team at Collins and Lacy, PC is ready to serve candidates, campaigns, political committees, or other interested parties in any possible election protests or litigation related to this General Election. The team is also available for consultation on the viability of a potential protest or lawsuit, or on reporting compliance arising from the election under the South Carolina Ethics Act or Federal Election Campaign Act. Both J.C. Nicholson and Michael Burchstead are ready to work with candidates and campaigns as election results begin rolling in Tuesday evening and into Wednesday.
Head to Spotify today and look up our new podcast, The Legal Bench, and check out our episode titled “Absentee Voting During the Pandemic in South Carolina” to learn more about this topic from J.C.
You can also catch Michael local CBS news station, WLTX, on Monday, November 2 at 4:30pm and on WISTV on Wednesday, November 4, at 6am to hear live, local updates on how election law is playing out with this election.