Citing coronavirus, national Democrats sue South Carolina to run elections by mail
The Democratic Congressional Campaign Committee is leading a lawsuit against the South Carolina Election Commission to allow residents to vote by mail in elections through the end of the year amid fears that coronavirus-related social distancing mandates will still be in place in the coming months.
The national party’s main fundraising apparatus for U.S. House candidates filed the suit Wednesday asking the state to expand absentee voting opportunities in advance of the scheduled June 9 primary and November general election.
“Our leaders should be using every available tool to ensure South Carolina voters don’t have to choose between protecting their health and participating in our democracy,” DCCC chairwoman Cheri Bustos, D-Ill., said in a statement announcing the suit. “We’ll keep fighting to ensure voters can safely and freely participate in our democracy during this time of uncertainty.”
Under current South Carolina law, all voters can request and cast absentee ballots. They must, however, have a specific excuse that adheres to a set of more than a dozen, established reasons for not being able to vote in person on Election Day.
South Carolinians can vote absentee if they are serving in the military, have a religious conflict or are traveling abroad. Senior citizens, the ill and disabled are also exempt from voting in person.
The new, DCCC-led suit is now “urging the South Carolina Supreme Court to determine and affirm that those who practice social distancing to avoid contracting or spreading COVID-19 qualify as ‘physically disabled person[s]’ ” in order to receive and cast absentee ballots.
The suit also “urg(es) the South Carolina Supreme Court to determine that COVID-19 severely threatens the administration of elections and every resident’s constitutional right to free and open elections.”
Joining the DCCC in the lawsuit are the South Carolina Democratic Party and two candidates for local office — Rhodes Bailey, who is running to represent Richland County in the State House, and Robert Wehrman, who is vying for a seat on the Charleston City Council.
Their 45-page legal brief argues that Bailey and Wehrman, who are heading into contested primaries in June, “will face irreparable harm but for adequate measures taken to ensure safe elections that comply with the South Carolina Constitution.
“The Candidate Petitioners have an interest in ensuring that every voter in their respective districts who is legally permitted to vote has an opportunity to safely cast a ballot. And as voters themselves, the Candidate Petitioners have an interest in ensuring that they have an opportunity to safely cast their own ballots in the upcoming elections,” the brief continues.
The state party, meanwhile, would also be adversely affected without expanded options for absentee voting, according to the brief.
“An election held without adjustments for the COVID-19 pandemic directly harms SCDP because it frustrates its mission and the effectiveness of its efforts to persuade and mobilize voters to vote for Democratic candidates and causes, and will require it to divert resources from other efforts in the State to attempt to help its voters overcome the barriers presented by the lack of safe means to cast their ballots,” the brief reads.
“In addition, without a viable absentee voting option for most of its members, SCDP will be further directly injured by decreased turnout, which will undermine its fundamental right to choose its standard bearers through a vote that accurately reflects the preferences of its membership.”
On Wednesday, the South Carolina chapter of the American Civil Liberties Union joined with the national ACLU and the National Association for the Advancement of Colored People Legal Defense to file a separate lawsuit with the state on the same grounds of expanding vote-by-mail options throughout 2020.
“Structural racism has resulted in the COVID-19 crisis having a devastating and disproportionate impact on African American people in South Carolina. Yet, state law restrictions on absentee voting will needlessly force many African American and other voters to vote in-person in contradiction of the governor’s shelter in place order,” said Deuel Ross, senior counsel at NAACP Legal Defense, in a statement.
Playing politics
These new legal cases are bound to be opposed by many statewide elected officials who have, so far, been reluctant to embrace the calls to change election procedures to accommodate new needs given the pandemic.
That includes an effort from some Democrats, including U.S. Rep. Joe Cunningham of Charleston, to move the June 9 primary to later in the year in anticipation health concerns could still be relevant.
Though Gov. Henry McMaster has begun a process of reopening South Carolina’s economy in hopes of returning the state to some semblance of pre-pandemic normalcy, there are fears McMaster is moving too quickly and anxieties about whether another outbreak of the virus could come back in the fall.
Americans are already haunted by the photos of voters waiting in line to cast ballots in the recent presidential primary election in Wisconsin — some wearing face masks and some not and varying degrees of successful social distancing.
And on Tuesday, Wisconsin health officials announced that at least seven individuals had tested positive for COVID-19 as a direct result of going to the polls on April 7.
The S.C. Legislature, however, would need to vote to change the date of the primary election and McMaster has signaled he is opposed.
In late March, Marci Andino, the director of the S.C. Election Commission, urged state leaders to pass legislation “safely and securely conduct elections during and following the coronavirus pandemic.”
Among the options she suggested lawmakers consider was allowing “no-excuse” absentee voting, which allows anyone to vote by mail for any reason.
The S.C. Legislature has not yet considered any of the recommendations and there is no indication if or when it will.
“It’s shameful the legislature refused to act on Director Andino’s warning and enact procedures that would make our elections safe,” said Bailey in a press statement Wednesday. “Since the legislature won’t do its job, we’re asking the Court.”
The partisan factions forming around the debate on the future of South Carolina’s elections could also complicate the outcome for advocates of expanding voting options, including through the latest legal actions.
The DCCC is bringing lawsuits to several battleground states around the country to contest voting rules and regulations it deems discriminatory and restrictive. In South Carolina, the race for Cunningham’s seat will be one of the toughest of the 2020 cycle: in 2018 he was the first Democrat since 1981 to win the district, and Republicans are prepared to spend millions to win it back.
The DCCC’s latest legal action is the second lawsuit in a year it has brought to South Carolina for election-related grievances. In January, the DCCC and the Democratic Senatorial Campaign Committee, in partnership with the S.C. Democratic Party, won a legal victory when state elected officials agreed to drop the requirement that South Carolinians list their social security numbers as a condition of registering to vote.
“It’s obviously no secret that we have competitive races in South Carolina,” said a Democratic strategist involved with the lawsuit. “What we know is, when folks have access to the ballot and are able to vote free of impediment, it’s good for Democrats. It’s also good for democracy.”
The S.C. Election Commission does not comment on pending litigation, spokesman Chris Whitmire told The State.
A spokesman for McMaster did not respond to a request for comment.
This story was originally published April 22, 2020 at 2:14 PM with the headline "Citing coronavirus, national Democrats sue South Carolina to run elections by mail."
