On Monday, the Supreme Court of the United States reinstated a South Carolina requirement that absentee ballot envelopes bear the signature of a witness in order to be accepted. After the ruling, voters had two days to continue to submit ballots without the witness signature, but from then on a witness signature is required in South Carolina.
If you have a mail-in Minnesota ballot that came with a disclaimer saying you don’t need a witness this year to vote absentee — the result of a consent decree that waived this usual requirement amid the pandemic — you may be wondering what this means for you: Does the South Carolina case reinstate Minnesota’s witness requirement?
Experts say no.
How Minnesota’s requirement got waived
In a typical election year, Minnesotans who vote by mail are required to have the signature of a registered Minnesota voter or a notary on their ballot envelope in order for their vote to be counted. The measure is designed to increase the security of elections, and some believe it does, while others say it’s unnecessary.
Minnesota and South Carolina are among several states in which this requirement was suspended for this election, owing to the pandemic. (The requirement is only waived for registered voters. Unregistered voters still need a witness signature for proof of residence.)
In Minnesota, this was the result of lawsuits by the political units of the League of Women Voters and the Minnesota Alliance for Retired Americans that challenged the witness requirement on the grounds that it was potentially restrictive for those self-isolating because of COVID-19.
The groups and Secretary of State Steve Simon came to a consent decree in June. Over the objection of Republicans who argued Simon was using the court to go around the Legislature, Simon agreed to suspend the witness requirement for the August primary. The witness waiver was later extended to the November general election.
What happened in South Carolina
On Sept. 18, a federal district court judge granted a preliminary injunction to voters and Democratic-affiliated groups who sued to have South Carolina’s witness requirement waived during the pandemic.
A court of appeals panel blocked the injunction, but it was reinstated by the full court. State officials, including the South Carolina secretary of state, and the state’s Republican Party, opposed waiving the witness requirement.
On Monday, the U.S. Supreme Court issued an order in the South Carolina case, Andino v. Middleton, that reinstated the South Carolina witness requirement.
While the witness requirement was reinstated, the court said ballots cast prior to the reinstatement order, and those that arrived two days after, would not be rejected due to the lack of a witness signature.
Only Justice Brett Kavanaugh gave reasoning for his decision, which was twofold: First, he wrote that the unelected federal judiciary should not intervene in a matter that the state legislature should decide. And second, he invoked the Purcell doctrine, which comes from the 2006 case Purcell v. Gonzalez and holds that federal courts should not change state election laws close to an election.
The order also noted that justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have reinstated the witness requirement without the stipulation that ballots arriving prior to the order without a witness signature or for two days after be counted.
So how is the South Carolina situation different from Minnesota’s in the eyes of the court?
First, Minnesota’s waiver came out of a consent decree that was authorized in state district court.
“The parties agreed to walk away from the case and let it stand,” said Raleigh Levine, a professor of law at Mitchell Hamline School of Law who specializes in election law.
Levine said the situation in Minnesota is more similar to a Rhode Island one the U.S. Supreme Court weighed in on in August. The court allowed the witness requirement to be waived in Republican National Committee v. Common Cause Rhode Island, which also dealt with a state court consent decree, on the basis that the state’s election officials supported it.
“The Supreme Court declined to overturn that decision and cited that they were going to defer to the authority of the states to enter into agreements that would most efficiently administer their elections,” said Julia Dayton Klein, a lawyer at Lathrop GPM who represented the League of Women Voters in their bid to pause the witness requirement in Minnesota.
Asked for comment on the effects of Andino v. Mitchell in Minnesota, the secretary of state’s office gave similar reasoning as to why the order’s effects aren’t likely to ripple in elections here.
“In Minnesota, a state court ruled on the consent decree waiving the witness requirement, and under the Purcell doctrine of federal courts not making major changes in state election arrangements in the closing days of an election cycle (based on the doctrine of abstention by federal courts), the Andino case may have no effect whatsoever,” the statement said.