AG Nessel Joins 18-state Coalition Opposing South Carolina's Witness Requirement for Mail-in Ballots

LANSING – Michigan Attorney General Dana Nessel today announced she has joined a group of 18 state attorneys general in supporting a challenge to a South Carolina law that requires a witness signature for voters to cast their ballots by mail.  

The lawsuit, filed by a group of South Carolina voters and political organizations, claims the witness requirement puts the health and safety of voters at risk during the COVID-19 pandemic. 

In a friend-of-the-court brief filed in Middleton v. Andino in the U.S. Supreme Court, the multistate coalition opposes the requirement, arguing that states have a responsibility to tailor their election rules to protect voter participation and voter safety during the pandemic. The brief, filed two days after defendants sought Supreme Court intervention, also argues that voter fraud is extremely rare, and there is no evidence that a witness signature for mail-in ballots prevents fraud. 

“This law only makes it more burdensome for people to vote absentee, which is unacceptable considering our nation’s public health emergency,” Nessel said. “We must ensure voters have the ability to participate in our elections without jeopardizing their health to do so, and mail-in voting is a secure and commonsense way to do that. South Carolina’s witness requirement is an unnecessary obstacle and it should be removed from the democratic process.” 

In May 2020, a group of South Carolina voters and political organizations filed a lawsuit challenging a state absentee voting requirement because the requirement would put their health at risk during the COVID-19 pandemic. The provision requires absentee voters to swear and affirm, in the presence of a witness, that they are qualified to vote, have not yet voted, are returning their ballot in the designated envelope, signed the envelope, and received no improper assistance. The district court issued a preliminary injunction blocking the requirement for the June 2020 primaries and subsequently blocked the provision for the general election as well. The defendants appealed to the Fourth Circuit, which, after considering the case as a full court, declined to stay the district court’s injunction. The defendants then moved for a stay at the Supreme Court on Thursday, and the multistate coalition filed a brief opposing this stay on Saturday.      

In the amicus brief, the coalition supports the plaintiffs’ challenge to South Carolina’s vote-by-mail witness requirement because: 

• States have a responsibility to protect voter participation and voter safety: The Supreme Court has recognized that states have the power to regulate elections and must do so in ways that preserve the right to vote. During the pandemic, states and localities have taken reasonable, commonsense steps to minimize in-person interactions for voters. Most states are permitting all voters to vote by mail amid the pandemic; many have sent vote-by-mail applications to every registered voter; and others plan to affirmatively send ballots to all registered voters. Other states have—either temporarily or permanently—abolished notarization and witness requirements for mail-in ballots.    
• Voter fraud is rare and there is no evidence that witness requirements are needed to prevent it: As a general matter, vote-by-mail fraud is exceptionally rare. Five states—Colorado, Hawaii, Oregon, Utah and Washington—already had all-mail voting systems prior to the COVID-19 pandemic, in which every registered voter receives a ballot in the mail. None of these states require a witness signature, and yet none has encountered widespread voter fraud since shifting to mail-in ballots.   
• States have mechanisms to protect the integrity of elections other than witness requirements: States have several mail-in voting safeguards available to them, including using ballots with a unique bar code that, once returned and scanned, prevent the voter from casting another ballot in the election. States also generally require voters to include their signature on the ballot envelope, which can be matched against information from voter rolls to verify their identity. Another common layer of security are secure drop-off locations which help maintain a chain of custody for mail-in ballots. 

Attorney General Nessel joins the attorneys general of California, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington in filing the friend-of-the-court brief.  

The brief is available here (PDF).

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