Two recent decisions related to the upcoming November elections in South Carolina, where a race for U.S. Senate is tightening, could have the combined effect of disqualifying a record number of absentee ballots, according to voting rights groups involved in ongoing litigation. 

On October 5, the first day of early voting in South Carolina, the U.S. Supreme Court upheld a rule requiring state voters to have a witness sign their ballot; the long-standing rule was temporarily suspended during the February primary, as local judges found it put an undue burden on voters unable to have someone sign their ballot during the ongoing Covid-19 pandemic. Two days later on October 7, the State Election Commission voted to bar election officials from ballot curing, the process of notifying voters of issues with ballots received without a witness signature. The decisions combined mean that any ballot received after October 7 without a witness signature won’t be counted, nor will voters be given the chance to fix the omission before election officials begin counting ballots on the morning of November 3, Election Day.

A record 645,000 people had cast absentee ballots as of Wednesday, and officials estimate more than 1 million absentee ballots will be cast this cycle, doubling the number cast in 2016. That means the rule could disqualify a record number of votes, according to the Lawyers’ Committee for Civil Rights Under Law, which is representing a number of voting rights groups that filed for a preliminary injunction against the State Election Commission just after the vote. 

Even after the Supreme Court ruling, election officials in some counties sent notices to voters saying they didn’t need a witness, creating a “recipe for disaster,” said Lawyers’ Committee counsel John Powers, “where you’re gonna see record numbers of absentee ballots rejected for the witness signature issue, let alone for the other reasons. And obviously it’s anticipated there’s gonna be close elections at the statewide and local level, so it couldn’t come at a worse time.” 

The groups represented by the Lawyers’ Committee, the ACLU of South Carolina, and the New York firm Debevoise & Plimpton LLP are asking the U.S. District Court for the District of South Carolina to prevent officials from rejecting ballots missing witness signatures without providing an opportunity to cure. The Democratic Senatorial Campaign Committee filed a similar motion on Sunday, also asking that election officials be required to submit daily lists of voters whose absentee ballots were rejected, so that the DSCC can contact them and help them resolve the issue. South Carolina law doesn’t have a curing provision, but state election officials weren’t explicitly prohibited from curing ballots until the State Election Commission vote earlier this month. 

Ballot curing provisions are not without precedent: Eighteen states currently require that voters be given an opportunity to correct signature issues. And that number does not yet include Mississippi, which just implemented a new ballot curing process on Tuesday. At the same time, Texas has also recently done away with a ballot curing mechanism; a federal court in Texas ruled Monday that the state can reject ballots with mismatched signatures without giving voters a chance to fix them. 

State election officials acknowledge that the late changes have created some disarray. SCVotes.org, the state’s central voting website, clearly states the new witness signature requirement. But of the state’s 10 largest counties, the websites of only four counties include that information. Election officials in Spartanburg and Greenville counties, among the largest in the state, confirmed to The Intercept that they will not be giving voters an opportunity to cure their ballots.

“With the number of changes to the requirement over several weeks, it’s understandable that some voters could have been confused about the requirement,” Chris Whitmire, the State Election Commission’s director of public information, said in a statement to The Intercept. It’s unclear how many ballots will be impacted this year, he added, but 1,600 ballots missing a witness signature weren’t counted in 2016. 

“At this point, the number of affected ballots is unknown,” Whitmire said. “This year, the number could be higher. There are more than three times as many absentee by mail ballots issued this year than in 2016.”  

Donald Trump is expected to win South Carolina handily, but the potential disenfranchisement of voters could have a real effect on the closely watched Senate race, as well as a number of competitive state legislative races. Republican Sen. Lindsey Graham’s opponent is breaking fundraising records and closing in on the incumbent’s lead in polls. Jaime Harrison, former chair of the South Carolina Democratic Party, raised $57 million last quarter, the most ever raised in a single quarter by a Senate candidate. Graham, once upon a time an anti-Trump Republican, moved closer to Trump over the course of his presidency. As chair of the Senate Judiciary Committee, he presided over last week’s hearings on Amy Coney Barrett’s Supreme Court nomination. Graham had been exposed to Utah Republican Sen. Mike Lee, who tested positive for Covid-19 after attending the White House event where Barrett’s nomination was announced in late September, and he refused to get a coronavirus test before his October 9 debate with Harrison, even after it became clear that it was a superspreader event. 

On the state level, Democrats have a few competitive state Senate and House races, with 59 House and 32 Senate seats up for reelection in November. Republicans, who control the legislature 105-64, have held a governing trifecta since 2003. Democrats are looking to flip several seats in Charleston, and to defend many more in areas like Columbia, Spartanburg, Camden, Goose Creek, and Greenwood.

Residents wearing protective masks wait in line outside an early voting polling location for the 2020 Presidential election in Lexington, South Carolina, U.S., on Wednesday, Oct. 14, 2020. The Supreme Court reinstated South Carolina's witness signature requirement for mail-in ballots on Monday night, a predictable blow to voting rights in a state with a close Senate race. Photographer: Micah Green/Bloomberg via Getty Images

Residents wearing protective masks wait in line outside an early voting polling location for the 2020 presidential election in Lexington, S.C., on Oct. 14, 2020.

Photo: Micah Green/Bloomberg/Getty Images

The last few months have seen a surge in election-related litigation amid the pandemic. In South Carolina, a number of competing court decisions culminated in the Supreme Court’s October decision and the state election commission vote on ballot curing. 

The Democratic National Committee, the Democratic Congressional Campaign Committee, the South Carolina Democratic Party, and six South Carolina voters filed a complaint in May seeking multiple avenues of relief for voters amid the ongoing pandemic, including declaring a postage tax and the witness signature requirement unconstitutional. The South Carolina Republican Party, the Republican speaker of the South Carolina House of Representatives, and the Republican president of the state Senate then filed motions to intervene in the case in August, seeking to uphold the signature rule. 

In September, a U.S. District Court struck down the state’s witness signature rule. U.S. District Judge J. Michelle Childs said in an opinion on September 18 that it would suppress disabled and Black voters impacted by the coronavirus. “The evidence in the record points to the conclusion that adherence to the Witness Requirement in November would only increase the risk of contracting COVID-19 for members of the public with underlying medical conditions, the disabled, and racial and ethnic minorities,” Childs wrote.

The case was appealed to the Fourth Circuit Court of Appeals, where a three-judge panel overturned the injunction against enforcing the witness requirement on September 24. The next day, the full court changed course and reinstated the ruling, a decision that was then reversed by the Supreme Court early this month. 

The result has been widespread confusion, which was exacerbated by the yo-yoing of the appellate courts, Powers said. “We’ve had a ping pong with the effect of whiplash where election officials haven’t known what the law is actually going to be for this election.” 

At least one county in the state sent voters incorrect instructions saying absentee ballots did not require a witness signature, even after the Supreme Court ruling. 

In Georgetown County, voters received mailers that said “NO WITNESS SIGNATURE REQUIRED,” photos of which were circulated on social media. Georgetown revised ballot inserts the Tuesday following the Supreme Court order, according to a spokesperson for the State Election Commission. “Georgetown County says they had a comprehensive process in place to make sure all outdated inserts were corrected, but concedes it’s possible one could have been missed by mistake.  Even so, the inserts stated that the ruling on witness signatures could change and that the public would be notified through the media at scVOTES.gov,” Whitmire said. Georgetown County’s election office did not immediately respond to a request for comment. 

In Charleston County, one voter reported receiving a ballot on October 8 and “immediately noticed that the information on the instruction sheet regarding obtaining a witness signature was inconsistent with what appeared on the ballot mailing envelope.” The instruction sheet featured a highlighted yellow notice that said that at the time of mailing, “a court has ruled you do not need a witness (Step 5 below) for your ballot to count,” noting that the requirement was subject to change, and that changes would be reported by the media and on the state’s voting website. The ballot envelope, meanwhile, said that a ballot would not count without a witness signature. The ballot was mailed on September 29, the voter said. “I was aware of the SCOTUS decision and attributed the discrepancy to that, but many voters no doubt are not and will consequently be disenfranchised. This is just so disgraceful.”

“The witness requirement had long been in place in South Carolina,” Powers said. South Carolina rejected around 1,600 ballots over missing witness signatures in 2016, and the  number was closer to 800 during the 2018 midterms, Powers said. 

One of the plaintiffs in the lawsuit seeking a preliminary injunction against the State Election Commission is a Black voter in Sumter County who was not notified until after 2020 that his 2018 ballot wasn’t counted due to a missing signature. The other plaintiffs are one other voter, the League of Women Voters of SC, and the Family Unit SC. Their lawsuit points to an analysis that finds that “some county election officials are consistently more likely to reject mail ballots for the reason of no voter signature than others, thereby resulting in South Carolina voters being unequally treated with respect to counting their ballots.”

Update: October 22, 2020
This article has been updated to include information about a ballot in Charleston County that was received after publication.