U.S. District Court District of South Carolina (Columbia) CIVIL DOCKET FOR CASE #: 3:20-cv-01730-JMC

CLOSED

Middleton et al v. Andino et al Assigned to: Honorable J Michelle Childs related Case: 3:20-cv-01552-JMC Case in other court: USCA, 20-02022 Cause: 42:1983 Civil Rights Act

Date Filed: 05/01/2020 Date Terminated: 12/17/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Plaintiff Kylon Middleton

represented by Christopher James Bryant Perkins Coie LLP 700 Thirteenth Street NW Suite 600 Washington, DC 20005 202-654-6289 Fax: 202-624-9513 Email: cbryant@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bruce V Spiva Perkins Coie LLP 700 Thirteenth Street NW Suite 800 Washington, DC 20005 202-654-6200 Email: bspiva@perkinscoie.com PRO HAC VICE ATTORNEY TO BE NOTICED

K'Shaani Smith Perkins Coie LLP 700 Thirteenth Street NW Suite 800 Washington, DC 20005 202-654-6200 Email: kshaanismith@perkinscoie.com TERMINATED: 08/03/2020

Plaintiff Deon Tedder

PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias Perkins Coie LLP 700 Thirteenth Street NW Suite 800 Washington, DC 20005 202-654-6200 Email: melias@perkinscoie.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sopen B Shah Perkins Coie LLP 33 East Main Street Suite 201 Madison, WI 53703 608-663-7460 Email: sshah@perkinscoie.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher James Bryant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce V Spiva (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
K'Shaani Smith (See above for address) TERMINATED: 08/03/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sopen B Shah

Plaintiff Amos Wells
Plaintiff Carlyle Dixon

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher James Bryant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce V Spiva (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
K'Shaani Smith (See above for address) TERMINATED: 08/03/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sopen B Shah (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher James Bryant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce V Spiva (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
K'Shaani Smith (See above for address) TERMINATED: 08/03/2020 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Tonya Winbush
Plaintiff Ernestine Moore

Marc Erik Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sopen B Shah (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher James Bryant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce V Spiva (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
K'Shaani Smith (See above for address) TERMINATED: 08/03/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sopen B Shah (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher James Bryant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce V Spiva (See above for address) PRO HAC VICE

Plaintiff South Carolina Democratic Party
Plaintiff

ATTORNEY TO BE NOTICED
K'Shaani Smith (See above for address) TERMINATED: 08/03/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sopen B Shah (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher James Bryant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce V Spiva (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
K'Shaani Smith (See above for address) TERMINATED: 08/03/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sopen B Shah (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

DNC Services Corporation/Democratic National Committee
Plaintiff DCCC

represented by Christopher James Bryant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce V Spiva (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
K'Shaani Smith (See above for address) TERMINATED: 08/03/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sopen B Shah (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher James Bryant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bruce V Spiva (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
K'Shaani Smith (See above for address) TERMINATED: 08/03/2020 PRO HAC VICE ATTORNEY TO BE NOTICED
Marc Erik Elias (See above for address) PRO HAC VICE

V.
Defendant
Marci Andino in her official capacity as Executive Director of the South Carolina State Election Commission

ATTORNEY TO BE NOTICED
Sopen B Shah (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jane W Trinkley Burr and Forman LLP PO Box 11390 Columbia, SC 29211 803-799-9800 Fax: 803-753-3278 Email: jtrinkley@burr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elizabeth Crum Burr and Forman LLP-Cola 1221 Main Street Suite 1800 Columbia, SC 29201 803-799-9800 Fax: 803-753-2219 Email: lcrum@burr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Grayson Lambert Burr and Forman LLP-Cola 1221 Main Street Suite 1800 Columbia, SC 29201 803-753-3261 Fax: 803-933-1446 Email: glambert@burr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harrison David Brant Office of the State Treasurer 1200 Senate Street Suite 214

Defendant
John Wells in his official capacity as Chair of the South Carolina State Election Commission

Wade Hampton Office Building Columbia, SC 29201 803-734-5884 Email: harrison.brant@gmail.com ATTORNEY TO BE NOTICED
J Robert Bolchoz 1901 Assembly Street Suite 300 Columbia, SC 29201 803-799-4000 Fax: 803-799-7083 Email: robert@bolchoz.com ATTORNEY TO BE NOTICED
Karl S Bowers , Jr Bowers Law Office PO Box 50549 Columbia, SC 29250 803-753-1099 Fax: 803-250-3985 Email: butch@butchbowers.com ATTORNEY TO BE NOTICED
represented by Jane W Trinkley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elizabeth Crum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Grayson Lambert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harrison David Brant (See above for address) ATTORNEY TO BE NOTICED
J Robert Bolchoz (See above for address)

Defendant Clifford J Elder in his official capacity as member of the South Carolina Election Commission
Defendant Scott Moseley in his official capacity as member of the South Carolina Election Commission

ATTORNEY TO BE NOTICED
Karl S Bowers , Jr (See above for address) ATTORNEY TO BE NOTICED
represented by Jane W Trinkley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elizabeth Crum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Grayson Lambert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harrison David Brant (See above for address) ATTORNEY TO BE NOTICED
J Robert Bolchoz (See above for address) ATTORNEY TO BE NOTICED
Karl S Bowers , Jr (See above for address) ATTORNEY TO BE NOTICED
represented by Jane W Trinkley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Elizabeth Crum (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Grayson Lambert (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harrison David Brant (See above for address) ATTORNEY TO BE NOTICED
J Robert Bolchoz (See above for address) ATTORNEY TO BE NOTICED
Karl S Bowers , Jr (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
James ("Jay") H. Lucas Speaker of the South Carolina House of Representatives

represented by Mark Carroll Moore Nexsen Pruet (Cola) PO Drawer 2426 Columbia, SC 29201 803-540-2146 Fax: 803-727-1458 Email: mmoore@nexsenpruet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Sofia Svedberg Nexsen Pruet (Cola) 1230 Main Street Suite 700 Columbia, SC 29201 803-771-8900 Email: ssvedberg@nexsenpruet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Pedrick McWilliams Nexsen Pruet Jacobs and Pollard PO Drawer 2426 Columbia, SC 29202 803-253-8221 Fax: 803-253-8277 Email: smcwilliams@nexsenpruet.com

Intervenor Defendant Harvey Peeler in his capacity as President of the South Carolina Senate
Amicus Attorney General Alan Wilson
V. Intervenor South Carolina Republican Party

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kevin A Hall Womble Bond Dickinson US LLP 1221 Main Street Suite 1600 Columbia, SC 29201 803-454-6504 Email: kevin.hall@wbd-us.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Todd Carroll Womble Bond Dickinson US LLP 1221 Main Street Suite 1600 Columbia, SC 29201 803-454-6504 Email: todd.carroll@wbd-us.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James Emory Smith , Jr SC Attorney General's Office PO Box 11549 Columbia, SC 29211 803-734-3970 Fax: 803-734-3677 Email: esmith@scag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Erving Stepp Robinson Gray Stepp and Laffitte LLC 1310 Gadsden Street Columbia, SC 29201 803-929-1400 Fax: 803-929-0300 Email: rstepp@robinsongray.com LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Robert E Tyson , Jr Robinson Gray Stepp and Laffitte LLC 1310 Gadsden Street Columbia, SC 29201 803-929-1400 Fax: 803-929-0300 Email: rtyson@robinsongray.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Vordman Carlisle Traywick Robinson Gray Stepp and Laffitte LLC 1310 Gadsden Street Columbia, SC 29201 803-929-1400 Fax: 803-929-0300 Email: ltraywick@robinsongray.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/01/2020
05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020
05/05/2020

# Docket Text
1 COMPLAINT against Marci Andino, Clifford J Elder, Scott Moseley, John Wells ( Filing fee $ 400 receipt number 0420-9082057.), filed by Ernestine Moore, Deon Tedder, Carlyle Dixon, Tonya Winbush, DCCC, DNC Services Corporation/Democratic National Committee, Kylon Middleton, South Carolina Democratic Party, Amos Wells. Service due by 7/30/2020 (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(asni, ) (Entered: 05/04/2020)
2 Summons Issued as to Marci Andino. (asni, ) (Entered: 05/04/2020)
3 Summons Issued as to John Wells. (asni, ) (Entered: 05/04/2020)
4 Summons Issued as to Clifford J Elder. (asni, ) (Entered: 05/04/2020)
5 Summons Issued as to Scott Moseley. (asni, ) (Entered: 05/04/2020)
6 Local Rule 26.01 Answers to Interrogatories by DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush.(asni, ) (Entered: 05/04/2020)
8 DISCLOSURE STATEMENT PURSUANT TO FRCP 7.1 by DCCC.(Bryant, Christopher) (Entered: 05/05/2020)

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05/07/2020
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9 DISCLOSURE STATEMENT PURSUANT TO FRCP 7.1 by DNC Services Corporation/Democratic National Committee.(Bryant, Christopher) (Entered: 05/05/2020)
10 DISCLOSURE STATEMENT PURSUANT TO FRCP 7.1 by South Carolina Democratic Party.(Bryant, Christopher) (Entered: 05/05/2020)
11 MOTION for Leave to File Amicus Brief by Alan Wilson. Response to Motion due by 5/21/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Smith, James) (Entered: 05/07/2020)
12 TEXT ORDER granting 11 Motion for Leave to File Amicus Brief. Signed by Honorable J Michelle Childs on 5/7/2020.(asni, ) (Entered: 05/07/2020)
13 MOTION for Preliminary Injunction by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. Response to Motion due by 5/21/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit 1 - Declaration of Deon Tedder, # 2 Exhibit 2 - Declaration of Kylon Middleton)No proposed order.(Bryant, Christopher) (Entered: 05/07/2020)
14 MOTION for Hearing Rule 42(a)(1) to Consolidate the Hearing of the Motion for Preliminary Injunction by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. Response to Motion due by 5/21/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Bryant, Christopher) (Entered: 05/07/2020)
15 TEXT ORDER granting 14 Motion to Consolidate the Hearing. Signed by Honorable J Michelle Childs on 5/8/2020.(asni, ) (Entered: 05/08/2020)
16 NOTICE of Hearing on Motion 13 MOTION for Preliminary Injunction : Motion Hearing set for 5/15/2020 09:00 AM in Columbia #1, Matthew J. Perry Court House, 901 Richland St, Columbia before Honorable J Michelle Childs. (asni, ) (Entered: 05/08/2020)
18 NOTICE of Appearance by William Grayson Lambert on behalf of Marci Andino, Clifford J Elder, Scott Moseley, John Wells (Lambert, William) (Entered: 05/08/2020)
19 NOTICE of Appearance by Mary Elizabeth Crum on behalf of Marci Andino, Clifford J Elder, Scott Moseley, John Wells (Crum, Mary) (Entered: 05/08/2020)

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05/11/2020
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20 NOTICE of Appearance by Jane W Trinkley on behalf of Marci Andino, Clifford J Elder, Scott Moseley, John Wells (Trinkley, Jane) (Entered: 05/08/2020)
21 TEXT ORDER directing defendants to file a response due Thursday May 14, 2020 by noon re 13 MOTION for Preliminary Injunction. Signed by Honorable J Michelle Childs on 5/8/2020. (asni, ) (Entered: 05/08/2020)
22 MOTION to Intervene by South Carolina Republican Party. Response to Motion due by 5/26/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit, # 2 Exhibit)No proposed order.(Tyson, Robert) (Entered: 05/11/2020)
23 MOTION to Appear Pro Hac Vice by Bruce V. Spiva ( Filing fee $ 250 receipt number 0420-9094490) by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. Response to Motion due by 5/26/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Supporting Documents Application/Affidavit of Bruce Spiva, # 2 Proposed Order)No proposed order.(Bryant, Christopher) (Entered: 05/11/2020)
24 MOTION to Appear Pro Hac Vice by Marc E. Elias ( Filing fee $ 250 receipt number 0420-9094511) by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. Response to Motion due by 5/26/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Supporting Documents Application/Affidavit of Marc Elias, # 2 Proposed Order)No proposed order.(Bryant, Christopher) (Entered: 05/11/2020)
25 TEXT ORDER granting 23 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 5/11/2020.(asni, ) (Entered: 05/11/2020)
26 TEXT ORDER granting 24 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 5/11/2020.(asni, ) (Entered: 05/11/2020)
27 TEXT ORDER: This matter is before the court pursuant to the South Carolina Republican Party's ("SCRP") Motion to Intervene pursuant to Rules 24(a) and 24(b) of the Federal Rules of Civil Procedure. (ECF No. 22.) Neither Plaintiffs nor Defendants have any stated position as to the merits of the SCRP's Motion. (Id. at 1.) For the

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reasons set forth in the related case, Thomas v. Andino, C/A No.: 3:20-cv-01552-JMC, 2020 WL 2306615 (D.S.C. May 8, 2020), the court GRANTS the SCRP's Motion to Intervene pursuant to Rule 24(b)(2) of the Federal Rules of Civil Procedure. (ECF No. 22 ) The South Carolina Republican Party is subject to the same expedited schedule previously entered by the court requiring briefs in response to Plaintiffs' Motion for Preliminary Injunction (ECF No. 13) to be filed by noon on Thursday, May 14, 2020. (See ECF No. 21.) Signed by Honorable J Michelle Childs on 5/12/2020.(asni, ) (Entered: 05/12/2020)
28 ORDER regarding posture of case for hearing May 15, 2020. Signed by Honorable J Michelle Childs on 5/12/2020. (asni, ) (Entered: 05/12/2020)
29 Amicus Curiae Brief entered by James Emory Smith, Jr on behalf of Alan Wilson. (Attachments: # 1 Exhibit SC Legislature Bill S635)(Smith, James) (Main Document 29 replaced on 5/13/2020 with corrected pdf) (kbos). (Entered: 05/13/2020)
30 TEXT ORDER: The court observes that on May 12, 2020, the South Carolina General Assembly passed legislation that now allows all qualified South Carolina voters to vote via absentee ballot for the June 9, 2020 and June 23, 2020 Primaries due to the current state of emergency. S.635 (2020). Governor McMaster signed the bill into law on May 13, 2020. The pertinent portion of the bill states, as follows, in Section 2(A): "Elections, absentee ballots during the state of emergency, expiring on July 1, 2020" SECTION 2. A. A qualified elector must be permitted to vote by absentee ballot in an election 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 and there are fewer than forty six days remaining until the date of the election. The court determines, based on the aforementioned change in law, that Plaintiff Thomas' Preliminary Injunction Motion as it pertains to the challenged "Excuse Requirement" affecting the June Primaries and Plaintiff Middleton's Preliminary Injunction Motion as it relates to the "Absentee Ballot Age Requirement" affecting the June Primaries are MOOT because there is no longer any case or controversy as to those limited aspects of the case. As a result, the court deems it unnecessary to hear arguments relating to the "Excuse Requirement" or the "Absentee Ballot Age Requirement" at the Friday, May 15, 2020 Hearing. In order for the court and all parties to be properly prepared for the hearing, the court DIRECTS the parties to submit, in writing, any remaining issues that any party intends to address to the court. Please respond no later than 10:00 A.M. on Thursday, May 14, 2020. Signed by Honorable J Michelle Childs on 5/14/2020.Associated Cases: 3:20-cv-01552-JMC, 3:20-cv01730-JMC(asni, ) (Entered: 05/14/2020)

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05/15/2020

31 Letter from Christopher J. Bryant. (Bryant, Christopher) (Entered: 05/14/2020)
32 RESPONSE in Opposition re 13 MOTION for Preliminary Injunction Defendants' Opposition to Motion for Preliminary Injunction Response filed by Marci Andino, Clifford J Elder, Scott Moseley, John Wells.Reply to Response to Motion due by 5/21/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Lambert, William) (Entered: 05/14/2020)
33 RESPONSE in Opposition re 13 MOTION for Preliminary Injunction Response filed by South Carolina Republican Party.Reply to Response to Motion due by 5/21/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit)(Tyson, Robert) (Entered: 05/14/2020)
34 ORDER addressing the oral arguments schedule for the hearing on May 15, 2020. Signed by Honorable J Michelle Childs on 5/14/2020. Associated Cases: 3:20-cv-01552-JMC, 3:20-cv-01730JMC(asni, ) (Entered: 05/14/2020)
35 TEXT ORDER: This matter is before the court to address the posture of the May 15, 2020 hearing on Plaintiffs' Motions for Preliminary Injunction. The court observes that in response to its request for the parties to submit in writing the issues they intended to present at the hearing, Middleton Plaintiffs stated that "the Excuse Requirement and Absentee Ballot Age Requirement are not moot with respect to that election and other elections occurring after July 1, 2020." Middleton v. Andino, C/A No.: 3:20-cv-01730-JMC, ECF No. 31 at 1 (D.S.C May 14, 2020) (emphasis added). Upon the court's review of Middleton Plaintiffs' Motion for Preliminary Injunction (id. at ECF No. 13), it is clear that the injunctive relief sought is in connection with the June 2020 primaries. For this reason, the court finds that it cannot consider argument on elections after the June 2020 primaries because Defendants did not receive proper notice under Rule 65(a)(1) of the Federal Rules of Civil Procedure. Therefore, the court advises the parties that the May 15, 2020 hearing will be limited to the remaining issues pertaining to the June 2020 primaries. If an appropriate motion for injunctive relief addressing the Excuse Requirement and the Absentee Ballot Age Requirement with respect to any other election is filed, the court will consider that matter at the appropriate time. Signed by Honorable J Michelle Childs on 5/14/2020. Associated Cases: 3:20-cv-01552-JMC, 3:20-cv-01730JMC(asni, ) (Entered: 05/14/2020)
36 Minute Entry. Proceedings held before Honorable J Michelle Childs: Oral arguments. Motions taken under advisement.Motion Hearing held on 5/15/2020 re (13 in 3:20-cv-01730-JMC) MOTION for

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Preliminary Injunction filed by Tonya Winbush, Amos Wells, DNC Services Corporation/Democratic National Committee, Deon Tedder, Carlyle Dixon, South Carolina Democratic Party, Kylon Middleton, DCCC, Ernestine Moore, (7 in 3:20-cv-01552-JMC) MOTION for Preliminary Injunction filed by Mary T Thomas, Brenda Williams, Jeremy Rutledge, Family Unit Inc, The, Nea Richard, Trena Walker. Court Reporter Kathleen Richardson. Associated Cases: 3:20-cv01552-JMC, 3:20-cv-01730-JMC(kbos) (Entered: 05/15/2020)
37 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER AND OPINION granting in part (7) Motion for Preliminary Injunction in case 3:20-cv-01552-JMC; granting in part (13) Motion for Preliminary Injunction in case 3:20-cv-01730-JMC. Signed by Honorable J Michelle Childs on 5/25/2020.Associated Cases: 3:20-cv01552-JMC, 3:20-cv-01730-JMC(asni, ) (Entered: 05/25/2020)
39 AFFIDAVIT of Service for Summons and Complaint for Injunctive and Declaratory Relief served on Marci Andino on 05/08/2020, filed by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore. (Bryant, Christopher) (Entered: 05/28/2020)
40 AFFIDAVIT of Service for Summons and Complaint for Injunctive and Declaratory Relief served on Clifford J. Elder on 05/08/2020, filed by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore. (Bryant, Christopher) (Entered: 05/28/2020)
41 AFFIDAVIT of Service for Summons and Complaint for Injunctive and Declaratory Relief served on Scott Moseley on 05/08/2020, filed by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore. (Bryant, Christopher) (Entered: 05/28/2020)
42 AFFIDAVIT of Service for Summons and Complaint for Injunctive and Declaratory Relief served on John Wells on 05/08/2020, filed by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore. (Bryant, Christopher) (Entered: 05/28/2020)
44 ANSWER to 1 Complaint, by Marci Andino, Clifford J Elder, Scott Moseley, John Wells.(Trinkley, Jane) (Entered: 05/29/2020)
45 Local Rule 26.01 Answers to Interrogatories by Marci Andino, Clifford J Elder, Scott Moseley, John Wells.(Trinkley, Jane) (Entered: 05/29/2020)
47 ANSWER to 1 Complaint, by South Carolina Republican Party.(Tyson, Robert) (Entered: 06/02/2020)
48 Local Rule 26.01 Answers to Interrogatories by South Carolina Republican Party.(Tyson, Robert) (Entered: 06/02/2020)

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49 MOTION to Appear Pro Hac Vice by Sopen Shah ( Filing fee $ 250 receipt number 0420-9146188) by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. Response to Motion due by 6/23/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Supporting Documents Application/Affidavit of Sopen Shah, # 2 Proposed Order)No proposed order.(Bryant, Christopher) (Entered: 06/09/2020)
50 TEXT ORDER granting 49 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 6/9/2020.(asni, ) (Entered: 06/09/2020)
51 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings. Motion hearing held on May 15, 2020, before Judge J. Michelle Childs. Court Reporter/Transcriber Kathleen Richardson, RMR, CRR, Telephone number/E-mail Kathleen_Richardson@scd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 7/2/2020. Redacted Transcript Deadline set for 7/13/2020. Release of Transcript Restriction set for 9/9/2020. (kari, ) (Entered: 06/11/2020)
52 NOTICE of Hearing: Scheduling Conference set for 6/16/2020 11:00 AM before Honorable J Michelle Childs. This hearing will be conducted by telephone. Plaintiff's counsel shall initiate the call and have all parties on the line prior to contacting the court at 803-765-6475.(asni, ) Modified to correct phone number on 6/15/2020 (asni, ). (Entered: 06/15/2020)
53 Minute Entry. Proceedings held before Honorable J Michelle Childs: Scheduling Conference held on 6/16/2020. Counsel to submit proposed scheduling orders by Thursday, June 18, 2020. Court Reporter Jenny Williams. (mflo, ) (Entered: 06/16/2020)
54 SCHEDULING ORDER: Plaintiffs ID of Expert Witness due by 1/15/2021, Defendants ID of Expert Witnesses Due by 2/22/2021, Records Custodian Affidavit due by 3/15/2021, Discovery due by 3/15/2021, Motions due by 4/1/2021, Rule 26(a)(3) Disclosures due by 4/26/2021, Bench Trial Deadline 6/7/2021, Signed by Honorable J Michelle Childs on June 19, 2020. (kbos) (Entered: 06/19/2020)
55 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings. Telephonic Scheduling Conference held on June 16, 2020, before Judge J. Michelle Childs. Court Reporter/Transcriber Jennifer H. Williams, RPR, Telephone number/E-mail Jenny_Williams@scd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court

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Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 7 calendar days from the filing of the transcript to file with the court a Notice of Intent to Request Redaction.. Redaction Request due 7/17/2020. Redacted Transcript Deadline set for 7/27/2020. Release of Transcript Restriction set for 9/24/2020. (jwil, ) (Entered: 06/26/2020)
56 MOTION for Judgment on the Pleadings by Marci Andino, Clifford J Elder, Scott Moseley, John Wells. Response to Motion due by 7/10/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support, # 2 Exhibit Declaration of Marci Andino)No proposed order.(Lambert, William) (Entered: 06/26/2020)
58 STIPULATION of Dismissal Without Prejudice on Prepaid Postal Claims by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party. (Bryant, Christopher) (Entered: 07/08/2020)
59 NOTICE OF JOINDER re 56 MOTION for Judgment on the Pleadings by Robert E Tyson, Jr on behalf of South Carolina Republican Party (Tyson, Robert) (Entered: 07/10/2020)
61 RESPONSE in Opposition re 56 MOTION for Judgment on the Pleadings Response filed by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush.Reply to Response to Motion due by 7/17/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit Allendale County Absentee Ballots Postmarked on or before Election Day but Rejected Due to the Election Day Cutoff (June 2020), # 2 Exhibit Marion County Absentee Ballots Signed and Dated before the Election and Rejected Due to the Election Day Cutoff (June 2020), # 3 Exhibit USPS OIG July 7, 2020 Report)(Bryant, Christopher) (Entered: 07/10/2020)
62 MOTION to Appear Pro Hac Vice by K'Shaani Smith ( Filing fee $ 250 receipt number 0420-9213735) by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party. Response to Motion due by 7/27/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Supporting Documents Application/Affidavit of K'Shaani Smith, # 2 Supporting Documents Proposed Order)Proposed order is being emailed to chambers with copy to opposing counsel.(Bryant, Christopher) (Entered: 07/13/2020)
64 TEXT ORDER granting 62 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 7/14/2020.(asni, ) (Entered: 07/14/2020)

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65 REPLY to Response to Motion re 56 MOTION for Judgment on the Pleadings Response filed by Marci Andino, Clifford J Elder, Scott Moseley, John Wells. (Lambert, William) (Entered: 07/16/2020)
67 Consent MOTION to Amend/Correct 1 Complaint, by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. Response to Motion due by 8/3/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit Proposed First Amended Complaint, # 2 Exhibit Redlined Proposed First Amended Complaint)No proposed order.(Bryant, Christopher) (Entered: 07/20/2020)
68 TEXT ORDER The matter before the court is Plaintiffs Kylon Middleton, Deon Tedder, Amos Wells, Carlyle Dixon, Tonya Winbush, Ernestine Moore, the South Carolina Democratic Party ("SCDP"), Democratic National Committee ("DNC"), and DCCC's Motion for Leave to Amend their Complaint (ECF No. 67). In their Motion, Plaintiffs "certify that they have obtained the written consent of Defendants for the Amendment." (Id. at 2.) Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, after the time has passed to amend a pleading as a matter of course, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Rule 15(a) is a "liberal rule [that] gives effect to the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities." Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc). Here, because Plaintiffs have obtained Defendants' written consent and because justice so requires, the court GRANTS Plaintiffs' Motion to Amend (ECF No. 67 ). Plaintiffs shall file their Amended Complaint within three (3) days of the date of this Order. Signed by Honorable J Michelle Childs on 7/21/2020.(asni, ) (Entered: 07/21/2020)
69 AMENDED COMPLAINT against All Defendants, filed by Ernestine Moore, Deon Tedder, Carlyle Dixon, Tonya Winbush, DCCC, DNC Services Corporation/Democratic National Committee, Kylon Middleton, South Carolina Democratic Party, Amos Wells. Service due by 10/19/2020 (Bryant, Christopher) (Entered: 07/21/2020)
70 MOTION to Intervene by South Carolina Republican Party. Response to Motion due by 8/7/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Tyson, Robert) (Entered: 07/24/2020)
71 ORDER AND OPINION denying 56 Motion for Judgment on the Pleadings. Signed by Honorable J Michelle Childs on 7/24/2020.(asni, ) (Entered: 07/24/2020)

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72 ANSWER to 69 Amended Complaint, by South Carolina Republican Party.(Tyson, Robert) (Entered: 07/28/2020)
73 MOTION to Withdraw as Attorney K'Shaani Smith by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. Response to Motion due by 8/17/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Bryant, Christopher) (Entered: 08/03/2020)
74 TEXT ORDER granting 73 Motion to Withdraw as Attorney. Signed by Honorable J Michelle Childs on 8/3/2020.(asni, ) (Entered: 08/03/2020)
76 MOTION for Leave to File Excess Pages by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. Response to Motion due by 8/17/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Bryant, Christopher) (Entered: 08/03/2020)
77 MOTION for Preliminary Injunction by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. Response to Motion due by 8/17/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Declaration of Dr. Joseph John, # 2 Declaration of Dr. Marc Meredith, # 3 Declaration of Deon Tedder, # 4 Declaration of Kylon Middleton, # 5 Declaration of Tonya Winbush, # 6 Declaration of Bobby Dukes, # 7 Declaration of Rebecca Kirby, # 8 Declaration of Dr. Allan Lichtman)No proposed order.(Bryant, Christopher) (Entered: 08/03/2020)
78 AFFIDAVIT in Support re 77 MOTION for Preliminary Injunction . (Attachments: # 1 Exhibit July 17 2020 Andino Letter, # 2 Exhibit CDC Publication - People With Certain Medical Conditions, # 3 Exhibit UCSF Article re COVID-19 and Young Adults, # 4 Exhibit Johns Hopkins Article Regarding COVID-19 and Younger Adults, # 5 Exhibit CDC Publication - Health Equity Considerations and Racial and Ethnic Minority Groups, # 6 Exhibit WBTV Article - McMaster Hopeful Safe to Resume Activities in Late June, # 7 Exhibit uly 30 2020 DHEC News Release, # 8 Exhibit July 12 2020 DHEC News Release, # 9 Exhibit The State August 1 2020 Coronavirus Update, # 10 Exhibit HHS News Release, # 11 Exhibit Article Regarding Dr. Fauci's Vaccine Estimate, # 12 Exhibit Arizona Department of Health COVID-19 Risk Index, # 13 Exhibit CDC Publication - Deciding to Go Out, # 14 Exhibit CDC Publication - Considerations for Election Polling Locations and Voters,

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# 15 Exhibit Article Regarding COVID-19 Skyrocketing in SC, # 16 Exhibit Article Regarding Georgia June 9 Primary Election, # 17 Exhibit Sarah Ellis Tweet regarding SC June Primary, # 18 Exhibit Maayan Schechter Tweet regarding SC June Primary, # 19 Exhibit USPS Inspector General Report, # 20 Exhibit Washington Post Article regarding USPS, # 21 Exhibit Philadelphia Inquirer Article regarding USPS, # 22 Exhibit Absentee Ballot Return Envelopes of Elizabeth milledge, Rebecca Kirby, and James S. Cotter, # 23 Exhibit Article about SC election officials and the November election, # 24 Exhibit Article regarding SC election officials encouraging voting by mail)(Bryant, Christopher) (Entered: 08/04/2020)
79 TEXT ORDER granting 76 Motion for Leave to File Excess Pages Signed by Honorable J Michelle Childs on 8/3/2020.(asni, ) (Entered: 08/04/2020)
80 ANSWER to 69 Amended Complaint, by Marci Andino, Clifford J Elder, Scott Moseley, John Wells.(Trinkley, Jane) (Entered: 08/04/2020)
81 TEXT ORDER This matter is before the court pursuant to the South Carolina Republican Party's ("SCRP") Motion to Re-Intervene pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. (ECF No. 70.) On May 12, 2020, this court previously granted SCRP's Motion to Intervene. (ECF No. 27.) While SCRP seeks to re-intervene due to Plaintiffs' Amended Complaint and requests the court to include them in the caption as permissive intervenors, the court finds this to be unnecessary because SCRP is recognized on the official court docket as intervenors. Because the court has already allowed SCRP to intervene and that intervention is still in effect despite the filing of the Amended Complaint, the court DENIES SCRP's Motion to Re-Intervene (ECF No. 70 ) as MOOT. Signed by Honorable J Michelle Childs on 8/4/2020.(asni, ) (Entered: 08/04/2020)
83 NOTICE of Appearance by Susan Pedrick McWilliams on behalf of James ("Jay") H. Lucas (McWilliams, Susan) (Entered: 08/12/2020)
84 NOTICE of Appearance by Sara Sofia Svedberg on behalf of James ("Jay") H. Lucas (Svedberg, Sara) (Entered: 08/12/2020)
85 NOTICE of Appearance by Mark Carroll Moore on behalf of James ("Jay") H. Lucas (Moore, Mark) (Entered: 08/12/2020)
86 MOTION to Intervene by James ("Jay") H. Lucas. Response to Motion due by 8/26/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit A - Speaker Lucas' Proposed Answer)No proposed order.(McWilliams, Susan) (Entered: 08/12/2020)
87 MOTION to Intervene by Harvey Peeler. Response to Motion due by 8/26/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments:

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08/17/2020

# 1 Exhibit A - Petition, part 1, # 2 Exhibit A - Petition, part 2, # 3 Exhibit A - Petition, part 3, # 4 Exhibit A - Petition, part 4, # 5 Exhibit A Petition, part 5)No proposed order.(Hall, Kevin) (Entered: 08/12/2020)
88 MOTION for Leave to File Excess Pages by Marci Andino, Clifford J Elder, Scott Moseley, John Wells. Response to Motion due by 8/31/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Lambert, William) (Entered: 08/17/2020)
89 TEXT ORDER granting 88 Motion for Leave to File Excess Pages. Signed by Honorable J Michelle Childs on 8/17/2020.(asni, ) (Entered: 08/17/2020)
90 RESPONSE in Opposition re 87 MOTION to Intervene , 86 MOTION to Intervene Response filed by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush.Reply to Response to Motion due by 8/24/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Bryant, Christopher) (Entered: 08/17/2020)
91 MOTION for Leave to File Excess Pages by South Carolina Republican Party. Response to Motion due by 8/31/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Tyson, Robert) (Entered: 08/17/2020)
92 TEXT ORDER granting 91 Motion for Leave to File Excess Pages. Signed by Honorable J Michelle Childs on 8/17/2020.(asni, ) (Entered: 08/17/2020)
93 RESPONSE in Opposition re 77 MOTION for Preliminary Injunction Election Defendants' Memorandum in Opposition to Motion for Preliminary Injunction Response filed by Marci Andino, Clifford J Elder, Scott Moseley, John Wells.Reply to Response to Motion due by 8/24/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit SEC Bailey Brief, # 2 Exhibit AG Bailey Brief, # 3 Exhibit Middleton - Andino Decl., # 4 Exhibit Salgado Expert Report, # 5 Exhibit Tedder Facebook Photos, # 6 Exhibit Middleton Facebook Photos, # 7 Exhibit 2007-GS-47-01 Indictment and Sentencing Sheets, # 8 Exhibit Declaration dated 8-142020)(Lambert, William) (Entered: 08/17/2020)
94 RESPONSE in Opposition re 77 MOTION for Preliminary Injunction Response filed by South Carolina Republican Party.Reply to Response to Motion due by 8/24/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6.

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(Attachments: # 1 Exhibit, # 2 Exhibit)(Tyson, Robert) supplement 108 added on 9/21/2020 (asni, ). (Entered: 08/17/2020)
95 NOTICE of Hearing on Motion 77 MOTION for Preliminary Injunction : Motion Hearing set for 9/11/2020 09:30 AM in Columbia #1, Matthew J. Perry Court House, 901 Richland St, Columbia before Honorable J Michelle Childs. This hearing will be conducted via video-conference for out-of-state counsel. The court will provide further instructions.(asni, ) (Entered: 08/21/2020)
96 ORDER AND OPINION granting 86 Motion to Intervene; granting 87 Motion to Intervene. The court further ORDERS the Proposed Intervenors file any potential responsive briefing to Plaintiffs' pending Motion for Preliminary Injunction (ECF No. 77) by no later than August 31, 2020. Signed by Honorable J Michelle Childs on 8/21/2020.(asni, ) (Entered: 08/21/2020)
97 MOTION for Leave to File Excess Pages For Reply in Support of Their Motion for Preliminary Injunction by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. Response to Motion due by 9/8/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Bryant, Christopher) (Entered: 08/24/2020)
98 REPLY to Response to Motion re 77 MOTION for Preliminary Injunction SCEC and SCGOP Response filed by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. (Attachments: # 1 Exhibit SCEC's Responses to Plaintiffs' First Set of Requests to Admit, # 2 Exhibit Absentee Authorization to Return Ballot, # 3 Exhibit USPS Postmaster General Briefing - Service Performance Management)(Bryant, Christopher) (Entered: 08/24/2020)
99 TEXT ORDER granting 97 Motion for Leave to File Excess Pages. Signed by Honorable J Michelle Childs on 8/25/2020.(asni, ) (Entered: 08/25/2020)
100 RESPONSE in Opposition re 77 MOTION for Preliminary Injunction Response filed by Harvey Peeler.Reply to Response to Motion due by 9/8/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Carroll, Matthew) (Entered: 08/31/2020)
101 RESPONSE in Opposition re 77 MOTION for Preliminary Injunction Response filed by James ("Jay") H. Lucas.Reply to Response to Motion due by 9/8/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments:

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# 1 Exhibit A: Excerpts of Deposition Transcript of John Wells)(McWilliams, Susan) (Entered: 08/31/2020)
102 ORDER setting schedule for arguments regarding 77 MOTION for Preliminary Injunction filed by Plaintiffs. Signed by the Honorable J. Michelle Childs on 9/8/2020. (jowa) (Entered: 09/08/2020)
103 MOTION for Leave to File Excess Pages by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. Response to Motion due by 9/22/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.(Bryant, Christopher) (Entered: 09/08/2020)
104 REPLY to Response to Motion re 77 MOTION for Preliminary Injunction Speaker Lucas and President Peeler Response filed by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. (Bryant, Christopher) (Entered: 09/08/2020)
105 TEXT ORDER granting 103 Motion for Leave to File Excess Pages. Signed by Honorable J Michelle Childs on 9/9/2020.(asni, ) (Entered: 09/09/2020)
107 Minute Entry. Proceedings held before Honorable J Michelle Childs:

Motion Hearing held on 9/11/2020 re 77 MOTION for Preliminary Injunction filed by Tonya Winbush, Amos Wells, DNC Services Corporation/Democratic National Committee, Deon Tedder, Carlyle Dixon, South Carolina Democratic Party, Kylon Middleton,

09/18/2020 09/18/2020

DCCC, Ernestine Moore. taking under advisement 77 Motion for Preliminary Injunction. Court Reporter Carly Horenkamp. (mflo, ) (Entered: 09/11/2020)
108 SUPPLEMENT by South Carolina Republican Party . (Attachments: # 1 Exhibit DCCC v. Ziriax, No. 20-cv-211-JED-2 JFJ, 2020 WL 5569576, at 1 (N.D. Okl. Sept. 17, 2020), # 2 Exhibit H.5305, 123d Leg., 2d Sess. (S.C. 2020), ratified, R.149 (Sept. 16, 2020))(Tyson, Robert) (Entered: 09/18/2020)
109 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER AND OPINION granting in part and denying in part Plaintiffs' Motion for Preliminary Injunction (ECF No. 77). The court enjoins the Witness Requirement set forth in S.C. Code Ann. § 7-15-380 and any other South Carolina statute and orders Defendants to inform

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South Carolina voters about its elimination. Signed by Honorable J Michelle Childs on 9/18/20.(vdou, ) (Entered: 09/18/2020)
110 MOTION to Consolidate Cases by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas. Response to Motion due by 10/5/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. No proposed order.Associated Cases: 3:20-cv-01552-JMC, 3:20-cv-01730-JMC(Dunn, Susan) (Entered: 09/21/2020)
111 NOTICE OF APPEAL as to 109 Order on Motion for Preliminary Injunction, by Marci Andino, Clifford J Elder, James ("Jay") H. Lucas, Scott Moseley, Harvey Peeler, South Carolina Republican Party, John Wells, Alan Wilson. - Filing fee $ 505, receipt number 0420-9355367. The Docketing Statement form, Transcript Order form and CJA 24 form may be obtained from the Fourth Circuit website at www.ca4.uscourts.gov (Lambert, William) (Entered: 09/21/2020)
112 Transmittal Sheet for Notice of Appeal to USCA re 111 Notice of Appeal, The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (kbos) (Entered: 09/22/2020)
113 TEXT ORDER re 110 MOTION to Consolidate Cases filed by Plaintiffs. The court finds it does not have jurisdiction to address the Motion to Consolidate Cases because this case is currently before the Fourth Circuit. Jones v. South Carolina, No. CV.A.2:01-00069-13AJ, 2001 WL 34553963, at *1 (D.S.C. July 5, 2001), aff'd, 26 F. App'x 329 (4th Cir. 2002) (district court does not have "jurisdiction to consolidate any action currently pending in the Fourth Circuit with any other action"). See Thomas v. Andino, 3:20-cv-01552-JMC, ECF No. 184 (D.S.C. Sept. 22, 2020) (denying motion to consolidate the instant case with Thomas). Signed by the Honorable J. Michelle Childs on 9/22/2020. (jowa) (Entered: 09/22/2020)
116 ORDER granting rehearing en banc of USCA as to 111 Notice of Appeal, filed by Harvey Peeler, Clifford J Elder, South Carolina Republican Party, Scott Moseley, James ("Jay") H. Lucas, John Wells, Marci Andino, Alan Wilson (asni, ) (Entered: 09/28/2020)
118 Supreme Court Remark re 111 Notice of Appeal : stay granted. (asni, ) (Entered: 10/07/2020)
119 MOTION for Partial Summary Judgment by Marci Andino, Clifford J Elder, Scott Moseley, John Wells. Response to Motion due by 12/18/2020. Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support)No proposed order.(Lambert, William) (Entered: 12/04/2020)

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120 ORDER of USCA dismissing the appeal as moot as to 111 Notice of Appeal, filed by Harvey Peeler, Clifford J Elder, South Carolina Republican Party, Scott Moseley, James ("Jay") H. Lucas, John Wells, Marci Andino, Alan Wilson (asni, ) (Entered: 12/17/2020)
121 STIPULATION of Dismissal Without Prejudice by DCCC, DNC Services Corporation/Democratic National Committee, Carlyle Dixon, Kylon Middleton, Ernestine Moore, South Carolina Democratic Party, Deon Tedder, Amos Wells, Tonya Winbush. (Bryant, Christopher) (Entered: 12/17/2020)
123 USCA MANDATE and JUDGMENT dismissing the appeal as to 111 Notice of Appeal, filed by Harvey Peeler, Clifford J Elder, South Carolina Republican Party, Scott Moseley, James ("Jay") H. Lucas, John Wells, Marci Andino, Alan Wilson (asni, ) (Additional attachment(s) added on 1/11/2021: # 1 judgment ) (asni, ). (Entered: 01/08/2021)

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2.10

 </s> 3:20-cv-01730-JMC Date Filed 05/01/20 Entry Number 1 Page 1 of 46

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

KYLON MIDDLETON; DEON TEDDER; AMOS WELLS; CARLYLE DIXON; TONYA WINBUSH; ERNESTINE MOORE; SOUTH CAROLINA DEMOCRATIC PARTY; DNC SERVICES CORPORATION/DEMOCRATIC NATIONAL COMMITTEE; and DCCC,
Plaintiffs,
v.

Case No. __________________
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

MARCI ANDINO, in her official capacity as Executive Director of the South Carolina State Election Commission; JOHN WELLS, in his official capacity as Chair of the South Carolina State Election Commission; and CLIFFORD J. EDLER and SCOTT MOSELEY, in their official capacities as members of the South Carolina State Election Commission,
Defendants.

Plaintiffs Kylon Middleton, Deon Tedder, Amos Wells, Carlyle Dixon, Tonya Winbush, Ernestine Moore, the South Carolina Democratic Party (“SCDP”), Democratic National Committee (“DNC”), and DCCC, by and through the undersigned attorneys, file this Complaint for Injunctive and Declaratory Relief against Defendants Marci Andino, in her official capacity as Executive Director of the South Carolina State Election Commission (the “Commission”), John Wells, in his official capacity as Chair of the Commission, and Clifford J. Edler and Scott Moseley, in their official capacities as members of the Commission. This Complaint is based on the facts and allegations below. Plaintiffs allege as follows:

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INTRODUCTION 1. As the COVID-19 pandemic rages on, impacting over one million people and taking over 60,000 lives in the United States in the past six weeks alone, a collection of South Carolina elections laws (the “Challenged Provisions”) operate independently and together to impose upon the State’s voters an untenable and unconstitutional choice between exercising their right to vote or avoiding needless and serious risk to their health, the health of their friends and family, and the broader community. 2. South Carolina categorically prohibits all voters under 65 from casting a mail-in absentee ballot unless they fall into narrow and limited categories such as disabled or confined in jail (the “Absentee Ballot Age Restriction”), S.C. Code Ann. § 7-15-320(B)(8). Thus, the vast majority of voters must appear in person at the polls to cast their ballot on election day in order to exercise their right to vote, for no other reason than they have not yet had their 65th birthday. 3. The decision to parcel out voting rights “on account of age” is prohibited under any circumstances by the plain text of the 26th Amendment to the U.S. Constitution. But under the current circumstances, as a global pandemic unprecedented in our time infects thousands more Americans daily and shows few signs of abating, the Absentee Ballot Age Restriction also imposes unconscionably severe burdens on voters that cannot be justified by the State’s interests in the restrictions, such that the provision also violates the First and Fourteenth Amendments to the Constitution. 4. For the select group of voters who are permitted to vote by absentee ballot, South Carolina law imposes several additional challenges, all of which independently and together will unconstitutionally burden the right to vote in the coming elections.
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5. First, South Carolina will not count a voter’s mail-in absentee ballot unless the voter has had another person witness and sign their absentee ballot envelope (the “Witness Requirement”). Id. § 7-15-380. For the segment of the population that lives alone, obtaining a witness signature to cast a mail-in absentee ballot requires them to suspend adherence to social distancing requirements and risk contracting a potentially deadly disease. Many of these voters are elderly citizens who are most at risk for the worst complications of the virus and interacting with a witness for this purpose could quite literally risk their lives. Preliminary reports from the U.S. Centers for Disease Control and Prevention (“CDC”) indicated that the fatality rate ranged from 10% to 27% among Americans over 85 who contracted the disease, and 3% to 11% for those between the ages of 65 and 84. The Witness Requirement thus needlessly compels voters to put their and other’s lives at risk to vote, imposing a severe burden in violation of the First and Fourteenth Amendments.
6. Second, South Carolina does not provide pre-paid postage on its mail-in absentee ballots, requiring voters to independently secure postage for their ballot to be counted (the “Postage Tax”). Under any circumstances, requiring a voter to pay to vote is categorically unconstitutional, but in the context of the present unprecedented public health crisis, the Postage Tax imposes additional burdens that cannot be sustained. As thousands of South Carolinians self-isolate in an attempt to avoid infection and flatten the curve of the virus, the requirement that they obtain postage to vote also imposes unnecessary health risks on thousands of lawful voters.
7. Third, even if a voter successfully navigates both the Witness Requirement and the Postage Tax, South Carolina rejects all mail-in absentee ballots not received by the county by 7:00 p.m. on Election Day (the “Election Day Cutoff”). Id. § 7-15-230. During the 2018 statewide general election, the State discarded over 1,300 ballots as a result. In a time when requests for
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mail-in absentee ballots have dramatically increased and the U.S. Postal Service is under unique and taxing demands causing substantial delays in processing, many voters who timely request their ballots will not receive them until shortly before—or even after—the election. As a result, the Election Day Cutoff threatens to disfranchise thousands more voters this cycle than in years past, for reasons entirely out of the voters’ control.
8. Fourth, South Carolina makes it a felony for a candidate or paid campaign staff to assist voters with returning their voted absentee ballots to elections officials (the “Absentee Assistance Ban”). Id. § 7-15-385. This hamstrings the ability of candidates like Plaintiffs Deon Tedder and Kylon Middleton and their respective campaigns to assist voters in the upcoming elections, where a substantial number of individuals adhering to social distancing requirements and seeking to prevent the continued spread of COVID-19 will need assistance with returning their ballot, and makes it more likely that far more voters will be disenfranchised as a result of the Postage Tax or Election Day Cutoff.
9. Although the Challenged Provisions have the potential to impact all South Carolina voters, they particularly burden the African American population, which statistically accounts for a disproportionately significant portion of the State’s residents with confirmed cases of the virus and reported deaths due to COVID-19. As such, South Carolina’s African American voters have an increased need to adhere to social distancing requirements to protect their health and suffer more significant burdens as a result of the Challenged Provisions, which will unlawfully operate to disproportionately abridge and deny them their right to vote in the upcoming elections. Simply put, venturing out to vote in person, or to obtain postage for a mail-in absentee ballot, seek out a witness to sign their ballot envelope, or attempt to timely submit their ballot before the Election
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Day Cutoff threatens African Americans’ well-being and the well-being of their communities far more acutely than white South Carolinians’ well-being.
10. The reasons for this disparity are varied, but each is traceable to South Carolina’s long and sordid history of discrimination against African Americans since the first Africans were brought to South Carolina as slaves. Due to resulting and persistent disparities in education, healthcare, housing, and income, South Carolina’s African-American voters experience higher rates of poverty than white voters and have less access to reliable transportation, making it more difficult for them to successfully navigate the hurdles imposed by the Challenged Provisions to cast and have their ballots counted.
11. For all of these reasons, Plaintiffs file this action and seek an emergency injunction from this Court to ensure that the Challenged Provisions do not unconstitutionally abridge or deny the fundamental rights of Plaintiffs, their members or constituents, and countless other lawful South Carolina voters in the coming elections.
PARTIES 12. Plaintiff Kylon Middleton is a 45-year-old African American and a citizen and a resident of Charleston County, South Carolina. Plaintiff Middleton is the pastor of Mt. Zion AME Church in Charleston. In addition to playing an active role in the civic life of Charleston, Plaintiff Middleton is a registered voter and a Democratic candidate for Charleston County Council. He is actively campaigning in the contested June 9, 2020 Democratic Party primary and hopes to progress to the November 3 general election. Plaintiff Middleton would like to ensure that he, his congregants, and all eligible voters in South Carolina have an opportunity to safely cast their ballots in upcoming elections, and he recognizes that the need to social distance because of COVID-19 will cause many voters to seek to cast absentee ballots. Plaintiff Middleton would assist
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voters who were unable to cast their absentee ballots in person by returning their absentee ballots on their behalf, but, because he is a candidate for political office, he cannot because of a South Carolina election law that criminalizes this act.
13. Plaintiff Deon Tedder is a 30-year-old African American and a citizen and a resident of Charleston County, South Carolina. Plaintiff Tedder is a Democratic candidate for South Carolina State House District 109. He is actively campaigning in the contested June 9, 2020 Democratic Party primary and hopes to progress to the November 3 general election. Plaintiff Tedder would like to ensure that he and the eligible voters in the constituency that he seeks to represent have an opportunity to safely cast their ballots in upcoming elections, and he recognizes that the need to social distance because of COVID-19 will cause many voters to seek to cast absentee ballots. Plaintiff Tedder has made service to others a central point of his campaign activities. Consistent with his campaign activities, Plaintiff Tedder would like to assist voters who seek to cast absentee ballots but cannot leave their homes. But because he is a political candidate, South Carolina law prevents him and members of his campaign staff from engaging in this act of assistance.
14. Plaintiffs Middleton and Tedder, along with all other candidates running for public office in 2020 elections, will face irreparable harm but for adequate measures taken to ensure fair and effective elections that comply with the U.S. Constitution. Plaintiffs Middleton and Tedder have an interest in ensuring that every voter in their respective districts who is legally permitted to vote has an opportunity to effectively cast a ballot. Plaintiffs Middleton and Tedder and their respective campaigns also have an interest in educating, mobilizing, assisting, and turning out voters in South Carolina, including assisting voters in submitting their absentee ballots. And, as voters themselves, Plaintiffs Middleton and Tedder have an interest in ensuring that they have an
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opportunity to effectively cast their own ballots in the upcoming elections. Because they are under the age of 65 and presently have no other qualifying excuse, they are not eligible to vote by absentee ballot.
15. Plaintiff Amos Wells is a 77-year-old African American and a citizen and a resident of Anderson County, South Carolina. Although Plaintiff Wells has been able to cast his ballot absentee because of his age for over a decade, he generally casts his ballot in person because he believes doing so is symbolically important and he wants to make sure that he has as much information about the races as possible before he votes. Plaintiff Wells would prefer to cast his ballot in person on election day in the upcoming elections, but recognizes that his age puts him at a high risk for COVID-19 and that he may be forced to cast an absentee ballot for his safety and the safety of others in his community. If he is forced to vote absentee, Plaintiff Wells would do so by mail, but has concerns that his ballot may be delayed, both in being sent to him and in being returned to the county board of elections. To determine whether it is safe to vote in person and to ensure that he has the most up-to-date information on the races in which he votes, Plaintiff Wells intends to mail his absentee ballot as close to Election Day as possible. But because of delays in mail delivery, he is concerned that even if he risks his health to hand deliver his absentee ballot to the post office, it will not make it to the county board of elections before the polls close.
16. Plaintiff Carlyle Dixon is a 71-year-old African American and a citizen and a resident of Horry County, South Carolina. Plaintiff Dixon has had a quadruple-bypass heart surgery, and because major surgery has been known to impact immune system health, his socialdistancing precautions pre-date COVID-19. Plaintiff Dixon has previously cast absentee ballots in person and intends to cast an absentee ballot from his home by mail as long as COVID-19 poses a threat in the upcoming elections. Plaintiff Carlyle is concerned about the reliability of mail service
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at his home and what that may mean for the timely receipt and delivery of his absentee ballot before the polls close. Plaintiff Carlyle wants to ensure that his absentee ballot is counted.
17. Plaintiff Tonya Winbush is a 45-year-old African American and a citizen and a resident of Anderson County, South Carolina. Because of COVID-19 and the risk it poses to her and her community, Plaintiff Winbush would like to have the option to cast her ballots in the upcoming elections absentee. Plaintiff Winbush has previously voted by absentee ballot in person using a qualifying excuse, but she does not have a qualifying excuse for the upcoming elections. Voting absentee, either in person or by mail, would make it more easy for Plaintiff Winbush to practice social distancing than casting a ballot in person on Election Day. If Plaintiff Winbush were above the age of 65, she would be able to cast her ballot absentee. As president of the Anderson County Democratic Party, Plaintiff Winbush has an interest in ensuring that all qualified voters have an opportunity to safely cast ballots in the Democratic primaries and general elections.
18. Plaintiff Ernestine Moore is a 68-year old African American and a citizen and a resident of Edgefield County, South Carolina. Plaintiff Moore lives alone, and her age places her in a high-risk category for COVID-19. As long as COVID-19 poses a health risk, Plaintiff Moore intends to cast her ballot absentee to minimize the risk to her health. As long as social distancing remains in place, the South Carolina election law that requires that a witness sign her absentee ballot envelope burdens Plaintiff Moore’s right to vote because it requires Plaintiff Moore and others in her position—that is, those who live alone and are at high risk for COVID-19 infection— to unnecessarily risk exposure to COVID-19.
19. Plaintiff South Carolina Democratic Party (“SCDP”) brings this action on its own behalf and on behalf of its members. SCDP is a political party within the meaning of S.C. Code Ann. § 7-1-20 and is the South Carolina state party committee of the national Democratic Party.
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SCDP is certified by the S.C. State Election Commission to nominate candidates for offices to be voted on in a general or special election and nominates candidates on a regular basis by party primary. SCDP has an interest in ensuring that voters have an opportunity to express their will regarding Democratic Party candidates running for elections, as well as ballot measures and initiatives those individuals support. To accomplish its purpose, SCDP engages in vitally important activities, including supporting Democratic Party candidates in national, state, and local elections through a meaningful opportunity to cast ballots in South Carolina. SCDP has hundreds of thousands of members and constituents from across the State, including South Carolinians who regularly support candidates affiliated with the Democratic Party and Democratic Party candidates. SCDP works to accomplish its mission by, among other things, working closely with Democratic candidates and assisting county parties by making expenditures on candidates’ behalves, providing get-out-the-vote (“GOTV”) assistance, and actively supporting the development of programs benefiting Democratic Party candidates. SCDP has previously engaged in, and plans to continue to engage in, expenditures on behalf of Democratic Party candidates, GOTV assistance, and the development of programs to elect Democratic Party candidates in South Carolina. An election held under the Challenged Provisions, and 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 and effective means to cast their ballots. Specifically, SCDP will need to spend additional resources on educating voters about the Challenged Provisions as opposed to simply persuading them to vote for Democratic candidates and other GOTV activities. The need to expend these additional resources could double the costs as it relates to digital voter communications. In
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addition, the laws at issue will cause the SCDP to 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. African American voters in South Carolina overwhelmingly support Democratic candidates, and the Challenged Provisions disparately burden African American voters. If not enjoined, the Challenged Provisions will directly harm the mission of the SCDP.
20. Plaintiff Democratic National Committee (“DNC”) is the national committee of the Democratic Party, as defined by 52 U.S.C. § 30101(14), and its mission is to elect local, state, and national candidates of the Democratic Party to public office throughout the United States, including South Carolina. The DNC works to accomplish its mission by, among other things, making expenditures for, and contributions to, Democratic candidates (at all levels) and assisting state parties throughout the county, including in South Carolina. The DNC has members and constituents across the United States, including eligible voters in South Carolina whose rights to vote have been and will continue to be severely burdened and denied outright by the challenged matters during the current coronavirus crisis. An election held under the Challenged Provisions, and without adjustments for the COVID-19 pandemic, directly harms the DNC 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 and effective means to cast their ballots. The laws and policies at issue in this case directly harm the DNC by frustrating its mission of, and efforts in, electing Democratic candidates in South Carolina, whose supporters face greater obstacles in casting a vote and having their votes counted. African American voters in South Carolina overwhelmingly support Democratic candidates, and the
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Challenged Provisions disparately burden African American voters. If not enjoined, the Challenged Provisions will directly harm the mission of the DNC.
21. Plaintiff DCCC is the national congressional committee of the Democratic Party as defined by 52 U.S.C. § 30101(14). DCCC’s mission is to elect Democratic candidates to the U.S. House of Representatives from across the United States, including from South Carolina’s seven congressional districts. DCCC works to accomplish its mission by, among other things, assisting state parties throughout the country, including in South Carolina. DCCC intends to again expend significant resources to support Democratic candidates in 2020, including specifically in South Carolina. In 2018, DCCC made millions of dollars in contributions and expenditures to persuade and mobilize voters to support congressional candidates who affiliate with the Democratic Party. For 2020, DCCC has identified districts in South Carolina as targeted races, in which it will expend significant resources to support the Democratic candidates. If elections are held without adjustments for COVID-19, DCCC will divert and expend additional funds and resources to promote safe voter education and turnout efforts in South Carolina at the expense of other efforts in South Carolina and other states. An election held under the Challenged Provisions, and without adjustments for the COVID-19 pandemic, directly harms DCCC because it frustrates its mission and efforts to register voters and persuade and mobilize those voters to elect Democratic candidates in South Carolina. An election held without adjustments for the COVID-19 pandemic also necessarily reduces the pool of eligible voters who can vote for Democratic candidates for U.S. Congress. In addition, due to the Challenged Provisions, DCCC 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 Democratic Party membership. African American voters in South Carolina overwhelmingly support Democratic candidates, and the
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Challenged Provisions disparately burden African American voters. If not enjoined, the Challenged Provisions will directly harm the mission of DCCC.
22. Defendant Andino is sued in her official capacity as Executive Director of the South Carolina State Election Commission. The Executive Director is the Chief Administrative Officer for the State Election Commission and is required by law to supervise the County Boards of Elections and Voter Registration. S.C. Code Ann. § 7-3-20. In this role, she is tasked with ensuring that those County Boards comply with state and federal law in conduct of elections and voter registration. Id. at § 7-3-20(C).
23. Defendant John Wells is the Chair of the South Carolina Election Commission and is sued in his official capacity. Defendants Clifford J. Edler and Scott Mosley are members of the South Carolina Election Commission and are sued in their official capacities. The Executive Director serves at the pleasure of the South Carolina Election Commission. S.C. Code Ann. § 73-20(A). The South Carolina Election Commission is responsible for carrying out all laws related to absentee registration and voting, including the Challenged Provisions, and to promulgate relevant regulations. Id. § 7-15-10. The enumerated mission of the Commission is, in relevant part, to ensure that every eligible citizen has the opportunity to participate in fair and impartial elections with the assurance that every vote will count.
JURISDICTION AND VENUE 24. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation under color of state law of rights secured by the United States Constitution and under 52 U.S.C. §§ 10301 and 10302. 25. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 and 52 U.S.C. §§ 10301, 10302, 10308(f), and 10310(e).
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26. This Court has personal jurisdiction over Defendants, who are sued in their official capacities only.
27. Venue is proper in this Court under 28 U.S.C. § 1391(b) because a substantial part of the events that gave rise to Plaintiffs’ claims occurred in this judicial district.
28. This Court has the authority to enter declaratory and injunctive relief under Rules 57 and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
STATEMENT OF FACTS AND LAW A. The United States and South Carolina are in the midst of an unprecedented public
health crisis. 29. Over the course of the last several weeks, a novel coronavirus known as COVID19 has been quickly spreading through communities all across the United States, impacting hundreds of thousands of residents throughout the country, including in South Carolina. 30. As of the date of this filing, COVID-19 was the reported cause of over 60,000 deaths in the United States, all occurring over the course of approximately six short weeks. 31. The crisis is getting worse by the day in South Carolina in particular. As of April 30, 2020, the South Carolina Department of Health was reporting that nearly 6,100 people in the State have tested positive for the virus and 244 have died. These numbers likely underestimate by far the actual statistics, due to broad unavailability of adequate testing, and the fact that it is becoming increasingly clear that a significant number of the population has been unwittingly infected, with mild or entirely asymptomatic cases. 32. In certain populations, the virus has proven to be particularly deadly. Elderly Americans are particularly at risk, but so are Americans of all ages, particularly those with relatively common pre-existing conditions, such as high blood pressure.
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33. It has also become clear that communities of color, including in particular the African American community, is acutely at risk: the State Department of Health and Environmental Control (“DHEC”) reports that 43% of South Carolina’s confirmed infections and 53% of its reported deaths are among African Americans residents, despite the fact that African Americans make up only 27% of the State’s population.
34. To prevent the spread of the disease, the U.S. Centers for Disease Control and Prevention (“CDC”) and DHEC recommend that people stay at home and avoid close contact with others.
35. Consistent with that advice, Governor Henry McMaster declared a state of emergency in early March and issued several executive orders closing schools, bars, restaurants, and other business, prohibiting gatherings of 10 or more people, and requiring residents to engage in social distancing and “remain[] at home whenever possible.” Exec. Order 2020-21 (Apr. 6, 2020); see also Exec. Order 2020-08 (Mar. 13, 2020); Exec. Order 2020-09 (Mar. 15, 2020); Exec. Order 2020-15 (Mar. 28, 2020); Exec. Order 2020-16 (Mar. 30, 2020). Though on April 27, 2020, Governor McMaster modified the orders to allow public beaches and certain retail businesses to reopen, he extended the stay-at-home order for an additional 15 days. Exec. Order 2020-29 (Apr. 27, 2020).
36. State health care professionals and epidemiologists have cautioned repeatedly that the pandemic is going to get worse. National trends from the CDC show that the curve is climbing rapidly.
37. Many scientists believe it will take at least a year to develop a vaccine for COVID19 and provide it to the general public, but the precise timing is unknown.
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38. Public health officials are additionally warning that unless Americans continue to adhere to strict social distancing practices, a second wave of COVID-19 infections will occur in the summer or fall, with a possible peak between October and November—in other words, just as Americans head to the polls to cast their ballots in the general election.
39. Even if the community spread of COVID-19 in South Carolina has significantly decreased by November, CDC guidelines recommend that individuals take meaningful social distancing measures even if there is a “minimal” threat of community transmission of COVID-19 in the area.
40. This guidance is necessitated by the reality that asymptomatic carriers appear to be contributing significantly to community spread, and until there is a vaccine or widespread “herd immunity” (i.e., at least 60% of the population has been infected and recovered), Americans will remain at serious risk of contracting this unpredictable and deadly virus.
41. Jurisdictions that have held elections since the onset of the pandemic have encountered substantial challenges in administering elections that will only be exacerbated if South Carolina holds the coming elections with the Challenged Provisions in place.
42. South Carolina’s ability to offer in-person voting at the scale and breadth that it has offered it in the past is likely to be highly compromised by social distancing guidelines, a dearth of volunteers to staff the polls (as election day volunteers have traditional disproportionately been older Americans at heighted risk from the virus, who have been declining to risk their health in primaries around the country), and locations that previously served as polling places being deemed no longer suitable or declared off limits.
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43. As a result, even jurisdictions with far fewer restrictions on absentee voting than South Carolina have seen alarmingly long lines for in-person voting, and in the weeks that followed, have traced additional coronavirus infections to those elections.
44. The CDC, anticipating difficulties in conducting elections during the COVID-19 crisis, has now recommended that jurisdictions encourage voting by mail and reduce methods of voting that lead to direct contact with other voters or poll workers. CDC, Recommendations for Election Polling Locations, https://www.cdc.gov/coronavirus/2019-ncov/community/electionpolling-locations.html (last visited May 1, 2020). Other federal, state, and local officials have increasingly come to the same realization. Congress, for example, recently authorized $400 million to help states increase access to mail ballots.
45. Commission Director Andino, in recognition of these challenges, sent a letter on March 30, 2020, to the Governor and leaders of the General Assembly requesting changes to South Carolina law. Director Andino noted that South Carolina’s “elections, as currently prescribed by law, require large numbers of people to congregate in one place – something that everyone is currently being asked not to do by public safety and health officials.” Ex. 1, Ltr. from Commission to Gov. McMaster, Senator Peeler, and Representative Lucas (hereinafter “Andino Letter”) at 12. In addition, the number of polling places is likely to shrink given that many poll workers fall into high-risk categories and certain facilities (schools, churches) will opt out of serving as polling places. Director Andino asked that the State allow no-excuse absentee voting, remove the witness requirement for absentee ballots, allow absentee ballot requests to be submitted electronically, use vote-by-mail, where the Commission would mail ballots to every registered voter, allow early voting at vote centers, and give county officials extra time to process voted absentee ballots. No action was taken on these requests.
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46. The South Carolina Association of Registration and Election Officials, Inc. (“SCARE”) raised similar concerns. Ex. 2, April 6, 2020 Letter from SCARE to Governor McMaster, Senate President Peeler, and House Speaker Lucas (hereinafter “SCARE Letter”) at 12. But South Carolina’s voting laws remain unchanged. B. South Carolina’s Absentee Ballot Age Restriction broadly prohibits voters under 65
years of age from voting by mail-in absentee ballot. 47. The vast majority of South Carolina’s 3.3 million registered voters are categorically prohibited from voting in any way other than by going to the polls, in person, on election day. S.C. Code Ann § 7-13-710 et seq. (outlining process for voting in person); S.C. Code Ann. § 7-13-771 (permitting curbside voting for “handicapped or elderly voter[s] [who] cannot enter the polling place or cannot stand in line to vote”). Only a limited subset of South Carolina voters may cast their ballots before election day through absentee voting, either in person or by mail. S.C. Code Ann. § 7-15-320 (listing categories of voters eligible to cast absentee ballots). 48. These prohibitions on and absentee voting, combined with what Director Andino has predicted will be widespread poll closures as a result of the virus, is almost certain to lead to extremely long lines on election day. If anything, South Carolina voters can expect to encounter even longer lines than those that voters in Wisconsin recently experienced, because Wisconsin allows both no-excuse absentee voting and early voting. Those long lines mean more time spent in close proximity to people and exposure to more people. 49. One notable exception to South Carolina’s broad prohibition on absentee voting is for voters “sixty-five years of age or older,” all of whom the State permits to vote by absentee ballot for no other reason than their chronological age. S.C. Code Ann. § 7-15-320(B)(8). 50. In contrast, all voters who have not yet turned 65 are categorically prohibited from voting by absentee ballot, unless they can qualify for one of the other narrow exceptions permitted
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by law. If a voter will not be “absent from their county of residence on election day,” he or she must be “physically disabled” or a person attending a sick or physically disabled person, “certified poll watchers, poll managers, county board of voter registration and elections members and staff, county and state election commission members and staff working on election day,” “persons admitted to hospitals as emergency patients on the day of an election or within a four-day period before the election,” “persons with a death or funeral in the family within a three-day period before the election,” persons serving on juries, “persons confined to a jail or pretrial facility pending disposition of arrest or trial,” or “members of the Armed Forces and Merchant Marines of the United States, their spouses, and dependents residing with them.” See S.C. Code Ann. § 7-15320(B).
51. South Carolina’s historical turnout statistics reflect the restrictions imposed by the Absentee Ballot Restriction. In 2016, 75% of voters aged 65 and over participated in the election, as compared to only 59% of voters between 18 and 24 years old. In 2018, the turnout rate of older voters similarly nearly doubled the youth turnout rate—with 68% of the former group participating in the election, but only 35% of the latter.
52. As South Carolinians socially distance themselves to comply with public health advice and protect themselves and their community against the spread of the virus, the Absentee Ballot Age Restriction prohibits the majority of South Carolina’s voters from exercising their right to vote safely from their homes—for no other reason than their chronological age.
53. The disparity in turnout rates in voters by age is likely to only increase as younger voters are forced to choose between exercising their right to vote and putting themselves, and their communities at risk by voting in-person on election day—the only means by which South Carolina will permit most of them to access the franchise.
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54. As jurisdictions that have held elections since the pandemic began have discovered, even in communities where mail-in voting is broadly available, a substantial number of voters will have no choice but to appear to vote in person. The result has been extraordinarily long lines, as voters attempt to comply with social distancing protocol and navigate overstressed and substantially understaffed polling locations.
55. Political scientists have consistently found that young voters are particularly susceptible to being disenfranchised by long lines. Thus, this public health crisis only exacerbates the disenfranchising effects of the Absentee Ballot Age Restriction.
56. In South Carolina, more people who are permitted to vote by absentee ballot have been choosing to do so. For example, during the February 2020 Democratic Presidential Preference Primary (“PPP”), the State saw a 38 percent increase in absentee voting compared to the Democratic PPP election in 2016. Similarly, there was a 29 percent increase in absentee voting from 2012 to 2016 general elections. This trend shows that voting by absentee ballot is, for obvious reasons, the best option for voting in the current pandemic and other voters should not be prohibited from doing the same. C. South Carolina imposes a number of additional hurdles that threaten
disenfranchising lawful voters who vote using absentee voting. 57. For those who are able to vote by absentee ballot in South Carolina, there are additional restrictions they must contend with to avoid disenfranchisement by using this method of voting. The additional provisions challenged in this litigation and are discussed briefly below.
The Witness Requirement 58. For an absentee ballot to be counted, a voter must sign the oath on the back of the return envelope and that oath must be witnessed by another individual, whose address “shall appear on the oath.” S.C. Code Ann. § 7-15-380; see also id. §§ 7-15-220, -385.
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59. Election officials must reject all unwitnessed ballots and need not give the voter notice or an opportunity to cure. S.C. Code Ann. § 7-15-420.
60. Over a quarter of a million South Carolinians are estimated to live alone. A significant portion of this population is comprised of elderly South Carolina citizens who are most at risk from COVID-19. In fact, almost 12 percent of all South Carolina households consist of a single person age 65 or over living alone.
61. The proportion of South Carolinians who live alone is also more significant in the State’s African American population. Of all African American households, 33.2% consist of people who live alone, whereas only 28.2% of all white households include people who live alone. Thus, African American voters will be more likely to need to risk exposure to COVID-19 in order to obtain a witness signature for their absentee ballots.
62. The Witness Requirement requires voters to leave the safety of their homes during the ongoing pandemic and find and procure a witness in order to exercise their right to vote.
63. The Governor’s current order requires voters to shelter in place. If voters leave their homes, the government requires that they maintain at least six feet of distance from other individuals, consistent with guidance from public health officials and doctors. In addition, the voter and witness will have to touch the same object⸺the ballot⸺to provide a signature. Thus, this requirement increases the risk of COVID-19 transmission.
THE POSTAGE TAX 64. South Carolina does not provide pre-paid postage on its absentee ballots. Thus, voters who mail in their absentee ballot must independently secure and append the correct amount of postage to their ballot for their vote to be counted.
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65. As a result, South Carolina imposes a monetary cost on voters whose only option to safely cast a ballot is to do so by mail.
66. The Postage Tax amount can range from $0.55 for a United States Postal Service (“USPS”) Forever Stamp to more if the absentee ballot needs to be shipped in an expedited manner—something that many voters may deem necessary to ensure that their ballot, which they may not receive until close to election day, is received in time for the Election Day Cutoff.
67. As a result of the devastating economic impacts of the coronavirus, many voters’ sources of income have been eviscerated. Thus, while the costs of a stamp or overnighting their ballot may have previously been inconsequential, for an increasing number of voters finding themselves in an increasingly desperate economic situation, this will no longer be the case.
68. There are also substantial ancillary burdens that extend beyond the monetary cost of a stamp that are uniquely exacerbated by the current crisis. Every voter who wishes to mail their absentee ballot but lacks adequate postage at home will need to obtain postage. More likely than not, this will require the voter to break social distancing protocol and engage in in-person interactions that risk spreading or contracting COVID-19.
69. Given that many voters who will request absentee ballots will be doing so precisely because they are immunocompromised, have conditions placing them at high risk for COVID-19, or are generally concerned about their health or the health of their family and friends, they will be far less likely to venture out to purchase stamps if they do not already have them in their home or to leave home to go to the post office.
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ELECTION DAY CUTOFF 70. Even if a voter successfully navigates the Witness Requirement and the Postage Tax, in order to be counted, the voter’s mail-in absentee ballot must be received by 7:00 p.m. on Election Day. S.C. Code Ann. § 7-15-230. 71. The Election Day Cutoff means that, regardless of the date a ballot is postmarked, and regardless of how responsible a voter was in timely mailing their absentee ballot, if an absentee ballot is not received by 7:00 p.m. on Election Day, it will be rejected.1 72. Although state law gives county election officials until 12:00 pm on the Saturday after the election to complete the canvass and certify the count to the Board of State Canvassers, S.C. Code Ann. § 7-17-20, the Board of State Canvassers has the authority to begin its canvassing 15 days after the election, id. § 7-17-230. And voters who fill out provisional ballots because they forgot their photo identification can show up at a hearing two days after a primary and three days after a general election to present it. Id. § 7-13-710(C)(1). 73. The Election Day Cutoff has caused numerous numbers of lawful ballots to be rejected in prior elections, even before the onset of the pandemic. 74. In 2018, for example, over 1,330 timely requested absentee ballots arrived too late to be counted during the 2018 statewide general election. 75. Even in more ordinary years, when voters have requested more absentee ballots than elections officials originally anticipated there have been concerns that elections officials
1 The term “postmark” refers to any type of imprint applied by the U.S. Postal Service to indicate the location and date the Postal Service accepts custody of a piece of mail, including bar codes, circular stamps, or other tracking marks. Where a ballot does not bear a postmark date, it should be presumed to have been mailed on or before election day unless the preponderance of the evidence demonstrates it was mailed after election day.
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would be unable to process the influx of applications in a timely fashion, so as to dispatch the ballots out to the voters sufficiently in advance of the election to have then returned by the Cutoff.
76. For example, during the 2016 general election, where the State saw a more than 20 percent increase in the number of absentee ballots requested, a Commission spokesperson stated that voters “could be putting [their] ballot[s] at risk” given that the amount of time it could take for applications and ballots to pass through the mail. Bristow Marchant, 400,000+ in SC expected to vote before Election Day, The State, Nov. 1, 2016, https://www.thestate.com/news/politicsgovernment/article111671007.html.
77. In fact, even earlier this year, some counties in South Carolina mailed absentee ballots late to voters even before the state of emergency. Matt Moore, Mailed absentee ballots sent late in Greenville County, https://www.wyff4.com/article/south-carolina-democraticprimary-absentee-ballots-mailed-late/31138127 (Feb. 28, 2020).
78. The pandemic will only make this situation more dire, and for a greater number of voters. Despite the strict limitations that South Carolina puts on the types of voters who may vote by absentee ballot, the State has already seen a record increase in requests for absentee ballots since the pandemic began.
79. As of April 23, nearly 40,000 South Carolinians had already requested their absentee ballots for the June primary elections. In comparison, in the 2018 primary, only approximately 19,000 South Carolinians voted absentee by mail.
80. Commission Director Andino anticipated this sharp increase, noting that “[e]ven before the coronavirus pandemic, elections officials were challenged with a significant increase in the number of absentee ballots.” Ex. 1 at 4.
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81. At the same time that mail-in voting is increasing exponentially, USPS is facing a budget crisis that will likely lead to delays in mail delivery, raising particular concerns for South Carolina, which already experiences slow mail service.
82. In the recent primary election in Wisconsin, a massive increase in requests for absentee ballots, combined with decreases in available elections staff, placed a significant strain on local election officials, several of which were not able to send voters a ballot in time for it to be returned—or even delivered to them—by the election day receipt deadline normally imposed in that State. See Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-249-wmc, 2020 WL 1638374, at *38-39 (W.D. Wis. Apr. 2, 2020).
83. This crisis ultimately necessitated federal litigation that reached the U.S. Supreme Court and resulted in extension of the Election Day receipt deadline by six days, so long as the ballots were postmarked by Election Day. See Republican Nat’l Comm. v. Democratic Nat’l Comm., No. 19A1016, 2020 WL 1672702, at *2 (Apr. 6, 2020); See Bostelmann, 2020 WL 1638374, at *38-39. As a result, over 100,000 ballots that would have been rejected were counted because they were postmarked by, but arrived after, Election Day.
ABSENTEE BALLOT ASSISTANCE BAN 84. As an alternative to returning the absentee ballot by mail, voters may authorize another person to return their absentee ballots. S.C. Code Ann. § 7-15-385. The authorization must be signed and “given in writing on a form prescribed by the State Election Commission and must be turned in to the board of voter registration and elections at the time the envelope is returned.” Id. 85. However, “[a] candidate or a member of a candidate’s paid campaign staff including volunteers reimbursed for time expended on campaign activity is not permitted to serve
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as an authorized returnee for any person unless the person is a member of the voter’s immediate family.” Id.
86. Thus, the Absentee Assistance Ban prohibits candidates and paid campaign staff from assisting any non-immediate family members with returning their ballots, even if that voter asks for help because they have a disability or cannot read or write, or are sheltering at home and afraid to venture out to return the ballot themselves, but are concerned that their ballot will not reach the appropriate elections officials in time to be counted.
87. A violation of the Absentee Assistance Ban is punishable as a felony punishable by a fine up to $1,000 or term of imprisonment up to five years. S.C. Code. Ann. § 7-25-190.
88. As noted above, even before the COVID-19 crisis, the Commission expressed concern that voters who returned their absentee ballots by mail put their ballots at risk of not being counted.
89. But with the additional stressors placed on individual voters, the postal service, and elections officials as a result of the pandemic, the Absentee Assistance Ban becomes all the more problematic, prohibiting candidates and their paid campaign staff from helping to assist voters in having their ballots timely cast as they continue to social distance. D. South Carolina’s history of racial discrimination exacerbates the racially disparate
impact of the Challenged Provisions during this pandemic. 90. South Carolina has a lengthy history of discrimination that has made it more difficult for African Americans to participate in the political process and elect candidates of their choice. 91. Around 40 percent of all enslaved Africans forcibly brought to the United States arrived in Charleston harbor. Although many enslaved Africans who arrived in Charleston were
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sold and transported away from the State, a great many stayed in South Carolina. By 1860, enslaved Africans made up more than 55% of the population of South Carolina.
92. In the period immediately following the Civil War, South Carolina’s sizeable African-American population exercised its newfound freedom at the ballot box by electing a significant number of African Americans to state political offices. S.C. H. Con. Res. 3695 (Mar. 13, 2007) (identifying “former slaves and their descend[a]nts [who] took their rightful seats in the highest offices of the state and federal governments”).
93. But when Reconstruction ended and federal troops left the State, so, too did hopes for African-American political opportunity and equality.
94. White South Carolinians enacted legislation to quell African-American political participation after Reconstruction. In 1895, South Carolina adopted a literacy test that effectively disenfranchised the majority of African American voters. That same year, South Carolina instituted a poll tax, which it kept in place through 1950. And from 1896 until 1947—three full years after the Supreme Court decided the issue in Smith v. Allright—South Carolina maintained an all-white primary. Elmore v. Rice, 72 F. Supp. 516 (D.S.C. 1947).
95. Segregated education was de jure throughout South Carolina until the Supreme Court’s decision in Brown v. Board of Education, a consolidated case that included Briggs v. Elliot, a challenge to school segregation in Clarendon County, South Carolina.
96. After the Supreme Court cosigned Judge Waites Waring’s dissenting assertion that “[s]egregation is per se inequality,” Briggs v. Elliott, 98 F. Supp. 529, 548 (E.D.S.C. 1951), most white public schools in South Carolina did not desegregate until a 1970 order from the Fourth Circuit. Stanley v. Darlington Cty. Sch. Dist., 424 F.2d 195 (4th Cir. 1970) (requiring immediate implementation of Brown v. Board of Education).
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97. But because of racial segregation in housing and the proliferation of whites-only private school “segregation academies” in the 1960s and 1970s, true integration never occurred. Jennifer Berry Hawes, Seanna Adcox, Paul Bowers, Thad Moore, and Glen Smith, Minimally Adequate – Part Two: No accident of history, Post & Courier (Nov. 14, 2018), https://data.postandcourier.com/saga/minimally-adequate/page/2.
98. The effects of racially segregated schools and racially disparate treatment of public schools lingered for decades, leading 36 predominately African-American and socioeconomically disadvantaged school districts along I-95—the Corridor of Shame—to file a lawsuit against the State for alleging inadequate funding and resource allocation in 1999. See Abbeville Cty. Sch. Dist. v. State, 515 S.E.2d 535 (S.C. 1999).
99. After nearly two decades of litigation, the South Carolina Supreme Court issued an opinion just six years ago, upholding the trial court’s finding that children in the plaintiff school districts were denied a “minimally adequate education.” Abbeville Cty. Sch. Dist. v. State, 767 S.E.2d 157, 163 (S.C. 2014).
100. The case continued to wind its way through the State court system until November 2017, when a divided South Carolina Supreme Court ended its oversight of the General Assembly. Abbeville Cty. Sch. Dist. v. South Carolina, Appellate Case No. 2007-065159 (S.C. Nov. 17, 2017).
101. Because of its history of racial discrimination, South Carolina was required to seek preclearance for all new voting changes from 1964 until 2013, when the Supreme Court held that the coverage formula used in Section 4(b) of the Voting Rights Act was unconstitutional. Shelby Cty., Ala. v. Holder, 570 U.S. 529 (2013).
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102. During the time that South Carolina was subject to the preclearance requirement, the State experienced marked improvements in African Americans registration and voting and, relatedly, in the overall representation of African-American elected officials in the State.
103. Nevertheless, South Carolina has a recognized history of racially polarized voting that continues to this day. Colleton Cty. Council v. McConnell, 201 F. Supp. 2d 618, 640 (D.S.C. 2002) (“The history of racially polarized voting in South Carolina is long and well-documented— so much so that in 1992, the parties in Burton [v. Sheheen] stipulated that since 1984 there is evidence of racially polarized voting in South Carolina.”) (quotation marks omitted); Smith v. Beasley, 946 F. Supp. 1174, 1202 (D.S.C. 1996) (“In South Carolina, voting has been, and still is, polarized by race.”); see also United States v. Charleston Cty., 316 F. Supp. 2d 268, 278 (D.S.C. 2003), aff’d sub nom. United States v. Charleston Cty., S.C., 365 F.3d 341 (4th Cir. 2004) (“Even in general election contests for Charleston County Council involving no African-American candidates, there was polarization between African-American and white voters 87.5% of the time.”); Richard L. Engstrom, The Elephant in the Room: NAMUDNO, Shelby County, and Racially Polarized Voting, 10 n.39–11 n.44 Transatlantica (2015), https://journals.openedition.org/transatlantica/7427 (finding racially polarized voting in 20022010 South Carolina races submitted for preclearance).
104. To that end, no African-American political candidate had been elected to statewide office since 1872. In fact, until Tim Scott was elected to the U.S. Senate in the 2014 special election, no African-American political candidate had won a statewide election in over 120 years. Senator Scott is still the only African American to win a statewide election in South Carolina since Reconstruction.
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105. The lingering effects of racial discrimination in South Carolina can also be observed in the areas of such as economics, housing, and health.
106. Around 25 percent of African Americans in South Carolina live in poverty, which is more than double the poverty rate of white South Carolinians. Consistent with these findings, the median income of African-American South Carolinians is slightly more than half of the median income of white South Carolinians, and African-American South Carolinians substantially trail white South Carolinians in other traditional economic indicators such as home ownership rates and home values.
107. With respect to health outcomes, African Americans in South Carolina have a higher prevalence of diabetes, hypertension, obesity, physical inactivity, poor health, and poor diet than whites in South Carolina, and this holds true for urban and rural areas. See, e.g., Sarah Levin et al., Racial/Ethnic Health Disparities in South Carolina and the Role of Rural Locality and Educational, 94 S. Med. J. 711–18 (2001).
108. Decades of research have demonstrated that deficiencies in socioeconomic standing, such as those described above, significantly impact an individual’s ability to participate fully in the political process.
109. COVID-19 operates to significantly exacerbate the disparate challenges faced by African American voters in South Carolina.
110. Dr. Linda Bell, the State Health Department’s epidemiologist, has warned that African Americans are “at an increased risk for complications [from the virus] should they become infected” because they disparately suffer from underlying health conditions like cardiovascular disease, diabetes, obesity, lung disease, and asthma that have been found to make the virus more dangerous, and because “they are less likely to have access to health care.” Sammy Fretwell,
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Weakened minority health office left blacks vulnerable to coronavirus, critics say, The State (Apr. 27, 2020), https://www.thestate.com/news/local/environment/article242274416.html.
111. The Brookings Institute has stated that, “structural conditions that inform preexisting conditions and health disparities are the main culprit” behind the racially disproportionate impact that COVID-19 is having on African Americans. Rashawn Ray, Why are Blacks dying at higher rates from COVID-19?, Brookings (Apr. 9, 2020), https://www.brookings.edu/blog/fixgov/2020/04/09/why-are-blacks-dying-at-higher-rates-fromcovid-19/ (identifying facts that African Americans are more likely to live in “neighborhoods [] rooted in the historical legacy of redlining,” reside in densely populated areas that increase contact with other people, and be involved in “essential” work as reasons why African-American infection and death rate outpaces African-American population percentage).
112. These disparate health outcomes significantly impact an individual’s ability to fully participate in the political process, as the interaction between these disparities, the lingering impact of racial discrimination, and the Challenged Provisions in the wake of the COVID-19 pandemic make clear.
113. African Americans who must leave their homes in order to engage in the voting process—either because the Absentee Ballot Age Restriction prohibits them from voting by absentee ballot, or as a result of features of the absentee ballot process, including the Postage Tax or the Witness Requirement—risk not only their own health but the broader well-being of their communities in a manner that is more acutely felt among South Carolina’s African American communities, which have proved far more vulnerable to the virus than their white South Carolinian counterparts.
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114. Further, given the higher rates of poverty, African-American voters often have less access to reliable transportation and less flexible work schedules, both of which make it more difficult for them to travel to the post office to purchase postage or travel to the county board of registration and elections’ office to submit their ballots in time to meet the Election Day Cutoff. For the same reasons, African Americans are far more likely to be disenfranchised if they are forced to wait in long lines to vote.
CLAIMS FOR RELIEF COUNT I
Twenty-Sixth Amendment U.S. Const. amend. XXVI; 42 U.S.C. § 1983 Denial or Abridgement of the Right to Vote on Account of Age
(Absentee Ballot Age Restriction) 115. Plaintiffs incorporate by reference and reallege all prior paragraphs of this Complaint and the paragraphs in the counts below as though set forth fully herein. 116. The Twenty-Sixth Amendment to the U.S. Constitution provides: “[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by . . . any State on account of age.” U.S. Const. amend. XXVI, § 1. 117. Thus, by its plain terms, the Twenty-Sixth Amendment prohibits restrictions on the right to vote “on account of age.” 118. The Twenty-Sixth Amendment guarantees young, qualified voters a substantive right to participate equally with other qualified voters in the electoral process and broadly protects against both blatant and subtle forms of discrimination. See, e.g., Colo. Project-Common Cause v. Anderson, 495 P.2d 220, 223 (Colo. 1972) (holding based on “[h]istory and reason” that the Twenty-Sixth Amendment’s “prohibition against denying the right to vote to anyone eighteen
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years or older by reason of age applies to the entire process involving the exercise of the ballot and its concomitants”).
119. As a result, laws that have the purpose, at least in part, of denying or abridging the right to vote on account of age are unconstitutional. League of Women Voters v. Detzner, 314 F. Supp. 3d 1205, 1222–23 (N.D. Fla. 2018) (holding plaintiffs were substantially likely to succeed on merits of Twenty-Sixth Amendment claim in challenge to restrictive state guidance “unexplainable on grounds other than age”).
120. In direct contravention of the Twenty-Sixth Amendment, the Absentee Ballot Age Restriction facially discriminates on the basis of age by making voting by absentee ballot available due solely to a voter’s age.
121. Absent relief, voters under the age of 65 like Plaintiffs Middleton, Tedder, and Winbush will continue to suffer the effects of unconstitutional discrimination because of age.
COUNT II First Amendment and Equal Protection U.S. Const. amends. I, XIV, 42 U.S.C. § 1983
Undue Burden on the Right to Vote (Absentee Ballot Age Restriction, Postage Tax, Witness Requirement, Absentee Assistance
Ban) 122. Plaintiffs incorporate by reference and reallege all prior paragraphs of this Complaint and the paragraphs in the counts below as though set forth fully herein. 123. Under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, a state cannot utilize election practices that unduly burden the right to vote. “There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right to vote includes the right to have the ballot counted.” Reynolds v. Sims, 377 U.S. 533, 555 n.29 (1964) (citation and quotation omitted).
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124. A court considering a challenge to a state election law must carefully balance the character and magnitude of injury to the First and Fourteenth Amendment rights that a plaintiff seeks to vindicate against the justifications put forward by the state for the burdens imposed by the rule. See Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). “However slight th[e] burden may appear, . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling opinion) (internal quotation marks omitted). “We believe that a regulation which imposes only moderate burdens could well fail the Anderson balancing test when the interests that it serves are minor, notwithstanding that the regulation is rational.” McLaughlin v. N. Carolina Bd. of Elections, 65 F.3d 1215, 1221 n.6 (4th Cir. 1995). “This balancing test requires hard judgments—it does not dictate automatic results.” Libertarian Party of Va. v. Alcorn, 826 F.3d 708, 716 (4th Cir. 2016) (quotation marks omitted).
125. A court considering a challenge need not accept a state’s justifications at face value, particularly where those justifications are “speculative,” otherwise it “would convert AndersonBurdick’s means-end fit framework into ordinary rational-basis review wherever the burden a challenged regulation imposes is less than severe.” Soltysik v. Padilla, 910 F.3d 438, 448–49 (9th Cir. 2018); see McLaughlin, 65 F.3d at 1221 n.6.
126. Here, unless Plaintiffs are granted the relief requested herein, the right to vote of thousands of South Carolina voters, including Plaintiffs and their constituents, will be severely burdened (and in some cases, entirely denied) by the Challenged Provisions, which will operate, both independently and together, to unduly burden the right without sufficient justification to outweigh the imposition of that burden.
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127. Because of the virulent spread of the dangerous novel coronavirus and the disease it causes, COVID-19, as well as the unprecedented social distancing measures that South Carolina citizens must take to slow the spread of the virus and to ensure their safety as well as the safety of their friends, families, and neighbors, many of whom would have voted in-person on Election Day will no longer have an opportunity to do so safely.
128. The Absentee Ballot Age Restriction categorically forces people under 65 years of age to vote in person on election day. Given the lack of early voting and the inevitable poll closures, South Carolinians will have to stand for a long time in lines with many other people, increasing their risk of exposure to COVID-19. In light of the current pandemic, this restriction will require people to endanger their health in order to vote, an undue burden.
129. The voters who choose not to endanger their lives or the safety of their families or communities through in-person voting on Election Day will have to pay to vote because the absentee ballot postage is not pre-paid. In addition, some will have to put themselves at risk to obtain postage from the Post Office or other locations open to the public.
130. The State has no legitimate interest in imposing the Postage Tax. Providing postage to allow citizens to complete voting as well as other important government-related functions is a common practice that has been adopted by federal, state, and county governments. Indeed, South Carolina provides, as the National Voter Registration Act requires, a postage-prepaid return envelope when it asks voters to verify their address for the purpose of voter registration.
131. The Witness Requirement will also severely burden, and in some cases disenfranchise, lawful, eligible South Carolina voters who do not live with another individual who can witness their ballot. The Witness Requirement forces those voters to put themselves at risk of transmitting or catching COVID-19 because the voter and witness will have to touch the same item
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and be in physical proximity. There also is no colorable state justification for this requirement in view of the COVID-19 crisis and the social distancing recommendations.
132. Lastly, the Absentee Assistance Ban imposes an undue burden on mail-in absentee voters because it will effectively disenfranchise voters who require assistance turning in their mailin absentee ballots, particularly those whose work schedules, family care responsibilities, lack of transportation, language barriers, disabilities, inability to afford the Postage Tax, or need to remain socially distanced during the COVID-19 pandemic make returning mail-in absentee ballots before the Election Day Cutoff more difficult, if not impossible. And in a time where the mail delivery is especially delayed given COVID-19, Candidates and their campaign staff barred by the Absentee Assistance Ban from helping voters to submit their mail-in absentee ballots play an important role in ensuring that these South Carolinians have an opportunity to exercise their right to vote. The State’s interest in enforcing the Absentee Assistance Ban cannot justify disenfranchising voters who require assistance because they choose to seek assistance from candidates and their campaigns.
133. Based on the foregoing, Defendants, acting under color of law, by enforcement of the Challenged Provisions will deprive Plaintiffs, their members, constituents, the rights secured to them by the First and Fourteenth Amendments to the U.S. Constitution and protected by 42 U.S.C. § 1983.
COUNT III Poll Tax
U.S. Const. Amend. XIV and XXIV, 42 U.S.C. § 1983 Imposition of a Poll Tax (Postage Tax)
134. Plaintiffs incorporate by reference and reallege all prior paragraphs of this Complaint and the paragraphs in the counts below as though set forth fully herein.
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135. The Twenty-Fourth Amendment to the United States Constitution provides that: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.” U.S. Const. amend. XXIV § 1.
136. South Carolina’s requirement that individuals who cast a mail ballot must pay to return those ballots by mail unconstitutionally forces voters to pay “a price for the privilege of exercising the franchise.” Harman v. Forssenius, 380 U.S. 528, 539 (1965). It thus cannot be sustained.
137. During the COVID-19 public health crisis, the only safe way for many South Carolina voters to cast their ballots will be by mail absentee. Indeed, the CDC recommends for voters who are legally permitted to cast their ballots by mail to do so. CDC, Recommendations for Election Polling Locations, https://www.cdc.gov/coronavirus/2019-ncov/community/electionpolling-locations.html (encouraging mail-in voting and early voting, if permitted by the jurisdiction). But if voters must spend money to safely exercise their right to vote—whether in the form of paying a fee or paying for postage—they are subject to a poll tax.
138. Based on the foregoing, the Defendants’ enforcement of the Postage Tax has burdened and deprived and will continue to burden and deprive voters like Plaintiffs Middleton, Tedder, Wells, Dixon, Winbush, and Moore, as well as the members of Plaintiffs SCDP, DNC, and DCCC, of their right to vote in federal elections, secured to them by the Twenty-Fourth Amendment to the United States Constitution and protected by 42 U.S.C. § 1983.
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COUNT IV Section 2 of the Voting Rights Act
52 U.S.C. § 10301 Vote Denial
(Postage Tax, Witness Requirement, Election Day Cutoff, Absentee Ballot Age Restriction, and Absentee Assistance Ban)
139. Plaintiffs incorporate by reference and reallege all prior paragraphs of this Complaint and the paragraphs in the counts below as though set forth fully herein.
140. Section 2 of the Voting Rights Act prohibits vote denial: the use of voting laws, policies, or practices, like absentee ballot procedures and qualifications, that deny, abridge, or otherwise limit African-American voter access or increase the burden for African-American people to exercise the right to vote. 52 U.S.C. § 10301. Discriminatory intent is not required to prove a Section 2 violation.
141. “The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority] and white voters to elect their preferred representatives.” Thornburg v. Gingles, 478 U.S. 30, 47 (1986).
142. Section 2 requires a “totality of the circumstances” analysis that includes, but is not limited to factors such as (1) the history of voting-related discrimination in the pertinent State or political subdivision; (2) the extent to which voting in the elections of the pertinent State or political subdivision is racially polarized; (3) The extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; and (4) the extent to which members of the minority group have been elected to public office in the jurisdiction. League of Women Voters of N. Carolina v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014) (citing Gingles, 478 U.S. at 44–45).
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143. There is a history of voting-related discrimination against African Americans in the State of South Carolina. Moreover, voting in South Carolina is highly polarized, no African American has been elected to statewide office since Reconstruction, and the shameful legacy of racial discrimination is visible today in South Carolina’s housing, economic, and health disparities.
144. African Americans in South Carolina are acutely and disparately impacted by COVID-19, which compounds the deleterious impact of the already-present disparate impact of interrelated economic, housing, and health disparities that stem from past discrimination. Housing in South Carolina is often segregated by race, and African American South Carolinians are more likely to have health conditions that place them at high risk for COVID-19 infection. This means that even if a particular African American South Carolina voter does not have a health condition that places them at risk for COVID-19 infection, they likely live in a community with members who are at high risk for COVID-19 infection.
145. COVID-19 exacerbates the social and historical conditions discussed above “to cause an inequality in the opportunities enjoyed by [African American] and white voters to elect their preferred representatives.” Gingles, 478 U.S. at 47. For the personal and community health reasons mentioned above, African American voters in South Carolina have a greater incentive to cast an absentee ballot than their white counterparts. This, along with historical socioeconomic factors, means that African American voters who vote absentee to safely cast their ballots by practicing social distancing are disproportionately impacted by the Challenged Provisions.
146. Under the totality of circumstances—which here includes not only the history of past racial discrimination and its lingering impacts but also a fatal virus that is having a disparate impact on African Americans precisely because of the residual impacts of the State’s long history of racial discrimination—the Challenged Provisions abridge and in some cases entirely deny the
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rights of African American voters like Plaintiffs Middleton, Tedder, Wells, Dixon, Winbush, and Moore, as well as the majority of South Carolinian African American voters overwhelmingly support the candidates and issues championed by Plaintiffs SCDP, DNC, and DCCC. African American voters have less opportunity than white voters in the State of South Carolina to participate in the political process and elect representatives of their choice in violation of Section 2. 52 U.S.C. § 10301.
COUNT V Freedom of Speech U.S. Const. Amends. I, XIV, 42 U.S.C. § 1983 Infringement on Speech (Absentee Assistance Ban) 147. Plaintiffs incorporate by reference and reallege all prior paragraphs of this Complaint and the paragraphs in the counts below as though set forth fully herein. 148. The First Amendment protects against the promulgation of laws “abridging the freedom of speech” or “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. 149. The Supreme Court has applied “exacting scrutiny” to review laws governing election-related speech. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995); see also League of Women Voters v. Hargett, 400 F. Supp. 3d 706, 722 (M.D. Tenn. 2019) (“[L]aws that govern the political process surrounding elections—and, in particular, election-related speech and association—go beyond merely the intersection between voting rights and election administration, veering instead into the area where ‘the First Amendment has its fullest and most urgent application.’”) (quoting Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989)). Restrictions on such speech are unconstitutional when they “significantly inhibit”
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election-related speech and are “not warranted by the state interests . . . alleged to justify [the] restrictions.” Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 192 (1999).
150. Voter turnout efforts, including assisting voters with the submission of absentee ballots, are a means by which candidates like Plaintiffs Middleton and Tedder and their campaigns communicate their belief in the power and importance of participating in democratic elections, and in encouraging voters to vote by absentee ballot. Such activity is “the type of interactive communication concerning political change that is appropriately described as ‘core political speech.’” Meyer v. Grant, 486 U.S. 414, 421-22 (1988); see League of Women Voters, 400 F. Supp. 3d at 720 (“Encouraging others to register to vote is pure speech, and, because that speech is political in nature, it is a core First Amendment activity.”) (internal quotation marks and alterations omitted). And it does not matter if the individuals performing those acts are candidates or paid campaign staff and volunteers. The act of assisting voters to submit ballots by any individuals is inherently expressive and an individual that conducts such activities engages in speech by encouraging voting and voting by absentee ballot in particular. See Bernbeck v. Moore, 126 F.3d 1114, 1115 (8th Cir. 1997) (rejecting the argument that regulating an election “process” raises no First Amendment concerns).
151. Furthermore, under the United States Constitution, First Amendment rights “include the right to band together for the advancement of political beliefs.” Hadnott v. Amos, 394 U.S. 358, 364 (1969).
152. The conversations and interactions between Plaintiffs, their campaign staff, and voters surrounding the submission of mail-in absentee ballots are forms of protected political speech and association. See Williams v. Rhodes, 393 U.S. 23, 30 (1968) (describing the “overlapping” rights “of individuals to associate for the advancement of political beliefs” and “of
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qualified voters . . . to cast their votes effectively”); Project Vote v. Blackwell, 455 F. Supp. 2d 694, 700 (N.D. Ohio 2006) (explaining that “participation in voter registration implicates a number of both expressive and associational rights which . . . belong to—and may be invoked by—not just the voters seeking to register, but by third parties who encourage participation in the political process through increasing voter registration rolls”). Thus, by limiting the ability of candidates like Plaintiffs Tedder and Middleton and their campaign staff to assist voters to deliver mail-in absentee ballots, the Absentee Assistance Ban burdens the speech and associational rights of Plaintiffs, their campaign staff, and South Carolina voters who seek their assistance.
153. Moreover, the threat of significant fines for violating these laws deters individuals from participating in Plaintiffs Middleton and Tedder’s GOTV efforts and has a chilling effect on Plaintiffs Middleton and Tedder’s GOTV efforts, including their speech. See League of Women Voters, 400 F. Supp. 3d at 720 (noting that the threat of civil penalties “is likely to have a chilling effect on the entirety of [a voter registration] drive, including its communicative aspects.”).
154. The burdens the Absentee Assistance Ban impose are severe, and the ban is not justified by a compelling state interest. Thus, the Absentee Assistance Ban represents an overbroad restriction on political speech that infringes on the rights of Plaintiffs Tedder and Middleton and other South Carolinians under the First Amendment.
COUNT VI Violation of Section 208 of the Voting Rights Act of 1965,
52 U.S.C. § 10508 Preemption
(Absentee Assistance Ban) 155. Plaintiffs incorporate by reference and reallege all prior paragraphs of this Complaint and the paragraphs in the counts below as though set forth fully herein.
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156. The Absentee Assistance Ban conflicts with and violates Section 208 of the Voting Rights Act, 52 U.S.C. § 10508, and is thus preempted and invalid. Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008) (“[S]tate laws that conflict with federal law are without effect.”) (citations omitted); Gade v Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (conflict preemption occurs when (a) where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress, or (b) “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”) (quotation marks omitted).
157. Section 208 of the Voting Rights Act provides that “[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” Within the context of the Voting Rights Act, the act of voting includes “all action necessary to make a vote effective in any primary, special, or general election.” 52 U.S.C. § 10310(c)(1). This includes casting an absentee ballot. OCA-Greater Hous. v. Texas, 867 F.3d 604, 615 (5th Cir. 2017) (“‘To vote,’ therefore, plainly contemplates more than the mechanical act of filling out the ballot sheet. It includes steps in the voting process before entering the ballot box, ‘registration,’ and it includes steps in the voting process after leaving the ballot box, ‘having such ballot counted properly.’ Indeed, the definition lists ‘casting a ballot’ as only one example in a nonexhaustive list of actions that qualify as voting.”). Section 208’s only limitation on this right is that the person providing assistance may not be connected to the voter’s employer or union.
158. Congress passed the Voting Rights Act to correct entrenched “racial discrimination in voting” that was “an insidious and pervasive evil.” South Carolina v. Katzenbach, 383 U.S. 301, 309 (1966). In recommending that Section 208 be added to the Voting Rights Act, the Senate
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Judiciary Committee recognized that voters with disabilities “run the risk that they will be discriminated against at the polls and that their right to vote in State and Federal elections will not be protected.” S. Rep. No. 97-417, at 62 (1982). To limit that risk, those voters “must be permitted to have the assistance of a person of their own choice.” Id.
159. Section 208 preempts the Absentee Assistance Ban because state law criminalizes conduct expressly allowed by Section 208. The Absentee Assistance Ban unlawfully limits the rights afforded to voters by Section 208 by prohibiting voters who need help returning their absentee ballot applications from receiving assistance from the person of their choice. See S.C. Code. Ann. § 7-15-385. Under South Carolina law, a voter is not free to choose anyone they like to help return an absentee ballot. Id. Section 208 cannot be interpreted to permit the Absentee Assistance Ban to stand. See OCA-Greater Hous., 867 F.3d 604 (Section 208 preempted a Texas law restricting who may provide interpretation assistance to English-limited voters); United States v. Berks Cty., Pa., 277 F. Supp. 2d 570, 580 (E.D. Pa. 2003) (county election law restricting who may provide language assistance to Spanish-speaking voters violated Section 208).
160. In fact, in its report recommending that this protection be added to the Voting Rights Act, the Senate Judiciary Committee noted that state restrictions that “deny the assistance at some stages of the voting process during which assistance was needed” would violate Section 208. S. Rep. No. 97-417, at 63 (1982). By prohibiting a voter who needs assistance completing their absentee ballot application from being helped by anyone who offers to help them, the Absentee Assistance Ban also violates Section 208.
161. The Absentee Assistance Ban affects disproportionately South Carolina citizens with disabilities. According to the CDC, approximately 26.3% of adults in South Carolina suffer from some disability. CDC, Disability & Health U.S. State Profile Data for South Carolina (Adults
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18+ years of age), https://www.cdc.gov/ncbddd/disabilityandhealth/impacts/south-carolina.html. In 2012, “close to one-tenth of people with disabilities who voted by mail reported having difficulties in doing so, saying they needed assistance filling out or sending the ballot.” Lisa Schur et al., Accessible Democracy: Reducing Voting Obstacles for People with Disabilities, 14 Election Law J. 60, 63 (2015). The Absentee Assistance Ban makes it harder for those South Carolina citizens to vote because it adds an additional hurdle to even receiving the absentee ballot.
162. Defendants’ enforcement of the Absentee Assistance Ban prevents South Carolina voters with disabilities from receiving the voting assistance that Section 208 of the Voting Rights Act guarantees them.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully request that this Court enter judgment:
a) Declaring that the Absentee Ballot Age Restriction, S.C. Code Ann. § 7-15320(B)(8), facially violates the Twenty-Sixth Amendment to the United States Constitution and, in the context of the coronavirus crisis, is unconstitutional in violation of the First and Fourteenth Amendments;
b) Declaring that the Postage Tax is unconstitutional in violation of the First, Fourteenth, and Twenty-Fourth Amendments;
c) Declaring that, in the context of the coronavirus crisis, the Witness Requirement, S.C. Code Ann. § 7-15-380; see also id. §§ 7-15-220, -385, is unconstitutional in violation of the First and Fourteenth Amendments and violates Section 2 of the Voting Rights Act;
d) Declaring that the Election Day Cutoff, S.C. Code Ann. § 7-15-230 is unconstitutional in violation of the First and Fourteenth Amendments and violates Section 2 of the Voting Rights Act during the current coronavirus - 44 -

3:20-cv-01730-JMC Date Filed 05/01/20 Entry Number 1 Page 45 of 46
crisis; e) Declaring that the Absentee Assistance Ban, S.C. Code Ann. § 7-15-385, is
unconstitutional in violation of the First and Fourteenth Amendments and violates Section 208 of the Voting Rights Act; f) Enjoining Defendant, her respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting absentee ballot applications of otherwise qualified South Carolina voters for the reasons set forth in S.C. Code Ann. § 7-15-320(B)(8); g) Enjoining Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them from requiring that voters provide postage on their absentee ballot return envelopes and further require that South Carolina provide prepaid postage on all absentee ballot return envelopes; h) Enjoining Defendants, and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from rejecting ballots that are postmarked on or before Election Day and arrive at the county board of registrars or absentee ballot clerk’s office within a minimum of ten days after Election Day; Ballots that do not have a postmark or other marking from the USPS shall be presumed to have been mailed by Election Day; i) Enjoining Defendants, and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them from the enforcement of the witness requirement in S.C. Code Ann. § 7-15-380;
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id. §§ 7-15-220, -385, until the COVID-19 crisis is over;
j) Enjoining Defendants, and their respective agents, officers, employees, and
successors, and all persons acting in concert with each or any of them, from
enforcing the Absentee Assistance Ban;
k) Awarding Plaintiffs costs, disbursements, and reasonable attorneys’ fees
incurred in bringing this action pursuant to 42 U.S.C. § 1988 and other
applicable laws; and
l) Granting such other and further relief as the Court deems just and proper.
Dated this 1st day of May, 2020.
Respectfully submitted,
/s/ Christopher J. Bryant
Marc E. Elias* Bruce V. Spiva* K’Shaani O. Smith* Christopher J. Bryant, Federal ID 12538 PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-6211 melias@perkinscoie.com bspiva@perkinscoie.com kshaanismith@perkinscoie.com cbryant@perkinscoie.com
Sopen B. Shah* PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 sshah@perkinscoie.com
Counsel for Plaintiffs * Pro Hac Vice Applications Forthcoming
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Exhibit 1

3:20-cv-01730-JMC Date Filed 05/01/20 Entry Number 1-1 Page 2 of 5

March 30, 2020

COMMISSIONERS JOHN WELLS Chairperson CLIFFORD J. EDLER SCOTT MOSELEY VACANT VACANT
MARCI ANDINO Executive Director
1122 Lady Street Suite 500 Columbia, SC 29201 P.O. Box 5987 Columbia, SC 29250 803.734.9060 Fax: 803.734.9366 www.scvotes.org

Honorable Henry D. McMaster Governor State of South Carolina State House 1100 Gervais Street Columbia, SC 29201
Honorable Harvey Peeler, Jr. President of the Senate S.C. Senate POB 142 Columbia, SC 29202
Honorable Jay Lucas Speaker of the House S.C. House of Representatives POB 11867 Columbia, SC 29202
Dear Governor McMaster, Senator Peeler and Speaker Lucas:
As the state’s chief election agency, the State Election Commission (SEC) is charged by law with supervising the conduct of voter registration and elections throughout the State. This includes ensuring county boards of voter registration and elections comply with federal law, state law, and SEC policies and procedures with regards to voter registration and elections. The SEC also maintains the statewide voter registration system, approves and supports the statewide voting system, conducts a training and certification program for local election officials, conducts candidate filing, and provides a candidate tracking system. However, no provision of state law provides the SEC with emergency powers with regards to the conduct of elections.
As the coronavirus continues to spread across South Carolina and the country, we are concerned about the safe conduct of the June Primaries, November General Election and all other elections scheduled for 2020. The main issue is that our elections, as currently prescribed by law, require large numbers of people to congregate in one place – something that everyone is currently being asked not to do by public safety and health officials. Compounding the issue is the fact that a large percentage of the state’s poll managers fall into high risk categories, which

3:20-cv-01730-JMC Date Filed 05/01/20 Entry Number 1-1 Page 3 of 5
Governor McMaster, Senator Peeler and Speaker Lucas Page 2
would likely lead to a deficit in the number of managers needed to staff polling places. Furthermore, we anticipate county election officials will likely experience issues with the availability of polling places as well as securing alternative polling places. It is likely that a number of facilities (schools, churches, etc.) will decline to continue being used as a polling place.
As currently defined by state law, voters have two options for casting a ballot: 1) in person at their polling place on election day, or 2) in person or by mail absentee voting. Election day voters at the polls present their identification, sign the poll list, and cast their ballot. To cast an absentee ballot, a voter with a qualifying reason must first request, complete, and return an application for an absentee ballot. The voter will then either vote in person or receive an absentee ballot by mail.
In order to safely and securely conduct elections during and following the coronavirus pandemic, we respectfully ask that sincere consideration be given to making emergency changes to our election process. There is no single or easy solution to protecting more than three million voters and election workers during or following a pandemic. The options outlined below represent proven methods used in other states to conduct elections. Some of the options would require careful planning and implementation, while others are easier to implement in a short timeframe.
• Absentee voting o Allow no excuse absentee voting o Allow applications for absentee ballots to be submitted electronically o Remove the witness requirement on ballot return envelopes o Allow voters with disabilities to use our existing electronic ballot delivery tool o Allow first responders and medical personnel to use our existing electronic ballot delivery tool
• Early voting and vote centers • Vote by mail
Absentee Voting
As voters look for ways to safely cast a ballot, we expect voters will likely avoid polling places and seek to vote absentee by mail. To qualify to vote absentee, the voter must fall into one of 18 categories, none of which include self-isolating due to a pandemic. Removing the requirement that a voter must fall into one of these

3:20-cv-01730-JMC Date Filed 05/01/20 Entry Number 1-1 Page 4 of 5
Governor McMaster, Senator Peeler and Speaker Lucas Page 3
categories, i.e. “no excuse” absentee voting, would open the absentee process to all South Carolinians.
To vote absentee, a voter must first request an application. Usually, the application is mailed to the voter, the voter then completes it and returns it to election officials. This process is time consuming and is not designed to accommodate large numbers of voters. Allowing voters to submit absentee ballots requests online would streamline the absentee voting process for voters and election officials. Voters would simply apply online and receive their ballot in the mail.
Absentee voting also requires voters to have another person witness their signature when returning their ballot. While election officials check the voter’s signature, the witness signature offers no benefit to election officials as they have no ability to verify the witness signature. Removing the requirement for a witness signature would remove a barrier many voters would likely encounter while in self-isolation.
Under current law, military and overseas citizens can access their ballot online through the SEC’s ballot delivery tool, mark it, print it and return it to election officials by mail, email or fax. Voters in these categories do not have to wait for their ballot to be sent to them and have additional options in returning their ballots. Like military and overseas citizens, first responders, medical personnel and voters with disabilities face unique barriers to accessing traditional voting methods. Expanding electronic ballot delivery and return to include these groups would help ensure they have access to the voting process.
Early Voting and Vote Centers
Early voting is the process by which any voter can vote during a defined period prior to election day. Early voting can take place in designated early vote centers. The goal of early voting is to relieve congestion at polling places on election day by spreading out the voting process and to increase participation by providing voters with additional voting options. Early voting is currently used in 40 states.
Vote by Mail
In most states that have enacted vote by mail, all registered voters are mailed a ballot prior to every election. The voter then mails the ballot back to election officials or drops the ballot off at a designated drop-off site. Some in-person voting locations would likely still be needed, particularly for voters who need the accessibility features of the ballot-marking devices.

3:20-cv-01730-JMC Date Filed 05/01/20 Entry Number 1-1 Page 5 of 5
Governor McMaster, Senator Peeler and Speaker Lucas Page 4
Even before the coronavirus pandemic, elections officials were challenged with a significant increase in the number of absentee ballots. To reduce the burden, a bill (S867) was introduced to allow county election officials to begin the lengthy process of opening absentee ballots the day before the election. The bill also requires challenges of in-person absentee voters be made at the time the voter casts their ballot. These changes are designed to ensure election officials have the requisite time to process absentee ballots and deliver results on election night as voters expect. Facing an even larger increases in absentee voting due to coronavirus, the changes in this bill are now even more relevant and desperately needed. In fact, when the bill was written, the coronavirus was not a consideration, and the extra 24 hours provided to process ballots will now likely be insufficient. The bill has passed the Senate and resides in the House Election Laws Subcommittee. We ask the General Assembly to at least pass the current bill and to consider amending the bill to allow election officials to begin processing ballots even earlier.
These potential solutions to conducting safe and secure elections in the midst of a pandemic are put forth in the spirit of identifying solutions that will enable the voters of South Carolina to continue to express their will through elections. Allowing no-excuse absentee voting and online absentee requests are relatively simple changes, while implementation of early voting or vote by mail options are significantly more complicated and will require more time to implement. With that in mind, we respectfully ask that any actions under consideration be made as soon as possible so election officials have to as much time as possible to ensure South Carolina is ready for this year’s elections.
Sincerely,
Marci Andino
/mba
Cc: Senator Hugh Leatherman, President Pro Tempore Emeritus Senator A. Shane Massey, Senate Majority Leader Senator Nikki G. Setzler, Senate Minority Leader Senator Luke Rankin, Chairman, Senate Judiciary Representative Thomas E. Pope, House Speaker Pro Tempore Representative J. Gary Simrill, House Majority Leader Representative J. Todd Rutherford, House Minority Leader Representative Peter McCoy, Chairman, House Judiciary Representative G. Murrell Smith, Jr., Chairman House Ways and Means

3:20-cv-01730-JMC Date Filed 05/01/20 Entry Number 1-2 Page 1 of 4
Exhibit 2

3:20-cv-01730-JMC Date Filed 05/01/20 Entry Number 1-2 Page 2 of 4

South Carolina Association of Registration and Election Officials, Inc.

KATY SMITH, CERA PRESIDENT
EXECUTIVE COMMITTEE
KATY SMITH, CERA PRESIDENT
MARIE S. SMALLS, CERA FIRST
VICE PRESIDENT TODD BILLMAN
SECOND VICE PRESIDENT
JOE DEBNEY TREASURER SHAYLA JENKINS SECRETARY LYNNE WEST HISTORIAN DAVID ALFORD IMMEDIATE PAST PRESIDENT

April 6, 2020
Honorable Henry D. McMaster Governor State of South Carolina State House 1100 Gervais Street Columbia, SC 29201
Honorable Harvey Peeler, Jr. President of the Senate S.C. Senate POB 142 Columbia, SC 29202
Honorable Jay Lucas Speaker of the House S.C. House of Representatives POB 11867 Columbia, SC 29202
DELIVERY VIA EMAIL
Dear Governor McMaster, Senator Peeler and Speaker Lucas:
The South Carolina Association of Registration and Election Officials, Inc. (SCARE) Executive Committee has reviewed and discussed the recent letter sent by Marci Andino, Executive Director of the State Election Commission asking consideration “to making emergency changes to our election process” that included outlined methods used in other states to conduct elections. The committee believes that we should hold to our purpose “to review and promote legislation which will endorse the efficiency of the registration and election process in South Carolina” The committee feels that our weighing in by clearly voicing a position of support of the “voting by mail method” is the best voting method under the current health threats in our state; however, understanding that some components of the other proposed options are viable solutions that may be incorporated to help compose a complete workable plan and solution when conducting elections during and after a pandemic.
We have elections that have been postponed and other elections upon us that need our collective ideas, experiences, analysis, and consideration on how to conduct them efficiently under current and unknown threats. It is important that we are able to collectively come together to affect change in a timely manner in order to conduct elections in South Carolina that are not only open, transparent and fair, but also conducted in a way that minimizes risk of exposure to such threats as the current COVID19 virus.

301 N. Main Street, PO Box 8002, Anderson, South Carolina 29622 Telephone: 864.260.4035 Fax 864.260.4203 Email: ksmth@andersoncountysc.org

3:20-cv-01730-JMC Date Filed 05/01/20 Entry Number 1-2 Page 3 of 4

South Carolina Association of Registration and Election Officials, Inc.

KATY SMITH, CERA PRESIDENT

Governor McMaster, Senator Peeler and Speaker Lucas

EXECUTIVE COMMITTEE Page 2

KATY SMITH, CERA PRESIDENT
MARIE S. SMALLS, CERA FIRST
VICE PRESIDENT
TODD BILLMAN SECOND
VICE PRESIDENT
JOE DEBNEY TREASURER
SHAYLA JENKINS SECRETARY
LYNNE WEST HISTORIAN
DAVID ALFORD IMMEDIATE
PAST PRESIDENT

We the executive committee have a moral obligation to make known our concerns regarding our elections process. We need a plan in place that protects our voters, staff, facility owners, communities, and poll managers in the midst and following a pandemic. Delaying or postponing elections should only be done to allow time for current conditions to improve, to provide time for proper planning, preparation, and ensure funding, but should not be considered the solution or that delaying addresses the concerns of public protection of health and safety when casting a ballot.

As a proactive approach the executive committee discussed the various options being proposed to conduct elections in the safest way possible. The determination was made that vote by mail is the best option considering this pandemic, but again, with the understanding that some components of the other proposed options are viable solutions that may be incorporated to help compose a complete workable plan and solution when conducting elections by mail.

Below are the reasons vote by mail is considered the best option:

•

Health and safety of voter and poll managers.

•

Unavailability of locations and poll mangers.

•

Vote by mail limits person to person contact while

still allowing elections to continue uninterrupted.

According to the 2020 Care Act on page 250, it allows funding for states who have procedures and plans in place for vote by mail. It is important we move quickly to ensure that our counties have the time, resources, and funding to conduct the elections.

While we are still under a cloud of uncertainty regarding the COVID-19 pandemic what is known is that as Election Officials we are tasked with conducting elections, but with that responsibility lies an even higher responsibility of ensuring the safety and health of everyone participating in the election process in South Carolina.

301 N. Main Street, PO Box 8002, Anderson, South Carolina 29622 Telephone: 864.260.4035 Fax 864.260.4203 Email: ksmth@andersoncountysc.org

3:20-cv-01730-JMC Date Filed 05/01/20 Entry Number 1-2 Page 4 of 4

South Carolina Association of Registration and Election Officials, Inc.

KATY SMITH, CERA PRESIDENT

Governor McMaster, Senator Peeler and Speaker Lucas

EXECUTIVE COMMITTEE Page 3

KATY SMITH, CERA PRESIDENT
MARIE S. SMALLS, CERA FIRST
VICE PRESIDENT
TODD BILLMAN SECOND
VICE PRESIDENT
JOE DEBNEY TREASURER
SHAYLA JENKINS SECRETARY
LYNNE WEST HISTORIAN
DAVID ALFORD IMMEDIATE
PAST PRESIDENT

The Executive Committee takes a position of support of voting by mail in South Carolina in respect to any consideration to making emergency changes to our election process. Any thoughts, concerns, and comments may be emailed to the President of SCARE, Katy Smith at ksmith@andersoncountysc.org. All emails will then be forwarded to the Executive Committee members.
This position is put forth with great respect, as a solution is considered on how to conduct safe and secure elections in the midst of a pandemic. It is our hope that any actions under consideration be made as soon as possible to allow as much time as possible to ensure South Carolina is ready for this year’s elections . Thank you in advance for your time and understanding.
Sincerely,
Katy Smith, CERA President

301 N. Main Street, PO Box 8002, Anderson, South Carolina 29622 Telephone: 864.260.4035 Fax 864.260.4203 Email: ksmth@andersoncountysc.org

 </s> 3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

KYLON MIDDLETON; DEON TEDDER; AMOS WELLS; CARLYLE DIXON; TONYA WINBUSH; ERNESTINE MOORE; SOUTH CAROLINA DEMOCRATIC PARTY; DNC SERVICES CORPORATION/DEMOCRATIC NATIONAL COMMITTEE; and DCCC,
Plaintiffs,
v.

Case No. 3:20-cv-1730-JMC

MARCI ANDINO, in her official capacity as Executive Director of the South Carolina State Election Commission; JOHN WELLS, in his official capacity as Chair of the South Carolina State Election Commission; and CLIFFORD J. EDLER and SCOTT MOSELEY, in their official capacities as members of the South Carolina State Election Commission,
Defendants.

PLAINTIFFS’ MOTION AND INCORPORATED BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13 Page 2 of 33
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 2 FACTUAL BACKGROUND ......................................................................................................... 4
A. The COVID-19 Pandemic ................................................................................................... 4 B. Government Orders & Guidance Regarding COVID-19 .................................................... 6 C. South Carolina’s Elections .................................................................................................. 7 D. The Absentee Ballot Age Restriction, Witness Requirement, and Election Day Cutoff ... 9 E. Impact of Challenged Provisions on South Carolina Voters ............................................. 11 LEGAL STANDARD................................................................................................................... 12 I. Preliminary Injunction. ...................................................................................................... 14 II. First and Fourteenth Amendment Undue Burden Claims. ................................................ 14 III. Twenty-Sixth Amendment Claim...................................................................................... 14 ARGUMENT ................................................................................................................................ 14 I. Plaintiffs are likely to succeed on their claims against the Challenged Provisions........... 14 II. Plaintiffs will suffer irreparable harm absent a preliminary injunction............................. 22 III. The balance of hardships and the public interest favor the Plaintiffs................................ 24 CONCLUSION............................................................................................................................. 26
i

3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13 Page 3 of 33

TABLE OF AUTHORITIES

Cases

Page(s)

Anderson v. Celebrezze, 460 U.S. 780 (1983).................................................................................................................12

Burdick v. Takushi, 504 U.S. 428 (1992).................................................................................................................12

Colo. Project-Common Cause v. Anderson, 495 P.2d 220 (Colo. 1972) .......................................................................................................13

Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) (Stevens, J., controlling op.) ..................................................................12

Democratic Nat’l Comm. v. Bostelmann, Civ. No. 20-cv-249-wmc, 2020 WL 1638374 (W.D. Wis. Apr. 2, 2020), clarified, ECF No. 122 (W.D. Wis. Apr. 3, 2020), stayed in part sub nom. Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20-1538 & 201546 (7th Cir. Apr. 3, 2020) ....................................................................................................21

Di Biase v. SPX Corp., 872 F.3d 224 (4th Cir. 2017) ...................................................................................................12

Esshaki v. Whitmer, No. 20-cv-10831, 2020 WL 1910154 (E.D. Mich. Apr. 20, 2020) .........................................15

Ezell v. City of Chi., 651 F.3d 684 (7th Cir. 2011) ...................................................................................................22

Fla. Democratic Party v. Detzner, No. 4:16cv607-MW/CAS, 2016 WL 6090943 (N.D. Fla. Oct. 16, 2016)...............................24

Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016)....................................................................................14

Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251 (N.D. Ga. 2018) ....................................................................................24

Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344 (S.D. Ga. 2016).....................................................................................15

Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir. 2005).....................................................................................................25

League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014) .......................................................................................22, 23, 25

ii

3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13 Page 4 of 33

TABLE OF AUTHORITIES

Cases

Page(s)

Libertarian Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687 (N.D. Ill. Apr. 23, 2020)................................................15
McLaughlin v. N. Carolina Bd. of Elections, 65 F.3d 1215 (4th Cir. 1995) .............................................................................................12, 13
Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591 (4th Cir. 2013) ...................................................................................................12
New Va. Majority Educ. Fund v. Va. Dep’t of Elections, No. 16-cv-01319, Dkt. No. 10 (E.D. Va. Oct. 20, 2016) .........................................................15
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012) ...................................................................................................22
Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013) ...................................................................................................25
Preston v. Thompson, 589 F.2d 300 (7th Cir. 1978) ...................................................................................................22
Purcell v. Gonzalez, 549 U.S. 1 (2006).....................................................................................................................25
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020) .......................................................................................................14, 21
Reynolds v. Sims, 377 U.S. 533 (1964).................................................................................................................26
Soltysik v. Padilla, 910 F.3d 438 (9th Cir. 2018) ...................................................................................................13
Taylor v. Louisiana, 419 U.S. 522 (1975).................................................................................................................24
Tex. Democratic Party v. DeBeauvoir, No. D1-GN-001610 (Travis Cty. Dist. Ct. Apr. 17, 2020) ......................................................23
Thakker v. Doll, No. 1:20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) .............................................23
Thomas v. Andino, No. 3:20-cv-1552 (D.S.C. filed Apr. 22, 2020) ............................................................... passim
United States v. Cecil, 836 F.2d 1431 (4th Cir. 1988) .................................................................................................12

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TABLE OF AUTHORITIES

Cases

Page(s)

United States v. Georgia, 892 F. Supp. 2d 1367 (N.D. Ga. 2012) ....................................................................................24

Wood v. Meadows, 207 F.3d 708 (4th Cir. 2000) ...................................................................................................15
Worden v. Mercer Cnty. Bd. of Elections, 294 A.2d 233 (N.J. 1972).........................................................................................................13

STATUTES S.C. Code Ann. § 7-5-155..............................................................................................................19

S.C. Code Ann. § 7-13-1110..............................................................................................10, 22, 26 S.C. Code Ann. § 7-15-20........................................................................................................16, 25

S.C. Code Ann. § 7-15-220............................................................................................................26

S.C. Code Ann. § 7-15-230........................................................................................................1, 26 S.C. Code Ann. § 7-15-310................................................................................................15, 16, 26

S.C. Code Ann. § 7-15-320..............................................................................................1, 9, 11, 26 S.C. Code Ann. § 7-15-330..............................................................................................................9

S.C. Code Ann. § 7-15-380........................................................................................................1, 18 S.C. Code Ann. § 7-15-420..................................................................................................9, 10, 26

S.C. Code Ann. § 7-17-20............................................................................................10, 22, 25, 26

S.C. Code Ann. § 7-17-230............................................................................................................22

OTHER AUTHORITIES Exec. Order No. 2020-08 (Mar. 13, 2020).......................................................................................6 Exec. Order No. 2020-09 (Mar. 15, 2020)...................................................................................6, 7

Exec. Order No. 2020-15 (Mar. 28, 2020).......................................................................................6

Exec. Order No. 2020-16 (Mar. 30, 2020).......................................................................................6

Exec. Order No. 2020-21 (Apr. 6, 2020) ...................................................................................6, 25

Exec. Order No. 2020-29 (Apr. 27, 2020) .......................................................................................6

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TABLE OF AUTHORITIES

Cases

Page(s)

Exec. Order No. 2020-31 (May 3, 2020) .........................................................................................6

Fed. R. Civ. P. 42 .............................................................................................................................2

Fed. R. Civ. P. 65 ...........................................................................................................................26

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Plaintiffs Kylon Middleton, Deon Tedder, Amos Wells, Carlyle Dixon, Tonya Winbush, Ernestine Moore, the South Carolina Democratic Party (“SCDP”), DNC Services Corporation/Democratic National Committee (“DNC”), and DCCC, by and through the undersigned attorneys, bring this motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65 to address the immediate and severe effects the coronavirus pandemic is having on the election scheduled for June 9, 2020. Plaintiffs focus this motion on three requirements that threaten South Carolinians’ right to vote during the COVID-19 pandemic: (1) the categorical prohibition on all voters under 65 from casting a mail-in absentee ballot unless they fall into narrow and limited categories such as disabled or confined in jail (“Absentee Ballot Age Restriction”), S.C. Code Ann. § 7-15-320(B)(8); (2) the requirement that a voter must have another person witness and sign their absentee ballot envelope in order for the vote to count (“Witness Requirement”), id. § 7-15-380; and (3) South Carolina’s rejection of all mail-in absentee ballots not received by the county by 7:00 p.m. on Election Day (“Election Day Cutoff”), id. § 7-15-230 (collectively, the “Challenged Provisions”).1
Plaintiffs are aware of a related case currently pending before this Court. Thomas v. Andino, No. 3:20-cv-1552 (D.S.C. filed Apr. 22, 2020) (“Thomas”). Those plaintiffs have moved for a preliminary injunction of (1) the Absentee Ballot Age Restriction and (2) Witness Requirement, and the Court has a hearing scheduled for May 15, 2020. ECF No. 30. Plaintiffs join in the Thomas
1 Plaintiffs challenged a number of other requirements in their complaint, including the state’s failure to prepay postage for absentee ballots and prohibition on candidates’ collection and return of absentee ballots. Plaintiffs do not seek to enjoin these requirements in advance of the primary but will separately seek injunctive relief of these and the other provisions at issue in this litigation in advance of the November general election. Pursuant to Local Rule 7.02, counsel for Plaintiffs consulted with counsel for Defendants prior to filing this motion; counsel for Defendants did not consent to this motion.
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Plaintiffs’ arguments on (1) and (2). In addition to the arguments that the Thomas Plaintiffs make for enjoining the Absentee Ballot Age Restriction, Plaintiffs here argue it should be enjoined because it also violates the 26th Amendment to the U.S. Constitution. Plaintiffs are filing concurrently with this Motion a motion to participate in the hearing on the Thomas Plaintiffs’ preliminary injunction motion in order to present argument on the 26th Amendment and Election Day Cutoff issues. See Plaintiffs’ Rule 42(a)(1) Motion to Consolidate the Hearing of the Motion for Preliminary Injunction in This Action with the May 15 Hearing for the Motion for Preliminary Injunction in Thomas v. Andino, No. 3:20-cv-1552-JMC.
INTRODUCTION South Carolina’s election laws will force people to choose between their health and their right to vote in violation of the United States Constitution. A novel coronavirus pandemic is sweeping through the country, with known infections exceeding 1.2 million and fatalities exceeding 70,000. In South Carolina, there are nearly 7,000 confirmed cases and over 300 deaths due to COVID-19, and that number continues to grow on a daily basis. The virus is highly contagious and affects people of all ages, and many infected people do not exhibit symptoms. The Governor has ordered people to stay home, and public health officials direct that staying six feet away from other people and avoiding contact with contaminated surfaces is the only way to prevent the spread. There is no end in sight to this crisis. Meanwhile, the election laws at issue in this case will force hundreds of thousands of South Carolina voters to congregate in the same places on election day and thousands of others to engage in what, under the present circumstances, are potentially dangerous one-on-one personal interactions, all in order to exercise their right to vote in the coming June 9 primary election. Most dangerous is South Carolina’s Absentee Ballot Age Restriction, which categorically denies access
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to mail-in absentee voting for voters under 65, unless they fall into narrow, enumerated categories. Not only is this an impermissible age-based restriction on voting, but it substantially enhances the risk that South Carolina becomes the next Wisconsin, forcing thousands of its citizens to stand in long lines for hours in order to cast their ballots. Despite the fact that many wore masks, gloves, and other protective equipment, multiple infections of the novel coronavirus have since been reported among voters and elections officials who were needlessly exposed to the virus in those overwhelming polling locations. But even for those who qualify to vote by absentee ballot under the current interpretation of South Carolina law will be forced to engage in unnecessary and potentially dangerous interactions with others as a result of the Witness Requirement. Complying with it in these unprecedented times will be especially burdensome for the over 500,000 South Carolinians who live alone and would have to break quarantine in order to exercise their right to vote. Finally, South Carolina’s Election Day Cutoff law, which requires ballots to be received by 7:00 p.m. on Election Day to count, threatens to disenfranchise thousands of voters whose ballots do not arrive by the election day deadline, a threat that is substantially exacerbated by an influx of requests to vote by absentee ballot and delays in mail service.
The State has no interest in the enforcement of these unconstitutional provisions. The South Carolina State Election Commission (the “Commission”) has expressly requested that public officials suspend the Absentee Ballot Age Restriction and extend the option to vote by absentee ballot to everyone, regardless of age, and eliminate the Witness Requirement, because it serves no purpose for elections officials. As for the Election Day Cutoff, the U.S. Supreme Court approved of an extension similar to what Plaintiffs seek here in light of the current circumstances.
Plaintiffs have made the required showing for a preliminary injunction. They are likely to succeed on the merits of their challenges to these three provisions. They will otherwise suffer
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irreparable harm: either potential exposure to a deadly illness or disenfranchisement. The equities also favor the Plaintiffs: the public has an interest not only in its health but also in allowing as many eligible voters as possible to cast their ballots. There is no meaningful hardship on the other side of the balance.
FACTUAL BACKGROUND A. The COVID-19 Pandemic The United States is the epicenter of the global COVID-19 pandemic. The virus has infected over 1.2 million people and taken over 70,000 lives in the United States in the past seven weeks alone.2 COVID-19 spreads mainly from person-to-person contact, through respiratory droplets when an infected person coughs or sneezes.3 The virus can also spread from “contact with contaminated surfaces of objects.”4 The virus is highly contagious and causes severe symptoms and even death in people of all ages.5 Elderly Americans are particularly at risk, but so are younger Americans with relatively common pre-existing conditions, such as moderate asthma.6 Some healthy young people have died of the virus, while others have suffered severe and debilitating large vessel strokes. Experts cannot predict whether a particular young person will die or suffer serious complications of the virus or be entirely asymptomatic.7 Experts encourage social
2 CDC, Cases in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html (last visited May 6, 2020).
3 CDC, How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/how-covid-spreads.html.
4 Id. 5 CDC, Situation Summary, https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/summary.html#risk-assessment. 6 CDC, Groups at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/groups-at-higher-risk.html. 7 Dr. Sanjay Gupta, The mystery of why the coronavirus kills some young people, CNN (Apr. 6, 2020), https://www.cnn.com/2020/04/05/health/young-people-dying-coronavirus-sanjaygupta/index.html.
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distancing practices for everyone in large part because of asymptomatic carriers.8 In addition, “current data suggest a disproportionate burden of illness and death among racial and ethnic minority groups.”9
COVID-19 has hit South Carolina hard. As of May 6, the state has 6,936 confirmed cases and 305 people have died of the virus.10 The state is on track to meet the South Carolina Department of Health and Environmental Control’s (“DHEC”) April 20 prediction of 7,000 cases by May 9.11 The virus has had a disproportionate impact on South Carolina’s African American residents. Although African Americans make up only 27% of the State’s population, they represent 43% of reported COVID-19 cases and a staggering 46% of related deaths.12 The elderly are also disproportionately adversely affected: individuals over 70 comprise two-thirds of the COVID-19 related deaths in the State.13

8 Nick McGregor, University of Utah, Social Distancing, Explained (Mar. 17, 2020),

https://healthcare.utah.edu/healthfeed/postings/2020/03/coronavirus-social-distancing.php.

9 CDC, COVID-19 in Racial and Ethnic Minority Groups,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/racial-ethnic-

minorities.html.

10 DHEC, SC Testing Data & Projections (COVID-19),

https://www.scdhec.gov/infectious-diseases/viruses/coronavirus-disease-2019-covid-19/sc-

testing-data-projections-covid-19.

11 Isabella Cueto, Virus cases to keep rising until May, despite models showing SC past

peak,

DHEC

says,

THE

STATE

(Apr.

20,

2020),

https://www.thestate.com/news/coronavirus/article242150831.html.

12 U.S. Census Bureau, QuickFacts South Carolina, https://www.census.gov/quickfacts/SC

(last visited Apr. 21, 2020); https://scdhec.gov/infectious-diseases/viruses/coronavirus-disease-

2019-covid-19/sc-demographic-data-covid-19 (last visited May 5, 2020).

13 DHEC, SC Demographic Data (COVID-19), https://www.scdhec.gov/infectious-

diseases/viruses/coronavirus-disease-2019-covid-19/sc-demographic-data-covid-19 (last visited

May 5, 2020).

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State health care professionals and epidemiologists have cautioned repeatedly that the pandemic is going to get worse.14 National trends from the U.S. Centers for Disease Control and Prevention (“CDC”) show that the curve is climbing rapidly.15 Many scientists believe it will take at least a year to develop a vaccine for COVID-19 and provide it to the general public, but the precise timing is unknown.16
B. Government Orders & Guidance Regarding COVID-19 To prevent the spread of the disease, the CDC and DHEC recommend that people stay at home and avoid close contact with others. Consistent with that advice, Governor Henry McMaster declared a state of emergency in early March and issued several executive orders closing schools, bars, restaurants, and other business, prohibiting gatherings of 10 or more people, and requiring residents to engage in social distancing and “remain[ ] at home whenever possible.” Exec. Order No. 2020-21 (Apr. 6, 2020); see also Exec. Order No. 2020-08 (Mar. 13, 2020); Exec. Order No. 2020-09 (Mar. 15, 2020); Exec. Order No. 2020-15 (Mar. 28, 2020); Exec. Order No. 2020-16 (Mar. 30, 2020). Although Governor McMaster modified the orders to allow public beaches, certain retail businesses, and restaurants offering outdoor dining to reopen, and lifted the stay-athome order as of May 4, see Exec. Order No. 2020-29 (Apr. 27, 2020); Exec. Order No. 2020-31
14 See, e.g., Laurel Mallory, 298 cases of coronavirus, 5 deaths in S.C.; governor orders officials to disperse groups of 3+ in public, WIS News, Mar. 23, 2020, https://www.wistv.com/2020/03/23/cases-coronavirus-deaths-sc-governor-orders-officialsdisperse-groups-public (quoting Dr. Linda Bell, DHEC epidemiologist stating South Carolina “is now in the ‘acceleration’ phase of the outbreak”).
15 CDC, COVID-19 Cases in the United States by Date of Illness Onset, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited Apr. 28, 2020).
16 Sarah LaFave, What Will It Take To Develop a Vaccine for COVID-19?, Johns Hopkins University - The Hub, (Mar. 26, 2020) https://hub.jhu.edu/2020/03/26/covid-19-vaccinedevelopment-ruth-karron/ (“Scientists estimate that it will take at least one year to make a COVID19 vaccine available to the general public.”).
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(May 3, 2020), he still recommends that those considered to be at-risk based on CDC guidance continue to limit exposure to others.17
C. South Carolina’s Elections In mid-March, Governor McMaster rescheduled all elections for March and April to take place after May 1, 2020, based on his “determination that the [outbreak] poses an actual or imminent public health emergency for the State of South Carolina.” Exec. Order No. 2020-09 at 1 (Mar. 15, 2020). On March 30, Commission Executive Director, Defendant Marci Andino, wrote to several elected officials, including Governor McMaster, about the remaining elections scheduled for 2020. ECF No. 1-1. Her letter highlighted the Commission’s “concern[ ] about the safe conduct of the June Primaries, November General Election and all other elections scheduled for 2020.” Id. at 2. “[South Carolina] elections, as currently prescribed by law, require large numbers of people to congregate in one place—something that everyone is currently being asked not to do by public safety and health officials.” Id. In addition, “a large percentage of the state’s poll managers fall into high risk categories, which would likely lead to a deficit in the number of managers needed to staff polling places.” Id. at 3. As a result, the Commission recommended “changes to [the] election process” “to safely and securely conduct elections during and following the coronavirus pandemic.” Id. Specifically, the Commission urged that South Carolina should “[a]llow no excuse absentee voting,” a “relatively simple change.” Id. at 5. It also recommended “[r]emov[ing] the
17 Crysty Vaughan, Stay at home order to be lifted by SC Governor: effective Monday, ABA Columbia (May 2, 2020), https://www.abccolumbia.com/2020/05/04/stay-at-home-order-tobe-lifted-by-sc-governor-effective-monday/.
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witness requirement on ballot return envelopes[,]” which “offers no benefit to election officials”
because they do not and cannot verify the witness signature. Id. at 4.
The CDC, anticipating difficulties in conducting elections during the ongoing crisis, has
similarly recommended that jurisdictions encourage voting by mail and reduce methods of voting
that lead to direct contact with other people, including voters and poll workers.18 Other federal,
state, and local officials have increasingly come to the same realization. Congress, for example,
recently authorized $400 million to help states increase access to mail ballots.19
Widespread voting in person on a single day during a pandemic is dangerous. For example,
in Wisconsin, “[f]orty people in Milwaukee County may have become infected with the
coronavirus as a result of participating in Wisconsin elections on April 7,” including a
pollworker.20 Thousands of voters stood in long lines, with some waiting, exposed, for hours, in
order to cast their ballots.21 In Chicago, a poll worker for the March 17 primary died from COVID-
19. In Florida, two Broward County poll workers tested positive for COVID-19.22
18 CDC, Recommendations for Election Polling Locations, https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html.
19 Alisa Wiersema & Kendall Karson, Congress pours $400 million into boosting states’ election efforts amid coronavirus crisis, experts say it’s ‘not enough,’ ABCNews (Mar. 25, 2020), https://abcnews.go.com/Politics/congress-pours-400-million-boosting-states-electionefforts/story?id=69793454.
20 Teran Powell, 40 Coronavirus Cases in Milwaukee County Linked to Wisconsin Election, Health Official Says, WUWM 89.7 MILWAUKEE’S NPR (Apr. 24, 2020), https://www.wuwm.com/post/40-coronavirus-casesmilwaukee-county-linked-wisconsinelection-health-official-says#stream/0.
21 Parker Schorr, Wisconsin’s pandemic election: Long waits, face masks as voters go to polls, THE CAP TIMES (Apr. 8, 2020), https://madison.com/ct/news/local/govt-andpolitics/wisconsin-s-pandemic-election-long-waitsfacemasksas-voters-go-topolls/article_bfd2c391-f390-5364-8c14-a88b548fe017.html.
22 Anthony Man, Two Broward poll workers, including one who handled voters’ driver licenses, test positive for coronavirus, S. FLA. SUN SENTINEL (Mar. 26, 2020), https://www.sun-sentinel.com/coronavirus/fl-ne-browardelections-poll-workers-coronavirus20200326-wmgy775dvjc5jis2oagxlpmule-story.html.
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To date, South Carolina has not implemented the Commission’s or CDC’s recommendations. South Carolina is scheduled to hold statewide Democratic and Republican primaries on June 9 and primary runoffs on June 23.
D. The Absentee Ballot Age Restriction, Witness Requirement, and Election Day Cutoff
Under South Carolina’s current elections regime, the vast majority of South Carolina voters must appear in person at the polls on election day in order to exercise their right to vote. Through the Absentee Ballot Age Restriction, South Carolina categorically prohibits all voters under 65 who are not “absent from their county of residence on election day during the hours the polls are open” from voting by absentee ballot unless he or she qualifies for an enumerated exception: the “physically disabled” or a person attending a sick or physically disabled person, “certified poll watchers, poll managers, county board of voter registration and elections members and staff, county and state election commission members and staff working on election day,” “persons admitted to hospitals as emergency patients on the day of an election or within a four-day period before the election,” “persons with a death or funeral in the family within a three-day period before the election,” persons serving on juries, “persons confined to a jail or pretrial facility pending disposition of arrest or trial,” or “members of the Armed Forces and Merchant Marines of the United States, their spouses, and dependents residing with them. S.C. Code Ann. § 7-15-320(B)(8).
Those who qualify to vote by absentee ballot must fulfill additional requirements not imposed on in-person voters. Those who want to vote absentee by mail must return their applications for an absentee ballot “by mail, email, fax, or personal delivery” “before 5:00 p.m. on the fourth day before the day of the election.” S.C. Code Ann. § 7-15-330.
To vote absentee by mail, a voter must satisfy the Witness Requirement. It requires that the voter must return their ballot in the return-addressed envelope provided, which must be “signed
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and witnessed.” Id. § 7-15-220. A ballot that has not been properly signed and witnessed or does not include the witness’s address cannot be counted. Id. § 7-15-420. South Carolina law does not afford a voter notice or the opportunity to cure a ballot for witness-related defects.
Pursuant to the Election Day Cutoff, completed mailed ballots must be received by the county board no later than 7:00 p.m. on election day.23
The State has time after election day to finalize results. Although state law gives county election officials until 12:00 pm on the Saturday after the election to complete the canvass and certify the count to the Board of State Canvassers, S.C. Code Ann. § 7-17-20, the Board of State Canvassers has the authority to begin its canvassing 15 days after the election, id. § 7-17-230. “Within twenty-four hours of the completion of the canvassing and counting of ballots, the persons in charge of each such election in each county shall notify the State Election Commission of the unofficial results of such election in each such county.” Id. § 7-13-1160. But “failure” to do so does not “invalidate the votes cast” within the county. Id.
State law does not mandate a time by which officials must release election results. Results of the tabulation of absentee ballots “must not be publicly reported until after the polls are closed.” S.C. Code Ann. § 7-15-420. Under current law, at the “close of the election,” the “managers and clerk shall immediately proceed publicly to open the ballot boxes and count the ballots therein.” S.C. Code Ann. § 7-13-1110. They “shall continue such count, without adjournment or interruption, until it is completed.” Id. Then, they “make and sign such statement of the result thereof as the nature of the election shall require.” Id.
23 Absentee Voting, S.C. Election Comm’n, https://www.scvotes.org/absentee-voting (last visited May 6, 2020).
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E. Impact of Challenged Provisions on South Carolina Voters Unless the Challenged Provisions are enjoined, Plaintiffs will be faced with an untenable choice between exercising their right to the franchise and keeping themselves and other people in their community safe. For example, Plaintiff Deon Tedder is a 30-year-old registered voter who cannot vote absentee under the State’s interpretation of S.C. Code Ann. § 7-15-320. He wants to vote during the June primary, but is concerned about going to the polls and coming into “close contact with people who could be infected with COVID-19 for a prolonged period of time” and “touch[ing] common objects.” Ex. 1, Declaration of Deon Tedder (“Tedder Decl.”), ¶ 5. Doing so would risk not only his health but the health of his loved ones and community. Id. As an African-American, he is “particularly concerned about becoming infected and spreading the disease to others, as African Americans are infected and die at a disproportionately higher rate than any other demographic group in the State.” Id. Plaintiff Kylon Middleton, a 45-year-old registered voter, shares Tedder’s concerns. Middleton believes that he does not qualify to vote by absentee ballot under the State’s current interpretation of the voting-by-absentee-ballot provision. He is especially wary of voting in person because of his prior experiences waiting in long lines “at times for hours.” Ex. 2, Declaration of Kylon Middleton (“Middleton Decl.”), ¶ 6. “As recently as the Charleston mayoral runoff election in November 2019, [he] waited in a line that wrapped around the building for over an hour only to enter a cramped space, sometimes standing shoulder-to-shoulder with other voters, to check-in and cast my ballot.” Id. Middleton is aware that many poll workers have refused to work on election day due to the pandemic, so “the number of available polling places will shrink, meaning voters will have to wait in even longer lines.” Id. As an African-American and leader of a predominantly African-American congregation, he is acutely aware of the disproportionate impact of COVID-19
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on the community. If he is required to go to the polls on election day, he will be “forced to choose” between protecting his life and the health of his community and his right to vote. Id. ¶ 7.
LEGAL STANDARD I. Preliminary Injunction A preliminary injunction is warranted if plaintiffs show: (1) a likelihood of success on the merits, (2) likelihood of suffering irreparable harm, (3) the balance of hardships favor them, and (4) the injunction serves the public interest. Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591, 595 (4th Cir. 2013) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). The Court “take[s] judicial notice of official government reports and statistics” including election and voter registration statistics and public health reports from government agencies. United States v. Cecil, 836 F.2d 1431, 1452 (4th Cir. 1988) (citations omitted). Plaintiffs “need not establish a ‘certainty of success,’” just “make a clear showing” that they are likely to succeed. Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017). II. First and Fourteenth Amendment Undue Burden Claims
Courts considering challenges to state election laws based on a claim that they impose an undue burden on the right to vote must carefully balance the character and magnitude of injury to the First and Fourteenth Amendment rights that a plaintiff seeks to vindicate against the justifications put forward by the state for the burdens imposed. See Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). “However slight th[e] burden [on the right to vote] may appear, . . . it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008) (Stevens, J., controlling op.) (quotation marks omitted). Thus, even “a regulation which imposes only moderate burdens could well fail the Anderson balancing test when the interests that
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it serves are minor, notwithstanding that the regulation is rational.” McLaughlin v. N. Carolina Bd. of Elections, 65 F.3d 1215, 1221 n.6 (4th Cir. 1995). Moreover, a court need not accept a state’s justifications at face value, particularly where those justifications are “speculative,” otherwise it “would convert Anderson-Burdick’s means-end fit framework into ordinary rational-basis review wherever the burden a challenged regulation imposes is less than severe.” Soltysik v. Padilla, 910 F.3d 438, 448–49 (9th Cir. 2018); see McLaughlin, 65 F.3d at 1221 n.6. III. Twenty-Sixth Amendment Claim
The decision to parcel out voting rights “on account of age” is prohibited by the plain text of the 26th Amendment to the U.S. Constitution, which states that “[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by . . . any State on account of age.” U.S. Const. amend. XXVI, § 1. The goal of the amendment “was not merely to empower voting by our youths but was affirmatively to encourage their voting, through the elimination of unnecessary burdens and barriers, so that their vigor and idealism could be brought within rather than remain outside lawfully constituted institutions.” Worden v. Mercer Cnty. Bd. of Elections, 294 A.2d 233, 243 (N.J. 1972). The Twenty-Sixth Amendment guarantees a substantive right to participate equally in the electoral process and broadly protects voters against not just blatant, but also subtle forms of discrimination based on age. See, e.g., Colo. ProjectCommon Cause v. Anderson, 495 P.2d 220, 223 (Colo. 1972) (holding based on “[h]istory and reason” that the Twenty-Sixth Amendment’s “prohibition against denying the right to vote to anyone eighteen years or older by reason of age applied to the entire process involving the exercise of the ballot and its concomitants”). As a result, laws that deny or abridge the right to vote on account of age, even in part, are unconstitutional. See id.
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ARGUMENT I. Plaintiffs are likely to succeed on their claims against the Challenged Provisions.
First, Plaintiffs have made a clear showing that they are likely to succeed on their challenges to South Carolina’s Absentee Ballot Age Restriction. Indeed, this restriction would be unconstitutional under any circumstances as prohibited by the Twenty-Sixth Amendment, but it is plainly unsustainable under the present circumstances, where forcing voters under 65 to vote en masse in person at the polls will not only threaten the health of countless of those voters and the poll workers who attend to them, but also their fellow voters, the family members who they return home to, and their broader community. As applied today, the Absentee Ballot Age Restriction also violates the First and Fourteenth Amendments.
Plaintiffs support the Thomas Plaintiffs’ challenge to the Absentee Ballot Age Restriction on the basis of the First and Fourteenth Amendments. See Thomas, ECF No. 7-1. Requiring voters to risk contracting a potentially deadly disease from voting in person on election day imposes a severe burden on the right to vote and triggers strict scrutiny. Although individuals with underlying conditions (some quite common, like asthma) are at higher risk for severe complications, COVID19 can affect everyone. Some otherwise healthy young people have been severely affected, and there is no way to predict whether one will fall into that category. In addition, the Absentee Ballot Age Restriction directly contradicts government guidance about what all South Carolinians should do during this pandemic. This guidance is necessitated in large part by the fact that it is becoming clearer that the spread of the virus is propelled in many cases by entirely asymptomatic carriers. Thus, self-isolating social distancing is intended to and necessary to keep everyone safe—it does not turn on the risk factor of each unique individual. There is no evidence that public health recommendations will change by June 9.
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Courts can and must take external circumstances into account when determining whether the application of an elections law in any given election may impose an unconstitutional burden on voting rights. See, e.g., Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1208 (2020); Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016) (holding that, because a hurricane “foreclosed the only methods of registering to vote” in the final week of registration, the statutory deadline “severe[ly] burden[ed] on the right to vote”); Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345-46 (S.D. Ga. 2016) (similar); Order, New Va. Majority Educ. Fund v. Va. Dep’t of Elections, No. 16-cv-01319, Dkt. No. 10 (E.D. Va. Oct. 20, 2016) (extending registration deadline after the state’s website crashed); Libertarian Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687, at *4 (N.D. Ill. Apr. 23, 2020) (finding in ballot-access case that the “combined effect of . . . Illinois’ stay-at-home order and the usual inperson signature requirements [posed] a nearly insurmountable hurdle”); Esshaki v. Whitmer, No. 20-cv-10831, 2020 WL 1910154, at *1 (E.D. Mich. Apr. 20, 2020) (noting state’s “insist[ence] on enforcing [ballot-access] requirements as if its Stay-at-Home Order . . . had no impact on the rights of candidates and the people who may wish to vote for them”).
Because the burdens imposed on Plaintiffs’ rights by the Absentee Ballot Age Restriction under the current context is severe, strict scrutiny requires the court to rigorously examine the state’s interest and the “means [chosen] to achieve those interests, to ensure that . . . requirements are ‘narrowly drawn’ . . . .” Wood v. Meadows, 207 F.3d 708, 714 (4th Cir. 2000). As the Thomas Plaintiffs explain, the State has no interest in the Absentee Ballot Age Restriction and, even if it did, the Restriction is not “narrowly drawn.” The State has no interest in requiring people to vote in person on a single day, especially during an unprecedented public-health crisis. Indeed, all government guidance indicates that the State has an interest in keeping people in their homes, not
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sending them out to congregate for long periods of time. The State’s interest in the health of its citizens is evidenced by S.C. Code Ann. § 7-15-310(4), which allows persons to vote absentee by mail if “because of injury or illness, [they] cannot be present in person at [their] voting place on election day.” S.C. Code Ann. § 7-15-310(4).24 In other words, the Legislature gave voters the option to cast a ballot by mail if an illness or ailment keeps them at home on Election Day.25 Presumably, the intention behind this provision is at least in part to halt the spread of infectious diseases at the polling place. Finally, the Restriction is not narrowly drawn because it burdens the vast majority of South Carolina voters under age 65.
Plaintiffs bring an additional challenge to the Absentee Ballot Age Restriction under the Twenty-Sixth Amendment which independently provides an additional reason why the Restriction must be enjoined. The Absentee Ballot Age Restriction violates the prohibition on “deny[ing] or abridg[ing]” the right to vote “on account of age.” The analysis is simple: on the face of the statute, everyone over age 65 can vote by absentee ballot, whereas those under age 65 can vote by absentee ballot only if they fall into narrow, enumerated exceptions. During this pandemic, the Absentee Ballot Age Restriction forces younger voters to risk their lives because they must vote in person on election day. Although elderly populations are at higher risk for severe complications from the
24 Although South Carolina has not construed this provision to include individuals quarantining at home to avoid the spread of COVID-19, compare S.C. Code Ann. § 7-15-20 (absentee registration and voting laws “shall be liberally construed”), several other states have construed similar laws to do so. Thomas, ECF No. 7-1 at 34-35.
25 As a result, the Absentee Ballot Age Restriction fails even under a lower level of scrutiny. The State does not assert that the Absentee Ballot Age Restriction serves the state’s interest in combating voter fraud, ECF No. 1-1, nor could it. Voter fraud is virtually non-existent in SC. See Thomas, ECF No. 7-1 at 41 n.64.
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3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13 Page 23 of 33
virus, 11.4% of the COVID-19 related deaths and over 50% of the reported cases in South Carolina are people under age 60.26
Plaintiffs Middleton and Tedder are two South Carolinian voters faced with the untenable choice created by the State’s interpretation of the vote-by-absentee-ballot statute. If they want to vote in the June 9 election, they must go to a polling place in person on the same day as all other registered voters under the age of 65. Plaintiff Middleton has recently experienced long lines when voting in South Carolina, and has every reason to expect he will do so again on June 9. Standing in close proximity to hundreds of other people during a global pandemic is a risky proposition for anyone, let alone for members of the African-American community who are more likely to contract and suffer severe complications from the virus. Absent a preliminary injunction, these Plaintiffs will either be disenfranchised or have to take a serious health risk.
Second, Plaintiffs have also made a clear showing that South Carolina’s Witness Requirement is likely unconstitutional. Plaintiffs join in Thomas Plaintiffs’ arguments about the Witness Requirement. See Thomas, ECF No. 7-1. The Witness Requirement requires a voter to interact with and touch the same object as another person. All evidence indicates that COVID-19 spreads from people getting close to other people and/or touching the same objects as another person. And because one cannot know for sure that another person is not carrying COVID-19, government and public health officials have told people to assume that anyone could be infected and infect another person. As a result, requiring those who vote absentee by mail to obtain a witness signature and address is burdensome. The requirement is especially burdensome for
26 DHEC, SC Demographic Data (COVID-19), https://www.scdhec.gov/infectiousdiseases/viruses/coronavirus-disease-2019-covid-19/sc-demographic-data-covid-19.
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3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13 Page 24 of 33
individuals who live alone or with someone who cannot be a witness (e.g., a young child). Over 550,000 South Carolinians live alone, according to 2018 data.27 The proportion of South Carolinians who live alone is also more significant in the State’s African American population. Indeed, 33.2% of all African American households consist of people who live alone compared with only 28.2% of white households. As the Thomas Plaintiffs describe, this severe burden on the right to vote will fall more heavily on older people, persons with disabilities, and African Americans, among others.28 People in those groups already face a higher risk of death or serious complications from COVID-19. “Black South Carolinians are thus more than twice as likely to have contracted COVID-19 as white people and three times as likely to have died from it.” Thomas, ECF No. 7-1 at 37-38.
Unless it is enjoined, many South Carolina voters will be unable to cast their ballots because of the Witness Requirement. Evidence shows that the Witness Requirement disenfranchises people, especially during a pandemic. In Wisconsin’s April 2020 primary election, 12,000 ballots were received and rejected for “insufficient witness certifications.29 And in South Carolina, even before the pandemic, hundreds of absentee ballots were rejected on those grounds. Thomas, ECF No. 7-1 at 38-39. This severe burden is unjustified because the Witness Requirement
27 U.S. Census Bureau, American Community Survey Results (2018), https://data.census.gov/cedsci/table?q=south%20carolina%20single%20person%20households& g=0400000US45&hidePreview=false&tid=ACSDP1Y2018.DP02&vintage=2018&layer=VT_20 18_040_00_PY_D1&cid=DP02_0001E.
28 Id. 29 J.R. Ross, 22,820 Wisconsin absentee ballots were rejected for various reasons, WISN 1130 (Apr. 18, 2020), https://newstalk1130.iheart.com/content/2020-04-18-22820-wisconsinabsentee-ballots-were-rejected-for-various-reasons/. It is unknown what percentage of those ballots were sent during the ~24-hour period when the district court’s ruling replacing the witnesssignature requirement with a personal affidavit for those who were unable to safely obtain a witness signature with reasonable effort was intact. Nevertheless, those ballots evince that individuals were unable to safely obtain a witness with reasonable effort.
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does not serve any state interest that can justify it. In fact, the State’s top elections officials have conceded that the Witness Requirement serves no purpose and ask for its removal. ECF No. 1-1. As the Thomas Plaintiffs point out, voters in the military and those abroad do not need a witness. S.C. Code Ann. § 7-15-380. The witness need not even print their name. Id. Voter fraud in South Carolina is exceedingly rare, and there are numerous other attestation and verification requirements and criminal penalties to prevent it. Thomas, ECF No. 7-1 at 18-19, 41. Indeed, most states do not have a witness or notarization requirement and there is no evidence that they are overrun by election integrity issues.
Finally, Plaintiffs are also likely to succeed on their claim that South Carolina’s rejection of mailed absentee ballots not received by the Election Day Cutoff is unconstitutional under the current circumstances. Absent an injunction, the Election Day Cutoff will disenfranchise thousands of South Carolina voters, many entirely due to circumstances completely out of their control. In the 2018 statewide general election, the State discarded over 1,300 ballots received after the Election Day Cutoff.30 That number will only increase as more eligible people choose to vote absentee due to the pandemic.31 First-time absentee voters are more likely to mail their ballots later since they are also likely to be less familiar with voting by mail, including the Election Day Cutoff. Nor would it be unreasonable for them to think that their ballots can be mailed later in the election cycle as long as they are postmarked by Election Day, as many other deadlines in South Carolina voters’ lives⸺including voter registration deadlines⸺are postmark deadlines. S.C. Code Ann. § 7-5-155 (“The postmark date of a mailed application is considered the date of mailing. If

30

S.C.

Election

Comm’n,

Historical

Absentee

Reports,

https://www.scvotes.org/sites/default/files/Absentee%20Stats%202019-02-15%20(GE).xls.

31 The number will also increase if this Court strikes down the Absentee Ballot Age

Restriction.

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3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13 Page 26 of 33
the postmark date is missing or illegible, the county board of voter registration and elections must
accept the application if it is received by mail no later than five days after the close of the
registration books before any election.”).
As of May 6, nearly 66,000 South Carolinians had requested an application to vote by absentee ballot for the June primary election.32 In comparison, in the 2018 primary, only approximately 19,000 South Carolinians voted absentee by mail.33 This influx of requests is likely
to create scenarios where voters who lawfully request absentee ballots by 5:00 p.m. on June 5 do
not even receive them by June 9, the election day deadline. Commission Director Andino noted
that “[e]ven before the coronavirus pandemic, elections officials were challenged with a significant
increase in the number of absentee ballots.” ECF No. 1-1. In fact, even earlier this year before the state of emergency, some counties in South Carolina mailed absentee ballots late to voters.34
Moreover, the Postal Service faces unprecedented challenges from the pandemic and budgetary constraints.35
32 S.C. Election Comm’n, Fact Sheets (May 6, 2020), https://www.scvotes.org/sites/default/files/2020-0506%20Absentee%20Stats%20(Statewide%20Primaries)_0.xlsx.
33 Jason Raven, Because of coronavirus concerns, officials prepare for increase in SC residents voting absentee by mail in primaries, WIS News 10, Apr. 23, 2020, https://www.wistv.com/2020/04/23/because-coronavirus-concerns-officials-prepare-increase-scresidents-voting-absentee-by-mail-primaries.
34 Matt Moore, Mailed absentee ballots sent late in Greenville County, https://www.wyff4.com/article/south-carolina-democratic-primary-absentee-ballots-mailedlate/31138127 (Feb. 28, 2020).
35 Kyle Cheney, House panel warns coronavirus could destroy Postal Service by June, Politico (Mar. 23, 2020), https://www.politico.com/news/2020/03/23/coronavirus-postal-servicejune-145683; Nicholas Fandos & Jim Tankersley, Coronavirus Is Threatening One of Government’s Steadiest Services: The Mail, N.Y. Times (Apr. 9, 2020), https://www.nytimes.com/2020/04/09/us/politics/coronavirus-is-threatening-one-ofgovernments-steadiest-services-the-mail.html.
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The recent experience in the primary election Wisconsin is instructive. There, thousands of voters did not receive their ballots by the election day deadline due to the increase in absentee requests and mail delays.36 The district court, in an order affirmed by the Supreme Court, extended the deadline by six days. See Democratic Nat’l Comm. v. Bostelmann, Civ. No. 20-cv-249-wmc, 2020 WL 1638374, at *22 (W.D. Wis. Apr. 2, 2020), clarified, ECF No. 122 (W.D. Wis. Apr. 3, 2020), stayed in part sub nom. Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 201538 & 20-1546 (7th Cir. Apr. 3, 2020), stayed in part, 140 S. Ct. 1205 (2020). As a result, ballots received by April 13 counted as long as they were postmarked37 by election day, April 7. Id. Over 140,000 ballots were counted that would have otherwise been discarded because of that extension.38 In addition, approximately 4,678 additional absentee ballots were rejected because

36 https://elections.wi.gov/node/6825; Daphne Chen et al., ‘They should have done

something’: Broad failures fueled Wisconsin’s absentee ballot crisis, investigation shows,

Milwaukee

Journal

Sentinel

(Apr.

21,

2020),

https://www.jsonline.com/story/news/2020/04/21/wisconsin-absentee-ballot-crisis-fueled-

multiple-failures/5156825002/. The investigation was conducted by the Milwaukee Journal

Sentinel, the PBS series FRONTLINE, and Columbia Journalism Investigations.

37 The Postal Service does not follow uniform standards and procedures in postmarking

absentee ballots. The term “postmark” refers to any type of imprint applied by the U.S. Postal

Service to indicate the location and date the Postal Service accepts custody of a piece of mail,

including bar codes, circular stamps, or other tracking marks. Where a ballot does not bear a

postmark date, it should be presumed to have been mailed on or before election day unless the

preponderance of the evidence demonstrates it was mailed after election day.

38 The data regarding ballots that arrived between April 8 and April 13 can be found at

https://elections.wi.gov/blog; see also https://electionlawblog.org/?p=110746. As of 8 p.m. on

April 7, there had been 990,129 absentee ballots returned. https://elections.wi.gov/blog. WEC

reports that, ultimately, 1,132,923 absentee ballots were returned and counted, suggesting that

142,794 ballots were able to be counted that would not otherwise have been. See

https://elections.wi.gov/sites/elections.wi.gov/files/2020-

04/Ballot%20Data%20as%20of%20April%2017%202020.pdf.

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they arrived after 4:00 p.m. on April 13; it is not yet known how many of these rejected ballots were timely mailed on or before April 7.39
As the Supreme Court recognized, extending the Election Day Cutoff does not impede the State’s interest in orderly elections. Given that the Board of State Canvassers has the authority to begin its canvassing 15 days after the election, S.C. Code Ann. § 7-17-230, a 10-day extension of the ballot-receipt deadline will not meaningfully disrupt election procedures. This Court can order county clerks to wait to begin counting ballots until the new receipt deadline, id. § 7-13-1110, and extend the deadline for county officials to complete the canvass and certify the count to the Board of State Canvassers from noon on the Saturday after the election (June 13, here) to noon on the Tuesday after the new receipt deadline (here, June 23), id. § 7-17-20. Then the Board of State Canvassers can begin canvassing on June 24, 15 days after June 9. The Court may want to affirmatively prohibit release of any results until the extended absentee receipt deadline.40 In Wisconsin, results were not announced until the new receipt deadline passed on April 13 at 4:00 p.m.
As a result, an extension of the Election Day Cutoff is necessary to avoid unconstitutionally disenfranchising thousands of South Carolina voters. II. Plaintiffs will suffer irreparable harm absent a preliminary injunction.
As the Thomas Plaintiffs explain: “Courts routinely deem restrictions on fundamental voting rights irreparable injury.” League of Women Voters of N.C. v. North Carolina (“LWV”), 769 F.3d 224, 247 (4th Cir. 2014) (collecting cases); see also Obama for Am. v. Husted, 697 F.3d
39 See 2020 Spring Election and Presidential Preference Vote Ballot Status as of April 17, 2020, Wis. Elections Comm’n, https://elections.wi.gov/sites/elections.wi.gov/files/202004/Ballot%20Data%20as%20of%20April%2017%202020.pdf.
40 However, an affirmative prohibition might not be necessary if county clerks cannot even open the ballot boxes until the new receipt deadline. See S.C. Code Ann. § 7-13-1110.
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3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13 Page 29 of 33
423, 436 (6th Cir. 2012); Ezell v. City of Chi., 651 F.3d 684, 699 (7th Cir. 2011) (infringement on constitutional rights caused irreparable harm); see also Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978) (“The existence of a continuing constitutional violation constitutes proof of an irreparable harm.”). “[O]nce the election occurs, there can be no do-over and no redress,” so the injury to “voters is real and completely irreparable if nothing is done to enjoin [the challenged] law.” LWV, 769 F.3d at 247. “[S]erious, lasting illness or death” is also irreparable injury. Thakker v. Doll, No. 1:20-cv-480, 2020 WL 1671563, at *4 (M.D. Pa. Mar. 31, 2020).
Plaintiffs (and the Thomas Plaintiffs) and thousands of South Carolina’s voters will suffer irreparable injury absent a preliminary injunction. Given the Absentee Ballot Age Restriction, almost all voters under 65 must either risk serious, lasting illness, and even death or not vote. In addition, the restriction based on only age is a continuing violation of the Twenty-Sixth Amendment. Voters who live alone must either risk serious, lasting illness or not have their votes counted. Many of those who live alone are age 65 and over and/or African-American and would be risking death. Finally, the Election Day Cutoff will disenfranchise thousands of South Carolinians for no justifiable reason. Those who do not receive their ballots on time to mail them back will be faced with the same untenable choice: risk serious illness/death or not vote.
This harm is imminent. The election is just over a month away, and COVID-19 continues to spread at alarming rates. There is no evidence that the COVID-19 threat will abate by the early June primary. ACLU Br. at 38 (citing Order on Application for Temporary Injunction, Tex. Democratic Party v. DeBeauvoir, No. D1-GN-001610 (Travis Cty. Dist. Ct. Apr. 17, 2020) (finding irreparable harm if all Texas voters cannot vote by mail and noting a high “risk of transmission of COVID-19” for Texas’s “July 14, 2020 Run-Off election and all subsequent elections for this year”). Governor McMaster can only “hope” that “businesses and activities . . .
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may be safely resumed and conducted using personal safety precautions” “by late June,” well after the election. Thomas, ECF No. 1-1 at 1. III. The balance of hardships and the public interest favor the Plaintiffs.
The weight of the equities tips entirely to the Plaintiffs’ side. An injunction would protect the lives and health of thousands of South Carolinians and prevent disenfranchisement by removing barriers to voting during a time of an unprecedented public health crisis. The Commission effectively conceded that it can manage the administration related to eliminating the Absentee Ballot Age Restriction and extending voting by absentee ballot to everyone and dispensing with the Witness Requirement when it made its request to state officials that they do exactly that. ECF No. 1-1. But, in any event, any administrative burden imposed by enjoining any of the Challenged Provisions cannot justify disenfranchisement. See Taylor v. Louisiana, 419 U.S. 522, 535 (1975) (holding “administrative convenience” cannot justify practices that impinge upon fundamental rights); see also Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1268 (N.D. Ga. 2018) (holding increased administrative burden of “disseminating information” and “training poll managers. . . is minimal compared to the potential loss of a right to vote”); United States v. Georgia, 892 F. Supp. 2d 1367, 1377 (N.D. Ga. 2012) (“The potential hardships that Georgia might experience are minor when balanced against the right to vote, a right that is essential to an effective democracy.”); Fla. Democratic Party v. Detzner, No. 4:16cv607MW/CAS, 2016 WL 6090943, at *8 (N.D. Fla. Oct. 16, 2016) (“Any potential hardship [to the state] imposed by providing the same opportunity . . . for [ ] voters pales in comparison to that imposed by unconstitutionally depriving those voters of their right to vote and to have their votes counted.”). “A state is not harmed by the issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is
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3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13 Page 31 of 33
improved by such an injunction.” Thomas, ECF No. 7-1 at 45-46 (quoting Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (quotation marks omitted)).
Here, as discussed above, the county boards of canvassers has until noon on June 13 to transmit its findings to the State Board of Canvassers, which need not begin its canvass until 15 days after the election. S.C. Code Ann. § 7-17-20; id. § 7-17-230. Other provisions of South Carolina law contemplate that votes would come in a few days after election day. Id. § 7-13710(C)(1) (voters who cast provisional ballots without photo ID can present photo ID anytime before the county certifies the results). The administrative burden of counting these ballots cannot be any larger than going to “no-excuse” absentee voting, which the Commission recommends. In addition, the Wisconsin Elections Commission reported no problems managing a recent similar extension.41
Without question, an injunction that protects the public from more exposure to the coronavirus and avoids disenfranchisement is in the public interest. The public interest is served when “as many qualified voters as possible” can vote. LWV, 769 F.3d at 247-48; see Purcell v. Gonzalez, 549 U.S. 1, 4 (2006); see also S.C. Code Ann. § 7-15-20 (absentee registration and voting laws “shall be liberally construed”). In addition, the public interest is plainly served when the public can avoid risking serious illness or death. Pashby v. Delia, 709 F.3d 307, 331 (4th Cir. 2013); Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 169 (2d Cir. 2005) (referring to “public health” as a “significant public interest”). That is why governments, including

41 Wis. Elections Comm’n, Summary of April 7, https://elections.wi.gov/sites/elections.wi.gov/files/202004/April%207%20Election%20Summary%20and%20Next%20Steps.pdf.

2020

Election,

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3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13 Page 32 of 33
South Carolina’s, have told people to stay home.42 The Absentee Ballot Age Restriction, Witness
Requirement, and Election Day Cutoff do not meaningfully advance the state’s interests in orderly
elections and combating voter fraud, and any advancement is far outweighed by the burden on
South Carolinians’ right to vote in these unprecedented times.
CONCLUSION
As the Supreme Court recognized long ago, “[t]here is more to the right to vote than the
right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The
right to vote includes the right to have the ballot counted.” Reynolds v. Sims, 377 U.S. 533, 555
n.29 (1964) (citation and quotation omitted). For all of the foregoing reasons, Plaintiffs
respectfully request that the Court enter a preliminary injunction:
1) prohibiting Defendants from enforcing S.C. Code Ann. § 7-15-320 and § 7-15-310, the Absentee Ballot Age Restriction, to prevent any eligible voter, regardless of age, to request, receive, and have counted an absentee ballot for the June 9 primary;
2) prohibiting Defendants from enforcing the Witness Requirement, S.C. Code Ann. § 7-15220 and § 7-15-420, for all voters for South Carolina’s June 9 primary;
3) prohibiting Defendants from enforcing the requirement under S.C. Code Ann. § 7-15-230 that absentee ballots must be received by 7:00 p.m. on Election Day to be counted and extending the deadline to June 19, provided that the ballots were postmarked or mailed on or before June 9;
4) ordering the counting of ballots to begin on June 19, see S.C. Code Ann. § 7-13-1110, and giving county election officials until June 23 to complete the canvass and certify the results to the State Board of Canvassers, id. § 7-17-20;
5) prohibiting election officials from releasing results until after 7:00 p.m. on June 19, see Fed. R. Civ. P. 65;
6) ordering Defendants to publicly inform all South Carolina voters about the elimination of these requirements in coordination with city and county election officials; and
42 S.C. Exec. Order No. 2020-21, at 6; DHEC, Protect Yourself & Those Around You (COVID-19), https://www.scdhec.gov/protect-yourself-those-around-you-covid-19 (last visited Apr. 21, 2020).
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3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13 Page 33 of 33
7) granting such other and further relief as the Court deems just and proper. Dated this 7th day of May, 2020.
Respectfully submitted,
/s/ Christopher J. Bryant Marc E. Elias* Bruce V. Spiva* K’Shaani O. Smith* Christopher J. Bryant, Federal ID 12538 PERKINS COIE LLP 700 Thirteenth St., N.W., Suite 800 Washington, D.C. 20005-3960 Telephone: (202) 654-6200 Facsimile: (202) 654-9959 melias@perkinscoie.com efrost@perkinscoie.com kshaanismith@perkinscoie.com cbryant@perkinscoie.com Sopen B. Shah* PERKINS COIE LLP 33 East Main Street, Suite 201 Madison, Wisconsin 53703-3095 Telephone: (608) 663-7460 Facsimile: (608) 663-7499 sshah@perkinscoie.com Counsel for Plaintiffs * Pro Hac Vice Applications Forthcoming
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3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13-1 Page 1 of 4
Exhibit 1

3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13-1 Page 2 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

KYLON MIDDLETON; DEON TEDDER; AMOS WELLS; CARLYLE DIXON; TONYA WINBUSH; ERNESTINE MOORE; SOUTH CAROLINA DEMOCRATIC PARTY; DNC SERVICES CORPORATION/DEMOCRATIC NATIONAL COMMITTEE; and DCCC,
Plaintiffs,
v.
MARCI ANDINO, in her official capacity as Executive Director of the South Carolina State Election Commission; JOHN WELLS, in his official capacity as Chair of the South Carolina State Election Commission; and CLIFFORD J. EDLER and SCOTT MOSELEY, in their official capacities as members of the South Carolina State Election Commission,
Defendants.

Case No. 3:20-cv-1730-JMC

DECLARATION OF DEON TEDDER I, Deon Tedder, make this declaration in support of Plaintiffs’ Motion for Preliminary Injunction. 1. I am 30 years old and a resident of Charleston County, South Carolina. I have lived in South Carolina since 2008 when I began attending South Carolina State University, and I registered to vote in the State soon after enrolling at the University of South Carolina School of Law in 2012. 2. I am a Democratic candidate for South Carolina State House District 109 and actively campaigning in the June 9, 2020 Democratic Party primary.

3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13-1 Page 3 of 4
3. I take voting very seriously. I have regularly voted in elections since I first registered at age 18.
4. Though I am under 65 years old, I have previously qualified to vote absentee in South Carolina because I was traveling outside of the County or State on election day. However, because of the COVID-19 pandemic and my fear of becoming infected, I will not be leaving the County on the day of the June primary and will not qualify for absentee voting.
5. Because I am under the age of 65 and do not otherwise qualify to vote absentee, I will be required to vote in person on election day for the June primary. I want to vote during the June primary, but I am concerned that having to cast my ballot in person on election day will require me to abandon social distancing requirements, be in close contact with people who could be infected with COVID-19 for a prolonged period of time, touch common objects, and increase my exposure to the disease. Though the elderly have a greater risk of serious illness and death because of COVID-19, I know that my age does not make me immune to the disease. I am concerned about contracting COVID-19 and potentially spreading it to my loved ones and vulnerable members of my community. And as an African American, I am particularly concerned about becoming infected and spreading the disease to others, as African Americans are infected and die at a disproportionately higher rate than any other demographic group in the State.
6. Requiring most voters to cast their ballots in person on election day because they have not yet turned 65 is a barrier to their ability to vote. Without the chance to vote absentee, I and other voters must make the impossible choice between exercising our right to vote and protecting our lives and the lives of those in our communities.
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Exhibit 2

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

KYLON MIDDLETON; DEON TEDDER; AMOS WELLS; CARLYLE DIXON; TONYA WINBUSH; ERNESTINE MOORE; SOUTH CAROLINA DEMOCRATIC PARTY; DNC SERVICES CORPORATION/DEMOCRATIC NATIONAL COMMITTEE; and DCCC,
Plaintiffs,
v.
MARCI ANDINO, in her official capacity as Executive Director of the South Carolina State Election Commission; JOHN WELLS, in his official capacity as Chair of the South Carolina State Election Commission; and CLIFFORD J. EDLER and SCOTT MOSELEY, in their official capacities as members of the South Carolina State Election Commission,
Defendants.

Case No. 3:20-cv-1730-JMC

DECLARATION OF KYLON MIDDLETON I, Kylon Middleton, make this declaration in support of Plaintiffs’ Motion for Preliminary Injunction. 1. I am 45 years old and a resident of Charleston County, South Carolina. I have lived and maintained a residence in South Carolina for my entire life and have been registered to vote in the State since I was 18 years old. 2. I am the senior pastor of Mount Zion AME Church in Charleston. Due to the COVID-19 pandemic and the social distancing recommendations issued by the Center for Disease Control and Prevention to slow the spread of the disease, we no longer hold church service in

3:20-cv-01730-JMC Date Filed 05/07/20 Entry Number 13-2 Page 3 of 5
person. Our congregation is predominately African American, and I am acutely aware that African Americans contract the virus and die because of COVID-19 at disproportionately higher rates than other demographic groups in South Carolina. Our congregation frequently expresses their fears about their risk of exposure to COVID-19 and the serious and potentially fatal health effects they may suffer. To prevent increased exposure among churchgoers and the community, the Mount Zion AME Church is no longer open to the public. Instead, I lead worship from my home, and we stream our church service online.
3. I am also a Democratic candidate for Charleston County Council and actively campaigning in the June 9, 2020 Democratic Party primary.
4. Voting is very important to me. I have voted in countless elections since I first registered and typically vote in person on election day. Though I am under the age of 65, I have previously voted absentee due to my employment obligations or planned vacations that prevented me from going to the polls on election day. However, due to the COVID-19 pandemic, I will no longer be able to qualify for absentee voting. I will no longer be able to rely on my employment obligations because the Mount Zion AME Church is closed to the public. And I do not plan on traveling or taking a vacation during this pandemic to prevent exposure to the disease.
5. Because I am under the age of 65 and do not otherwise qualify to vote absentee, I will be required to vote in person on election day for the June 9, 2020 primary.
6. I want to vote in the June primary election, but I am worried about having to cast my ballot in person on election day. I am concerned that having to stand in long lines for potentially hours at a time, in a confined space and in close proximity with others who may cough, sneeze, or have the disease but are asymptomatic, and touch common surfaces will put me and other voters at risk of exposure to COVID-19 and further the spread of disease throughout the community. I
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have waited in long lines in previous elections, at times for hours. As recently as the Charleston mayoral runoff election in November 2019, I waited in a line that wrapped around the building for over an hour only to enter a cramped space, sometimes standing shoulder-to-shoulder with other voters, to check-in and cast my ballot. It was clear that the county election officials did not anticipate the large turnout for the runoff and did not provide for sufficient space. I am aware of reports that for the June primary, some poll workers are refusing to work on election day due to the pandemic and the number of available polling places will shrink, meaning voters will have to wait in even longer lines.
7. I am also aware of reports that voters and poll workers in other states have been infected with COVID-19 at polling places on election day. And as an African American, I know that I am at a higher risk of infection and, potentially, death. My congregants have also openly expressed their fears of exposing themselves to COVID-19 if they are required to vote in person on election day. The June primary election is only a few weeks away, and there is no end to the pandemic in sight. The number of COVID-19 infections and deaths in South Carolina is only continuing to grow. Without expansive testing or contact tracing in the State, and with the reopening of more businesses, I am concerned that COVID-19 will only spread throughout our communities at increased rates and affect the lives of thousands more. If required to go to the polls to vote in person on election day for the June primary, I and other voters will be forced to choose between protecting our lives and the lives of those around us and exercising our right to vote.
8. I would like the opportunity to vote absentee by mail in the June primary election rather than put my life at risk by having to vote in person on election day. If I were not restricted from voting absentee because of my age, I would apply for and cast my absentee ballot by mail as soon as possible.
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 </s> 3:20-cv-01730-JMC Date Filed 05/14/20 Entry Number 32 Page 1 of 11

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

Kylon Middleton, et al.,

No.: 3:20-cv-01730-JMC

Plaintiffs,

v. Marci Andino, et al.,
Defendants.

Defendants’ Opposition to Motion for Preliminary Injunction

Defendants Marci Andino, John Wells, Clifford J. Elder, and Scott Moseley
(“Election Defendants”), all of whom have been sued in their official capacities with
the State Election Commission, submit this Opposition to the Plaintiffs’ Motion for
a Preliminary Injunction.
Introduction
This is the third lawsuit filed against the State Election Commission or its
Commissioners (and the second by some of these Plaintiffs) in the past few weeks.
Each suit challenges aspects of South Carolina’s absentee-voting laws. And this is
the second motion for a preliminary injunction on these laws filed in this Court.1
Like the first motion for a preliminary injunction, this one has multiple
flaws. It is wrong on the merits, as nothing in the South Carolina Election Law, S.C.
Code § 7-1-10 et seq., violates the Constitution or any federal statute. It is wrong on
1 Given the overlap of this case and Thomas v. Andino, No. 3:20-cv-1552JMC, the Election Defendants incorporate their arguments in response to the motion for a preliminary injunction in Thomas and do not rehash them here. The Court has no need (particularly in this condensed timeframe) to read the same thing twice. Therefore, to the extent applicable, this response incorporates the Election Defendants’ arguments in Thomas and addresses only issues that were not raised in Thomas.

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any supposed harm, as the Plaintiffs cannot meet the elements for the extraordinary relief they seek. And it is wrong in asking a court, rather than the legislature, to change election laws (a point proven just days ago when the General Assembly exercised its constitutional power to amend those laws). Therefore, just as it should in Thomas, the Court should deny the motion for a preliminary injunction.
Background Most of the necessary background for this motion is covered in the Election Defendants’ response to the preliminary injunction motion in Thomas. The only additional issue raised here involves when absentee ballots must be returned to County Boards. To be counted, an absentee ballot must be received by a County Board by “time for closing of the polls” (“Timely Return Requirement”). S.C. Code §§ 7-15-220, 7-15-420.
Argument I. The Plaintiffs are not likely to succeed on the merits.
A. Their challenge to the Qualification Requirement fails. 1. The General Assembly has expanded absentee voting for this primary season, thereby mooting the Plaintiffs’ COVID-19-based arguments on the Qualification Requirement.
As an initial matter, the General Assembly has the constitutional power to establish election procedures. See S.C. Const. art. II, § 10. On May 12, the General Assembly exercised that power when it passed a bill to expand absentee voting during the June 2020 primary. See R.138 (attached as Exhibit 1). Governor
2

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McMaster signed R.138 into law on May 13, 2020. As relevant here, this legislation provides:
Any qualified elector must be permitted to vote by absentee ballot in an election if the qualified elector’s place of residence or polling place is located in an area subject to a state of emergency declared by Governor and there are fewer than forty-six days remaining until the date of the election Id. § 2(A). Section 2(A) took effect May 13, 2020 and expires on July 1, 2020. Id. § 2(B). The Governor declared a new state of emergency in South Carolina on May 12. See Office of the Governor, Exec. Order 2020-35 (attached as Exhibit 2). That means that any South Carolina voter may request an absentee ballot under this “emergency-declaration qualification” for both the June 9 primary and any runoff on June 23. Given this significant change in who is qualified to vote by absentee ballot in the primary election, there is nothing right now for the Plaintiffs to challenge when it comes to COVID-19 and the Qualification Requirement. Therefore, any COVID-19 arguments are now moot (or not ripe, as they involve hypotheticals). 2. The Twenty-Sixth Amendment argument has no merit. In addition to the COVID-19-related arguments that mirror the Thomas plaintiffs, the Plaintiffs here rely on the Twenty-Sixth Amendment to challenge S.C. Code § 7-15-320(B)(8). By invoking the Twenty-Sixth Amendment, the Plaintiffs invite this Court to break legal ground. At least seven other states currently have statutes allowing people over a certain age to vote by absentee ballot. See Ind. Code
3

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§ 3-11-10-24(5); Ky. Rev. Stat. § 117.085(1)(a)(8); La. Stat. § 18:1303(J); Miss. Code § 23-15-715(b); Tenn. Code § 2-6-201(5)(A); Tex. Elec. Code § 82.003; W. Va. Code. § 3-3-1(b)(1)(B). Despite these other states with similar laws, the Plaintiffs do not cite a single case holding that a statute allowing people over a certain age to vote by absentee ballot violates the Twenty-Sixth Amendment. See Mot., ECF No. 13 at 22– 23.
Beyond this lack of case law, the Plaintiffs’ argument suffers from a lack of logic. The Twenty-Sixth Amendment provides, “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” U.S. Const. amend. XXVI. Section 7-15-320(B)(8) does not deny or diminish (as the leading legal dictionary defines “abridge,” see Black’s Law Dictionary 7 (9th ed. 2009)) anyone’s right to vote. Rather, this statute qualifies older voters to vote by absentee ballot. That qualification does not take away the fundamental right to vote of anyone below that age. They may still vote in person or by absentee ballot, if they qualify under another provision.
In other words, for the Plaintiffs’ argument to prevail, the right to vote by absentee ballot must be one protected by the Twenty-Sixth Amendment. The text contains no such language, and the Election Defendants are aware of no case holding so. On its face, the amendment protects only the right to vote. That plain language controls. See, e.g., Forbes Pioneer Boat Line v. Bd. of Comm’rs of Everglades Drainage Dist., 258 U.S. 338, 340 (1922) (Holmes, J.) (“Courts cannot go
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very far against the literal meaning and plain intent of a constitutional text.”). Nothing in section 7-15-320(B)(8) impacts the right to vote for a person under sixtyfive.
Even if the Plaintiffs’ claim here had some merit, the relief sought is not warranted. The Plaintiffs cite no authority explaining why the remedy should be to open absentee voting to all voters rather than to hold section 7-15-320(B)(8) unconstitutional and prohibit anyone from being qualified to vote by absentee ballot based on age. That would be the typical remedy (striking down an unconstitutional statute), and it would better respect the General Assembly’s authority to regulate elections under South Carolina law, see S.C. Const. art. II, § 10, particularly when it comes to absentee voting, which is not the same as the fundamental constitutional right to vote, see McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802, 807 (1969).2
B. The Plaintiffs have not shown that the Witness Requirement is more than a minimal burden.
In support of their Motion for Preliminary Injunction, the Plaintiffs have submitted declarations from Kylon Middleton (ECF 13-2) and Deon Tedder (ECF 13-1).
Tedder challenges the Witness Requirement, but his declaration contains no evidence to support the alleged burdens of that statutory mandate. He does not
2 Given that both Middleton and Tedder may vote by absentee ballot under R.138, the Election Defendants need not address why neither Plaintiff faces a severe burden under the Qualification Requirement.
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state that he lives alone and works only from home, nor does he state that his living and working arrangements do not bring him into the presence of other people. In other words, conspicuously absent from his declaration is any suggestion that he has no person available to him, at his residence, his work, or in his campaign, to serve as a witness.
Similarly, although Middleton does not specifically mention the Witness Requirement, nowhere in his declaration does he say anything that proves his circumstances of daily living, work, and ministry do not bring him into contact with any other person who could be a witness. Thus, the Plaintiffs has not offered anything to prove the Witness Requirement is more than a minimal burden.
Given the minimal burden here and the State’s interest in ensuring election integrity discussed in the Thomas briefing, the Witness Requirement is a valid, reasonable election regulation. See Burdick, 504 U.S. 428, 441 (1992) (upholding “reasonable” burdens on voting).
C. The Timely Return Requirement ensures elections are fair and orderly.
The Plaintiffs fail to explain how returning an absentee ballot by the required deadline is a burden, whether for them personally or generally. As for the Plaintiffs themselves, the declarations from Tedder and Middleton contain no facts showing how or why the statutory deadline for receipt of ballots would prevent any ballots they cast from being counted. Rather, their declarations indicate that each is well aware of the June primary and South Carolina’s voting requirements.
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More generally, it is unclear how complying with this requirement is a burden. Every election has some voters who fail to comply with various requirements and thus have their votes discarded. That is unfortunate but inevitable when dealing with hundreds of thousands (or millions) of fallible human beings. Thus, the numbers of absentee ballots returned after the deadline is actually irrelevant, as is Wisconsin’s experience, which is a different state with different laws and different voters.
On a most basic level, the Plaintiffs’ argument here is that voters may be unaware of the rules about when ballots must be returned. See Mot., ECF No. 13 at 25. But as the U.S. Supreme Court said only weeks ago, “[e]very citizen is presumed to know the law.” Georgia v. Public.Resource.Org, Inc., No. 18-1150, slip. op. at 7, 2020 WL 1978707, at *6 (Apr. 27, 2020); see also State v. Adams, 763 S.E.2d 341, 348 (S.C. 2014) (“ignorance of the law is no excuse”). It is reasonable to expect a voter who chooses to vote by absentee ballot to take enough responsibility to be aware of the rules governing that procedure, just as a voter who votes in person must be aware of the rules governing that procedure.
The expectation of timely ballot return is abundantly reasonable given that a written explanation of the deadline accompanies each absentee ballot sent to a qualified voter. As explained in the Declaration of Marci Andino, ¶ 7 (attached as Exhibit 1 to Exhibit 3 (Supplemental Declaration of Marci Andino) here and also filed as ECF No. 46-2 in Thomas), printed instructions are sent to every qualified voter along with each absentee ballot. Those instructions clearly state—twice—that
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the absentee ballot must be returned to the county voter registration office by the time the polls close. See Decl. of Marci Andino, Ex. C to Andino Decl., ¶ 3 (“Important”); ¶ 8 (“Instructions for Voting Absentee”) (at ECF No. 46-5 in Thomas).
The requirement that absentee ballots be received by 7:00 PM on election day is also reasonable because that is the deadline by which a person voting in person on election day must be in line at her polling place. There is no reason why a person voting by absentee ballot should have a longer time to submit her vote.
To be sure, having every voter who requested an absentee ballot return that ballot on time would be ideal. That would better allow the collective will of the electorate to be known. But elevating that ideal by changing the Timely Return Requirement means changing the rules of an election, which comes at the cost of ensuring elections are fair—an essential part of ensuring that voters can trust the outcome. Ultimately, balancing these two goals of the electoral process is one that belongs to the legislative branch, not the judicial one. II. The equities and public interest weigh against an injunction.
A. The Plaintiffs’ delay in seeking this relief is inexcusable. On their challenge to the Qualification Requirement, laches presents an insurmountable hurdle for the Plaintiffs. This doctrine bars a claim when a plaintiff’s unreasonable delay prejudices the defendant. See Smith v. S.C. Election Comm’n, 874 F. Supp. 2d 483, 498 (D.S.C. 2012). The Plaintiffs delayed in bringing their Twenty-Sixth Amendment challenge for twenty-eight years. South Carolina gave people seventy-two years of age and
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older the ability to vote by absentee ballot in 1992. See 1992 S.C. Acts No. 489, § 1. The General Assembly lowered that age to sixty-five in 1995, where it has remained ever since. See 1995 S.C. Acts No. 80, § 1. Despite having had almost three decades to assert their Twenty-Sixth Amendment argument (which is irrelevant to COVID19), the Plaintiffs bring it only now, just a month before a primary election. They are not entitled to an injunction at this late stage.
Laches also poses a problem for the Plaintiffs’ remaining claims. The complaint was filed on May 1, 2020, less than six weeks before the June 9 primary, and the Plaintiffs’ motion for preliminary injunction was not filed until May 7, less than five weeks before that primary. The COVID-19 pandemic upon which the Plaintiffs base their demand for emergency and extraordinary relief was well known to them for more than a month prior to when their complaint was filed. Yet they offer no reason for their delay. Indeed, there is none.
Take, for instance, the sources the Plaintiffs cite in their complaint and motion for preliminary injunction. Many of those news articles and reports from the CDC and DHEC, ostensibly in support of the need for preliminary injunctive relief, were published in March 2020, at least six weeks before the Plaintiffs sought that relief.
Likewise, the Plaintiffs also rely on Governor McMaster’s March 15 executive order delaying local elections scheduled for March and April. See Office of the Governor, Exec. Order No. 2020-09 at 1 (Mar. 15, 2020). The Plaintiffs knew about that order for more than a month and a half before bringing this lawsuit.
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Finally, two Plaintiffs in this action (the South Carolina Democratic Party and the DCCC) are also plaintiffs in a case pending in the Supreme Court of South Carolina, Rhodes Bailey, Robert Werhman, South Carolina Democratic Party, and DCCC v. South Carolina Election Commission and Marci Andino as Executive Director of the State Election Commission; Appellate Case No. 2020-00642. The Complaint in that case, filed April 22, 2020, seeks similar relief based on essentially the same pandemic-related facts. Why the Plaintiffs here delayed filing this action until May 1 is not explained, much less justified.
B. The Plaintiffs’ requested delays would upset South Carolina’s carefully crafted procedures for voting and tabulating results.
The provisions of Title 7 of the South Carolina Code, which govern voter qualifications and registration and the conduct of elections, establish a carefully reticulated process. The various time provisions and deadlines are not arbitrary, nor are they unrelated to each other. Rather, they ensure a smooth process for people to cast ballots and officials to count those ballots.
The lateness of the Plaintiffs’ injunction request ignores this statutory process. Granting it would create confusion and necessitate other modifications not mentioned by the Plaintiffs. For example, the Plaintiffs request that the counting of ballots not begin until June 19, and results not be released before 7:00 P.M. on June 19, without regard to June 23 being the scheduled run-off date. Obviously voters and state and county officials responsible for conducting elections would need more than one business day to prepare for runoffs after receiving the June 9 primary results.
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Conclusion The motion for a preliminary injunction should be denied.
Respectfully Submitted,

Dated: May 14, 2020 Columbia, SC

s/ Wm. Grayson Lambert
M. Elizabeth Crum Fed. ID No. 372 Wm. Grayson Lambert Fed. ID No. 11761 Jane W. Trinkley Fed. ID No. 4143 BURR & FORMAN LLP Post Office Box 11390 Columbia, SC 29211 (803) 799-9800
Robert Bolchoz ROBERT BOLCHOZ LLC P.O. Box 6989 Columbia, SC 29260 (803) 790-7474
Karl Smith Bowers, Jr. BOWERS LAW OFFICE P.O. Box 50549 Columbia, SC 29250 (803) 753-1099
Harrison D. Brant STATE ELECTION COMMISSION 1122 Lady Street, Suite 500 Columbia, SC 29201 (803) 734-9063
Counsel for Defendants Marci Andino, John Wells, Clifford J. Elder, and Scott Moseley

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 </s> 3:20-cv-01730-JMC Date Filed 05/14/20 Entry Number 33 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

KYLON MIDDLETON; DEON TEDDER; )

AMOS WELLS; CARYLYE DIXON;

)

TONYA WINBUSH; ERNESTINE MOORE; )

SOUTH CAROLINA DEMOCRATIC

)

PARTY; DNC SERVICES

)

CORPORATION/DEMOCRATIC

)

NATIONAL COMMITTEE and DCCC

)

)

Plaintiffs, )

)

v.

)

)

MARCI ANDINO, in her official capacity as )

Executive Director of the South Carolina

)

State Election Commission; JOHN WELLS, )

in his official capacity as Chair of South

)

Carolina State Election Commission; and

)

CLIFFORD J. ELDER and SCOTT

)

MOSELEY, in their official capacities as

)

members of the South Carolina State Election )

Commission

)

)

Defendants. )

Case No.: 3:20-cv-01730-JMC
INTERVENOR–DEFENDANT SOUTH CAROLINA REPUBLICAN PARTY’S
RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Local Civil Rule 7.06, DSC, the intervenor–defendant, South Carolina

Republican Party (the Republican Party), submits this response in opposition to the motion for

preliminary injunction filed by the plaintiffs, Kylon Middleton, Deon Tedder, Amos Wells, Tonya

Winbush, Ernestine Moore, South Carolina Democratic Party, DNC Services

Corporation/Democratic National Committee, and DCCC (collectively, “the plaintiffs”). See ECF

No. 13. For the reasons that follow, the Court should deny the plaintiffs’ motion for mandatory

preliminary injunction because they are not entitled to this drastic relief. 1

1 For the sake of judicial economy and given the expedited briefing schedule, the Republican Party would respectfully rely upon and direct the Court to the background and standard sections from its response in opposition filed in the companion action with which the Court consolidated the present action for a hearing on May 15, 2020. See Thomas v. Andino, No. 3:20-cv-01552-JMC, ECF No. 50 (D.S.C. 2020). The

3:20-cv-01730-JMC Date Filed 05/14/20 Entry Number 33 Page 2 of 11
ARGUMENT The Court should deny the plaintiffs’ motion for a mandatory preliminary injunction with respect to the June 9, 2020 primary because they failed to make a clear showing of entitlement to one of the most drastic forms of relief known under the law. For the same reasons set forth in the Republican Party’s prior brief, the plaintiffs failed to demonstrate irreparable harm, the balance of the equities does not tip in their favor, and an injunction is not in the public interest given this late hour before the June primary. More importantly, as explained in greater detail below, the plaintiffs failed to make a clear showing that they are likely to succeed on the merits of their challenges to South Carolina’s witness requirement and the election day cutoff deadline. I. Some of the plaintiffs’ claims in both actions are now moot. At the outset, as the Court recognized, several claims raised by the plaintiffs in this case— as well as the companion action with which this case was consolidated for a hearing—are now moot for purposes of an expedited preliminary injunction. The Supreme Court has long recognized that “mootness can arise at any stage of litigation.” Calderon v. Moore, 518 U.S. 149, 150 (1996). Just this week, the General Assembly passed a bill that gives all South Carolina voters the ability to vote absentee in the June 9, 2020 primary:
A qualified elector must be permitted to vote by absentee ballot in an election 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 and there are fewer than forty-six days remaining until the date of the election. S. 635, 123d Leg., 2d Sess. (S.C. 2020). And the Governor has already signed the bill into law. See Ex. A, R. 138 (S.C. 2020). The law will also apply to any runoff elections. See Press Release,
Republican Party incorporates the above-mentioned sections, as well as all substantive arguments raised in its previous filing, including but not limited to those on the witness requirement, as fully and effectually as if set forth verbatim herein.
2

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S.C. State Election Comm’n, All Voters Can Now Vote Absentee in June Primaries, Runoff (May 13, 2020), https://www.scvotes.org/all-voters-can-now-vote-absentee-june-primaries-runoffs. Although the law sunsets on July 1, 2020, see Ex. A, the plaintiffs’ claimed exigency in both cases purporting to justify emergency intervention by this Court to resolve their challenge to the excuse requirement and the “age restriction” for purposes of the June 9, 2020 primary no longer exists and those claims are moot.
The plaintiffs in Thomas recognized as much and rightly agreed conditionally to withdraw their challenge to the excuse requirement for purposes of the preliminary injunction hearing because a ruling would have no practical effect on the June primary. See Thomas v. Andino, No. 3:20-cv-01552-JMC, ECF No. 55, at 1 n.1 (D.S.C. 2020). They reserved the right to challenge this requirement on the merits at a later date following the primary. The plaintiffs here—perhaps in recognition that not all issues need to be decided in this “emergency” posture—likewise agreed that certain issues could wait for resolution until after the June primary.2 But the age restriction is plainly folded into the excuse requirement challenge in the companion case. Indeed, that was one of the grounds on which the plaintiffs relied to show these two actions were related for purposes of consolidation.
Nevertheless, the enactment of S.635 plainly mooted the age restriction challenges for purposes of an emergency injunction in advance of the June primary, which was the relief sought.3
2 The Republican Party reserves the right to brief its opposition to the remaining issues raised in the plaintiffs’ complaint at the appropriate date. The present filing is limited to a discussion of the issues that are before the Court on the motion for preliminary injunction being heard on May 15, 2020. 3 Although the Court found the plaintiffs’ absentee ballot age requirement challenge moot for purposes of the motion for preliminary injunction, ECF No. 30, it is unclear from the plaintiffs’ submission whether they agree with the Court. See ECF No. 31. To the extent they seek to revive this challenge for purposes of the “August special election for State House District 115,” id., the parties can address this matter after the June primary when everyone has a reasonable amount of time to brief the issue, particularly given that they attack the 65-and-older-absentee-provision on separate constitutional grounds and under the Voting
3

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II. The plaintiffs’ challenge to the witness requirement is self-defeating. For the most part, the Republican Party will rely upon the arguments raised in its brief
filed in the Thomas case regarding the plaintiffs’ challenge to the witness requirement. But the allegations in the plaintiffs’ complaint here necessitate further commentary.
As an initial matter, the plaintiffs’ challenge to the witness requirement is barred by the doctrine of laches. “An affirmative defense to claims for equitable relief, laches requires a defendant to prove two elements: ‘(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.’” Perry v. Judd, 471 F. App’x 219, 224 (4th Cir. 2012) (quoting Costello v. United States, 365 U.S. 265, 282 (1961)). Both prongs are met here. Subsection 7-15-320(B)(5) has been on the books for years. Yet the plaintiffs waited until the eve of the 2020 election to raise this issue for the first time.
In addition to the lack of diligence, the plaintiffs’ tardy challenge also prejudices the defendants and the Republican Party. See Costello, 365 U.S. at 282. Again, while this no longer matters for the June primary, the plaintiffs want to change the law for the November election to open the floodgates for unregulated absentee voting in a presidential election year with crucial races up and down the ballot at the expense of all safeguards that the General Assembly—as a matter of public policy—has put in place to prevent political mischief and voter fraud. Given that this last-minute, multi-forum legal blitz leaves little time to defend the longstanding laws on the books, the plaintiffs have undoubtedly prejudiced the defendants. Under these circumstances, the Court should reject the plaintiffs’ challenge to the witness requirement, as well as all of their claims for that matter, as explained in greater detail in the Republican Party’s companion brief in Thomas because the balance of the equities tips in favor of the defendants under the doctrine of laches.
Rights Act of 1965. But the plaintiffs cannot demonstrate any exigency that would justify prolonging the hearing tomorrow to address a presently moot issue that does not require resolution before the June primary.
4

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Even on the merits, the plaintiffs fare no better. Absentee voting is a privilege created by the General Assembly, not a fundamental right protected by the U.S. Constitution. See McDonald v. Bd. Of Elec. Comm’rs, 394 U.S. 802 (1969). “Election laws will invariably impose some burden upon individual voters.” Burdick v. Takushi, 504 U.S. 428, 433 (1992). Indeed, “[e]ach provision of a code, ‘whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects—at least to some degree— the individual’s right to vote and his right to associate with others for political ends.’” Id. (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).
“[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730 (1974). “Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review.” Bullock v. Carter, 405 U.S. 134, 143 (1972). As for the first challenge, under the well-established Anderson-Burdick standard, “the rigorousness of [the] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Burdick, 504 U.S. at 434. “But when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Id.
The Court “must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” and then “identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule.” Anderson, 460 U.S. at 789. In evaluating this claim, “the Court must
5

3:20-cv-01730-JMC Date Filed 05/14/20 Entry Number 33 Page 6 of 11
not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” Id. When “weighing all these factors,” the plaintiffs’ constitutional challenge fails as a matter of law. The plaintiffs are not burdened at all.
For starters, the plaintiffs’ arguments are completely inconsistent. On the one hand, they contend that requiring an absentee voter to get a witness to sign their ballot is virtually impossible. Yet on the other hand, Plaintiff Deon Tedder complains that he wants to be able to help voters complete and return absentee ballot applications—presumably for himself—in the upcoming elections. In fact, the complaint says he “would like to assist voters who seek to cast absentee ballots but cannot leave their homes.” ECF No. 1, at 6 ¶ 13. Which is it? The plaintiffs cannot have their cake and eat it too. If the conditions are so bad that the plaintiffs are asking the Court to strike down the requirement that people get a witness signature on their absentee ballots, then how are the conditions ripe enough for Mr. Tedder and others to go help voters fill out absentee ballots? Also, if it is so impossible to make contact with people, then how did Reverend Middleton sign his declaration and get a copy to plaintiffs’ counsel the day before filing their preliminary injunction? See ECF No. 13-2, at 2–5. And how did Mr. Tedder sign his declaration the same day the motion was filed? See ECF No. 13-1, at 2–4. These wet signatures suggest the witness requirement is not as much a burden as alleged in the complaint.
While the plaintiffs would prefer to present the Court with purely speculative potential issues, the fact remains that obtaining a witness signature is not an impossible or unreasonable burden. Just because they say it does not make it so. Aside from conclusory assertions and speculative theories, the plaintiffs have failed to make a clear showing that it would be impossible even in the age of COVID-19. Although this global pandemic has wreaked havoc on the State, it
6

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has not prevented people from interacting with others to obtain the necessities of life. People have purchased or arranged for the purchase of food and medicines. They have interacted with each other while observing social distancing guidelines. They have acquired and worn masks. They have traveled as necessary. Even in the pandemic, potential voters have and must interact with other individuals at some point. Obtaining a witness signature can be done without violating any of the existing CDC guidelines to control the spread of COVID-19 and without any unreasonable threat or burden to absentee voters.
In sum, the plaintiffs’ alleged burden, if any, is minimal. “To deem ordinary and widespread burdens like these severe would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes.” Clingman v. Beaver, 544 U.S. 581, 593 (2005). As the Supreme Court has held, “[t]he Constitution does not require that result, for it is beyond question ‘that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.’” Id. (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)).
The Court should therefore deny the motion for a mandatory preliminary injunction with respect to the witness requirement because the plaintiffs’ arguments amount to nothing more than sheer speculation, conjecture, and apparitions and do not meet the high threshold of clearly stating a constitutional challenge sufficient to enjoin a current South Carolina law. III. The election day cutoff challenge is a red herring and baseless.
Finally, the plaintiffs’ request for the Court to extend the election cutoff is neither tethered to the law in South Carolina nor the record in this case. It is manifestly without merit.
7

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While the plaintiffs believe one line from a Supreme Court order granting a stay based upon extraordinary circumstances without the benefit of a full record carries the day here, that is just not the case. A review of the order in Republican National Committee v. Democratic National Committee reveals the Court did not paint that broad a stroke. 589 U.S. __, 140 S. Ct. 1205 (2020) (per curiam). In that case, the Supreme Court found the district court’s order was of an “unusual nature.” Id. at 1207. To illustrate how unusual the ruling was, the Supreme Court referenced the subsequent order by the district court “enjoining the public release of any election results for six days after election day.” Id. The Court reasoned that “lower federal courts should ordinarily not alter the election rules on the eve of an election.” Id.
Notably, the Court explained the plaintiffs failed to put forward any probative evidence at the lower court that voters would be in a substantially different position from late-requesting voters in other Wisconsin elections with respect to the timing of their receipt of absentee ballots.” Id. In addition, the Court noted the plaintiffs did not request the remedy granted by the lower court. Id. Instead, the lower court took it upon itself to extend the deadline in which absentee ballots must be received. Id. The Court opined extending the date for a voter to mail their ballot “is extraordinary relief [that] would fundamentally alter the nature of the election by allowing voting for six additional days after the election.” Id. at 1208.
But the Court cautioned that its “decision on the narrow question should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate.” Id. Yet the plaintiffs cite this ruling as if it stands for the proposition that they are entitled to an extension of the election day cutoff as a matter of law. That is simply not the case.
8

3:20-cv-01730-JMC Date Filed 05/14/20 Entry Number 33 Page 9 of 11
In the Wisconsin case, the evidence presented to the district court demonstrated voters may be unable to return their ballots by the end of election day due to the record number of absentee ballots requested. Democratic Nat’l Comm. v. Bostelmann, ___ F. Supp. 3d ___, 2020 WL 1638374, at *17 (W.D. Wis. April 2, 2020). The district court noted Wisconsin was at the beginning of its COVID-19 curve and Governor Evers had enacted a “Safer-at-Home” Order that was to remain in place until April 24, 2020—beyond the election day at issue. Id. at *3.
Wisconsin clerks’ offices were struggling to process the overwhelming number of absentee ballot requests. Id. at *5. One clerk’s office argued the existing deadline for receiving absentee ballots was “unworkable” and said it would be impossible for some voters to receive, complete, and return their absentee ballots by the close of election day. Id. As a result, the Wisconsin Election Commission informed the court it no longer objected to receiving absentee ballots by April 13, 2020, as long as they were postmarked by the election date, April 7, 2020. Id. at *16. The commission indicated it would be able to timely canvass all absentee ballots that were received by 4:00 P.M. on April 13, 2020. Id.
Here, the only resemblance between the Wisconsin and South Carolina absentee ballot time requirements is that the ballot must be received by the close of election day. Compare Wis. Stat. § 6.87(6), with S.C. Code Ann. § 7-15-230. Two major factors played into the Court’s decision in Wisconsin that have not arisen in South Carolina. First, the South Carolina Election Commission has not indicated current absentee ballot numbers are overwhelming local election commissions to the point that voters will not be able to receive, complete, and return absentee ballots by 7:00 P.M. on June 9, 2020. There is zero evidence in this record to demonstrate the existing deadline is “unworkable” or insufficient. Nor has the State Election Commission requested or consented to such an extension. And second, Governor McMaster lifted his “Safer-At-Home” Order, and the
9

3:20-cv-01730-JMC Date Filed 05/14/20 Entry Number 33 Page 10 of 11
plaintiffs have introduced no evidence indicated South Carolina is “somewhat near the beginning of th[e] curve” for COVID-19. To the contrary, Governor McMaster has begun easing restrictions to reopen South Carolina’s economy while heeding the advice of experts.
Thus, the record upon which the Supreme Court made its decision in Wisconsin bears no resemblance to the record in this case. Simply put, that case is inapposite and was decided on its own specific facts. Because the plaintiffs have failed to make any showing that they are entitled to an arbitrary extension of the election day cutoff for mailing absentee ballots, the Court should deny their motion for a mandatory preliminary injunction on this ground.
CONCLUSION In sum, for the foregoing reasons, as well as those raised in the Republican Party’s brief in Thomas, the Court should deny the plaintiffs’ drastic request for a mandatory preliminary injunction. The plaintiffs failed to make a clear showing that they are likely to succeed on the merits of their witness requirement and election day cutoff challenges. Nor can they demonstrate any irreparable harm stemming from these reasonable regulations on the absentee voting privilege. And given their delay in bringing these claims, coupled with the federalism and separation of powers concerns attendant to the Court wading into this policy debate, a mandatory preliminary injunction would not be in the public interest. To the contrary, it would pave the way for great voter confusion and invite political mischief and voter fraud. Accordingly, the Court should maintain the status quo for the upcoming June primary.
(Signature page to follow)
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Columbia, South Carolina May 14, 2020

Respectfully submitted,
ROBINSON GRAY STEPP & LAFFITTE, LLC
By: s/Robert E. Tyson, Jr. Robert E. Stepp Fed. ID No. 4302 Robert E. Tyson, Jr. Fed. ID No. 7815 Vordman Carlisle Traywick, III Fed. ID No. 12483 1310 Gadsden Street Post Office Box 11449 Columbia, South Carolina 29201 (803) 929-1400 rstepp@robinsongray.com rtyson@robinsongray.com ltraywick@robinsongray.com
Counsel for Intervenor South Carolina Republican Party

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3:20-cv-01730-JMC Date Filed 05/14/20 Entry Number 33-1 Page 1 of 11
Middleton, et al v. Andino, et al Case No.: 3:20-cv-01730-JMC
EXHIBIT A
Intervenor-Defendant South Carolina Republican Party’s Response in Opposition to Plaintiffs’ Motion for Preliminary Injunction

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 </s> 3:20-cv-01730-JMC Date Filed 05/25/20 Entry Number 37 Page 1 of 56

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

Mary T. Thomas, Nea Richard, Jeremy )

Rutledge, Trena Walker, Dr. Brenda

)

Williams, and The Family Unit, Inc.,

)

)

Plaintiffs,

)

)

v.

)

)

Marci Andino, as Executive Director of the )

State Election Commission, John Wells )

in his official capacity as Chair of SC State )

Election Commission, Clifford J. Edler and )

Scott Moseley in their official capacities as )

Members of the South Carolina State

)

Election Commission, and Henry D.

)

McMaster in his official capacity as

)

Governor of South Carolina,

)

)

Defendants.

)

)

Kylon Middleton; Deon Tedder; Amos )

Wells; Carylye Dixon; Tonya Winbush; )

Ernestine Moore; South Carolina

)

Democratic Party; DNC Services

)

Corporation/Democratic National

)

Committee and DCCC,

)

)

Plaintiffs,

)

)

v.

)

)

Marci Andino, in her official capacity as )

Executive Director of the South Carolina )

State Election Commission, John Wells )

in his official capacity as Chair of South )

Carolina State Election Commission, and )

Clifford J. Edler and Scott Moseley, in )

their official capacities as members of the )

South Carolina State Election Commission, )

)

Defendants.

)

)

Civil Action No.: 3:20-cv-01552-JMC
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER AND OPINION GRANTING IN PART MOTION FOR PRELIMINARY INJUNCTION
Civil Action No.: 3:20-cv-01730-JMC
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER AND OPINION GRANTING IN PART MOTION FOR PRELIMINARY INJUNCTION

1

3:20-cv-01730-JMC Date Filed 05/25/20 Entry Number 37 Page 2 of 56
I. INTRODUCTION In the first of two related actions, Plaintiffs Mary T. Thomas, Nea Richard, Jeremy Rutledge, Trena Walker, Dr. Brenda Williams, and The Family Unit, Inc. (collectively “Thomas Plaintiffs”) filed a Complaint for Injunctive and Declaratory Relief against Defendants Marci Andino, John Wells, Clifford J. Edler, and Scott Moseley, in their official capacities as Commissioners of the South Carolina State Election Commission (“SCEC”), and Governor Henry D. McMaster of South Carolina (collectively “Defendants”), seeking to enjoin specified laws promulgated by the State of South Carolina regarding voting by absentee ballot. Thomas v. Andino, C/A No.: 3:20-cv-01552-JMC, ECF No. 1 (D.S.C. Apr. 22, 2020) (hereinafter “Thomas”). Specifically, due to alleged vulnerabilities to COVID-19, Thomas Plaintiffs challenge (1) “the requirement setting forth exclusive categories of ‘[p]ersons qualified to vote by absentee ballot,’ in South Carolina (the ‘Excuse Requirement’)[,] S.C. Code Ann. § 7-15-320” (West 2020), and (2) South Carolina’s requirement that a witness be present when a voter signs their ballot pursuant to S.C. Code Ann. § 7-15-380 (West 2020) (the “Witness Requirement”). (ECF No. 1 at 2 ¶ 3, 3 ¶ 4, 40 ¶ 104, 41 ¶ 107.) In the second action, Plaintiffs Kylon Middleton, Deon Tedder, Amos Wells, Carylye Dixon, Tonya Winbush, Ernestine Moore, the South Carolina Democratic Party (“SCDP”), DNC Services Corporation/Democratic National Committee (“DNC”), and DCCC (collectively “Middleton Plaintiffs”) filed a Complaint against Defendants Andino, Wells, Edler, and Moseley (grouped together as the “SCEC Defendants”) also seeking to enjoin specified laws promulgated by the State of South Carolina regarding voting by absentee ballot. Middleton v. Andino, C/A No.: 3:20-cv-01730-JMC, ECF No. 29 at 4 (refencing ECF No. 1) (D.S.C. May 13, 2020) (hereinafter “Middleton”). Middleton Plaintiffs challenge the following: (1) the Witness Requirement; (2) that
2

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“South Carolina does not provide pre-paid postage on its mail-in absentee ballots, requiring voters
to independently secure postage for their ballot to be counted (the ‘Postage Tax’)”; (3) that “South
Carolina rejects all mail-in absentee ballots not received by the county by 7:00 p.m. on Election
Day (the ‘Election Day Cutoff’)[,]” S.C. Code Ann. § 7-15-230 (West 2020); and (4) that “South
Carolina makes it a felony for a candidate or paid campaign staff to assist voters with returning
their voted absentee ballots to elections officials (the ‘Absentee Assistance Ban’)[,]” S.C. Code
Ann. § 7-15-385 (West 2020). (ECF No. 1 at 3–4 ¶¶ 5–8 (Middleton).)
This matter is before the court on separate Motions for Preliminary Injunction filed by
Thomas Plaintiffs and Middleton Plaintiffs.1 (ECF No. 7 (Thomas); ECF No. 13 (Middleton).)
Thomas Plaintiffs’ Motion for Preliminary Injunction is centered on enjoining (1) the Excuse
Requirement and (2) the Witness Requirement before the June 20202 primaries in South Carolina.3
(ECF No. 7 at 1 (Thomas).) In their Motion for Preliminary Injunction, Middleton Plaintiffs focus
on (1) “the categorical prohibition on all ages under 65 from casting a mail-in absentee ballot
1 Rule 52 of the Federal Rules of Civil Procedure requires the court to “state the findings and conclusions that support” the “granting or refusing [of] an interlocutory injunction.” Fed. R. Civ. P. 52(a)(2). In further adherence to Rule 52(a)(1), this Order “finds [] facts specially and state[s] its conclusions of law separately” in numbered paragraphs. The court observes that Rule 52 does not require a discussion of every issue argued and/or presented. E.g., Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir. 1993) (“But Rule 52(a) exacts neither punctilious detail nor slavish tracing of the claims issue by issue and witness by witness. It simply require[s] findings that are explicit and detailed enough to enable us to review them under the applicable standard.” (internal and external citations and quotation marks omitted)). See also Paleteria La Michoacana, Inc. v. Productos Lacteos Tocumbo S.A. DE C.V., 188 F. Supp. 3d 22, 34–35 (D.D.C. 2016), aff’d, 743 F. App’x 457 (D.C. Cir. 2018)(“[t]he Court is neither “require[d]” nor “encourage[d]” “to assert the negative of each rejected contention as well as the affirmative of [all] those which they find to be correct.”). 2 South Carolina is scheduled to hold statewide Democratic and Republic primaries on June 9, 2020, and primary runoffs on June 23, 2020. E.g., SCIWAY, https://www.sciway.net/sc-elections/ (last visited May 24, 2020). 3 The court observes that while the relevant Witness Requirement statute, S.C. Code Ann. § 7-15380, has been in existence for many years, Thomas/Middleton Plaintiffs challenge the Witness Requirement only as a result of the ongoing COVID-19 pandemic having immediate and severe effects on the June 2020 primary elections.
3

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unless they fall into narrow and limited categories such as disabled or confined in jail (‘Absentee Ballot Age Restriction’), S.C. Code Ann. § 7-15-320(B)(8)”; (2) the Witness Requirement; and (3) the Election Day Cutoff. (ECF No. 13 at 7 (Middleton).) For the reasons set forth below, the court GRANTS IN PART AND DENIES IN PART Thomas Plaintiffs’ Motion for Preliminary Injunction (ECF No. 7) and GRANTS IN PART AND DENIES IN PART Middleton Plaintiffs’ Motion for Preliminary Injunction (ECF No. 13).
II. FACTUAL AND PROCEDURAL BACKGROUND A. The Coronavirus Pandemic and Highly Contagious Nature of COVID-19
i. The COVID-19 Virus Generally 1. “The COVID-19 pandemic, also known as the coronavirus pandemic, is an ongoing
pandemic of coronavirus disease 2019 (‘COVID-19’) caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).” COVID-19 pandemic, https://en.wikipedia.org/wiki/COVID-19_ pandemic #cite_note-auto-5 (last visited May 24, 2020).4
2. “COVID-19 is caused by a new coronavirus.” CDC Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html?CDCA A_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fsummary.html (last visited May 24, 2020). “Coronaviruses are a large family of viruses that are common in people and many different species of animals, . . . .” Id. The new coronavirus causes illness ranging “from very mild (including some people with no reported symptoms) to severe, including illness resulting in death.” CDC Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-
4 The court observes that for purposes of document formatting, the links to internet websites cited throughout the Order may have space(s) in the website URL where there should not be a space(s). To this point, if the link is copied and pasted in a website browser, an error may result from the space in the website URL.
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ncov/cases-updates/summary.html#severity (last visited May 24, 2020).5
3. Persons with COVID-19 may exhibit the following symptoms: cough; shortness of
breath or difficulty breathing; fever; chills; muscle pain; sore throat; new loss of taste or smell;
nausea; vomiting; or diarrhea. Symptoms of Coronavirus, https://www.cdc.gov/coronavirus/2019-
ncov/symptoms-testing/symptoms.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2
Fcoronavirus%2F2019-ncov%2Fabout%2Fsymptoms.html (last visited May 24, 2020).
4. The COVID-19 virus is primarily spread “from person to person through small
droplets from the nose or mouth, which are expelled when a person with COVID-19 coughs,
sneezes, or speaks.” WHO, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/
question-and-answers-hub/q-a-detail/q-a-coronaviruses (last visited May 24, 2020).
5. People may also become infected by touching a contaminated surface and then
touching their eyes, nose, or mouth. Id.
6. The COVID-19 virus is most contagious “within the first 3 days from the onset of symptoms,” although spread may be possible before symptoms appear6 and in later stages of the
5 Under the Federal Rules of Evidence, the court is permitted to “take judicial notice on its own.” Fed. R. Evid. 201(c). Moreover, the court may take judicial notice of a fact “that is not subject to reasonable dispute” because it is either “generally known within the trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(1)–(2). The court has taken judicial notice of several facts and statistics throughout the order from the Center for Disease Control’s (“CDC”) website, the South Carolina Department of Health and Environmental Control’s (“DHEC”) website, the South Carolina Election Commission’s website, and other websites that the court deems pertinent to the matters before the court. 6 The CDC has explained the asymptomatic spread of COVID-19 as follows:
Two models attempted to estimate the number of infections caused by asymptomatic, presymptomatic, or mildly symptomatic infected persons. These models varied widely; 1 model suggested that up to half of infections were transmitted from infected persons who were pre symptomatic, and another suggested that up to four fifths of infections were transmitted by persons with no symptoms or mild symptoms. Both models suggested that a large number of
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disease. Id. at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200402sitrep-73-covid-19.pdf?sfvrsn=5ae25bc7_4 (last visited May 24, 2020).
7. Research suggests that COVID-19 transmission “cannot be accounted for solely by transmission from symptomatic persons.” CDC Emerging Infectious Diseases, https://wwwnc.cd c.gov/eid/article/26/7/20-1595_article (last visited May 24, 2020).
8. The Centers for Disease Control and Prevention (“CDC”) has opined that “[b]ased on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID19.” CDC Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov /need-extra-precautions/people-at-higher-risk.html (last visited May 24, 2020). The CDC further believes that the following persons are “at high-risk for severe illness from COVID-19”:
People 65 years and older; People who live in a nursing home or long-term care facility; People of all ages with underlying medical conditions, particularly if not well controlled, including: People with chronic lung disease or moderate to severe asthma; People who have serious heart conditions; People who are immunocompromised; . . . People with severe obesity (body mass index [BMI] of 40] or higher); People with diabetes; People with chronic kidney disease undergoing dialysis; and People with liver disease. Id.
9. The CDC has also determined that pregnant women, persons with disabilities, people experiencing homelessness, and racial and ethnic minority groups may be at a higher risk
persons with asymptomatic or mildly symptomatic infections were not detected by the health system and that these persons meaningfully contributed to ongoing community transmission. Although models are highly dependent on the assumptions built into them, these models suggest that the speed and extent of SARS-CoV-2 [COVID-19] transmission cannot be accounted for solely by transmission from symptomatic persons. CDC Emerging Infectious Diseases, https://wwwnc.cdc.gov/eid/article/26/7/20-1595_article#r30 (last visited May 24, 2020).
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of infection or severe illness because of their underlying health condition, have an increased ability to develop respiratory conditions, may live in congregate settings, or are more affected by health disparities as a result of economic or social conditions. See id. at https://www.cdc.gov/ coronavirus/2019-ncov/need-extra-precautions/other-at-risk-populations.html (last visited May 24, 2020).
10. “The effects of COVID-19 on the health of racial and ethnic minority groups is still emerging; however, current data suggests a disproportionate burden of illness and death among racial and ethnic minority groups.” CDC Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/racial-ethnic-minorities.htm l (last visited May 24, 2020). “Compared to whites, black Americans experience higher death rates, and higher prevalence rates of chronic conditions.” Id.
11. As to voting, the CDC has issued recommendations for voters in advance of election day, to include: encouraging voters “to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations”; using mail-in methods, early voting, drive-up voting, voting at off-peak times, social distancing measures to protect individuals as they vote, etc. CDC Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus /2019ncov/community/election-polling-locations.html (last visited May 24, 2020).
12. In its suggestions for slowing the spread of COVID-19, the CDC advocates that persons practice the following tips:
Follow guidance from authorities where you live; [i]f you need to shop for food or medicine at the grocery store or pharmacy, stay at least 6 feet away from others, [a]lso consider other options: [u]se mail-order for medications, if possible, [c]onsider a grocery delivery service; [c]over your mouth and nose with a cloth face covering when around others, including when you have to go out in public, for example to the grocery store; [c]loth face coverings should NOT be placed on children under age 2, anyone who has trouble breathing, or is unconscious, incapacitated, or otherwise unable to remove the mask without assistance; [k]eep
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at least 6 feet between yourself and others, even when you wear a face covering; [a]void gatherings of any size outside your household, such as a friend’s house, parks, restaurants, shops, or any other place, [t]his advice applies to people of any age, including teens and younger adults, [c]hildren should not have in-person playdates while school is out, [t]o help maintain social connections while social distancing, learn tips to keep children healthy while school’s out; [w]ork from home when possible; . . . [a]void using any kind of public transportation, ridesharing, or taxis, if possible; [and] [i]f you are a student or parent, talk to your school about options for digital/distance learning. Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/prevent-ge tting-sick/social-distancing.html (last visited May 24, 2020). ii. National and International Response 13. On January 30, 2020, the World Health Organization (“WHO”) declared that an outbreak of COVID-19 was a Public Health Emergency of International Concern and further declared it was a pandemic on March 11, 2020. WHO, https://www.who.int/news-room/detail/3001-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emerg ency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov) (last visited May 24, 2020); id. at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-atthe-media-briefing-on-covid-19---11-march-2020 (last visited May 24, 2020). 14. On March 13, 2020, the President of the United States declared “the ongoing Coronavirus Disease 2019 (COVID-19) pandemic of sufficient severity and magnitude to warrant an emergency declaration for all states, tribes, territories, and the District of Columbia, pursuant to section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121–5207.” FEMA COVID-19 Emergency Declaration, https://www.fema.gov/newsrelease/2020/03/13/covid-19-emergency-declaration (last visited May 24, 2020). The President further declared the pandemic a national emergency, pursuant to Sections 201 and 301 of the National Emergencies Act, 50 U.S.C. §§ 1601 et seq., and consistent with Section 1135 of the Social Security Act, 42 U.S.C. § 1320b-5, as amended, retroactive to March 1, 2020. White House
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Proclamations, https://www.whitehouse.gov/presidential-actions/proclamation-declaring-nation al-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/ (last visited May 24, 2020).
15. On March 27, 2020, the President approved a major disaster declaration for the State of South Carolina. White House Statements and Releases, https://www.whitehouse.gov/br iefings-statements/president-donald-j-trump-approves-south-carolina-disaster-declaration-5/ (last visited May 24, 2020).
16. As of May 24, 2020, there are more than 1.6 million reported cases in the United States and more than 5.38 million reported cases of COVID-19 worldwide, resulting in more than 344,000 deaths in over 215 countries. COVID-19 Dashboard by the Ctr. for Syss. Sci. & Eng’g at Johns Hopkins Univ., https://gisanddata.maps.arcgis.com/apps/opsdashboard/index.html#/bda75 94740fd40299423467b48e9ecf6 (last visited May 24, 2020).
17. As the fall approaches, COVID-19 cases are expected to continue to rise nationwide. E.g., CDC Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronaviru s/2019-ncov/covid-data/forecasting-us.html (last visited May 22, 2020).
iii. Local Response 18. As early as January 29, 2020, the South Carolina Department of Health and
Environmental Control (“DHEC”) announced that it began monitoring “developments concerning cases of the 2019 novel coronavirus.”7 DHEC News Releases, https://www.scdhec.gov/news-rel eases/dhec-statement-2019-novel-coronavirus-preparations-activities-south-carolina (last visited May 24, 2020).
7 DHEC’s priority was “to prevent[] the spread of the disease and to protect[] public health.” DHEC News Release, https://www.scdhec.gov/news-releases/dhec-announces-seventh-possiblecase-2019-novel-coronavirus-south-carolina (last visited May 21, 2020).
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19. On or about March 6, 2020, DHEC learned of its first 2 possible cases of coronavirus, which were later confirmed as positive, and thereafter, the cases in South Carolina began to climb as a result of community spread. Id. at https://www.scdhec.gov/news-releases /dhec-investigating-two-possible-cases-2019-novel-coronavirus-south-carolina (last visited May 24, 2020).
20. On March 13, 2020, Thomas Defendant Governor McMaster issued Executive Order No. 2020-08, declaring a state of emergency for South Carolina based on a determination that COVID-19 posed an imminent public health emergency. Executive Order No. 2020-08 State of Emergency, https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-03-13% 20FINAL%20Executive%20Order%20No.%202020-08%20%20State%20of%Emergency%20D ue%20to%20Coronavirus.pdf (last visited May 24, 2020).
21. The State of South Carolina reported its first COVID-19 related death on March 16, 2020. DHEC News Release, https://www.scdhec.gov/news-releases/state-south-carolina-repo rts-first-covid-19-related-death (last visited May 24, 2020).
22. On March 30, 2020, Defendant Andino, in her capacity as the Executive Director of the SCEC, wrote to several elected officials, including Defendant Governor McMaster, to relay the SCEC’s “concern[ ] about the safe conduct of the June Primaries, November General Election and all other elections scheduled for 2020.” (ECF No. 1-2 at 1 (Thomas).) As a result, the SCEC urged consideration of “emergency changes to [the] election process” to protect the “more than three million voters and election workers during or following a pandemic.” (Id. at 2.) Andino suggested certain options that represent “proven methods used in other states to conduct elections”, including removing the witness requirement on ballot return envelopes. (Id.) In her letter, Defendant Andino also recommended “no excuse absentee voting.” (Id.)
23. On April 6, 2020, Defendant Governor McMaster issued Executive Order No. 10

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2020-21, a mandatory statewide “Home or Work” order requiring “[a]ll South Carolinians [to] remain at home or work unless visiting family, exercising, or obtaining goods or services.” Executive Order No. 2020-21, https://governor.sc.gov/sites/default/files/Documents/ExecutiveOrders/2020-04-06%20FILED%20Executive%20Order%20No.%202020-21%20-%20Stay%20 at%20Home%20or%20Work%20Order%20Due%20to%20COVID-19.pdf (last visited May 24, 2020). Executive Order No. 2020-21 further instructs residents of the State to “limit social interaction, practice ‘social distancing’ . . . and take every possible precaution to avoid potential exposure to” viral infection, and all individuals to “take reasonable steps to maintain six (6) feet of separation from any other person.” See id.
24. In further response to the COVID-19 public health crisis, Defendant Governor McMaster issued several more Executive Orders regarding restrictions on personal and business interests to mitigate this crisis.8
25. On May 12, 2020, to protect the health, safety, and welfare of the people of South Carolina, Defendant Governor McMaster issued Executive Order No. 2020-35 requiring the closure of all public schools for the remainder of the 2019-20 school year, the completion of
8 See Executive Order No. 2020-09 (Mar. 15, 2020) (closing public schools, postponing certain elections, and urging rescheduling and cancellation of public events with over 100 persons); Executive Order No. 2020-10 (Mar. 17, 2020) (prohibiting restaurants from providing certain onpremises consumption); Executive Order No. 2020-12 (Mar. 20, 2020) (facilitating “social distancing” measures); Executive Order No. 2020-13 (Mar. 23, 2020) (prohibiting or dispersing gatherings of three or more unless authorized or in the home); Executive Order No. 2020-15 (Mar. 28, 2020) (declaring a new state of emergency based on COVID-19); Executive Order No. 202017, (Mar. 31, 2020) (closure of non-essential businesses, venues, facilities, services and activities for public use directing that non-essential businesses be closed); Executive Order No. 2020-18 (Apr. 3, 2020) (closure of additional non-essential businesses); Executive Order No. 2020-23 (Apr. 12, 2020) (declaring an additional state of emergency based on accelerated spread of COVID-19); Executive Order No. 2020-29 (Apr. 27, 2020) (declaring new state of emergency for 15 days). These Executive Orders can be found at https://governor.sc.gov/executive-branch/executiveorders.
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education at the collegiate level through distance and virtual learning, and the promotion of effective social distancing practices in accordance with CDC guidance. Executive Order 2020-35 Official (PDF), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0512%20eFILED%20Executive%20Order%20No.%202020-35%20-%20State%20of%20Emergen cy%20to%20Facilitate%20COVID-19%20Pandemic%20Response%2C%20Testing%2C%20%2 6%20Other%20Measures.pdf (last visited May 24, 2020). Executive Order No. 2020-35 shall remain in effect until May 27, 2020, unless otherwise noted. Id.
26. On May 12, 2020, the South Carolina General Assembly passed legislation allowing all qualified voters to vote absentee ballot for the June 9, 2020 primary and the June 23, 2020 runoff election due to the current state of emergency. S.J. Res. 635, 123rd Gen. Assemb. (S.C. 2020). The pertinent portion of the bill states, as follows, in Section 2(A):
Elections, absentee ballots, during the state of emergency, expiring on July 1, 2020. Section 2. A. A qualified elector must be permitted to vote by absentee ballot if the qualified elector’s place of residence or polling place is located in an area subject to a state of emergency and there are fewer than forty-six days remaining until the date of the election. S.J. Res. 635, 123rd Gen. Assemb. (emphasis in original). 27. On May 13, 2020, Governor McMaster signed S.635 into law. (E.g., ECF No. 56 (Thomas).) 28. Executive Order No. 2020-36, filed on May 15, 2020, is one of Thomas Defendant Governor McMaster’s latest declarations regarding the state of emergency for South Carolina. Executive Order No. 2020-36 authorizes businesses “previously deemed ‘non-essential’” to reopen. Executive Order 2020-36 Official (PDF), https://governor.sc.gov/sites/default/files/Docum ents/Executive-Orders/2020-05-15%20FILED%20Executive%20Order%20No.%202020-36%20 -%20Additional%20Incremental%20Modification%20of%20Non-Essential%20Business%20Clo sures.pdf (last visited May 24, 2020). And on May 21, 2020, Executive Order No. 2020-37 was
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filed and allows additional “non-essential” businesses to re-open, but did not lift the recommended social distancing practices. Executive Order 2020-37 Official (PDF), https://governor.sc.gov/site s/default/files/Documents/2020-05-21%20eFILED%20Executive%20Order%20No.%202020-37 %20-%20Additional%20Modification%20of%20Non-Essential%20Business%20Closures.pdf (last visited May 24, 2020).
29. As of May 22, 2020, at least 46% of reported COVID-19 cases are in South Carolina’s racial minority groups. DHEC SC Demographic Data (COVID-19), https://scdhec.gov/infectious-diseases/viruses/coronavirus-disease-2019-covid-19/sc-demographi c-data-covid-19 (last visited May 24, 2020.) Nineteen percent of South Carolinians were hospitalized at the time of illness. Id. Approximately, 87.8% of reported deaths in South Carolina are aged 61 or older. Id. Racial minority groups represent at least 54% of COVID-19 deaths statewide. Id.
30. South Carolina’s COVID-19 statistics track with national statistics showing that “45% of individuals for whom race or ethnicity data was available were white, compared to 55% of individuals in the surrounding community.” CDC Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/racial-ethnic-minorities.htm l (last visited May 24, 2020). “However, 33% of hospitalized patients were black compared to 18% in the community . . . [t]hese data suggest an overrepresentation of blacks among hospitalized patients.” Id.
31. On May 20, 2020, DHEC announced 125 new cases of the novel coronavirus COVID-19 and 8 additional deaths, all of which “occurred in elderly individuals.” DHEC News Releases, https://scdhec.gov/news-releases/south-carolina-announces-latest-covid-19-update-ma y-20-2020 (last visited May 24, 2020).
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32. On May 21, 2020, DHEC announced 199 new cases of the novel coronavirus COVID-19 and 9 additional deaths, 6 of which “occurred in elderly individuals.” DHEC News Releases, https://www.scdhec.gov/news-releases/south-carolina-announces-latest-covid-19-upda te-may-21-2020 (last visited May 24, 2020).
33. On May 22, 2020, DHEC announced 245 new cases of the novel coronavirus COVID-19 and 3 additional deaths, all of which “occurred in elderly individuals.” DHEC News Releases, https://www.scdhec.gov/news-releases/south-carolina-announces-latest-covid-19-upda te-may-22-2020 (last visited May 24, 2020).
34. On May 23, 2020, DHEC announced 248 new cases of the novel coronavirus COVID-19 and 6 additional deaths, 5 of which “occurred in elderly individuals.” DHEC News Releases, https://www.scdhec.gov/news-releases/south-carolina-announces-latest-covid-19-upda te-may-23-2020 (last visited May 24, 2020).
35. On May 24, 2020, DHEC announced 209 new cases of the novel coronavirus COVID-19 and 10 additional deaths, 9 of which “occurred in elderly individuals.” DHEC News Releases, https://www.scdhec.gov/news-releases/south-carolina-announces-latest-covid-19-upda te-may-24-2020 (last visited May 24, 2020).
36. As of May 24, 2020, there are 10,096 reported cases of COVID-19 in the State of South Carolina, resulting in 435 deaths. Id. B. Absentee Ballot Voting in South Carolina Generally
37. Absentee ballot voting has already begun in South Carolina. (ECF No. 46-2 at 4 ¶ 5 (Thomas).) County election officials have already received significantly more absentee ballot applications than in previous years for statewide primaries. (Id.)
38. “Upon receiving an application for an absentee ballot by mail, and verifying the
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voter’s eligibility to vote absentee, county boards are required to mail” such ballots to the voter as soon as possible. (Id. at 4–5 ¶ 7 (Thomas).) The ballot includes printed instructions as to the proper return of the ballot, to include signing the oath, having a witness’ signature and address, and timely return of the ballot. (Id.)
39. All records and papers relating to absentee ballot applications are retained for 22 months, pursuant to federal law, and 24 months for state law. (Id. at 5 ¶ 8 (Thomas).)
40. Absentee ballots are not counted if there is no voter or witness signature or witness address, or is returned late, but still must be accounted for and retained. (Id. at 5–6 ¶ 9 (Thomas).)
41. Until the recent passage of S.635 to allow absentee voting for all South Carolina registered voters, the vast majority of South Carolina voters would have appeared in person at the poll on election day in order to exercise their right to vote.
42. At the May 15, 2020 hearing SCEC Defendants’ Counsel informed the court that the South Carolina Election Commission would be awarded $ 7.6 million from federal and state authorities to assist with additional voting precautions during this pandemic. C. The Thomas Lawsuit Generally
43. Plaintiffs Thomas, Richard, Rutledge, Walker, and Williams are all persons registered to vote in the State of South Carolina. (ECF Nos. 7-18 at 2 ¶ 2, 7-19 at 2 ¶ 2, 7-20 at 2 ¶ 2, 7-21 at 2 ¶ 1, 7-22 at 2 ¶ 2 (Thomas).)
44. Plaintiff The Family Unit, Inc. is a non-profit entity incorporated in the State of South Carolina since August 29, 2008. Bus. Entities Online, https://business filings.sc.gov/Busin essFiling/Entity/Search (last visited May 24, 2020).
45. Defendants are Andino, Wells, Edler, and Moseley, in their official capacities as Commissioners of the SCEC, and Governor Henry D. McMaster. (See ECF No. 44 at 8 ¶ 18–10
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¶ 20; ECF No. 51 at 7 ¶ 20 (Thomas).) During the COVID-19 pandemic, the SCEC has taken “precautions and preventative measures for the health and safety of voters, county election officials and poll workers during the June primaries.” (ECF No. 46-2 at 3 ¶ 4 (Thomas).) Such measures include special training for county election officials, staff, and poll workers, related to COVID-19 issues, providing personal protective equipment and other preventative supplies for polling locations and county election offices, adhering to social distancing recommendations for workers and voters, cleaning and disinfecting at county election offices. (Id.)
46. On April 22, 2020, Thomas Plaintiffs filed their Complaint for Injunctive and Declaratory Relief. (ECF No. 1 (Thomas).) In their Complaint, Thomas Plaintiffs plead claims for violation of the fundamental right to vote, 42 U.S.C. § 1983, First and Fourteenth Amendments to the United States Constitution; violations of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301; and violations of Sections 3 and 201 of the Voting Rights Act, 52 U.S.C. §§ 10302, 10501. (ECF No. 1 (Thomas).)
47. On April 28, 2020, Thomas Plaintiffs filed a Motion for Preliminary Injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure seeking to enjoin “Defendants . . . and all persons acting in concert with each or any of them, from enforcing” the Witness Requirement and/or the Excuse Requirement. (ECF No. 7 at 1 (Thomas).) Thomas Plaintiffs assert that “[i]f the Challenged Requirements are not enjoined, they will pose significant risks to voters seeking to exercise their right to vote in the June 9, 2020 primary election amid the current COVID-19 crisis.”9 (Id. at 2 (Thomas).)
48. Thomas Plaintiffs seek a preliminary injunction that: (1) prohibits Defendants from
9 In light of this assertion and Thomas Plaintiffs’ subsequently filed Motion for Expedited Briefing Schedule on their Motion for Preliminary Injunction (ECF No. 8 (Thomas)), the court entered an Order setting forth an expedited schedule for this case. (ECF No. 27 (Thomas).)
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enforcing the Excuse Requirement10 to prevent any eligible voter, regardless of age or physical
condition, to request, receive, and have counted an absentee ballot for the June 9 primary; (2)
prohibits Defendants from enforcing the Witness Requirement for all voters for the June 9 primary
election; and (3) orders Defendants to conduct a public information campaign informing South
Carolina voters about the elimination of the Challenged Requirements, in coordination with city
and county election officials. (ECF No. 7 at 3 (Thomas).)
49. In support of their Motion for Preliminary Injunction, Thomas Plaintiffs primarily
rely on their Memorandum of Law (ECF No. 7-1 (Thomas)), as well as supporting attachments
(ECF Nos. 7-2 through 7-23, 35 (Thomas)), and their Reply Memorandum (ECF No. 55 (Thomas).)
50. On May 1, 2020, the South Carolina Republican Party (“SCRP”) filed a Motion to
Intervene. (ECF No. 11 (Thomas).) On May 5, 2020, Thomas Plaintiffs filed a Response in
Opposition to the Motion to Intervene (ECF No. 22 (Thomas)), to which the SCRP filed a Reply
on May 6, 2020 (ECF No. 28 (Thomas)). On May 8, 2020, the court granted the SCRP’s Motion
to Intervene. (ECF No. 39 (Thomas).)
10 Thomas Plaintiffs’ initial Motion sought to “prohibit Defendants from enforcing the ‘Excuse Requirement,’ S.C. Code Ann. § 7-15-320 and § 7-15-310 (West 2020), to prevent any eligible voter, regardless of age or physical condition, to request, receive, and have counted an absentee ballot for the June 9 primary.” (ECF No. 7 at 47.) However, on May 12, 2020, the South Carolina General Assembly unanimously passed Senate Bill 635, which permits all “qualified elector[s] to vote by absentee ballot in an election 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 and there are fewer than forty-six days remaining until the date of the election.” S.J. Res. 635, 123rd Gen. Assemb. (S.C. 2020). On May 13, 2020, the Governor of South Carolina signed Senate Bill 635 into law. S.C. Act 133 (S.C. 2020). In response, the court found that, as-applied to the June 2020 Primaries, Plaintiffs’ challenges to the “Excuse Requirement” and “Age Ballot Requirements” are no longer rooted in a live case or controversy as it relates to the instant Motion and determined that those claims were moot. (ECF No. 56.) See, e.g., Calderon v. Moore, 518 U.S. 149, 150 (1996) (“mootness can arise at any stage of litigation.”). However, Thomas Plaintiffs reserve the right to challenge these requirements on the merits as to future elections. Due to this determination, the court will focus this Order on the remaining challenges to the “Witness Requirement” and the “Deadline Challenge” for the June 2020 primaries.
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51. On May 6, 2020, the court entered Orders (ECF Nos. 31, 32 (Thomas)) granting Motions for Leave to File Amicus Brief filed by South Carolina Attorney General Alan Wilson (ECF No. 29 (Thomas)) and Protection and Advocacy for the People with Disabilities, Inc. (“P&A”) (ECF No. 19 (Thomas)). P&A filed its amicus brief on May 6, 2020 (ECF No. 34 (Thomas)). Attorney General Wilson filed his amicus brief on May 12, 2020 (ECF No. 53 (Thomas)).
52. On May 11, 2020, Defendants and the SCRP filed their respective Answers to Thomas Plaintiffs’ Complaint (ECF Nos. 44, 49, 51 (Thomas)), and their Responses in Opposition to Thomas Plaintiffs’ Motion for Preliminary Injunction (ECF Nos. 46, 50, 52 (Thomas)).
53. In opposition to Thomas Plaintiffs’ Motion for Preliminary Injunction, SCEC Defendants rely on their Memorandum of Law (ECF No. 46 (Thomas)), as well as supporting attachments (ECF Nos. 46-1 through 46-8 (Thomas)).
54. In opposition to Thomas Plaintiffs’ Motion for Preliminary Injunction, Defendant Governor McMaster relies on his Memorandum of Law (ECF No. 52 (Thomas)).
55. In opposition to Thomas Plaintiffs’ Motion for Preliminary Injunction, the SCRP relies on its Memorandum of Law (ECF No. 50 (Thomas)).
56. In support of Thomas Plaintiffs’ Motion for Preliminary Injunction, P&A relies on its Amicus Brief (ECF No. 34 (Thomas)).
57. In opposition to the Motion for Preliminary Injunction, Attorney General Wilson relies on his Amicus Brief (ECF No. 53 (Thomas)).
58. Additionally, on May 11, 2020, the United States Government filed a Statement of Interest of the United States Concerning Section 201 of the Voting Rights Act. (ECF No. 47 (Thomas).)
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59. In response to the absentee ballot bill passed by the South Carolina General Assembly on May 12, 2020, and signed into law by Defendant Governor McMaster on May 13, 2020, the court requested that the parties submit in writing the issues that they still intended to present at a hearing on the Motions for Preliminary Injunction. (ECF No. 56 (Thomas).)
60. Thomas Plaintiffs filed their Reply Brief in Support of Plaintiffs’ Motion for Preliminary Injunction on May 13, 2020. (ECF No. 55 (Thomas).)
61. On May 14, 2020, Thomas Plaintiffs conveyed that they desired to only address at the motions hearing their claims for preliminary relief with respect to the Witness Requirement for absentee voting under the United States Constitution and the Voting Rights Act. (ECF No. 57 (Thomas).) D. The Middleton Lawsuit Generally
62. Plaintiffs Wells, Dixon, Winbush, and Moore are all persons allegedly registered to vote in the State of South Carolina. (See ECF No. 1 at 7 ¶ 15–8 ¶ 18 (Middleton).) Plaintiffs Tedder and Middleton are registered to vote in the State of South Carolina. (ECF Nos. 13-1 at 2 ¶ 1, 13-2 at 2 ¶ 1.)
63. Middleton Plaintiffs allege that Wells is African-American and over 65 years of age, thereby in the category of persons at a high risk for contracting COVID-19. (Id. at 7 ¶ 15.)
64. Middleton Plaintiffs allege that Dixon is African-American, over 65 years of age, and has underlying medical conditions, thereby in the category of persons at a high risk for contracting COVID-19. (Id. ¶ 16.)
65. Middleton Plaintiffs allege that Winbush is African-American and has expressed concern about herself and other voters being able to practice social distancing in the upcoming elections. (Id. at 8 ¶ 17.)
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66. Middleton Plaintiffs allege that Moore is African-American, over 65 years of age, and lives alone, thereby in the category of persons at a high risk for contracting COVID-19. (Id. ¶ 18.)
67. Plaintiff SCDP is allegedly a political party within the meaning of S.C. Code Ann. § 7-1-20 (West 2020) and is the South Carolina state party committee of the national Democratic Party. (ECF No. 1 at 8–10 ¶ 19 (Middleton).) The SCDP allegedly acts on behalf of itself and its members, is a political party that actively supports candidates, and mobilizes and assists voters during election cycles. (Id.)
68. Plaintiff DNC is allegedly the national committee of the Democratic Party, as defined by 52 U.S.C. § 30101(14). (ECF No. 1 at 10–11 ¶ 20 (Middleton).) The DNC allegedly assists with the election of candidates of its party to public office, including South Carolina, and mobilizes voters to vote for its candidates and causes. (Id.)
69. Plaintiff DCCC is allegedly the national congressional committee of the Democratic Party as defined by 52 U.S.C. § 30101(14). (ECF No. 1 at 11–12 ¶ 21.) The DCCC allegedly assists with the election of candidates of its party to the U.S. House of Representatives, including South Carolina, and mobilizes and registers voters to support their candidates. (Id.)
70. Defendants in Middleton are the above-referenced SCEC Defendants. (See ECF No. 32 (Middleton).)
71. On May 1, 2020, Middleton Plaintiffs filed their Complaint for Injunctive and Declaratory Relief. (ECF No. 1.) In their Complaint, Middleton Plaintiffs plead claims for Denial or Abridgement of the Right to Vote on Account of Age under the Twenty-Sixth Amendment of the United States Constitution and 42 U.S.C. § 1983 (Absentee Ballot Age Restriction); Undue Burden on the Right to Vote under the First Amendment and Equal Protection Clause of the United
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States Constitution and 42 U.S.C. § 1983 (Absentee Ballot Age Restriction, Postage Tax, Witness Requirement, Absentee Assistance Ban); the Imposition of a Poll Tax under the Fourteenth Amendment and Twenty-Fourth Amendment of the United States Constitution and 42 U.S.C. § 1983; Vote Denial under Section 2 of the Voting Rights Act, 52 U.S.C. § 10301(Postage Tax, Witness Requirement, Election Day Cutoff, Absentee Ballot Age Restriction, and Absentee Assistance Ban); Freedom of Speech and Infringement of Speech under the First Amendment and Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983 (Absentee Assistance Ban); and Violation of Section 208 of the Voting Rights Act of 1965, 52 U.S.C. § 10508 Preemption (Absentee Assistance Ban). (ECF No. 1 (Middleton).)
72. On May 7, 2020, Middleton Plaintiffs filed their Motion and Incorporated Brief in Support of Motion for Preliminary Injunction, (ECF No. 13 (Middleton)), pursuant to Federal Rule of Civil Procedure 65 to address, inter alia, the immediate and severe effects the coronavirus pandemic is having on the primary election scheduled for June 9, 2020, and the run-off election following thereafter. Middleton Plaintiffs focus their Motion on 3 requirements that threaten South Carolinians’ right to vote during the COVID-19 pandemic: (1) Absentee Ballot Age Restriction; (2) the Witness Requirement; and (3) the Election Day Cutoff (collectively, the “Challenged Provisions”).
73. Middleton Plaintiffs seek a preliminary injunction that: (1) prohibits SCEC Defendants from enforcing the Absentee Ballot Age Restriction,11 to prevent any eligible voter, regardless of age, to request, receive, and have counted an absentee ballot for the June 9 primary; (2) prohibits SCEC Defendants from enforcing the Witness Requirement for all voters for South Carolina’s June 9 primary; (3) prohibits SCEC Defendants from enforcing the requirement that
11 See Footnote 7. 21

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absentee ballots must be received by 7:00 p.m. on Election Day to be counted and extending the deadline to June 19, provided that the ballots were postmarked or mailed on or before June 9; (4) orders the counting of ballots to begin on June 19, 2020, and giving county election officials until June 23, 2020, to complete the canvass and certify the results to the State Board of Canvassers; (5) prohibits election officials from releasing results until after 7:00 p.m. on June 19, see Fed. R. Civ. P. 6512; and (6) orders SCEC Defendants to publicly inform all South Carolina voters about the elimination of these requirements in coordination with city and county election officials. (ECF No. 13 at 32 (Middleton).)
74. In support of their Motion for Preliminary Injunction, Middleton Plaintiffs primarily rely on their Memorandum of Law (ECF No. 13 at 7–33 (Middleton)), as well as supporting attachments (ECF Nos. 13-1, 13-2 (Middleton)).
75. On May 7, 2020, the court entered an Order (ECF No. 12 (Middleton)) granting Attorney General Wilson’s Motion for Leave to File Amicus Brief (ECF No. 11 (Middleton)), which he filed on May 13, 2020. (See ECF No. 29 (Middleton)).
76. On May 12, 2020, the court entered an Order (ECF No. 27 (Middleton)) granting the SCRP’s Motion to Intervene. (ECF No. 22 (Middleton).)
77. Given the passage of S.635, Middleton Plaintiffs agreed the Excuse Requirement and Absentee Ballot Age Requirement are moot but only for the purposes of the June primaries. (ECF No. 31 (Middleton).) Despite this assertion, the court determined that the Middleton Plaintiffs had only sought relief related to the June primaries and therefore limited the hearing to
12 During the May 15, 2020 hearing, Middleton Plaintiffs withdrew their request of “giving county election officials until June 23 to complete the canvass and certify the results to the State Board of Canvassers” and also withdrew their request (5) prohibiting election officials from releasing results until after 7:00 p.m. on June 19.”
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the remaining issues related to those primaries. (ECF No. 35 (Middleton).) 78. On May 14, 2020, SCEC Defendants and the intervenor-Defendant SCRP
respectively filed Opposition to the Motion for Preliminary Injunction. (ECF Nos. 32, 33 (Middleton).)
79. In opposing Middleton Plaintiffs’ Motion for Preliminary Injunction, SCEC
Defendants rely on their Memorandum of Law (ECF No. 32 (Middleton)) and supporting attachments (ECF Nos. 32-1 through 32-3 (Middleton)).
80. In opposing Middleton Plaintiffs’ Motion for Preliminary Injunction, the SCRP relies on its Memorandum of Law (ECF No. 33 (Middleton)) and supporting attachment (ECF No. 33-1 (Middleton)). E. Motion Hearing on Pending Preliminary Injunction Motions
81. The instant matters before the court for review are a Motion for a Preliminary Injunction (ECF No. 7 (Thomas)) by Thomas Plaintiffs, filed on April 28, 2020, and a Motion for Preliminary Injunction (ECF No. 13 (Middleton)) by the Middleton Plaintiffs, filed on May 7, 2020.13
82. On May 15, 2020, the court held a consolidated hearing on the pending Motions for
13 The parties do not offer argument as to whether Thomas/Middleton Plaintiffs are seeking prohibitory or mandatory injunctive relief and, as such, which standard is to be applied. See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 235–36 (4th Cir. 2014) (“A preliminary injunction may be characterized as being either prohibitory or mandatory. . . . [w]hereas mandatory injunctions alter the status quo, prohibitory injunctions aim to maintain the status quo and prevent irreparable harm while a lawsuit remains pending.” (internal and external citations omitted)); Taylor v. Freeman, 34 F.3d 266, 270 n.2 (4th Cir. 1994) (“Mandatory preliminary injunctive relief in any circumstance is disfavored, and warranted only in the most extraordinary circumstances.” (citations omitted)). Upon its review, the court observes that it cannot clearly resolve this issue because the resolution depends on subjective presumptions specific to the parties, i.e., Thomas/Middleton Plaintiffs allege they are trying to prevent irreparable harm while Defendants presumably would contend that Thomas/Middleton Plaintiffs are seeking to alter the status quo as to absentee ballots.
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Preliminary Injunction. (See ECF No. 64 (Thomas); ECF No. 36 (Middleton).) In addition to

reviewing the parties’ submissions, amici briefs, and statement of interest, the court heard oral

argument from the parties’ counsel. (Id.)

III.

FINDINGS OF FACT14

A. The Thomas Lawsuit

1. The individual Thomas Plaintiffs are lawfully registered voters and have individual

characteristics or conditions that are regarded by the CDC as placing them at a higher risk for

contracting COVID-19, including being over 65 years of age, having underlying medical

conditions (including scleroderma, interstitial lung disease, hypertension, gout, history of breast

cancer, emphysema, infection), being disabled, and/or being African-American. (ECF Nos. 7-17

at 2 ¶ 2; 7-18 at 2 ¶ 2, 2–3 ¶ 7; 7-19 at 2 ¶ 2; 7-20 at 2 ¶ 6–3 ¶ 8; 7-21 at 3 ¶¶ 7, 8 (Thomas).) In

addition to being at a higher risk for contracting COVID-19, (E.g., ECF No. 7-21 at 3 ¶ 8), one of

the individual Thomas Plaintiffs allegedly already has COVID-19. (See ECF No. 7-22 at 4 ¶ 8.)

2. As a result of these characteristics or conditions, many have self-quarantined at

home and/or live alone. (Id. at 7-18 at 3 ¶ 8; 7-20 at 3 ¶ 8; 7-21 at 3 ¶ 6 (Thomas).)

3. Some of the individual Thomas Plaintiffs also serve in positions that serve the

disenfranchised or economically disadvantaged voters that have been substantially impacted by

the COVID-19 pandemic and the Witness Requirement further burdens them from exercising their

right to vote by absentee ballot by requiring them to expose themselves to other people in

contravention of maintaining safe social distancing practices. (See ECF Nos. 7-17 at 2 ¶ 5–4 ¶ 12;

14 To the extent any findings of fact constitute conclusions of law, they are adopted as such; to the extent any conclusions of law constitute findings of fact, they are so adopted. Moreover, as this is a preliminary injunction, any facts identified “are not final determinations of disputed matters.” EZ Gard Indus., Inc. v. XO Athletic Co., No. 07-CV-4769 (JMR/FLN), 2008 WL 1827490, at *1 n.1 (D. Minn. Apr. 23, 2008).
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7-19 at 3 ¶ 7–4 ¶ 10 (Thomas).) 4. Plaintiff The Family Unit, which serves mostly African-Americans and/or
economically disadvantaged persons, has assisted voters in navigating the absentee voting process. (See ECF No. 7-22 at 2–3 ¶ 3 (Thomas).) Because of the COVID-19 pandemic, its members and constituents have had difficulty meeting the Witness Requirement. (Id. at 3 ¶¶ 4–6 (Thomas).) Such challenges include the necessity of having close, personal meetings with senior citizens, the marginally educated, and pretrial inmates to explain the absentee ballot process and thus does not afford the opportunity to assist with either in-person voting or absentee ballot voting. (Id. at 3 ¶ 11 –4 ¶ 12 (Thomas).)
5. The mission of the SCEC is “to ensure every eligible citizen has the opportunity to register to vote and participate in fair and impartial elections with the assurance that every vote will count.” SCEC About Us, https://www.scvotes.org/about-sec (last visited May 22, 2020).
6. In her Declaration (ECF No. 7-15) submitted in support of Thomas Plaintiffs’ Motion for Preliminary Injunction, Dr. Courtney D. Cogburn (“Dr. Cogburn”) discussed the impact of COVID-19 on minority communities in South Carolina and made specific assertions regarding the health consequences of voting laws that require a person to break social distancing guidelines.15
15According to Dr. Cogburn: [Minorities’] risk [of] COVID-19 infection is tied to pre-existing and evolving inequities in structural systems and social conditions. As a result, any voting requirement requiring them to break social distancing protocols would place them at higher risk for infection and also threatens public health of the Black community more broadly. We will not be able to immediately address the deeply entrenched social and structural factors contributing to the significantly elevated risk to COVID-19 related infection and mortality among [minorities]. We can, however, acknowledge the significance of these factors and take immediate steps to minimize exposure for groups most gravely threatened by exposure to COVID-19… 25

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7. As the Executive Director of the South Carolina Election Commission, Defendant Andino is the chief administrative officer for the State Election Commission. S.C. Code Ann. § 73-20 (A) (West 2020). She is required to supervise the conduct of elections and the voter registration process by all persons involved in the election process, S.C. Code Ann. § 7-3-20 (C)(1) (West 2020), and conduct post-election analysis of such activities. S.C. Code Ann. § 7-3-20 (C)(2) (West 2020).
8. As the Governor of South Carolina, Defendant McMaster is vested with the “supreme executive authority” of the State. See S.C. Const. Art. IV, § 1. He has the authority to declare a public health emergency, as defined in S.C. Code Ann. § 44-4-130 (West 2020). S.C. Code Ann. §1-3-420 (West 2020). Upon such declaration, he may issue such proclamations to “order and direct any person or group of persons to refrain from doing any act or thing which would, in his opinion, endanger life, limb or property . . .by use of all appropriate available means to enforce such order or proclamation” S.C. Code Ann. § 1-3-430 (West 2020).
(ECF No. 7-15 at 8.) In support of the aforementioned conclusion, Dr. Cogburn relies on: Early data for COVID-19 infection and mortality in South Carolina [which is] consistent with national patterns and are highly concerning. The rate of infection and death for Black residents far exceeds their representation in the general population as well as overall levels for White citizens. Specifically, Black people living in South Carolina comprise 27% of the population but 57% of COVID-19 related deaths, making them 5 times more likely than Whites to die from the infection. The racial disparities in COVID-19 infection rates and deaths in South Carolina are among the most startling in the country…
(ECF No. 7-15 at 6.) (internal citations omitted).
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B. The Middleton Lawsuit 9. Plaintiffs Middleton and Tedder are registered voters in South Carolina. (ECF Nos.
13-1 at 2 ¶ 1, 13-2 at 2 ¶ 1 (Middleton).) They are both African-American and candidates in the June 9, 2020 primary. (ECF No. 13-1 at 2 ¶ 2 (Middleton).) They both present concerns about potential voters fearing to vote in person as a result of COVID-19. (See ECF Nos. 13-1 at 3 ¶¶ 4– 6, 13-2 at 2 ¶ 2–4 ¶ 8 (Middleton).)
IV. CONCLUSIONS OF LAW 1. The parties make a plethora of arguments regarding the meritorious value of Thomas/Middleton Plaintiffs’ claims. This court finds that Thomas/Middleton Plaintiffs have met their burden under the standard the Supreme Court set out in Winter16 for preliminary injunctions as to the Witness Requirement. The court addresses below the vitality of Thomas/Middleton Plaintiffs’ assertions under the requirements set forth in Winter and reiterated by the Fourth Circuit in Real Truth.17 A. The Court’s Jurisdiction 2. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 based on Thomas/Middleton Plaintiffs’ claims against Defendants under 42 U.S.C. § 1983, which permits an injured party to bring a civil action against a person who, acting under color of state law, ordinance, regulation, or custom, causes the injured party to be deprived of “any rights, privileges, or immunities secured by the Constitution and laws.” Id. Specifically, Thomas/Middleton Plaintiffs allege violations of their rights protected by the First and Fourteenth Amendments to the United States Constitution and the Voting Rights Act of 1965, 52 U.S.C. §§ 10301–10314, 10501–
16 Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). 17 The Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346–47 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).
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10508, 10701–10702 (formerly 42 U.S.C. §§ 1973–1973bb). B. Standing of Thomas/Middleton Plaintiffs to Bring Their Actions
3. Standing implicates the court’s subject matter jurisdiction and is governed by Rule 12(b)(1). Crumbling v. Miyabi Murrells Inlet, LLC, C/A No. 2:15-cv-4902-PMD, 2016 WL 3351351, at *1 (D.S.C. June 16, 2016). “It is well established that standing is a threshold jurisdictional issue that must be determined first because ‘[w]ithout jurisdiction the court cannot proceed at all in any cause.’” Covenant Media of N.C., LLC v. City of Monroe, N.C., 285 F. App’x 30, 34 (4th Cir. 2008) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). “To possess the constitutional component of standing, a party must meet three requirements: (1) [the party] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” McBurney v. Cuccinelli, 616 F.3d 393, 410 (4th Cir. 2010) (citing, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)).
4. “The party attempting to invoke federal jurisdiction bears the burden of establishing standing.” Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006) (citation omitted).
5. “To establish Article III standing, an injury must be ‘concrete, particularized and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). To be particularized, an injury “must affect the plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)). “There must be some
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connection between the plaintiff and the defendant that ‘[]differentiate[s]’ the plaintiff so that his injury is not ‘common to all members of the public.” Griffin v. Dep’t of Labor Fed. Credit Union, 812 F.3d 649, 655 (4th Cir. 2019) (quoting United States v. Richardson, 418 U.S. 166, 177 (1974)). “The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance,” as long as “each individual suffers a particularized harm.” Spokeo, Inc., 136 S. Ct. at 1548 n.7.
6. “[V]oters who allege facts showing disadvantage to themselves as individuals have standing to sue.” Baker v. Carr, 369 U.S. 186, 206 (1962).
7. Accepting as true the allegations in Thomas Plaintiffs’ and Middleton Plaintiffs’ Complaint, all Plaintiffs have shown that they are registered voters in the State of South Carolina and/or integrally connected to the electoral process and have alleged concrete injuries. (See ECF No. 1 at 5 ¶ 11–10 ¶ 16 (Thomas); ECF No. 1 at 5 ¶ 12 – 12 ¶ 23 (Middleton).)
8. Therefore, the court finds that Thomas/Middleton Plaintiffs have standing to bring their lawsuits. C. Voting
9. The right to vote and have that vote counted is “a fundamental matter in a free and democratic society.” Reynolds v. Sims, 377 U.S. 533, 561–62 (1964). In this regard, “[i]t has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote and to have their votes counted.” See id. at 554. D. Preliminary Injunctions Generally
10. A preliminary injunction arises from Rule 65, but “it is an extraordinary remedy never awarded as of right.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A party seeking a preliminary injunction must establish all four of the following elements: (1) he is likely
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to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Id.; The Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346–47 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010).
11. The Fourth Circuit no longer recognizes a “flexible interplay among the four criteria for a preliminary injunction.” Real Truth, 575 F.3d at 347. Each of these requirements “must be fulfilled as articulated.” De la Fuente v. S.C. Dem. Party, C/A No. 3:16-cv-00322-CMC, 2016 WL 741317, at *2 (D.S.C. Feb. 25, 2016).
12. “The traditional purpose of a preliminary injunction is to protect the status quo and to prevent irreparable harm during the pendency of the lawsuit ultimately to preserve the court’s ability to render a meaningful judgment on the merits.” De La Fuenta, 2016 WL 741317, at *2.
13. Thomas/Middleton Plaintiffs’ claims can be divided into two main categories. First, they assert that the statutes referred to herein infringe upon special rights secured to voters under the United States Constitution. Thomas/Middleton Plaintiffs challenge these claims as-applied to the June 2020 primaries and only during the COVID-19 pandemic. For the sake of convenience, this category of claims will be referred to as the “Constitutional claims.” Thomas/Middleton Plaintiffs have two remaining Constitutional claims, which challenge: (1) the “Witness Requirement” and (2) the “the Election Day Cutoff.”
14. Second, Thomas/Middleton Plaintiffs contend that the “Witness Requirement” per se violates Section 201 of the Voting Rights Act of 1965 and Thomas/Middleton Plaintiffs, therefore, facially attack any application of the Witness Requirement under this theory. This claim will be referred to as the “VRA claims.”
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E. Clear Showing of Likely Success on the Merits 15. “[P]laintiffs seeking preliminary injunctions must demonstrate that they are likely
to succeed on the merits.” Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013) (citing Winter, 555 U.S. at 20). “Although this inquiry requires plaintiffs seeking injunctions to make a ‘clear showing’ that they are likely to succeed at trial, Real Truth, 575 F.3d at 345, plaintiffs need not show a certainty of success.” See 11A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2948.3 (2d ed. 1995); Pashby, 709 F.3d at 321.
i. Thomas/Middleton Plaintiffs can Establish a Clear Showing of Likely Success as to the Merits of Their Constitutional Challenge to the Witness Requirement.18
16. Thomas/Middleton Plaintiffs contend that they are substantially likely to succeed on the merits of their claim that Defendants’ enforcement of the Witness Requirement, combined with the unique risks presented by the COVID-19 pandemic, violates the First and Fourteenth Amendment as-applied to Plaintiffs during this state of emergency.19
17. The First Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Const. amend. I.
18. The United States Constitution also provides that States may prescribe “[t]he Times, Places and Manner of holding Elections for Senators and Representatives,” Art. I, § 4, cl. 1, and the Supreme Court has therefore, “recogniz[ed][ that States retain the power to regulate their own elections.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (citing Sugarman v. Dougall,
18 Of course, this determination, “like any ruling on a preliminary injunction, does not preclude a different resolution of [][Thomas/Middleton Plaintiffs’] claims on a more fully developed record.” Newsom v. Albemarle Cnty. School Bd., 354 F.3d 249, 261 (4th Cir. 2003). 19 Thomas/Middleton Plaintiffs do not lodge a facial attack on the statute, but instead pursue an as-applied challenge to the statute during the COVID-19 pandemic.
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413 U.S. 634, 647 (1973); Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986)). 19. The Supreme Court has articulated a “flexible standard” to address “a [First and
Fourteenth Amendment] challenge to a state election law.” See Burdick, 504 U.S. at 434. As the Supreme Court first explained in Anderson v. Celebrezze, the practical need for “substantial regulation of elections” means that “[c]onstitutional challenges to specific provisions of a State’s election laws . . . cannot be resolved by any ‘litmus-paper test.’” See 460 U.S. 780, 788–89 (1983) (quoting Storer, 415 U.S. at 730).
20. Instead, to properly accommodate the “state’s important regulatory interests” while vindicating individual constitutional rights, Anderson instructed the courts to carefully balance those interests:
[A Court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Anderson, 460 U.S. at 789. 21. The Supreme Court refined that test in Burdick v. Takushi, explaining that “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” See 504 U.S. at 434. Thus, a “severe” restriction on those rights triggers strict scrutiny. Id. But if the challenged election law “imposes only ‘reasonable, non-discriminatory restrictions’” on First and Fourteenth Amendment rights, then “‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at 788).
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22. The Fourth Circuit has summarized the combined Anderson-Burdick inquiry as
follows:
In short, election laws are usually, but not always, subject to ad hoc balancing. When facing any constitutional challenge to a state’s election laws, a court must first determine whether protected rights are severely burdened. If so, strict scrutiny applies. If not, the court must balance the character and magnitude of the burdens imposed against the extent to which the regulations advance the state’s interests in ensuring that “order, rather than chaos, is to accompany the democratic processes.”
Fusaro v. Cogan, 930 F.3d 241, 257–58 (4th Cir. 2019) (quoting McLaughlin v. N.C. Bd. of
Elections, 65 F.3d 1215, 1221 (4th Cir. 1995)) (emphasis added).
23. Inherent in the rule is that the challenge only applies to protected
rights. Thomas/Middleton Plaintiffs and Defendants vigorously debate whether absentee voting is
a right or a privilege.20
20 Relying on McDonald v. Board of Election Commissioners, SCEC Defendants imply that absentee voting is not constitutionally protected here because the Witness Requirement, like “the state’s absentee rules in McDonald” do not “impact [the inmate [voters’]] ability to exercise the fundamental right to vote,” but rather only their “right to receive absentee ballots.” 394 U.S. 802, 808 (1969). SCEC Defendants also assert that “these same things are true of the…Witness Requirement because, in SCEC Defendants’ view, like the record in McDonald, “[t]here [is] nothing in the record to show that [Plaintiffs] are in fact absolutely prohibited from voting by the State.” (ECF No. 46 at 11.) While the court agrees with SCEC’s conclusion that Defendants here have not, in the very literal sense, “absolutely prohibited” Plaintiffs from voting, the court disagrees with the way in which SCEC Defendants have framed the issue. To be clear, the standard does not require this court to find that the state has “absolutely prohibited voting” in order to find that absentee voting impacts Plaintiffs’ ability to exercise their fundamental right to vote.” Indeed, as the Supreme Court pointed out in O’Brien v. Skinner, the McDonald Court’s ultimate determination that “the right to vote [was not] at stake” was premised on the fact that the burden to absentee voting was a “relatively trivial inconvenience encountered by a voter . . . when other means of exercising the right to vote [were easily] available.” O’Brien, 414 U.S. 524, 532 (1974) (discussing McDonald). But here, “other means of exercising the right” to vote are not easily available. In-person voting, while still technically an available option, forces voters to make the untenable and illusory choice between exercising their right to vote and placing themselves at risk of contracting a potentially terminal disease. As the court observes, every aspect of the “normal” way of life, including the realm of voting, has necessarily changed due to something that was not present in 1969 when McDonald was decided: an on-going pandemic. If faced with burdensome restrictions to absentee voting, as Thomas/Middleton Plaintiffs allege, those burdens are certainly more than a “trivial inconvenience” that could easily be remedied by voting in person. In fact, it is
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24. Defendants are correct that under South Carolina law, absentee voting is a “privilege,” not a right to vote itself. (ECF No. 50 at 9 (citing State ex rel. McLeod v. Ellisor, 192 S.E.2d 188, 190 (S.C. 1972); O’Brien v. Skinner, 414 U.S. 524, 530 (1974) (referring to it as “absentee voting privileges”); Am. Party of Tex. v. White, 415 U.S. 767, 795 (1974); McDonald v. Bd. of Election Comm’rs of Chi., 394 U.S. 802, 809 (1969)).) However, while this court agrees that the right to an absentee ballot is not guaranteed by the First Amendment, that does not mean that absentee voting is per se unprotected under the First Amendment. For example, much like absentee voting, there is “no fundamental right to run for elective office,” and yet the Supreme Court has recognized laws restricting candidates’ access to the ballot implicate the First Amendment because they “‘place burdens on two different, although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’” Esshaki v. Whitmer, No. 20-1336, 2020 WL 2185553 (6th Cir. May 5, 2020) (quoting Williams v. Rhodes, 393 U.S. 23, 30-31 (1968)) (Sixth Circuit upholding the core of the district court’s preliminary injunction enjoining Michigan from enforcing the statutory ballot-access provisions for political candidates in advance of Michigan’s upcoming primary election under the framework established in Anderson-Burdick.).
25. Additionally, akin to the court in Price v. N.Y. State Bd. of Elections, this court is faced with an unusual fact pattern, which is a function of unusual times:
relatively difficult to vote in person without risking the possibility of infection, especially for those who are more susceptible to the ravaging harms of COVID-19. In other words, during this pandemic, absentee voting is the safest tool through which voters can use to effectuate their fundamental right to vote. To the extent that access to that tool is unduly burdened, then no matter the label, “denial of the absentee ballot is effectively an absolute denial of the franchise [and fundamental right to vote].”O’Brien, 414 U.S. at 533 (Justice Marshall concurring). As such, in these circumstances, absentee voting impacts voters’ fundamental right to vote.
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[t]he fact pattern here is unusual, and our holding in this case is necessarily narrow. We do not hold that there is a general constitutional right to obtain absentee ballots. Nor do we hold that there is a constitutional right to obtain absentee ballots in all county committee races in New York State. Instead, after applying a deferential standard of review, and after examining the record in this as[-]applied challenge, we conclude that the arguments proffered by the State are so extraordinarily weak that they cannot justify the burdens imposed by [the restriction]. 540 F.3d 101, 112 (2d Cir. 2008). 26. Accordingly, and in the context of the as-applied challenge before the court concerning a privilege that so intimately effects the fundamental right to vote, the court must determine that Thomas/Middleton Plaintiffs’ Witness Requirement challenge is to be examined under a normative constitutional rights framework—an as-applied challenge. 27. Thomas/Middleton Plaintiffs and Defendants also vigorously debate whether the court is to apply a strict scrutiny standard or a lesser level of scrutiny under the Anderson/Burdick balancing test. However, at this juncture, the court need not reach that decision. District courts may grant temporary relief without deciding federal constitutional questions prematurely, without forecasting what the exact final decision will be on the ultimate claim, without creating an unseemly conflict between sovereigns and without impairing any state function. See, e.g., Pocahontas Fuel Co. v. Early, 13 F. Supp. 605, 608 (W.D. Va. 1935) (“The purpose of this suit is to restrain the enforcement of an act of Congress alleged to be unconstitutional. Whether the act be unconstitutional and, if so, whether the plaintiff is entitled to a permanent injunction restraining its enforcement, must await the maturity of the cause . . . at the present the sole question is whether or not there should be awarded an . . . injunction preserving the rights of the plaintiff until a hearing upon the merits can be had, an injunction which, upon a complete and final hearing, may be dissolved or may be succeeded by a permanent injunction.”) 28. “While no court should lightly or carelessly enjoin enforcement of a statute, even
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temporarily, it is equally true that it is right and proper to do so when it appears that there is no other available method by which the rights of a citizen may be protected. One of such rights is the opportunity to litigate his rights in the courts.” Pocahontas Fuel Co. v. Early, 13 F. Supp. 605, 608 (W.D. Va. 1935).
29. Assuming, without deciding, that the Anderson/Burdick balancing test applies as opposed to strict scrutiny, the court determines that, at this juncture, Plaintiffs have identified burdens inflicted by the Witness Requirement, which are at least of sufficient magnitude to warrant the injunction. Anderson, 460 U.S. at 789 (instructing that courts must “consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate”).
30. Thomas Plaintiffs assert that the Witness Requirement “impose[s] particularly severe burdens given the loss of life, toll of sickness from COVID-19, and the risk that violating social distancing protocols pose to Plaintiffs and their communities.” (ECF No. 7 at 21 (Thomas).)
31. In terms of other burdens, the individual Thomas Plaintiffs, have individual characteristics or conditions that are regarded by the CDC as placing them, at a higher risk for contracting COVID-19, including being over 65 years of age, having underlying medical conditions (including scleroderma, interstitial lung disease, hypertension, gout, history of breast cancer, emphysema, infection), being disabled, and/or being African-American. (ECF Nos. 7-17 at 2 ¶ 2; 7-18 at 2 ¶ 2, 2–3 ¶ 7; 7-19 at 2 ¶ 2; 7-20 at 2 ¶ 6–3 ¶ 8; 7-21 at 3 ¶¶ 7, 8 (Thomas).) As a result of these characteristics or conditions, many have or plan to self-quarantine. (Id. at 7-18 at 3 ¶ 8; 7-20 at 3 ¶ 8; 7-21 at 3 ¶ 6 (Thomas).)
32. Some of the individual Thomas Plaintiffs also serve in positions that serve the disenfranchised or economically disadvantaged voters that have been substantially impacted by
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the COVID-19 pandemic and the Witness Requirement further burdens them from exercising their right to vote by absentee ballot by requiring them to expose themselves to other people in contravention of maintaining safe social distancing practices. (See ECF Nos. 7-17 at 2 ¶ 5–4 ¶ 12; 7-19 at 3 ¶ 7–4 ¶ 10 (Thomas).)
33. Once burdens are identified, a court evaluating a constitutional challenge to an election regulation must weigh the asserted burdens to the right to vote against the “precise interest put forward by the State as justifications for the burden imposed by its rule.” Burdick, 504 U.S. at 424 (quoting Anderson, 460 U.S. at 789).
34. The Supreme Court has made clear that it has not identified any “litmus test for measuring the severity of a burden that a state law imposes on a political party, an individual voter, or a discrete class of voters.” Crawford v. Marion Cty. Election Bd., 553, U.S. 181, 191 (2008). Rather, “however slight that burden may appear” the reviewing court must find that it is “justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Id. (quoting Norman v. Reed, 502 U.S. 279, 288–89 (1992)) (emphasis added).
35. Here, SCEC Defendants assert that the Witness Requirement is justified because it is intended “to (1) preserve the integrity of elections by developing a scheme that ensure[s] the reliability of our voting system and (2) protect[] it from fraud.” (ECF No. 50 at 5.)
36. However, courts are not to blindly accept a state’s assertion that its interests are enough to outweigh a burden, instead a court must find that it is “justified by relevant and legitimate state interests ‘sufficiently weighty to justify the limitation.’” Crawford, 553 U.S. at 191 (emphasis added).
37. In applying this standard, the court observes that Defendants’ assertion that the Witness Requirement is necessary to combat voter fraud is undermined by SCEC Defendants
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Andino, Elder, Wells, and Moseley. Specifically, Defendant Andino, the Executive Director of the SCEC, sent a letter to Defendant Governor McMaster and other elected officials on March 30, 2020, whereby Executive Director Andino stated:
Absentee voting also requires voters to have another person witness their signature when returning their ballot. While election officials check the voter’s signature, the witness signature offers no benefit to election officials as they have no ability to verify the witness signature. Removing the requirement for a witness signature would remove a barrier many voters would likely encounter while in selfisolation. (ECF No. 1-2 at 3 (Thomas) (emphasis added).) 38. SCEC Defendants attempt to clarify this statement through Executive Director Andino’s Declaration (ECF No. 46-2 (Thomas)), which states her “letter was not intended as . . . an endorsement or recommendation of any particular voting method or requirements not permitted in this state, nor of any legal position regarding the current state law requirements.” Nonetheless, in the same Declaration, Executive Director Andino affirms that the purpose of the letter was to provide “useful, relevant information for policymakers to consider when determining what action to take, if any, with regards to the safe conduct of elections in light of concerns regarding COVID19” (id. at 6 ¶ 10), in her role as a “liaison between the S[]C[EC] and public officials . . . , other government entities and the voting public.” (Id.) Because Andino is the Chief Administrative Officer of the SCEC, the court places emphasis on both her prior letter and her Declaration. 39. While states certainly have an interest in protecting against voter fraud and ensuring voter integrity, the interest will not suffice absent “evidence that such an interest made it necessary to burden voters’ rights.” Fish v. Schwab, No. 18-3133, 2020 WL 2050644, at *18 (10th Cir. Apr. 29, 2020) (affirming injunction against Kansas’s documentary proof of citizenship requirement for voter registration). 40. “In passing judgment, the court must . . . determine the legitimacy and strength of
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each of those interests [and] it also must consider the extent to which those interests make it
necessary to burden the plaintiff’s rights.” Anderson, 460 U.S. at 789. 41. Here, Defendants have not offered any evidence of voter fraud in South Carolina21
other than SCEC’s fleeting mention, during the May 15, 2020 hearing, of a voter-buying scandal
from the 1980s. Cf. United States v. Carmichael, 685 F.2d 903, 907 (4th Cir. 1982). 42. While the court also considers SCEC Defendants’ asserted interest of voter
integrity, Director Andino’s letter stating that the Witness Requirement “offers no benefit” also undermines, but does not completely dissolve, the “legitimacy” of this interest as well. (See ECF
No. 1-2 at 3 (Thomas).) 43. Thomas/Middleton Plaintiffs have shown strong likelihood that the burdens placed
upon them by the Witness Requirement far outweigh the imprecise, and (as admitted by SCEC Defendants) ineffective, state interests of combating voter fraud and protecting voting integrity.22
See e.g. Paher v. Cegavske, No. 320CV00243, 2020 WL 2089813, at *2 (D. Nev. Apr. 30, 2020) (interest in maintaining “a high level of access to the ballot, while protecting the safety of voters
21 According to the Brennan Center for Justice, which is a nonpartisan law and policy institute, more than 31 million Americans cast ballots by mail in 2018. Brennan Center for Justice, https://www.brennancenter.org/our-work/analysis-opinion/false-narrative-vote-mail-fraud (last visited May 20, 2020). Despite this dramatic increase in mail voting over time, fraud rates “remained infinitesimally small.” Id. Additionally, “none of the five states that hold their elections primarily by mail has had any voter fraud scandals since making that change.” Id. For example, Oregon sent out more than 100 million mail-in ballots since 2000, and has documented only about a dozen cases of proven fraud.” Id. “Rounded to the seventh decimal point, that’s 0.0000001 percent of all votes cast.” Id. Moreover, according to a sampling research conducted by the Heritage Foundation—an organization invested in “[p]reventing, deterring, and prosecuting election fraud”, there have only been 1,285 proven instances of voter fraud nationwide. A Sampling of Recent Election Fraud Cases from Across the United States, https://www.heritage.org/voterfra ud (last visited May 22, 2020). 22 The court agrees that these are legitimate state interests, but they are still served by other means (i.e. requiring absentee ballot applications to include identifying information, etc.).
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and poll workers—who belong to groups who are at high risks for severe illness from COVID-19” outweighed concern for voter fraud).
44. Therefore, Thomas/Middleton Plaintiffs are likely to prevail on their constitutional challenge to the Witness Requirement under the Anderson-Burdick balancing test because the character and magnitude of the burdens imposed on Thomas/Middleton Plaintiffs in having to place their health at risk during the COVID-19 pandemic likely outweigh the extent to which the Witness Requirement advances the state’s interests of voter fraud and integrity. See e.g. Libertarian Party of Ill. v. Pritzker, No. 20-CV-2112, 2020 WL 1951687, at *4 (N.D. Ill. Apr. 23, 2020) (court determining that a signature requirement for potential candidate eligibility on ballot presented “insurmountable hurdle” during COVID-19 pandemic and enjoining enforcement of portions of said requirement). F. Likelihood of Suffering Irreparable Harm Absent an Injunction
45. Winter requires that the party requesting injunctive relief demonstrates that it is likely it will suffer irreparable harm absent the preliminary injunction. 555 U.S. at 22–23. The harm to be prevented must be of an immediate nature and not simply a remote possibility. Am. Whitewater v. Tidwell, No. 8:09-cv-02665-JMC, 2010 WL 5019879, at *11 (D.S.C. Dec. 2, 2010) (citing In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir. 2003)).
i. Thomas/Middleton Plaintiffs Have Established Irreparable Harm. 46. The threatened “loss of First Amendment rights, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 520–21 (4th Cir. 2002); see also Preston v. Thompson, 589 F.2d 300, 303 n.4 (7th Cir. 1978) (“The existence of a continuing constitutional violation constitutes proof of an irreparable harm.”); Elrod v. Burns, 427 U.S. 347, 373 (1976) (where plaintiff had proven a probability of success on the
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merits, the threatened loss of First Amendment freedoms “unquestionably constitutes irreparable injury”).
47. To demonstrate a need for injunctive relief, a plaintiff must show how the harm suffered is such that other forms of damages available in the normal course of litigation are not enough. “Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough,” because “the possibility that adequate compensatory or other corrective relief will be available at a later date.” Hughes Network Sys. v. Interdigital Commc’ns Corp., 17 F.3d 691, 694 (4th Cir. 1994). This “weighs heavily against a claim of irreparable harm.” Id.
48. “A preliminary injunction is not normally available where the harm at issue can be remedied by money damages.” Bethesda Softworks, LLC v. Interplay Entm’t Corp., 452 F. App’x 351, 353 (4th Cir. 2011).23
49. Claims of infringement of a citizen’s constitutional right to vote cannot be redressed by money damages, and therefore traditional legal remedies would be inadequate in this case. See League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th Cir. 2014) (“[O]nce the election occurs, there can be no do-over and no redress.”)
23 The presumption against issuing preliminary injunctions where a harm suffered can be remedied by money damages at judgment stems from real concerns the issuance of a preliminary injunction remedy raises. These concerns include, for example, the fact that in issuing a preliminary injunction order, a district court is required, based on an incomplete record, to order a party to act in a certain way. Hughes Network Sys., Inc. v. InterDigital Commc’ns Corp., 17 F.3d 691, 694 (4th Cir. 1994). Issuing an injunction further risks repetitive litigation, that which carries significant costs for both parties. Id. Thus, there are only “extraordinary circumstances” that are “quite narrow” in application, where preliminary injunction is appropriate notwithstanding monetary damages. Id. (discussing a plaintiff’s business not being able to survive as an example of such circumstances.) The COVID-19 pandemic is one such extraordinary circumstance.
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50. Accordingly, to the extent that Thomas/Middleton Plaintiffs have a likely constitutional violation, Thomas/Middleton Plaintiffs have satisfied their initial showing of irreparable harm. G. The Balance of Equities and the Public Interest Factors
51. The third and fourth elements of the preliminary injunction test require Thomas/Middleton Plaintiffs to establish clearly that the balance of equities tips in their favor and that an injunction also is in the public interest. Winter, 555 U.S. at 20.
52. In cases involving significant public interest, courts may “consider the balance of the equities and the public interest factors together.” As the Fourth Circuit has explained:
Even if Plaintiffs are likely to suffer irreparable harm in the absence of a preliminary injunction, we still must determine that the balance of the equities tips in their favor, “pay[ing] particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero– Barcelo, 456 U.S. 305, 312 (1982). This is because “courts of equity may go to greater lengths to give ‘relief in furtherance of the public interest than they are accustomed to go when only private interests are involved.’” E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 826 (4th Cir. 2004) (quoting Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 552, 57 S. Ct. 592, 81 L. Ed. 789 (1937)). Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 602 (4th Cir. 2017). 53. A court considering whether to grant a preliminary injunction must therefore “balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24 (quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)). 54. “The court must also consider the balance of hardships between the litigants and the impact on the public at large prior to issuing an injunction.” Uhlig, LLC v. Shirley, C/A No. 6:08-cv-01208-JMC, 2012 WL 2458062, at *4 (D.S.C. June 27, 2012) (emphasis added). i. Thomas/Middleton Plaintiffs Have Established that a Preliminary Injunction of the
“Witness Requirement” Tips Towards Their Favor and is in the Public Interest.
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55. Regarding the final two factors—balance of the equities and the consideration of the public interest—the Fourth Circuit has also found these factors established when there is a likely First Amendment violation. Giovani Carandola, 303 F.3d at 521 (“upholding constitutional rights surely serves the public interest”).
56. Above, the court found that Thomas/Middleton Plaintiffs will suffer irreparable harm without an injunction of the Witness Requirement. Alternatively, there is no evidence that Defendants will suffer any harm if Thomas/Middleton Plaintiffs’ Motions are granted. Indeed, a government is “in no way harmed by issuance of a preliminary injunction which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the system is improved by such an injunction.” Giovani Carandola, 303 F.3d at 521; accord Newsom v. Albemarle Cnty. School Bd., 354 F.3d at 261 (4th Cir. 2003).
57. Temporarily enjoining the Witness Requirement promotes “the public interest in . . . safeguarding public health.” Pashby, 709 F.3d at 331. “The public interest is clearly in remedying dangerous or unhealthy situations and preventing the further spread of disease.” Diretto v. Country Inn & Suites by Carlson, No. 16-cv-1037, 2016 WL 4400498, at *4 (E.D. Va. Aug. 18, 2016).
58. This is particularly true in the context of the “worst pandemic this state, country, and planet has seen in over a century.” League of Women Voters of Va. v. Va. State Bd. of Elections, No. 6:20-CV-00024, 2020 WL 2158249, at *10 (W.D. Va. May 5, 2020). To conclude otherwise would be non-sensical during a time where social distancing and isolation has been encouraged by the CDC.24
24 In its suggestions for slowing the spread of COVID-19, the CDC advocates for “limiting faceto-face contact with others” by “[s]tay[ing] at least 6 feet (about 2 arms’ length) from other
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59. Were it not for the current pandemic, then this element may have cut the other way. But the court’s decision is to be guided by “the ramifications of granting or denying the preliminary injunction on nonparties to the litigation.” Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc, 549 F.3d 1079, 1100 (7th Cir. 2008) (citing Lawson Prod., Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir. 1986); Ty, Inc., 237 F.3d at 895). Considering the ramifications of the injunction during a pandemic, the public interest is served. See, e.g., Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 924–25 (6th Cir. 2020) (“Were there no public health crisis, then, the analysis would be relatively straightforward . . . but, of course, we are not living in normal times; we are living in pandemic times.”).
60. The evidence in the record points to the conclusion that adherence to the Witness Requirement in June would only increase the risk for contracting COVID-19 for members of the public with underlying medical conditions, the disabled, and racial and ethnic minorities.
61. Strikingly, the Witness Requirement would still apply to voters who have already contracted COVID-19, therefore affirmatively mandating that an infected individual go “find” someone to witness their absentee ballot and risk exposing the witness (and whoever comes in contact with the witness) to the virus. The asymptomatic COVID-19 voter would unknowingly place potential witnesses at risk and the symptomatic COVID-19 voter would be hard-pressed to find a willing witness. Defendants are also hard-pressed to convince this court, at least, that this predicament created by strict enforcement of the Witness Requirement is in the best interests of the public during a pandemic of this nature.
62. Finally, the public interest “favors permitting as many qualified voters to vote as
people.” Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/ prevent-getting-sick/social-distancing.html(last visited May 20, 2020).
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possible.” Obama for Am. v. Husted, 697 F.3d 423, 437 (6th Cir. 2012). 63. Accordingly, the court finds that granting Thomas/Middleton Plaintiffs injunctive
relief is in the public interest. H. Required Posting of Bond
65. Rule 65 provides that “[t]he court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c).
66. The district court “retains the discretion to set the bond amount as it sees fit or waive the security requirement.” Pashby, 709 F.3d at 332 (citing Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421 (4th Cir. 1999); Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995)).
67. After considering the circumstances alleged in the instant Motions, and given the significance of this matter of local, national, and international public concern resulting from this unprecedented pandemic, which has garnered a response from all levels of government, the court deems it appropriate to waive bond for Thomas/Middleton Plaintiffs. See Hoechst Diafoil Co., 174 F.3d at 421 (acknowledging the requirement that a district court set an injunction bond and also acknowledging that the court can set the bond “in such sum as the court deems proper”). I. Extension of Deadline for Receipt of Absentee Ballots
i. Middleton Plaintiffs Cannot Establish a Clear Showing of Likely Success as to the Merits of Their Constitutional Claim for an Extended Deadline.
68. Middleton Plaintiffs request that this court enjoin Defendants “from enforcing the requirement under S.C. Code Ann. § 7-15-230 that absentee ballots must be received by 7:00 p.m. on Election Day [June 9] to be counted” and wants the court to effectively “extend the deadline
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[of absentee ballot receipt by an additional ten (10) days] to June 19, provided that the ballots were postmarked or mailed on or before June 9.” (ECF No. 13 at 32.)
69. S.C. Code Ann. § 7-15-230 provides, in pertinent part: No ballot shall be counted unless the oath is properly signed and enclosed therewith nor shall any ballot be counted which is received by the board of voter registration and elections or other officials charged with the conduct of the election after time for closing of the polls . . . Id. (emphasis added). 70. Middleton Plaintiffs contend that “South Carolina’s Election Day Cutoff law . . . threatens to disenfranchise thousands of voters whose ballots do not arrive by the election day deadline—a threat that is substantially exacerbated by an influx of requests to vote by absentee ballot and delays in mail service” and “is “unconstitutional under the current circumstances.” (ECF No. 13 at 25, 29 (Middleton).) 71. Middleton Plaintiffs also contend that they are “likely to succeed on their claim that South Carolina’s rejection of mailed absentee ballots not received by the Election Day Cutoff is unconstitutional under the current circumstances” because . . . (1) “[f]irst-time absentee voters are more likely to mail their ballots later since they are also likely to be less familiar with voting by mail, including the Election Day Cutoff; (2) the “influx of requests is likely to create scenarios where voters who lawfully request absentee ballots by 5:00 p.m. on June 5 do not even receive them by June 9, the election day deadline”; and (3) “extending the Election Day Cutoff does not impede the State’s interest in orderly elections.” (ECF No. 13 at 29, 28 (Middleton).) 72. While the reasons undergirding Middleton Plaintiffs’ request for an extended deadline may be true and are, at best, significant debate-worthy policy considerations, the court arrives at a different conclusion as to whether these reasons support a finding that Middleton Plaintiffs have a strong likelihood of success on the merits of their, constitutionally-based,
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Deadline challenge.25 To the contrary, the court finds that Middleton Plaintiffs are unlikely to
succeed on their constitutional challenge to the June 9, 2020 deadline.
73. Unlike the Witness Requirement, the most significant obstacles to Middleton
Plaintiffs’ ability to meet the June 9, 2020 deadline are principally unrelated to the COVID-19
pandemic’s health risks and the burdens, if any, imposed by the deadline are minimal.26
74. South Carolina’s generally applicable deadline for receipt of absentee ballots is
constitutional because it imposes only a minimal burden, if any, on Middleton Plaintiffs’ right to
vote.
75. “[W]hen a state election law provision imposes only ‘reasonable,
nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the
State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Burdick,
25 Addressing Middleton Plaintiff’s first two reasons for an extended deadline: as Defendants accurately point out,“[e]very citizen is presumed to know the law.” Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 1498, 1507 (2020); see also State v. Adams, 763 S.E.2d 341, 348 (S.C. 2014) (“ignorance of the law is no excuse”). It is reasonable to expect a voter, who is voting by absentee ballot, no matter the reason, to familiarize themselves with the rules governing that procedure—especially when those procedures are provided. Information regarding expanded absentee voting in South Carolina has been available to every South Carolina voter since May 13, 2020. See https://www.scvotes.org/all-voters-can-now-vote-absentee-june-primaries-runoffs All Voters Can Now Vote Absentee in June Primaries Release May 13, 2020 (Last visited May 22, 2020) (“every voter in South Carolina is now qualified to vote absentee in the June Primaries and runoffs. Governor McMaster today signed into law legislation passed yesterday by the General Assembly that authorizes any voter to vote absentee in any election in June 2020.”) Similarly, while the court understands Middleton Plaintiffs’ concerns that “the Postal Service faces unprecedented challenges from the pandemic and budgetary constraints”, (ECF No. 13 at 26), this concern does not impact the constitutional inquiry before the court. 26 Additionally, Middleton Plaintiffs state that “those who do not receive their ballots on time to mail them back will be faced with the same untenable choice: risk serious illness/death or not vote.” (ECF No. 29 at 13.) While this may be true for some people who wait until near the June 9 deadline to request an absentee ballot, the opportunity to request a ballot has been open to all South Carolina voters since May 13, 2020, nearly a whole three weeks before the June 5, 2020 absentee ballot application deadline. The court finds this to be ample time to request an absentee ballot and timely submit it to the SCEC well before Election Day.
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504 U.S. at 434 (quoting Anderson, 460 U.S. at 788). 76. Any voter may request and submit an absentee ballot, so long as that ballot is
received by the Election Commission by the time the polls close on Election Day. S.C. Code § 715-230 (West 2020).
77. Standing alone, South Carolina’s deadline of 7:00 p.m. on Election Day is nondiscriminatory. “A state’s generally applicable registration cutoff imposes only a minimal burden on the right to vote. Rosario v. Rockefeller, 410 U.S. at 758. While the specific challenge here is to the ballot receipt date and not to the registration deadline, the principle still applies.
78. Of course, voters who fail to get their vote in early cannot blame South Carolina law for their inability to vote; they must blame “their own failure to take timely steps to effect their enrollment.” Rosario, 410 U.S. at 758; see also Burdick, 504 U.S. at 436–37 (“[A]ny burden on voters’ freedom of choice and association is borne only by those who fail to identify their candidate of choice until days before the primary.”). This notion was recently underscored by the Supreme Court in Republican Nat’l Comm. v. Democratic Nat’l Comm. when the high Court commented, “even in ordinary elections, voters who request an absentee ballot at the deadline for requesting ballots, will usually receive their ballots on the day before the election or day of the election…voters here would [not] be in a substantially different position from late-requesting voters in other [] elections with respect to the timing of their receipt of absentee ballots.”). 140 S. Ct. 1205, 1207 (2020).
79. In terms of the state’s interests: setting specific election deadlines is part and parcel of a state’s generalized interest in the orderly administration of elections. Mays v. LaRose, 951 F.3d 775, 787 (6th Cir. 2020).
80. SCEC Defendants assert that the state’s interest is “ensuring a smooth process
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for [voters] to cast ballots and officials to count those ballots.” (ECF No. 10.)
81. During the May 2020 hearing, SCEC Defendants represented that the state has an
additional interest in maintaining the June 9, 2020 deadline because it ensures that the Secretary
of State and his staff have sufficient time to canvass votes in a timely fashion and meet the ballot
certification deadline, which triggers final preparations for ballot preparation for the June 23, 2020
run-off elections. As a result, SCEC Defendants contend that an extension until June 19, 2020
would hinder and frustrate the state’s goal of certifying the results to the State Board by the June
13, 2020 deadline in time for the June 23, 2020 run-off elections.
82. The court determines that the state’s enforcement of the Election Day cutoff to
absentee ballot receipt does not severely burden or disenfranchise Middleton Plaintiffs.
83. Accordingly, the court denies Middleton Plaintiffs’ request to extend the absentee deadline by an additional 10 days, or even an additional 6 days.27
J. Likelihood of Suffering Irreparable Harm Absent an Injunction, The Balance of Equities and the Public Interest Factors 84. Generally, in determining whether to grant a motion for injunctive relief, “[t]he
court must also consider the balance of hardships between the litigants and the impact on the public
27 During the May 15, 2020 hearing, Middleton Plaintiffs suggested that the court should consider a six-day extension of the deadline consistent with a Wisconsin district court’s order which “was affirmed by the Supreme Court” and “extended the deadline by six days.” See Democratic Nat’l Comm. v. Bostelmann, Civ. No. 20-cv-249-wmc, 2020 WL 1638374, at *22 (W.D. Wis. Apr. 2, 2020), clarified, ECF No. 122 (W.D. Wis. Apr. 3, 2020), stayed in part sub nom. Democratic Nat’l Comm. v. Republican Nat’l Comm., Nos. 20- 1538 & 20-1546 (7th Cir. Apr. 3, 2020), stayed in part, 140 S. Ct. 1205 (2020). The court determines that the specific facts of the Wisconsin case as it related to an absentee ballot deadline do not apply to the facts of this case. Additionally, the Supreme Court’s decision was “narrow” and “should not be viewed as expressing an opinion on the broader question of whether modifications to election procedures in light of COVID-19 are appropriate.” Republican Nat’l Comm., S.Ct. 1205 at 1207. As the most significant contrast, the Wisconsin Commissioners “no longer object[ed]” to the Wisconsin Plaintiffs’ six-day extension request and consented to the deadline extension. 2020 WL 1638374, at *16. Here, SCEC Defendants vehemently object to an extension of any kind.
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at large prior to issuing an injunction.” Uhlig, LLC v. Shirley, C/A No. 6:08-cv-01208-JMC, 2012 WL 2458062, at *4 (D.S.C. June 27, 2012).
85. However, Middleton Plaintiffs have not made a clear showing that they will likely succeed on the merits of their deadline challenge because the law on the questions at the heart of the dispute does not favor their position. Therefore, because Middleton Plaintiffs cannot show a likelihood of success on the merits, this court need not address the other necessary elements for preliminary injunctive relief. La Union Del Pueblo Entero v. Fed. Emergency Mgmt. Agency, 608 F.3d 217, 225 (5th Cir. 2010) (“Because we have determined that Plaintiffs cannot show a substantial likelihood of success on the merits, we need not address FEMA’s additional arguments regarding the other necessary elements for preliminary injunctive relief. The holding on the initial element is sufficient to vacate the injunction.”); Coleman v. Chase Bank, C/A No. 3:14-cv-101, 2014 WL 2533400, at *3 (E.D. Va. June 5, 2014) (“Because Plaintiffs cannot show a likelihood of success on the merits, the Court need not address the remaining factors.”). K. Section 201 Voting Rights Act Challenge
i. Thomas Plaintiffs Cannot Establish a Clear Showing of Likely Success as to the Merits of Their Section 201 Voting Rights Act Claim.
86. Section 201 of the Voting Rights Act of 1965 prohibits the use of “any test or device” including “any requirement that a person as a prerequisite for voting . . . prove his qualifications by the voucher of registered voters or members of any other class.” 52 U.S.C. § 10501(a).
87. S.C. Code Ann. § 7-15-420 (West 2020) states that an absentee “ballot may not be counted unless the oath is properly signed and witnessed . . . .”
88. Thomas Plaintiffs assert that, based on the aforementioned language in § 7-15-420, the Witness Requirement is “per se illegal” and violative of Section 201 “insofar as [the Witness
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Requirement] is a ‘prerequisite for voting’ that asks a voter to ‘prove his qualifications by the
voucher of registered voters or members of any other class.”’ (ECF No. 7-1 at 43 (Thomas).)
89. As they have brought a per se challenge, Thomas Plaintiffs are facially attacking
the validity of the Witness Requirement as opposed to attacking the Witness Requirement on an
as-applied basis.28
90. As a threshold issue, the court takes notice of the United States Government’s
Statement of Interest Concerning Section 201 of the Voting Rights Act (ECF No. 47) (Thomas),
wherein the Government claims that “this [c]ourt as constituted cannot address Plaintiffs’ Section
201 claim, which the Voting Rights Act provides may only be heard by a three-judge court.” (ECF
No. 47 at 2 (Thomas).)
91. While SCEC Defendants did not raise or brief this issue, SCEC Defendants
represented to the court during the May 15, 2020 hearing that it adopts the Government’s position
28 Unlike the Thomas/Middleton Plaintiffs’ “as-applied” challenge to the Witness Requirement under the First and Fourteenth Amendments, Thomas Plaintiffs’ challenge to the Witness Requirement under § 201 of the Voting Rights Act is a facial attack on the South Carolina statutes mandating the Witness Requirement. The distinction is quite significant here. “A facial challenge is an attack on a statute itself as opposed to a particular application.” Doe v. City of San Diego, 313 F. Supp. 3d 1212, 1217 (S.D. Cal. 2018) (citing City of Los Angeles v. Patel, 576 U.S. 409 (2015)). Accordingly, “a facial attack does not raise questions of fact related to the enforcement of the statute in a particular instance.” Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 133 n.10 (1992) (“Facial attacks on the discretion granted a decisionmaker are not dependent on the facts surrounding any particular permit decision”). As this court has recognized before, “facial challenges are generally disfavored because they ‘threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.’” Greenville Cty. Republican Party Exec. Comm. v. South Carolina, 824 F. Supp. 2d 655, 662 (D.S.C. 2011) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008). This “Witness Requirement” challenge based on the VRA, then, does not depend on the COVID-19 pandemic or the specific obstacles faced by Thomas Plaintiffs related to the specific burdens caused by the coronavirus. As such, the court analyzes the § 201 “Witness Requirement” challenge independently of the facts surrounding the current pandemic.
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that this court cannot address the Section 201 claim absent a three-Judge panel.29 92. Defendants are correct that Section 1973aa–2 provides that any “action under this
subsection shall be heard and determined by a court of three judges.” However, Section 1973aa– 2, by its express terms, only applies this requirement to suits by the Attorney General. Id. (stating, in relevant part, that “[w]henever the Attorney General has reason to believe” that Sections 1973aa, 1973aa–1, or 1973aa–1a are being violated, “he may institute for the United States, or in the name of the United States, an action in a district court of the United States”) (emphasis added).
93. As is clear from Thomas Plaintiffs’ Complaint, this case is not brought by the Attorney General. Rather, it is brought by private parties under Section 201. Therefore, this provision is inapplicable to the present case and this court has authority, as presently constituted, to address Thomas Plaintiffs’ Section 201 claim. See e.g. Navajo Nation Human Rights Comm’n v. San Juan Cty., 215 F. Supp. 3d 1201, 1217 (D. Utah 2016).
94. Addressing Thomas Plaintiffs’ Section 201 claim, the court finds that Plaintiffs are unlikely to succeed on the merits of this claim because the Witness Requirement is not a “test or device” as defined under the plain language of the statute.
95. 52 U.S.C. § 10501 states: (a) No citizen shall be denied, because of his failure to comply with any test or device, the right to vote in any Federal, State, or local election conducted in any State or political subdivision of a State. Id. at § 10501(a). 96. More pertinently, section (b) states, “[a]s used in this section, the term ‘test or
29 The court also acknowledges that intervenor-Defendant SCRP also briefed this argument in its Response in Opposition to Plaintiffs’ Motion for Preliminary Injunction (ECF No. 50) (Thomas). Specifically, intervenor-Defendant SCRP states that the claim “fails right out the gate because [Thomas Plaintiffs] failed to affirmatively request a three-judge court . . . .” (ECF No. 50 at 13.)
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device’ means any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” 52 U.S.C. § 10501(b) (emphasis added).
97. The Witness Requirement is not a “test or device” as defined under Section 201 because the requirement does not mandate the witness to “vouch” or “prove” that the voter is qualified to vote, but instead is simply required to witness the oath taken by the voter. Gregory v. S.C. Democratic Exec. Comm., 247 S.E.2d 439, 444 (S.C. 1978) (“as its purpose of the assurance of the authenticity of the absentee vote . . . ”). This is further confirmed after a review of a similar signature scheme, which came under a facial attack in Howlette v. City of Richmond, Va.; in that case, “the sole question for decision [was] whether enforcement of the City Charter requirement that each signature on a petition seeking a referendum be individually notarized is violative of the VRA and the constitution.” 485 F. Supp. at 22 (E.D. Va.), aff’d, 580 F.2d 704 (4th Cir. 1978).
98. The court noted that, “the notary merely administers an oath; he or she in no way vouches that the signer is a registered voter or requires the [voter] to produce proof [to the witness] that he is a registered voter.” Howlette, 485 F. Supp. 17 at 22.
99. Further, the court also examined the Congressional purpose of Section 201 of the Voting Rights Act and determined that:
Thus, both the Congress and the Supreme Court have viewed the prohibition against vouchers as an attack on a specific, racially discriminatory voting registration requirement. The individual notarization requirement at issue in the instant case in no way resembles the voucher requirements prohibited by s 1973b(c)(4). The Court therefore is satisfied that the individual notarization requirement of the Richmond City Charter is not a “test or device” prohibited under the Voting Rights Act of 1965.
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Howlette, 485 F. Supp. at 24 100. Here, as in Howlette, a witness is not required to confirm that the voter is registered
to vote or “qualified” in any way. Instead, the witness is only standing in to confirm that the voter completes the voter’s oath and signs the document. Indeed, a voter’s eligibility has already been verified by the SCEC according to the absentee procedure. (ECF No. 46-2 at 5 ¶ 7 (Thomas)) (“upon receiving an application for an absentee ballot by mail, and verifying the voter’s eligibility to vote absentee, county boards are required to mail…such ballots to the voter as soon as possible.”). There would be no need to, and the Witness Requirement does not, require the witness, who may or may not know the voter, to sign upon the witness line for the purpose of verifying that the voter is registered or “qualified” to vote.
101. As further indication of the failing nature of this claim, the court focuses on the second portion of Section 201 prohibition, which emphasizes the who. To constitute a “test or device,” the voucher must be a “registered voter or members of any other class,” which is not the case here.
102. The Witness Requirement does not specify who must witness the oath and certainly does not limit a witness to another qualified voter. The Witness Requirement allows for a myriad of competent individuals to witness the oath whether the witness themselves are registered to vote or not.
103. Similarly, the Witness Requirement does not require the witness to be a part of a particular “member of any class” or subset of society. Compare Libertarian Party v. Judd, 718 F.3d 308, 310–12, 316–19 (4th Cir. 2013); Lerman v. Bd. of Elections, 232 F.3d 135, 150 & n.14 (2d Cir. 2000); Nader v. Brewer, 531 F.3d 1028, 1031–32, 1035–38 (9th Cir. 2008) (cases either striking down or seriously calling into question the validity of ballot-access laws that restricted
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who may qualify as signatory—i.e., specific members of a geographic or residential area).

104. For the aforementioned reasons, the court finds that the Witness Requirement is not

a “test or device” prohibited under Section 201 of the Voting Rights Act of 1965.

105. Thomas Plaintiffs have not made a clear showing that they will likely succeed on

the merits of their Section 201 challenge because the law on the questions at the heart of the dispute

does not favor their position. Therefore, because Thomas Plaintiffs cannot show a likelihood of

success on the merits, this court need not address the other necessary elements for preliminary

injunctive relief. La Union Del Pueblo Entero, 608 F.3d at 225.

V.

CONCLUSION

For the foregoing reasons and after careful consideration of the entire record, the court

GRANTS IN PART AND DENIES IN PART Thomas Plaintiffs’ Motion for Preliminary

Injunction (ECF No. 7 (Thomas)) and GRANTS IN PART AND DENIES IN PART Middleton

Plaintiffs’ Motion for Preliminary Injunction (ECF No. 13 (Middleton)). More specifically, the

court GRANTS the pending Motions for Preliminary Injunction as to the Witness Requirement

and ENJOINS Defendants, their respective agents, officers, employees, successors, and all

persons acting in concert with each or any of them, from enforcing the Witness Requirement set

forth in S.C. Code Ann. § 7-15-380, and from enforcing the Witness Requirement set forth in any

other South Carolina statutes, on registered absentee voters only during the June 2020 primaries

and resulting runoff elections occurring in the State of South Carolina. The court further ORDERS

Defendants to immediately and publicly inform South Carolina voters about the elimination of

the Witness Requirement for absentee voting, in coordination with city and county election

officials, and county boards. Such public campaign shall include providing updated information

regarding the instant injunction on all relevant websites and social media outlets (i.e., Facebook,

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Instagram, Twitter, etc.) as appropriate. The court hereby DENIES all remaining claims made by Thomas/Middleton Plaintiffs in their Motions for Preliminary Injunction.30
IT IS SO ORDERED.

May 25, 2020 Columbia, South Carolina

United States District Judge

30 The court denies or moots the following requested relief:
1) prohibiting Defendants from enforcing S.C. Code Ann. § 7-15-320 and § 7-15310, the Absentee Ballot Age Restriction, to prevent any eligible voter, regardless of age, to request, receive, and have counted an absentee ballot for the June 9 primary (MOOTED)
2) prohibiting Defendants from enforcing the Excuse Requirement, S.C. Code Ann. § 7-15-320 and § 7-15-310, to prevent any eligible voter, regardless of age or physical condition, to request, receive, and have counted an absentee ballot for the June 9 primary (MOOTED)
3) prohibiting Defendants from enforcing the requirement under S.C. Code Ann. § 7-15-230 that absentee ballots must be received by 7:00 p.m. on Election Day to be counted and extending the deadline to June 19, provided that the ballots were postmarked or mailed on or before June 9 (DENIED)
4) ordering the counting of ballots to begin on June 19, see S.C. Code Ann. § 713-1110, and giving county election officials until June 23 to complete the canvass and certify the results to the State Board of Canvassers, id. § 7-17-20 (MOOTED AS WITHDRAWN)
5) prohibiting election officials from releasing results until after 7:00 p.m. on June 19, see Fed. R. Civ. P. 65 (MOOTED AS WITHDRAWN)
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[CONTENT]  ||| Stanford |||  ||| Stanford |||  ||| South Carolina | South Carolina ||| June | South Carolina | May 12 ||| May 25 | June 2020 ||| May 1, 2020 several | South Carolina | the South Carolina Democratic Party | the Democratic National Committee | the Democratic Congressional Campaign Committee | the U.S. District Court | South Carolina | five | Absentee Ballot Age Restriction | under 65 | 2 | 3 | 7 pm | election day | 4 | Absentee Assistance Ban | 5 | Witness Requirement |||  ||| the South Carolina | Election ||| under 42 | 1983 | 28 | U.S.C. | § | 2201-02 | First | Twenty-Fourth | Twenty-Sixth Amendments | the Voting Rights Act | 52 | U.S.C. | § | 10301-02 ||| South Carolina's | COVID-19 ||| Michelle Childs ||| May 7 | the Absentee Ballot Age Restriction | the Witness Requirement | the Election Day Cutoff |||  ||| South Carolina | Republican Party | May 11 | May 12 ||| May 12 | South Carolina | South Carolina | June 9 | June 23 ||| the Excuse Requirement | the Absentee Ballot Age Requirement | June ||| May 15 | June ||| June ||| May 14 ||| May 25 | the Witness Requirement | June 2020 ||| South Carolina ||| 2020 WL 2617329 |||  [SUMMARY] <b>NOTE:  This case is being tracked in close to real time by the Stanford/MIT Healthy Elections Project. So for more current information, see <a href="https://healthyelections-case-tracker.stanford.edu/"> their tracker</a>.</b> <b>NOTE:  This case is being tracked in close to real time by the Stanford/MIT Healthy Elections Project. So for more current information, see <a href="https://healthyelections-case-tracker.stanford.edu/"> their tracker</a>.</b><hr>COVID-19 Summary: This is an action brought by South Carolina voters, candidates, and democratic organizations, seeking to enjoin various voting restrictions in the South Carolina law. Some of their claims were mooted as to the June elections as South Carolina legislation passed on May 12 allowed voters to vote by absentee ballot. On May 25, the court partially granted a preliminary injunction, enjoining the witness requirement for the June 2020 primaries. <hr>
On May 1, 2020 several South Carolina political candidates and voters, as well as the South Carolina Democratic Party, the Democratic National Committee, and the Democratic Congressional Campaign Committee, filed this action in the U.S. District Court for the District of South Carolina, seeking relief from five voting provisions in the state law: <blockquote>(1)  the "Absentee Ballot Age Restriction," which prohibited all voters under 65 from casting mail-in ballots unless they are disabled or confined in jail; (2) the "Postage Tax," which required voters to pay postage for their absentee ballot if they wished to vote; (3) the "Election Day Cutoff," which rejected ballots not received by 7 pm on election day; (4) the "Absentee Assistance Ban," which prohibited candidates or paid campaign staff from assisting absentee voters; and (5) the "Witness Requirement," which required a witness to sign the absentee ballot in order for the vote to be counted. </blockquote>The plaintiffs, represented by private counsel, sued the South Carolina State Election Commission and the Election Commissioner. They sought declaratory and injunctive relief under 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-02 for violations of the First, Fourteenth, Twenty-Fourth, and Twenty-Sixth Amendments, as well as the Voting Rights Act, 52 U.S.C. §§ 10301-02. Specifically, the plaintiffs alleged that South Carolina's laws surrounding absentee voting unconstitutionally burdened the rights of some voters, especially in light of the COVID-19 pandemic. The case was assigned to Judge Michelle Childs. 

On May 7, the plaintiffs filed a motion for preliminary injunction to stop the defendants from enforcing the Absentee Ballot Age Restriction, the Witness Requirement, and the Election Day Cutoff. They also requested the court to consolidate the motion hearing with <a href="https://clearinghouse.net/detail.php?id=17521"> another action</a> where the plaintiffs had filed a motion for preliminary injunction against the same defendants.

The South Carolina Republican Party moved to intervene on May 11, which was granted on May 12.

Additionally, on May 12, the South Carolina General Assembly passed legislation allowing all qualified South Carolina voters to vote by absentee ballot for the June 9 primary and the June 23 runoff election. These legislative changes mooted the plaintiffs' requests as to the Excuse Requirement and the Absentee Ballot Age Requirement for the June primaries. In light of the hearing scheduled for May 15, the plaintiffs attempted to extend their request for relief beyond the June primaries. The court limited the issues for the hearing, stating that the plaintiff's motion for preliminary injunction clearly sought only relief for June, and as such, the defendants had not been given proper notice.

The defendants and intervenors filed oppositions to the plaintiffs' motion for preliminary injunction on May 14.

On May 25, the court granted the motion for preliminary injunction in part, enjoining the defendants from enforcing the Witness Requirement for the June 2020 primaries. The defendants were also ordered to immediately and publicly inform South Carolina voters of the elimination of the witness requirement. 2020 WL 2617329.

The case is ongoing.