U.S. District Court District of South Carolina (Columbia) CIVIL DOCKET FOR CASE #: 3:20-cv-01552-JMC

STAYED

Thomas et al v. Andino et al Assigned to: Honorable J Michelle Childs related Case: 3:20-cv-01730-JMC Cause: 42:1983 Civil Rights Act

Date Filed: 04/22/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Plaintiff

Mary T Thomas

represented by Jack Emerson Cohoon Burnette Shutt and McDaniel PA PO Box 1929 Columbia, SC 29202 803-904-7914 Fax: 803-904-7910 Email: jcohoon@burnetteshutt.law LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan King Dunn American Civil Liberties Union of SC Foundation PO Box 20998 Charleston, SC 29413 843-282-7953 Fax: 843-720-1428 Email: sdunn@aclusc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adriel I Cepeda Derieux American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2500 Email: acepedaderieux@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Dale Edwin Ho American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2500 Email: dho@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Deuel Ross NAACP Legal Defense and Educational Fund 40 Rector Street 5th Floor New York, NY 10006 212-965-2200 Email: dross@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED
Ihaab I Syed American Civil Liberties Union Foundation Inc 125 Broad Street 18th Floor New York, NY 10004 228-342-4035 Email: isyed@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
John Zachary Morris NAACP Legal Defense and Educational Fund 40 Rector Street 5th Floor New York, NY 10006 212-965-2200 Email: zmorris@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin Eli Jason NAACP Legal Defense and

Educational Fund 40 Rector Street 5th Floor New York, NY 10006 212-965-2200 Email: kjason@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle William Burns Willkie Farr and Gallagher LLP 787 Seventh Avenue New York, NY 10019 212-728-8598 Email: kburns@willkie.com PRO HAC VICE ATTORNEY TO BE NOTICED
LaRue Lawrence Robinson Willkie Farr and Gallagher LLP 300 North LaSalle Chicago, IL 60654 312-728-9022 Email: lrobinson@willkie.com PRO HAC VICE ATTORNEY TO BE NOTICED
Marie Annie Houghton-Larsen Willkie Farr and Gallagher LLP 787 Seventh Avenue New York, NY 10019 212-728-8164 Email: mhoughtonlarsen@willkie.com PRO HAC VICE ATTORNEY TO BE NOTICED
Peter M Lieb Willkie Farr and Gallagher LLP 787 Seventh Avenue New York, NY 10019 212-728-8598 Email: blocklieb@gmail.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Nea Richard

Skyler Silvertrust Willkie Farr and Gallagher LLP 300 North LaSalle Chicago, IL 60654 312-728-9033 Email: ssilvertrust@willkie.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sophia Lin Lakin American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2500 Email: slakin@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Theresa Lee American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212-549-2500 Email: tlee@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jack Emerson Cohoon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adriel I Cepeda Derieux (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Dale Edwin Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deuel Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ihaab I Syed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Zachary Morris (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle William Burns (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
LaRue Lawrence Robinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marie Annie Houghton-Larsen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter M Lieb (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Jeremy Rutledge TERMINATED: 09/18/2020

Skyler Silvertrust (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sophia Lin Lakin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theresa Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jack Emerson Cohoon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adriel I Cepeda Derieux (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dale Edwin Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deuel Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ihaab I Syed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

John Zachary Morris (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle William Burns (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
LaRue Lawrence Robinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marie Annie Houghton-Larsen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter M Lieb (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Skyler Silvertrust (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sophia Lin Lakin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theresa Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Trena Walker TERMINATED: 07/21/2020
Plaintiff Dr Brenda Williams TERMINATED: 07/13/2020

represented by Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adriel I Cepeda Derieux (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dale Edwin Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deuel Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sophia Lin Lakin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theresa Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adriel I Cepeda Derieux (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dale Edwin Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Family Unit Inc, The

Deuel Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sophia Lin Lakin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theresa Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jack Emerson Cohoon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adriel I Cepeda Derieux (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dale Edwin Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deuel Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ihaab I Syed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

John Zachary Morris (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle William Burns (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
LaRue Lawrence Robinson (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marie Annie Houghton-Larsen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter M Lieb (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Skyler Silvertrust (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sophia Lin Lakin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theresa Lee (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

South Carolina State Conference of the NAACP

represented by Jack Emerson Cohoon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan King Dunn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adriel I Cepeda Derieux (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dale Edwin Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Deuel Ross (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ihaab I Syed (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John Zachary Morris (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kyle William Burns (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
LaRue Lawrence Robinson

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

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marie Annie Houghton-Larsen (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Peter M Lieb (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Skyler Silvertrust (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sophia Lin Lakin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Theresa Lee (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

Defendant

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 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

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

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

Defendant Scott Moseley in his official capacity as member of the South Carolina Election Commission
Defendant Henry D McMaster in his official capacity as Governor of South Carolina TERMINATED: 08/14/2020

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
represented by Thomas Ashley Limehouse , Jr Office of the Governor State of South Carolina South Carolina State House 1100 Gervais Street Columbia, SC 29201 803-734-6023 Fax: 803-734-5167 Email: tlimehouse@governor.sc.gov

Defendant JoAnne Day in her official capacity as member of the South Carolina Election Commission
Defendant Linda McCall in her official capacity as member of the South Carolina Election Commission
V. Intervenor Defendant James ("Jay") H. Lucas Speaker of the South Carolina House of Representatives

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jane W Trinkley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Grayson Lambert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jane W Trinkley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Grayson Lambert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hamilton Bohanon Barber Nexsen Pruet (Cola) PO Box 2426 Columbia, SC 29202 803-253-8236 Email: hbarber@nexsenpruet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
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

Intervenor Defendant Harvey Peeler in his capacity as President of the South Carolina Senate
V. Interested Party

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 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

United States of America
Amicus Protection and Advocacy for People with Disabilities Inc
Amicus Attorney General Alan Wilson
V. Intervenor South Carolina Republican Party

represented by Barbara Murcier Bowens US Attorneys Office 1441 Main Street Suite 500 Columbia, SC 29201 803-929-3000 Fax: 803-252-2759 Email: barbara.bowens@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David H Zoellner Protection and Advocacy for People with Disabilities 1569 Sam Rittenberg Boulevard Charleston, SC 29407 843-763-8571 Fax: 843571-0880 Email: zoellner@pandasc.org 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 04/22/2020
04/22/2020 04/22/2020 04/27/2020

# Docket Text

COMPLAINT against All Defendants ( Filing fee $ 400 receipt

1

number 0420-9065219.), filed by Family Unit Inc, The, Nea Richard,

Trena Walker, Brenda Williams, Mary T Thomas, Jeremy Rutledge.

Service due by 7/21/2020 (Attachments: # 1 Exhibit McMaster Letter

to Legislature, # 2 Exhibit Andino letter to McMaster and

Legislature)(asni, ) (Entered: 04/22/2020)

2 Summons Issued as to Marci Andino, Clifford J Edler, Henry D McMaster, Scott Moseley, John Wells. (asni, ) (Entered: 04/22/2020)

3 Local Rule 26.01 Answers to Interrogatories by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams.(asni, ) (Entered: 04/22/2020)

5 MOTION for Leave to File Excess Pages by Mary T Thomas, Nea Richard, Jeremy Rutledge, Trena Walker, Brenda Williams, The Family Unit Inc. Response to Motion due by 5/12/2020. 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.(Dunn, Susan) Modified to add filers listed on document on 4/30/2020 (asni, ). (Entered: 04/27/2020)

04/27/2020 04/28/2020
04/28/2020 04/30/2020

6 TEXT ORDER granting 5 Motion for Leave to File Excess Pages. Signed by Honorable J Michelle Childs on 4/27/2020.(asni, ) (Entered: 04/27/2020)
7 MOTION for Preliminary Injunction by Mary T Thomas, Nea Richard, Jeremy Rutledge, Trena Walker, Brenda Williams, The Family Unit Inc. Response to Motion due by 5/12/2020. 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 Memorandum in supprt of Motion, # 2 Exhibit Cepeda Derieux decaltion in support of motion, # 3 Supporting Documents Article on Wisconsin election, # 4 Supporting Documents SEC letter to Mc Master, et. al., # 5 Supporting Documents Racial bias article, # 6 Supporting Documents WPDE on Affrican American and Coronavirus in SC, # 7 Supporting Documents Decision in Virginia case, # 8 Supporting Documents SC DHEC recommmendations, # 9 Supporting Documents Decison in Texas case, # 10 Supporting
Documents Absentee voting data, # 11 Exhibit Reingold
declaration, # 12 Exhibit Cooper declaration, # 13 Supporting Documents Socio-Economic data, # 14 Supporting Documents
Racial data, # 15 Exhibit Cogburn Declaration, # 16 Supporting Documents Cogburn CV, # 17 Exhibit Murphy Declaration, # 18 Exhibit Thomas Declaration, # 19 Exhibit Richard Declaration, # 20 Exhibit Rutledge Declaration, # 21 Exhibit Walker Declaration, # 22 Exhibit Williams Declaration, # 23 Supporting Documents Emails relating to Williams Declaration)No proposed order.(Dunn, Susan) Modified to add filers listed on document on 4/30/2020 (asni, ). additional attachment entry 35 added on 5/7/2020 (asni, ). (Entered: 04/28/2020)
8 MOTION to Expedite by Mary T Thomas, Nea Richard, Jeremy Rutledge, Trena Walker, Brenda Williams, The Family Unit Inc.. Response to Motion due by 5/12/2020. 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 Certificate of Service Certificate of service on Defendants)No proposed order.(Dunn, Susan) Modified to add filers listed on document on 4/30/2020 (asni, ). (Entered: 04/28/2020)
9 MOTION to Appear Pro Hac Vice by Adriel I. Cepeda Derieux ( Filing fee $ 250 receipt number 0420-9078649) by Mary T Thomas, Nea Richard, Jeremy Rutledge, Trena Walker, Brenda Williams, The Family Unit Inc.. Response to Motion due by 5/14/2020. 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 Affidavit

04/30/2020 05/01/2020 05/04/2020
05/04/2020
05/04/2020
05/04/2020

Application to Appear PHV by Cepeda Drieux, # 2 Exhibit Certificate of Good Standing)No proposed order.(Dunn, Susan) Modified to add filers listed on document on 4/30/2020 (asni, ). (Entered: 04/30/2020)

10 TEXT ORDER granting 9 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 4/30/2020.(asni, ) (Entered: 04/30/2020)

11 MOTION to Intervene by South Carolina Republican Party. Response to Motion due by 5/15/2020. 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)No proposed order.(Tyson, Robert) (Entered: 05/01/2020)

MOTION to Appear Pro Hac Vice by Dale E. Ho ( Filing fee $ 250

12

receipt number 0420-9083757) by Trena Walker, Mary T Thomas,

Nea Richard, Jeremy Rutledge, Brenda Williams, The Family Unit

Inc. Response to Motion due by 5/18/2020. 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 Affidavit Application

to Appear PHV, # 2 Exhibit Certificate of Good Standing)No proposed order.(Dunn, Susan) (Entered: 05/04/2020)
13 MOTION to Appear Pro Hac Vice by Sophia Lin Lakin ( Filing fee $ 250 receipt number 0420-9083793) by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams. Response to Motion due by 5/18/2020. 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 Affidavit Application to Apear PHV, # 2 Envelope Certificate of Good Standing)No proposed order.(Dunn, Susan) (Additional attachment(s) added on 5/5/2020: # 3 certificate of good standing supreme court) (asni, ). (Entered: 05/04/2020)
14 MOTION to Appear Pro Hac Vice by Deuel Ross ( Filing fee $ 250 receipt number 0420-9083826) by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams. Response to Motion due by 5/18/2020. 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 Affidavit Application to appear PHV, # 2 Exhibit Certificate of Good Standing, # 3 Exhibit Pause notice for NY Courts, # 4 Affidavit Supplemental declaration from Deuel Ross)No proposed order.(Dunn, Susan) (Entered: 05/04/2020)
15 MOTION to Appear Pro Hac Vice by Theresa J. Lee ( Filing fee $ 250 receipt number 0420-9083850) by Family Unit Inc, The, Nea

05/04/2020 05/04/2020 05/04/2020 05/05/2020 05/05/2020
05/05/2020 05/05/2020

Richard, Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams. Response to Motion due by 5/18/2020. 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 Affidavit Application
to appear PHV, # 2 Exhibit Certificate of Good Standing)No proposed order.(Dunn, Susan) (Entered: 05/04/2020)
16 TEXT ORDER granting 12 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 5/4/2020.(asni, ) (Entered: 05/04/2020)
17 TEXT ORDER granting 14 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 5/4/2020.(asni, ) (Entered: 05/04/2020)
18 TEXT ORDER granting 15 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 5/4/2020.(asni, ) (Entered: 05/04/2020)
19 MOTION for Leave to File Amicus Brief by Protection and Advocacy for People with Disabilities Inc. Response to Motion due by 5/19/2020. 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 proposed brief)No proposed order. refiled by the clerk to correct event type.(asni, ) (Entered: 05/05/2020)
20 TEXT ORDER: This matter is before the court pursuant to a Motion to Intervene filed by the South Carolina Republican Party ("SCRP") pursuant to Rules 24(a) and 24(b) of the Federal Rules of Civil Procedure. (ECF No. 11.) In its submission, the SCRP observed that it consulted with Plaintiffs prior to filing the Motion and "Counsel for Plaintiffs have indicated they will oppose [the] [M]otion." (Id. at 5.) In accordance with the expedited proceedings in this matter, the court DIRECTS Plaintiffs to file any opposition to SCRP's Motion to Intervene on or before 12:00 p.m. on Thursday, May 7, 2020. If the court grants the proposed Motion to Intervene (ECF Nos. 7, 8, 13), the SCRP shall file its response to Plaintiffs' Motion for Preliminary Injunction on May 11, 2020. Signed by Honorable J Michelle Childs on 5/5/2020. (asni, ) (Entered: 05/05/2020)
21 TEXT ORDER granting 13 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 5/5/2020.(asni, ) (Entered: 05/05/2020)
22 RESPONSE in Opposition re 11 MOTION to Intervene Response filed by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams.Reply to Response to

05/05/2020 05/05/2020 05/05/2020 05/06/2020
05/06/2020 05/06/2020 05/06/2020 05/06/2020 05/06/2020

Motion due by 5/12/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Dunn, Susan) (Entered: 05/05/2020)
24 NOTICE of Appearance by William Grayson Lambert on behalf of Marci Andino, Clifford J Edler, Scott Moseley, John Wells (Lambert, William) (Entered: 05/05/2020)
25 NOTICE of Appearance by Mary Elizabeth Crum on behalf of Marci Andino, Clifford J Edler, Scott Moseley, John Wells (Crum, Mary) (Entered: 05/05/2020)
26 DELETION OF DOCKET ENTRY NUMBER 23 Reason: document was refiled correctly. Corrected Filing Document Number 24 Modified filing date to that of original filing: 5/5/2020 (asni, ) (Entered: 05/06/2020)
27 TEXT ORDER: The matter before the court is Plaintiff's Motion for Expedited Schedule (ECF No. 8) filed on April 28, 2020. (ECF No. 8 ) Plaintiff's Motion is GRANTED IN PART AND DENIED IN PART. Specifically, the court DENIES the specific schedule proposed by Plaintiff regarding the dates for Defendant's Answer(s) and responsive brief(s). However, the court GRANTS an expediated schedule. Therefore, Defendants' Answer(s) and responsive brief(s) are to be filed no later than May 11, 2020. Signed by Honorable J Michelle Childs on 5/6/2020.(asni, ) (Entered: 05/06/2020)
28 REPLY to Response to Motion re 11 MOTION to Intervene Response filed by South Carolina Republican Party. (Tyson, Robert) (Entered: 05/06/2020)
29 MOTION for Leave to File Amicus Brief by Alan Wilson. Response to Motion due by 5/20/2020. 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: 05/06/2020)
30 NOTICE of Hearing on Motion 7 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: 05/06/2020)
31 TEXT ORDER: The court grants Motion of Attorney General Alan Wilson For Leave to File Amicus Brief (ECF No. 29 ). The Attorney General certifies that neither Plaintiffs nor Defendants oppose the motion. Signed by Honorable J Michelle Childs on 5/6/2020.(asni, ) (Entered: 05/06/2020)
32 TEXT ORDER: The matter before the court is Protection and Advocacy For People with Disabilities, Inc.'s Motion for Leave to File A Brief of Amicus Curiae in Support of Plaintiffs' Complaint

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for Injunctive and Declaratory Relief (ECF No. 19). The court GRANTS Protection and Advocacy For People with Disabilities, Inc.'s Motion for Leave to File A Brief of Amicus Curiae (ECF No. 19 ). Signed by Honorable J Michelle Childs on 5/6/2020.(asni, ) (Entered: 05/06/2020)

33 NOTICE of Appearance by Thomas Ashley Limehouse, Jr on behalf of Henry D McMaster (Limehouse, Thomas) (Entered: 05/06/2020)

34 AMICUS BRIEF by Protection and Advocacy for People with Disabilities Inc (Zoellner, David) Modified to edit text on 5/6/2020 (asni, ). (Entered: 05/06/2020)

35 Additional Attachments to Main Document 7 MOTION for Preliminary Injunction . First attachment description: CV of Reingold Attachment to 7.11. (Dunn, Susan) (Entered: 05/07/2020)

36 Defendants' Local Rule 26.01 Answers to Interrogatories by Marci Andino, Clifford J Edler, Scott Moseley, John Wells.(Lambert, William) (Entered: 05/07/2020)

37 Local Rule 26.01 Answers to Interrogatories by Henry D McMaster.(Limehouse, Thomas) (Entered: 05/07/2020)

38 AMENDED Defendants' Responses to Local Rule 26.01 Answers to Interrogatories by Marci Andino, Clifford J Edler, Scott Moseley, John Wells.(Lambert, William) (Entered: 05/08/2020)

ORDER AND OPINION granting 11 Motion to Intervene.

39

Signed by Honorable J Michelle Childs on 5/8/2020.(asni,

) (Entered: 05/08/2020)

40 MOTION re 30 Notice of Hearing on Motion to Require All Appearances by Telephone or Videoconference by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams. Response to Motion due by 5/22/2020. 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. (Attachments: # 1 Affidavit Declaration of Susan K. Dunn)No proposed order.(Dunn, Susan) additional attachment entry 41 added on 5/8/2020 (asni, ). (Entered: 05/08/2020)

41 Additional Attachments to Main Document 40 MOTION re 30 Notice of Hearing on Motion to Require All Appearances by Telephone or Videoconference. First attachment description: Supplemental Declaration presenting Limehouse position. (Dunn, Susan) (Entered: 05/08/2020)

42 RESPONSE in Opposition re 40 MOTION re 30 Notice of Hearing on Motion to Require All Appearances by Telephone or Videoconference Defendants' Reply to Plaintiffs' Motion for Order Requiring All Appearances at May 15, 2020 (sic) Be Made by

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05/11/2020 05/11/2020

Telephone or by Videoconference Response filed by Marci Andino, Clifford J Edler, Scott Moseley, John Wells.Reply to Response to Motion due by 5/15/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Lambert, William) (Entered: 05/08/2020)
43 RESPONSE to Motion re 40 MOTION re 30 Notice of Hearing on Motion to Require All Appearances by Telephone or Videoconference Response filed by South Carolina Republican Party.Reply to Response to Motion due by 5/15/2020 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: 05/08/2020)
44 State Election Commission Defendants' ANSWER to 1

Complaint, by Marci Andino, Clifford J Edler, Scott Moseley, John Wells.(Crum, Mary) (Entered: 05/11/2020)

45 NOTICE of Appearance by Robert Erving Stepp on behalf of South Carolina Republican Party (Stepp, Robert) (Entered: 05/11/2020)

RESPONSE in Opposition re 7 MOTION for Preliminary

46

Injunction Defendants' Opposition to Motion for Preliminary

Injunction Response filed by Marci Andino, Clifford J Edler, Scott

Moseley, John Wells.Reply to Response to Motion due by 5/18/2020

Add an additional 3 days only if served by mail or otherwise allowed

under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit Ex. 1 to Defs'.

Opp. to Prel. Inj. (Exec. Order 2020-31), # 2 Exhibit Ex. 2 to Defs'.

Opp to Prel. Injun. (Decl. of Marci Andino), # 3 Exhibit Ex. A to

Decl. of Marci Andino, # 4 Exhibit Ex. B to Decl. of Marci Andino,

# 5 Exhibit Ex. C to Decl. of Marci Andino, # 6 Exhibit Ex. D to

Decl. of Marci Andino, # 7 Exhibit Ex. E to Decl. of Marci Andino,

# 8 Exhibit Ex. F to Decl. of Marci Andino)(Lambert, William)

(Entered: 05/11/2020)

47 RESPONSE to Motion re 7 MOTION for Preliminary Injunction Statement of Interest by the United States of America Response filed by United States.Reply to Response to Motion due by 5/18/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit 1, letters)(Bowens, Barbara) (Entered: 05/11/2020)

ORDER granting in part and denying in part [ECF No. 40 ]

48

Plaintiffs' Motion for an Order Requiring All Appearances at the

May 15, 2020 Hearing be made by Telephone or by

Videoconference. Signed by Honorable J Michelle Childs on

05/11/2020.(vdou, ) (Entered: 05/11/2020)

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49 ANSWER to 1 Complaint, by South Carolina Republican Party.(Tyson, Robert) (Entered: 05/11/2020)

50 RESPONSE in Opposition re 7 MOTION for Preliminary Injunction Response filed by South Carolina Republican Party.Reply to Response to Motion due by 5/18/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Tyson, Robert) (Entered: 05/11/2020)

51 ANSWER to 1 Complaint, by Henry D McMaster.(Limehouse, Thomas) (Entered: 05/11/2020)

52 RESPONSE in Opposition re 7 MOTION for Preliminary Injunction Response filed by Henry D McMaster.Reply to Response to Motion due by 5/18/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Limehouse, Thomas) (Entered: 05/11/2020)

Amicus Curiae BRIEF entered by James Emory Smith, Jr on behalf

53

of Alan Wilson. (Smith, James) (Entered: 05/12/2020)

54 NOTICE of Appearance by Jane W Trinkley on behalf of Marci Andino, Clifford J Edler, Scott Moseley, John Wells (Trinkley, Jane) (Entered: 05/13/2020)

REPLY to Response to Motion re 7 MOTION for Preliminary

55

Injunction Response filed by Family Unit Inc, The, Nea Richard,

Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams.

(Dunn, Susan) (Entered: 05/13/2020)

56 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

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"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-cv-01730-JMC(asni, ) (Entered: 05/14/2020)

57 REPLY by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams to 56 Order on Motion for Preliminary Injunction . (Dunn, Susan) (Entered: 05/14/2020)

58 MOTION in Limine by Marci Andino, Clifford J Edler, Scott Moseley, John Wells. Response to Motion due by 5/28/2020. 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.(Trinkley, Jane) (Entered: 05/14/2020)

59 REPLY by Marci Andino, Clifford J Edler, Scott Moseley, John Wells to 56 Order on Motion for Preliminary Injunction. refiled by the clerk to correct event type.(asni, ) (Entered: 05/14/2020)

ORDER addressing the oral arguments schedule for the hearing

60

on May 15, 2020. Signed by Honorable J Michelle Childs on

5/14/2020. Associated Cases: 3:20-cv-01552-JMC, 3:20-cv-01730-

JMC(asni, ) (Entered: 05/14/2020)

61 Withdrawal of Motions: 58 MOTION in Limine filed by Clifford J Edler, Scott Moseley, John Wells, Marci Andino.. (Trinkley, Jane) (Entered: 05/14/2020)

63 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

05/15/2020
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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-01730-JMC(asni, ) (Entered: 05/14/2020)

64 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-cv01730-JMC) 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, 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-cv-01552-JMC, 3:20-cv-01730JMC(kbos) (Entered: 05/15/2020)

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND

65

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-cv-01552-JMC, 3:20-cv-01730-

JMC(asni, ) (Entered: 05/25/2020)

66 Local Rule 26.01 Answers to Interrogatories by South Carolina Republican Party.(Tyson, Robert) (Entered: 06/02/2020)

67 SCHEDULING ORDER Plaintiffs ID of Expert Witness due by 6/29/2020, Defendants ID of Expert Witnesses Due by 7/20/2020, Records Custodian Affidavit due by 8/3/2020, Discovery due by 8/3/2020, Motions due by 8/10/2020, Rule 26(a)(3) Disclosures due by 9/2/2020, Bench Trial Deadline 9/16/2020, Signed by Honorable J Michelle Childs on 6/10/2020. (asni, ) (Entered: 06/10/2020)

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68 Motion Hearing set for 8/31/2020 10:00 AM in Columbia # 3, Matthew J. Perry Court House, 901 Richland St, Columbia before Honorable J Michelle Childs. (asni, ) (Entered: 06/10/2020)

69 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)

NOTICE of Hearing: Bench Trial set for 9/22/2020 - 9/25/2020

70

09:30 AM in Columbia # 3, Matthew J. Perry Court House, 901

Richland St, Columbia before Honorable J Michelle Childs. (asni, )

Modified to edit text to include an additional day for trial on

9/9/2020 (asni, ). (Entered: 06/15/2020)

71 PLAINTIFF'S ID OF EXPERT WITNESSES by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams.(Dunn, Susan) (Main Document 71 replaced on 6/30/2020) (asni, ). (Entered: 06/29/2020)

73 Consent MOTION for Leave to File by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams. Response to Motion due by 7/24/2020. 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 1st Amended Complaint)Proposed order is being emailed to chambers with copy to opposing counsel.(Dunn, Susan) (Entered: 07/10/2020)

74 ORDER granting 73 Motion for Leave to File Amended Complaint. Signed by Honorable J Michelle Childs on 7/13/2020.(asni, ) (Entered: 07/13/2020)

AMENDED COMPLAINT against All Defendants, filed by Family

76

Unit Inc, The, Trena Walker, Mary T Thomas, Nea Richard, Brenda

Williams, Jeremy Rutledge. Service due by 10/13/2020 (Dunn,

Susan) (Entered: 07/13/2020)

77 Summons Issued as to JoAnne Day. (asni, ) (Entered: 07/13/2020)

78 Summons Issued as to Linda McCall. (asni, ) (Entered: 07/13/2020)

80 ACCEPTANCE OF SERVICE OF COMPLAINT by Linda McCall, JoAnne Day. Linda McCall served on 7/14/2020, answer due

07/20/2020 07/21/2020 07/23/2020
07/23/2020
07/23/2020
07/23/2020

8/4/2020; JoAnne Day served on 7/14/2020, answer due 8/4/2020. (Lambert, William) (Entered: 07/15/2020)

82 DEFENDANT'S ID OF EXPERT WITNESSES by Marci Andino, JoAnne Day, Clifford J Edler, Linda McCall, Scott Moseley, John Wells.(Trinkley, Jane) (Entered: 07/20/2020)

STIPULATION of Dismissal With prejudice by Trena Walker.

83

(Dunn, Susan) (Entered: 07/21/2020)

85 MOTION to Appear Pro Hac Vice by LaRue Robinson ( Filing fee $ 250 receipt number 0420-9235435) by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas, Trena Walker, Brenda Williams. Response to Motion due by 8/6/2020. 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 Affidavit Application by Robinson to appear PHV, # 2 Envelope Certificate of Good Standing)No proposed order.(Dunn, Susan) (Entered: 07/23/2020)

86 MOTION to Appear Pro Hac Vice by Kyle William Burns ( Filing fee $ 250 receipt number 0420-9235486) by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams. Response to Motion due by 8/6/2020. 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 Affidavit Application of Burns to appear PHV, # 2 Envelope Certificate of Good Standing)No proposed order.(Dunn, Susan) (Entered: 07/23/2020)

87 MOTION to Appear Pro Hac Vice by Skyler Silvertrust ( Filing fee $ 250 receipt number 0420-9235504) by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas, Trena Walker. Response to Motion due by 8/6/2020. 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 Affidavit Application of Silvertrust to appear PHV, # 2 Exhibit Certificate of Good Standing)No proposed order.(Dunn, Susan) (Entered: 07/23/2020)

88 MOTION to Appear Pro Hac Vice by Ihaab I. Syed ( Filing fee $ 250 receipt number 0420-9235534) by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas, Trena Walker, Brenda Williams. Response to Motion due by 8/6/2020. 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 Affidavit Application of Syed to Appear PHV, # 2 Exhibit Certificate of Good Standing)No proposed order.(Dunn, Susan) (Entered: 07/23/2020)

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89 TEXT ORDER granting 85 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 7/24/2020.(asni, ) (Entered: 07/24/2020)
90 TEXT ORDER granting 86 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 7/24/2020.(asni, ) (Entered: 07/24/2020)
91 TEXT ORDER granting 87 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 7/24/2020.(asni, ) (Entered: 07/24/2020)
92 TEXT ORDER granting 88 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 7/24/2020.(asni, ) (Entered: 07/24/2020)
93 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)
94 MOTION to Appear Pro Hac Vice by John Zachary Morris ( Filing fee $ 250 receipt number 0420-9239312) by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas, Trena Walker, Brenda Williams. 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. (Attachments: # 1 Affidavit Application to Appear PHV, # 2 Exhibit Certificate of Good Standing)No proposed order.(Dunn, Susan) (Entered: 07/24/2020)
95 MOTION to Appear Pro Hac Vice by Kevin Eli Jason ( Filing fee $ 250 receipt number 0420-9239327) by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas, Trena Walker, Brenda Williams. 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. (Attachments: # 1 Affidavit Application to Appear PHV, # 2 Envelope Certificate of Good Standing)No proposed order.(Dunn, Susan) (Entered: 07/24/2020)
96 MOTION to Appear Pro Hac Vice by Peter M. Lieb ( Filing fee $ 250 receipt number 0420-9239338) by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas, Trena Walker, Brenda Williams. 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. (Attachments: # 1 Affidavit Application to appear PHV, # 2 Exhibit Certificate of Good Standing)No proposed order.(Dunn, Susan) (Entered: 07/24/2020)

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08/10/2020

97 TEXT ORDER granting 94 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 7/27/2020.(asni, ) (Entered: 07/27/2020)
98 TEXT ORDER granting 95 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 7/27/2020.(asni, ) (Entered: 07/27/2020)
99 TEXT ORDER granting 96 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 7/27/2020.(asni, ) (Entered: 07/27/2020)

100

ANSWER to 76 Amended Complaint by Marci Andino, JoAnne

Day, Clifford J Edler, Linda McCall, Scott Moseley, John

Wells.(Trinkley, Jane) (Entered: 07/27/2020)

101

ANSWER to 76 Amended Complaint by South Carolina

Republican Party.(Tyson, Robert) (Entered: 07/28/2020)

AFFIDAVIT of Records Custodian by Marci Andino, JoAnne Day,

102

Clifford J Edler, Linda McCall, Scott Moseley, John Wells.(Trinkley,

Jane) (Entered: 08/03/2020)

AFFIDAVIT of Records Custodian by Family Unit Inc, The, Nea

103

Richard, Jeremy Rutledge, South Carolina State Conference of the

NAACP, Mary T Thomas.(Dunn, Susan) (Entered: 08/04/2020)

104 TEXT ORDER This matter is before the court pursuant to the South Carolina Republican Party's ("SCRP") Motion to ReIntervene pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. (ECF No. 93.) On May 12, 2020, this court previously granted SCRP's Motion to Intervene. (ECF No. 11.) 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. 93 ) as MOOT. Signed by Honorable J Michelle Childs on 8/4/2020.(asni, ) (Entered: 08/04/2020)

106 First MOTION in Limine as to All Experts by Marci Andino, JoAnne Day, Clifford J Edler, Linda McCall, Scott Moseley. 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 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support Defs'. Motion in Limine, # 2 Exhibit Cogburn Depo. Excerpts, # 3 Exhibit Cogburn Expert Report, # 4 Exhibit Cooper Depo. Excerpts, # 5 Exhibit Cooper

08/10/2020 108

Expert Report, # 6 Exhibit Cotti Depo. Excerpts, # 7 Exhibit Cotti Expert Report, # 8 Exhibit Reingold Depo. Excerpts, # 9 Exhibit Reingold Expert Report, # 10 Exhibit Ruoff Depo. Excerpts, # 11 Exhibit Ruoff Expert Report)No proposed order.(Lambert, William) (Entered: 08/10/2020)
MOTION for Summary Judgment Election Defendants' Motion for Summary Judgment by Marci Andino, JoAnne Day, Clifford J Edler, Linda McCall, Scott Moseley, John Wells. 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 or Fed. R. Crim. P. 45. (Attachments: # 1 Memo in Support Defs'. Memo in Support of

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Summary Judgment, # 2 Exhibit Rutledge Depo. Excerpts, # 3 Exhibit Richard Depo. Excerpts, # 4 Exhibit NAACP 30(b)(6) Depo., # 5 Exhibit Thomas Depo. Excerpts, # 6 Exhibit The Family 30(b)(6) Depo. Excerpts, # 7 Exhibit Cotti Depo. Excerpts, # 8 Exhibit Reingold Depo. Excerpts, # 9 Exhibit Whitmire Excerpts, # 10 Exhibit 2007-GS-47-0 Indictment, # 11 Exhibit SEC and Andino's Return to Intervenor's Mot. to Dismiss, # 12 Exhibit Andino Depo. Excerpts, # 13 Exhibit Amicus Memo of AG, # 14 Exhibit Salgado Depo. Excerpts, # 15 Exhibit Expert Report of Salgado, # 16 Exhibit MTT Declaration (8.7.2020), # 17 Exhibit Logan Declaration)No proposed order.(Lambert, William) (Entered: 08/10/2020)

109 MOTION for Summary Judgment by South Carolina Republican Party. 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 or Fed. R. Crim. P. 45. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)No proposed order.(Tyson, Robert) (Entered: 08/10/2020)

MOTION for Leave to File Amicus Brief by Alan Wilson. Response

111

to Motion due by 8/25/2020. 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:

08/11/2020)

NOTICE of Appearance by Susan Pedrick McWilliams on behalf of

112

James ("Jay") H. Lucas (McWilliams, Susan) (Entered: 08/12/2020)

113 NOTICE of Appearance by Sara Sofia Svedberg on behalf of James ("Jay") H. Lucas (Svedberg, Sara) (Entered: 08/12/2020)

114 NOTICE of Appearance by Mark Carroll Moore on behalf of James ("Jay") H. Lucas (Moore, Mark) (Entered: 08/12/2020)

08/12/2020 08/12/2020

115 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)
116 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.

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(Attachments: # 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)

STIPULATION of Dismissal without prejudice by Family Unit Inc,

117

The, Nea Richard, Jeremy Rutledge, South Carolina State

Conference of the NAACP, Mary T Thomas. (Dunn, Susan)

(Entered: 08/14/2020)

119 TEXT ORDER granting 111 Motion for Leave to File, The matter before the court is Attorney General Alan Wilsons Motion for Leave to File Amicus Brief (ECF No. 111). The Attorney General certifies that neither Plaintiffs nor Defendants oppose the Motion. Therefore, the court GRANTS Attorney General Alan Wilsons Motion for Leave to File Amicus Brief, Signed by Honorable J Michelle Childs on August 14, 2020.(kbos) (Entered: 08/14/2020)

120 MOTION for Leave to File Excess Pages by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas. Response to Motion due by 8/28/2020. 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.(Dunn, Susan) (Entered: 08/14/2020)

121 TEXT ORDER granting 120 Motion for Leave to File Excess Pages. Signed by Honorable J Michelle Childs on 8/17/2020.(asni, ) (Entered: 08/17/2020)

122 DELETION OF DOCKET ENTRY NUMBER 107 Reason: document was filed correctly as entry 117. Corrected Filing

08/17/2020

Document Number 117 (asni, ) (Entered: 08/17/2020)
123 Amicus Curiae APPEARANCE entered by James Emory Smith, Jr on behalf of Alan Wilson. (Smith, James) (Entered: 08/17/2020)

08/17/2020 08/17/2020
08/18/2020

124 RESPONSE in Opposition re 106 First MOTION in Limine as to All Experts Response filed by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas.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 7-17-2020 Letter from Andino, # 2 Exhibit Excerpts from Cotti deposition, # 3 Exhibit Excerpts from Saldago deposition, # 4 Exhibit Excerpts from Reingold deposition)(Dunn, Susan) supplement 168 added on 9/17/2020 (asni, ). (Entered: 08/17/2020)
125 RESPONSE in Opposition re 109 MOTION for Summary
Judgment , 108 MOTION for Summary Judgment Election Defendants' Motion for Summary Judgment Response filed by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas.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 Expert report of Reingold, # 2 Exhibit Saldago deposition excerpts, # 3 Exhibit 2020.07.17 Andino letter, # 4 Exhibit 2020-330 Andino letter, # 5 Exhibit 2020.07.31 Andino transcript excerpts, # 6 Exhibit 2020-07-31 Whitmire deposition excerpts, # 7 Exhibit Chernoff Newman report, # 8 Exhibit 2020.07.30 Reingold deposition ecerpts, # 9 Exhibit Ex. 9 - Dkt No. 007-18 2020.04.28 Ex. 6 - Thomas Dec, # 10 Exhibit 2020.07.23 Thomas Deposition excerpt, # 11 Exhibit 2020.07.24 Rutledge deposition excerpts, # 12 Exhibit Election Defendants supplemental interrogatories, # 13 Exhibit Absentee ballot application, # 14 Exhibit Richards' deposition excerpts, # 15 Exhibit Rebuttal report of Reingold, # 16 Exhibit 2020.08016 NAACP supplemental declaration, # 17 Exhibit 2020.07.24 Family Unit Deposition excerpts, # 18 Exhibit 2020.07.24 NAACP 30-b-6 deposition, # 19 Exhibit 2020.08.04 Wells deposition excerpts, # 20 Exhibit 2020-08-14 McCall deposition excerts, # 21 Exhibit Expert report Cotti, # 22 Exhibit SCARE letter, # 23 Exhibit Declaration and Rule 26 declaration of Cooper, # 24 Exhibit 2020.08.11 Deposition of Logan excerpts, # 25 Exhibit Plaintiffs responses to Andino's first set of interrogatories, # 26 Exhibit 2020.08.07 Thomas declaration, # 27 Exhibit 2020.08.16 Family Unit Supplemental declaration)(Dunn, Susan) (Entered: 08/17/2020)
126 NOTICE of Hearing on Motion 108 MOTION for Summary Judgment 109 MOTION for Summary Judgment : Motion Hearing set for 8/31/2020 10:00 AM in Columbia # 3, Matthew J. Perry Court House, 901 Richland St, Columbia before Honorable J Michelle

08/18/2020
08/19/2020 08/19/2020
08/20/2020 08/21/2020 08/21/2020 08/21/2020

Childs. This hearing will be conducted via telephone for out-of-state counsel. Plaintiff shall arrange a call-in number and provided all counsel and the court with call-in instructions by 12:00 PM on 1/30/2020. Please note that all counsel who intend to speak by phone should be on a landline and not utilizing a cell phone or speakerphone.(asni, ) (Entered: 08/18/2020)

127 MOTION to Appear Pro Hac Vice by Marie Annie HoughtonLarsen ( Filing fee $ 350 receipt number 0420-9285541) by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas. Response to Motion due by 9/1/2020. 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 Affidavit Application of HOughton-Larsen to appear PHV, # 2 Exhibit Certificate of Good Standing)No proposed order.(Dunn, Susan) (Entered: 08/18/2020)

128 TEXT ORDER granting 127 Motion to Appear Pro Hac Vice. Signed by Honorable J Michelle Childs on 8/19/2020.(asni, ) (Entered: 08/19/2020)

129 NOTICE OF RESCHEDULED HEARING Motion Hearing set for 8/31/2020 10:00 AM in Columbia # 3, Matthew J. Perry Court House, 901 Richland St, Columbia before Honorable J Michelle Childs. cancelled and rescheduled to: Motion Hearing set for 8/31/2020 10:00 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: 08/20/2020)

MOTION for Leave to File Excess Pages by Marci Andino, JoAnne

130

Day, Clifford J Edler, Linda McCall, Scott Moseley, John Wells.

Response to Motion due by 9/3/2020. 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. No proposed order.(Lambert, William) (Entered:

08/20/2020)

131 TEXT ORDER granting 130 Motion for Leave to File Excess Pages. Signed by Honorable J Michelle Childs on 8/21/2020.(asni, ) (Entered: 08/21/2020)

132 REPLY to Response to Motion re 106 First MOTION in Limine as to All Experts Response filed by Marci Andino, JoAnne Day, Clifford J Edler, Linda McCall, Scott Moseley, John Wells. refiled by the clerk to correct event type. (asni, ) (Entered: 08/21/2020)

134 RESPONSE in Opposition re 116 MOTION to Intervene , 115 MOTION to Intervene Response filed by Family Unit

08/21/2020
08/21/2020 08/21/2020 08/23/2020 08/24/2020 08/24/2020

Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas.Reply to Response to Motion due by 8/28/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Dunn, Susan) additional attachments 136 added on 8/21/2020 (asni, ). (Entered: 08/21/2020)

135 REPLY to Response to Motion re 108 MOTION for Summary Judgment Election Defendants' Motion for Summary Judgment Response filed by Marci Andino, JoAnne Day, Clifford J Edler, Scott Moseley, John Wells, Linda McCall. (Attachments: # 1 Exhibit 1 Pltfs'. Resp. & Objs. to Andino's 1st Set of Interrogs, # 2 Exhibit 2 Depo. Excerpts)(asni, ) refiled by the clerk to correct event type. (Entered: 08/21/2020)

136 Additional Attachments to Main Document 134 Response in Opposition to Motion,. First attachment description: Cover sheet for additional documents to ECF 134 . (Attachments: # 1 Exhibit Emails relating to intervention by Lucas, # 2 Exhibit Emails relating to intervention by Peeler)(Dunn, Susan) (Entered: 08/21/2020)

137 REPLY to Response to Motion re 109 MOTION for Summary Judgment Response filed by South Carolina Republican Party. (Attachments: # 1 Exhibit Ex. A Order Granting Request to Expedite, # 2 Exhibit Ex. B Plaintiffs' Responses to Interrogatories)(Tyson, Robert) (Entered: 08/21/2020)

138 REPLY to Response to Motion re 116 MOTION to Intervene Response filed by Harvey Peeler. (Attachments: # 1 Exhibit A--Scheduling Order in Duggins v. Lucas (S.C. Supreme Court))(Carroll, Matthew) (Entered: 08/23/2020)

139 MOTION for Leave to File Excess Pages by South Carolina Republican Party. 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.(Tyson, Robert) (Entered: 08/24/2020)

ORDER granting 115 Motion to Intervene by Speaker Lucas;

140

granting 116 Motion to Intervene by President Peeler. The court

further ORDERS that Speaker Lucas and President Peeler are

subject to the expedited scheduling order previously entered by

the court (ECF No. 67) and ORDERS Speaker Lucas and

President Peeler to submit any potential responsive briefing to

currently pending motions (ECF Nos. 106, 108, 109) by 5:00 p.m.

on August 26, 2020. Signed by Honorable J Michelle Childs on

8/24/2020. (jowa) (Entered: 08/24/2020)

08/24/2020 141

ORDER setting schedule for arguments regarding 109 MOTION for Summary Judgment filed by South Carolina Republican

08/25/2020
08/25/2020 08/26/2020 08/26/2020 08/26/2020 08/28/2020

Party, 108 MOTION for Summary Judgment filed by Election Defendants. Signed by Honorable J Michelle Childs on 8/24/2020. (jowa) (Entered: 08/24/2020)
142 NOTICE OF RESCHEDULED HEARING Motion Hearing set for 8/31/2020 10:00 AM in Columbia #1, Matthew J. Perry Court House, 901 Richland St, Columbia before Honorable J Michelle Childs. cancelled and rescheduled to: Motion Hearing set for 8/31/2020 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. ***PLEASE NOTE THIS IS A TIME CHANGE ONLY***(asni, ) (Entered: 08/25/2020)
143 TEXT ORDER granting 139 Motion for Leave to File Excess Pages. Signed by Honorable J Michelle Childs on 8/25/2020.(asni, ) (Entered: 08/25/2020)
RESPONSE in Support re 109 MOTION for Summary 144
Judgment , 108 MOTION for Summary Judgment Election Defendants' Motion for Summary Judgment Response filed by Harvey Peeler. (Carroll, Matthew) (Entered: 08/26/2020)
145 RESPONSE in Support re 106 First MOTION in Limine as to All Experts Response filed by James ("Jay") H. Lucas. (Attachments: # 1 Exhibit A - Unpublished Opinions)(McWilliams, Susan) (Entered: 08/26/2020)
146 RESPONSE in Support re 108 MOTION for Summary Judgment Election Defendants' Motion for Summary Judgment Response filed by James ("Jay") H. Lucas. (Attachments: # 1 Exhibit A: Deposition of Pete Logan)(McWilliams, Susan) (Entered: 08/26/2020)
147 REPLY to Response to Motion re 109 MOTION for Summary

08/31/2020

Judgment , 108 MOTION for Summary Judgment Election Defendants' Motion for Summary Judgment Response filed by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas. (Attachments: # 1 Exhibit Letter from Andino to Kimpson)(Dunn, Susan) (Entered: 08/28/2020)
148 Minute Entry. Proceedings held before Honorable J Michelle Childs: Motion Hearing held on 8/31/2020 re 109 MOTION for Summary Judgment filed by South Carolina Republican

09/02/2020 09/02/2020 09/02/2020 09/02/2020 09/02/2020 09/02/2020
09/03/2020

Party, 108 MOTION for Summary Judgment Election Defendants' Motion for Summary Judgment filed by Clifford J Edler, Scott Moseley, John Wells, Marci Andino, JoAnne Day, Linda McCall. Oral arguments. Court takes motions under advisement. Court Reporter Kathleen Richardson. (kbos) (Entered: 08/31/2020)
149 Supplemental AFFIDAVIT of Records Custodian Supplemental by Marci Andino, JoAnne Day, Clifford J Edler, Linda McCall, Scott Moseley, John Wells. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Exhibit)(Trinkley, Jane) (Entered: 09/02/2020)
150 RULE 26(a)(3)PRETRIAL DISCLOSURES by Marci Andino, JoAnne Day, Clifford J Edler, Linda McCall, Scott Moseley, John Wells. Objections to PreTrial Disclosures due by 9/16/2020.(Trinkley, Jane) (Entered: 09/02/2020)
151 RULE 26(a)(3)PRETRIAL DISCLOSURES by South Carolina Republican Party. Objections to PreTrial Disclosures due by 9/16/2020.(Tyson, Robert) (Entered: 09/02/2020)
152 RULE 26(a)(3)PRETRIAL DISCLOSURES by James ("Jay") H. Lucas. Objections to PreTrial Disclosures due by 9/16/2020.(McWilliams, Susan) (Entered: 09/02/2020)
153 RULE 26(a)(3)PRETRIAL DISCLOSURES by Harvey Peeler. Objections to PreTrial Disclosures due by 9/16/2020.(Carroll, Matthew) (Entered: 09/02/2020)
154 RULE 26(a)(3)PRETRIAL DISCLOSURES by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas. Objections to PreTrial Disclosures due by 9/16/2020. (Attachments: # 1 Exhibit Designation of Depositions by Plaintiffs, # 2 Exhibit Plaintiffs' List of Exhibits)(Dunn, Susan) (Entered: 09/02/2020)
155 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings. Motion hearing held on August 31, 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 9/24/2020. Redacted Transcript Deadline set for 10/5/2020. Release of Transcript Restriction set for 12/2/2020. (kari, ) (Entered: 09/03/2020)

09/08/2020 09/09/2020 09/09/2020 09/09/2020 09/09/2020 09/09/2020 09/09/2020
09/09/2020 09/16/2020 09/16/2020 09/17/2020 09/17/2020

156 AMENDED RULE 26(a)(3)PRETRIAL DISCLOSURES by James ("Jay") H. Lucas. Objections to PreTrial Disclosures due by 9/22/2020.(McWilliams, Susan) (Entered: 09/08/2020)

157 Amended RULE 26(a)(3)PRETRIAL DISCLOSURES by South Carolina Republican Party. Objections to PreTrial Disclosures due by 9/23/2020.(Tyson, Robert) (Entered: 09/09/2020)

158 OBJECTIONS by Marci Andino, JoAnne Day, Clifford J Edler, Linda McCall, Scott Moseley, John Wells to 154 Pretrial Disclosures,. (Attachments: # 1 Exhibit)(Trinkley, Jane) (Entered: 09/09/2020)

159 OBJECTIONS by South Carolina Republican Party to 154 Pretrial Disclosures,. (Tyson, Robert) (Entered: 09/09/2020)

160 OBJECTIONS by Harvey Peeler to 154 Pretrial Disclosures,. (Carroll, Matthew) (Entered: 09/09/2020)

161 OBJECTIONS by James ("Jay") H. Lucas to 154 Pretrial Disclosures,. (Attachments: # 1 Exhibit Objections to Plaintiffs' Proposed Trial Exhibits)(McWilliams, Susan) (Entered: 09/09/2020)

162 OBJECTIONS by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas, United States of America to 153 Pretrial Disclosures, 151 Pretrial Disclosures, 152 Pretrial Disclosures, 150 Pretrial Disclosures. (Attachments: # 1 Exhibit Chart of objections and counter-designations)(Dunn, Susan) (Entered: 09/09/2020)

163 Exhibit List Amended by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas. (Attachments: # 1 Exhibit Amended Exhibit list)(Dunn, Susan) (Entered: 09/09/2020)

165 Exhibit List by Marci Andino, JoAnne Day, Clifford J Edler, Linda McCall, Scott Moseley, John Wells. (Trinkley, Jane) (Entered: 09/16/2020)

166 Exhibit List by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas. (Attachments: # 1 Exhibit Exhibit list with objections)(Dunn, Susan) (Entered: 09/16/2020)

REPLY to Response to Motion re 106 First MOTION in Limine as

167

to All Experts Response filed by Marci Andino, JoAnne Day,

Clifford J Edler, Linda McCall, Scott Moseley, John Wells.

(Lambert, William) (Entered: 09/17/2020)

168 SUPPLEMENT by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas to 124 Response in Opposition to

09/17/2020 09/18/2020 09/18/2020 09/18/2020
09/18/2020 09/18/2020 09/18/2020 09/18/2020 09/21/2020 09/21/2020

Motion,, . (Attachments: # 1 Exhibit Decision in Harding v. Edwards)(Dunn, Susan) (Entered: 09/17/2020)

169 NOTICE of Appearance by Jack Emerson Cohoon on behalf of Family Unit Inc, The, Nea Richard, Jeremy Rutledge, South Carolina State Conference of the NAACP, Mary T Thomas (Cohoon, Jack) (Entered: 09/17/2020)

MOTION Video testimony by Family Unit Inc, The, Nea Richard,

170

Jeremy Rutledge, Mary T Thomas. Response to Motion due by

10/2/2020. 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.(Dunn, Susan) (Entered: 09/18/2020)

172 NOTICE of Appearance by Hamilton Bohanon Barber on behalf of James ("Jay") H. Lucas (Barber, Hamilton) (Entered: 09/18/2020)

173 RESPONSE in Opposition re 170 MOTION Video testimony (Defendants' Joint Opposition) Response filed by Harvey Peeler.Reply to Response to Motion due by 9/25/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Attachments: # 1 Exhibit A--September 14, 2020 Memorandum Regarding South Carolina State Court Operations, # 2 Exhibit B--Plaintiffs' Answers to Interrogatories, # 3 Exhibit C-Excerpts from Deposition of Brenda Murphy, # 4 Exhibit D--R.149, South Carolina General Assembly (2019-2020))(Carroll, Matthew) (Entered: 09/18/2020)

STIPULATION to withdraw excuse claim by Family Unit Inc, The,

174

Nea Richard, Jeremy Rutledge, Mary T Thomas. (Dunn, Susan)

(Entered: 09/18/2020)

STIPULATION of Dismissal with prejudice by Family Unit Inc,

175

The, Nea Richard, Jeremy Rutledge, Mary T Thomas. (Dunn, Susan)

(Entered: 09/18/2020)

177 JOINT STIPULATION by South Carolina Republican Party. (Tyson, Robert) (Entered: 09/18/2020)

178

ORDER STAYING case re 70 Notice of Bench Trial. Signed

by Honorable J Michelle Childs on 9/18/2020. (jowa) (Entered:

09/18/2020)

180 NOTICE of Cancellation of Hearing: Bench Trial set for 9/22/2020 9/25/2020 09:30 AM in Columbia # 3, Matthew J. Perry Court House, 901 Richland St, Columbia before Honorable J Michelle Childs. (asni, ) (Entered: 09/21/2020)

181 MOTION to Consolidate Cases by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas. Response to Motion due

09/22/2020 182

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-cv01730-JMC(Dunn, Susan) (Entered: 09/21/2020)
MOTION for Reconsideration and MOTION to Lift Stay re 178
Order (filed on behalf of all defendants) by Harvey Peeler. Response to Motion due by 10/6/2020. 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--Proffer of Lt. Pete

09/22/2020
09/22/2020 09/23/2020 09/23/2020

Logan, # 2 Exhibit 2--Proffer of Dr. Cassandra Salgado)No proposed order.(Carroll, Matthew). Added MOTION to Lift Stay on 9/23/2020 (asni, ). (Entered: 09/22/2020)
183 RESPONSE in Opposition re 181 MOTION to Consolidate Cases Joint Response in Opposition Response filed by South Carolina Republican Party.Reply to Response to Motion due by 9/29/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Tyson, Robert) (Entered: 09/22/2020)
184 ORDER denying 181 Motion to Consolidate Cases. Signed by the Honorable J. Michelle Childs on 9/22/2020. (jowa) (Entered: 09/22/2020)
185 DELETION OF DOCKET ENTRY NUMBER 176 Reason: notice of supplemental authorities by intervenor-defendant South Carolina Republican Party filed 9/18/20. document filed in the wrong case. Document filed correctly as entry 108 in 3:20-1730-JMC. (asni, ) (Entered: 09/23/2020)

186

RESPONSE in Opposition re 182 MOTION for

Reconsideration re 178 Order (filed on behalf of all defendants) MOTION to Lift Stay Response filed by Family Unit Inc, The, Nea Richard, Jeremy Rutledge, Mary T Thomas.Reply to Response to Motion due by 9/30/2020 Add an additional 3 days only if served by mail or otherwise allowed under Fed. R. Civ. P. 6. (Dunn, Susan) (Entered: 09/23/2020)

 
 3:20-cv-01552-JMC Date Filed 04/22/20 Entry Number 1 Page 1 of 49

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

MARY T. THOMAS, NEA RICHARD, JEREMY RUTLEDGE, TRENA WALKER, DR. BRENDA WILIAMS, and THE FAMILY UNIT, INC.,
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; CLIFFORD J. EDLER and SCOTT MOSELEY, in their official capacities as members of the South Carolina Election Commission; and HENRY D. McMASTER, in his official capacity as Governor of South Carolina,

Defendants.

INTRODUCTION 1. On March 15, 2020, when State health officials reported just 28 confirmed cases of COVID-19 in South Carolina,1 the Election Commission affirmed its mission “to ensure every eligible citizen has the opportunity to . . . participate in fair and impartial elections, and have the assurance that their votes will count.”2 These are laudable goals, crucial to safeguarding the

1 See Press Release, DHEC Announces Additional Nine Cases of 2019 Novel Coronavirus in South Carolina, scdhec.gov (Mar. 15, 2020), https://www.scdhec.gov/news-releases/dhec-announces-additionalnine-cases-2019-novel-coronavirus-south-carolina.
2 See Coronavirus (COVID-19) Updates, Securing South Carolina Elections, SCvotes.org (Mar. 15, 2020), https://www.scvotes.org/securing-south-carolina-elections.

3:20-cv-01552-JMC Date Filed 04/22/20 Entry Number 1 Page 2 of 49
fundamental right to vote of all South Carolina electors. But weeks into a deadly pandemic that now afflicts thousands of South Carolinians, prompting Governor McMaster to order all residents to remain at “home or work,” it is now clear that two requirements of the election laws will deprive thousands of the chance to participate in scheduled South Carolina elections by putting voters like the individual Plaintiffs in this lawsuit to the Hobson’s choice of risking their community’s and their own health to vote or not voting at all.
2. Plaintiffs bring this action to prevent the needless deprivation of their fundamental right to vote.
3. First, Plaintiffs challenge 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. A voter who does not qualify under any of the listed categories has to vote in person on Election Day, or not at all. Defendants have maintained that none of the listed absentee “excuses” apply to the thousands of voters like Plaintiff Rev. Jeremy Rutledge who has preexisting conditions that make exposure to COVID-19 extremely dangerous or deadly, but would surely vote in person at his polling site but for the ongoing COVID-19 pandemic. Defendants have also refused to provide an absentee “excuse” for voters like Plaintiff Trena Walker who reasonably fears that voting in person may result in her contracting or unintentionally contributing to the spread of COVID-19. In so doing, Defendants have forced South Carolina voters to make an untenable decision between risking their health and the health of their families or giving up their right to vote. Plaintiffs seek relief enjoining the Excuse Requirement insofar as it unreasonably burdens their fundamental right to vote while following South Carolina’s directive to remain at “home or work,” or while practicing recommended physical distancing to protect their and their community’s health from community transmission
2

3:20-cv-01552-JMC Date Filed 04/22/20 Entry Number 1 Page 3 of 49
of the novel coronavirus. 4. Second, Plaintiffs challenge the constitutionality of South Carolina’s witness
signature requirement on absentee ballots, codified at S.C. Code Ann. § 7-15-220 (the “Witness Requirement,” and collectively with the Excuse Requirement, the “Challenged Requirements”). State law requires all mail-in ballots be signed by a third-party witness in addition to the voter, otherwise an absentee ballot goes uncounted. In the current environment, this poses an unreasonable obstacle to many South Carolina voters, like Plaintiff Mary Thomas, who lives alone and cannot risk contact with third parties while the threat of contagion continues—whether to vote in person or to obtain a witness signature. The Witness Requirement also violates Sections 3(b) and 201 of the Voting Rights Act, which categorically prohibit 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.”
5. The Witness Requirement threatens to disenfranchise thousands of voters like Ms. Thomas: almost 30% of the State’s residents (about 560,000) live by themselves, and well over 200,000 South Carolinians over 65 years of age—one of the groups most vulnerable to COVID19—live alone.3
6. And the Challenged Requirements’ impact will also fall more heavily on AfricanAmerican voters in South Carolina, who both live alone in larger percentages than the population as a whole and who are being afflicted by COVID-19 at stunningly disproportionate rates and currently comprise over 56% of the State’s virus-related deaths despite making up just 27% of its
3 U.S. Census Bureau, 2010-2018 American Community Survey 1-Year Estimates: Selected Social Characteristics of the United States: South Carolina (2018), https://data.census.gov/cedsci/table?q=south%20carolina%20single%20person%20households&g=04000 00US45&hidePreview=false&tid=ACSDP1Y2018.DP02&vintage=2018&layer=VT_2018_040_00_PY_ D1&cid=DP02_0001E (last visited Apr. 21, 2020).
3

3:20-cv-01552-JMC Date Filed 04/22/20 Entry Number 1 Page 4 of 49
total population. South Carolina’s history of voting-related discrimination against African Americans, as well as continuing discrimination in areas such as education, employment, and healthcare, interacts with the Challenged Requirements to hinder their ability to participate effectively in the political process in violation of Section 2 of the Voting Rights Act.
7. COVID-19 is an unprecedented public health emergency. The current crisis has yet to reach its “peak,”4 and will still pose a public health risk in June.5 Models project that infections will rebound in the fall, even if the current outbreak subsides before then.6 In this context, the two challenged requirements will each, separately and jointly, unduly burden the right to vote of South Carolina voters. This is certainly true for South Carolina’s statewide primaries in June, and will foreseeably remain true for the November general election as well.
8. Neither of the requirements’ undeniable burdens on voters are justified. South Carolina already allows voters to vote absentee if they cannot vote in person “because of injury or illness.” S.C. Code Ann. § 7-15-310. But current interpretation of state law by Andino and the SEC does not recognize that voters who choose to stay home to mitigate the spread of COVID-19 are all unable to vote in person because of an illness, whether or not they have knowingly contracted the disease. The State could remedy the unconstitutional disenfranchisement that the qualification requirement will cause by allowing voters to vote
4 See Institute for Health Metrics and Evaluation, COVID-19 projections assuming full social distancing through May 2020: South Carolina, https://covid19.healthdata.org/united-states-of-america/south-carolina (last visited Apr. 21, 2020). 5 Id. 6 See Dr. Fauci anticipates coronavirus outbreak in the fall, COUNTON2 NEWS (Mar. 31, 2020) (“Fauci said he anticipates coronavirus will be cyclical and return in the fall because of its degree of transmissibility.”), https://www.counton2.com/news/national-news/dr-fauci-anticipates-coronavirusoutbreak-in-the-fall/.
4

3:20-cv-01552-JMC Date Filed 04/22/20 Entry Number 1 Page 5 of 49
absentee for that reason, as public officials in Alabama, Arkansas, Delaware, Indiana, Massachusetts, New Hampshire, New York, and West Virginia have already done during the current crisis.
9. And while election integrity is a critical interest, the witness signature rule does very little if anything—nor is it properly tailored—to serve this interest in light of the many other provisions of South Carolina law that safeguard absentee voting and penalize those who abuse the process. Indeed, the fact that South Carolina is one of only 11 states that require an individual submitting an absentee ballot to have another adult witness and sign their ballot envelope further underscores the requirement’s lack of necessity. Regardless, whatever additional marginal benefit the witness rule may offer, such benefit is greatly outweighed by the risk of disenfranchisement.
10. Plaintiffs therefore ask that the Court enjoin South Carolina’s limitations on qualifications to vote by means of an absentee ballot and its absentee witness rule and declare them unconstitutional for the duration of the 2020 election calendar.
PARTIES 11. Plaintiff Nea Richard is a 22-year-old African-American student at Claflin University, a historically Black university in Orangeburg, South Carolina. She is a U.S. citizen, and is a lawfully registered voter in her hometown of Cross Hill, South Carolina. Though her school has transitioned to online instruction, Ms. Richard continues to reside in Orangeburg. While in school, Ms. Richard has travelled two hours to Cross Hill for each election so that she can vote in person and serve as a poll worker. She intends to vote in person and serve as a poll worker again in Cross Hill for the 2020 state primary and general elections. From Ms. Richard’s experience as a poll worker, she is familiar with the many forms of close contact that poll
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workers and voters are forced to make at polling sites, like sharing pens and touching voting machine screens. If the Challenged Requirements are not eliminated, Ms. Richard reasonably fears that the Challenged Requirements will significantly increase congestion at her precinct, make it nearly impossible to properly clean the precinct, and will needlessly contribute to the spread of COVID-19 and potentially her own infection. The elimination of the Challenged Requirements will protect Ms. Richard and other people in the precinct by meaningfully reducing the number of in-person voters and lowering the concomitant increased risk of transmission caused by excessive congestion due to the lack of alternatives to in-person voting for most voters.
12. Plaintiff the Reverend Jeremy Rutledge is a 49-year-old senior pastor of the Circular Congregational Church, located in Charleston. He is white. He resides in Mt. Pleasant, South Carolina. He is a U.S. citizen, has never lost his right to vote by reason of a felony conviction or court order, and is a registered voter in South Carolina. Rutledge is at risk of severe complications from the novel coronavirus and COVID-19 because he lives with systemic scleroderma, a chronic, autoimmune disorder that affects the skin and internal organs. Rutledge’s condition has caused him to suffer from interstitial lung disease, which in the past has caused severe scarring (fibrosis) of his lungs. For years, Rutledge has treated his medical conditions with immunosuppressant medication. These drugs help Rutledge maintain a relatively healthy, active life by preventing his immune system from dangerously causing his lung tissue to thicken, but also make Rutledge particularly vulnerable to respiratory ailments like COVID-19 and pneumonia. As a result, Rutledge has strictly self-quarantined himself at home with his wife and son since at least mid-March and does not anticipate that he will feel safe outside his home until a vaccine or cure for the novel coronavirus and COVID-19 have been
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developed or found. In the likely event that public officials ease social distancing restrictions before a vaccine or cure are available, Rutledge anticipates that his family will find another place to live so that his wife and son return to work and school while he remains self-quarantined in their family home. Rutledge has routinely voted in person on Election Day until the COVID-19 pandemic and does not consider himself physically disabled. Under Defendants’ interpretation of the Excuse Requirement, he therefore does not qualify to vote absentee. He must therefore either vote in person or forego his right to vote in South Carolina elections. In the event that his wife and son return to work and school and he remains self-quarantined by himself in their family home, Rutledge will have no way to obtain a witness’s signature on an absentee ballot without putting himself in grave danger of severe illness.
13. Plaintiff Mary Thomas is an 86-year-old retiree who lives alone at her residence in Charleston, South Carolina. She is a U.S. citizen, has never lost her right to vote by reason of a felony conviction or court order, and is a registered South Carolina voter. She is African American. Before retiring, Ms. Thomas worked as a licensed public nurse (LPN) and as a clinical pastoral chaplain. Ms. Thomas is at risk of severe complications from the novel coronavirus and COVID-19 because of her age and preexisting medical conditions, including hypertension and gout. She is partially blind. She has voted absentee in South Carolina for over twenty years, either by reason of being physically disabled or because she is over 65 years of age. Ms. Thomas has been quarantining herself since approximately mid-March and has cut off all in-person contact with others unless absolutely necessary—e.g., because of a health emergency. She intends to vote absentee again in this year’s elections, including the June primary and November general, in part, to avoid the documented risk that COVID-19 poses to her health and life. Ms. Thomas understands that a witness signature is needed to vote absentee
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in South Carolina. However, because she lives alone and is currently adhering to a strict selfquarantine, she has no way to obtain a witness’s signature on her absentee ballot without gravely endangering her health.
14. Plaintiff Trena Walker is a 53-year-old, single caregiver to three children under 12 who lives in the Mixson development in North Charleston, South Carolina. She is African American and a U.S. citizen. She is a lawfully registered South Carolina voter. She is presently unemployed; in the past, she has worked as a nursery teacher for preschoolers and as a teacher’s assistant for the Charleston County School District. Ms. Walker is legally blind. She does not live with any person considered legally competent to sign legal documents in South Carolina. Ms. Walker intends to vote in the June primary and November general elections. She usually votes in person, but is fearful of doing so again in forthcoming elections because her medical history of breast cancer and emphysema put her at high risk of grave complications from COVID-19. For that reason, Ms. Walker has followed social distancing and quarantine recommendations to the best of her ability, and does not leave her home except when necessary to purchase food for her and her children. Ms. Walker also closely follows public health officials’ specific recommendations to African Americans and is particularly reluctant to leave her home because of the disproportionately harmful effects that COVID-19 has already had on Black people. Ms. Walker expects she will not feel safe leaving her home until a vaccine against the virus is developed or a cure is identified. She is fearful that leaving her home will only become more dangerous in the event that public officials ease social distancing restrictions before a vaccine or cure are available. Ms. Walker does not qualify to vote absentee under any of the state law “excuses” as interpreted by Andino and the SEC. If the Challenged Requirements were eliminated, Ms. Walker would vote by absentee ballot to reduce the chances of contracting
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COVID-19. 15. Dr. Brenda Williams, MD, is the 68-year-old Founder and Executive Director of
the Family Unit, Inc. Dr. Williams is African American and lives in Sumter County, South Carolina with her husband. She is a U.S. citizen and is a lawfully registered voter in Sumter County. Dr. Williams intends to vote in the 2020 state primary and general elections. She recently learned that she has contracted COVID-19. She is self-quarantining. Her infection will prevent her from assisting or witnessing the absentee ballots for many of the Family Unit, Inc.’s members and constituents who have no one else to assist them with or witness their absentee ballots. As a registered voter over age 65, Dr. Williams qualifies for an absentee ballot. Because of her diagnosis and the need to self-quarantine, however, the Witness Requirement acts as a stumbling block for her and may result in the denial or abridgment of her right to vote amid the COVID-19 pandemic. Even after her symptoms subside, Dr. Williams is reasonably fearful that, if she appears in-person to vote or acts to assist others in complying with the Challenged Requirements in the 2020 elections, she may unintentionally and unknowingly infect others.
16. Plaintiff the Family Unit, Inc. is a 501(c)(3) nonpartisan, charitable nonprofit organization with the mission of empowering and serving the needs of the low-income community of Sumter County, South Carolina. The Family Unit is led by Plaintiff Dr. Brenda C. Williams. The Family Unit’s constituents and members are mostly African Americans and/or low-income people with a high school education or less. As part of its mission, the Family Unit educates and registers voters, including people who are pretrial detainees; helps eligible voters to understand and perform absentee voting; restores abandoned homes and donates them to working-poor families to live in; helps people find employment; volunteers with elderly people; and advocates for improved school facilities for children in the Sumter County area. In recent
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years, the Family Unit’s members and constituents have had their absentee ballots rejected because of the Witness Requirement. The difficulties experienced by the Family Unit’s members and constituents in attempting to vote absentee under the Challenged Requirements have been magnified substantially by the COVID-19 pandemic.
17. As a direct result of the Challenged Requirements, the Family Unit has been forced to divert its extremely limited resources and time away from its core activities to investigate, respond to, mitigate, and address the concerns of its members and constituents impacted or disenfranchised by the Challenged Requirements as interpreted by Andino and the SEC and Defendants’ inadequate efforts to protect voters from COVID-19 ahead of the 2020 elections. For example, after learning about the impact of the Challenged Requirements on its members and constituents, Dr. Williams began an investigation that included requesting information from county election officials, interviewing affected voters, and reviewing information about the impact of the Challenged Requirements. Based on data provided by election officials, every year, the ballots of hundreds of voters in each county are rejected because of the Witness Requirement. In absence of the Challenged Requirements, the Family Unit would not have had to engage in these activities.
18. Defendant Marci Andino is the Executive Director of the South Carolina Election Commission and is sued in her official capacity. The Executive Director is the Chief Administrative Officer for the State Election Commission and is required by law to supervise the County Boards of Voter Registration and Elections. S.C. Code Ann. § 7-3-20. In this role, she is tasked with ensuring that the County Boards comply with state and federal law in conducting elections and voter registration. Id. § 7-3-20(C).
19. Defendant John Wells is the Chair of the South Carolina Election Commission 10

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and is sued in his official capacity. Defendants Clifford J. Edler and Scott Moseley 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. § 7-3-20(A). The mission of the South Carolina Election Commission 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.”7
20. Defendant Henry D. McMaster is the Governor of South Carolina. As Governor, the South Carolina Constitution vests in him the “supreme executive authority” of the State. S.C. Const. Art. IV, § 1. He has statutory power to proclaim an emergency in the State and may “cope with such threats and danger” as it presents pursuant to his authority to “order and direct any person or group of persons to do any act which in his opinion, endanger life, limb or property.” S.C. Code Ann. § 1-3-430. He has “full power by use of all appropriate available means to enforce such order or proclamation.” Id.
JURISDICTION AND VENUE 21. This action arises under the First and Fourteenth Amendments to the U.S. Constitution and the Voting Rights Act, and is brought under 42 U.S.C. §§ 1983 and 1988 and 52 U.S.C. §§ 10301, 10302(b) and 10501 to seek injunctive and declaratory relief for violations of constitutional rights under color of state law. This Court therefore has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. 22. This Court has personal jurisdiction over Defendants, who are sued in their official capacities as state officials. The violations complained of concern their conduct in such
7 See About the SEC, Mission Statement, https://www.scvotes.org/about-sec (last visited Apr. 21, 2020).
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capacities. 23. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. 24. Venue is proper under 28 U.S.C. § 1391(b)(2) because Defendants reside in this
judicial district, and under 28 U.S.C. § 1391(b)(2) because a substantial part of the events that gave rise to Plaintiffs’ claims occurred there.
STATEMENT OF FACTS I. Transmission of COVID-19 and Public Health Guidelines
25. Our nation faces a public health emergency caused by the exponential spread of COVID-19, the respiratory disease caused by the novel coronavirus SARS-CoV-2. According to the CDC, this coronavirus spreads aggressively and asymptomatic people can spread it.8 All age groups have contracted the disease.9
26. The United States is the current epicenter of the global COVID-19 pandemic. As of early April, the United States led the world in the total number of COVID-19 cases, surpassing previous leaders China and Italy. While statistical models have improved to estimate fewer U.S. deaths than initially anticipated, leading models still project as many as 60,000 people in the United States may die from COVID-19 in the pandemic—assuming “full social distancing” measures are followed through May 2020.10
8 Ctrs. for Disease Control & Prevention, How Coronavirus Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited Apr. 21, 2020). 9 Robert Verity, PhD. et al., Estimates of the Severity of Coronavirus Disease 2019: A Model-Based Analysis, Lancet Infec Dis (March 30, 2020), 6. 10 IHME, COVID-19 projections assuming full social distancing through May 2020 (as of April 13, 2020), https://covid19.healthdata.org/united-states-of-america; see also Bill Chapel, Fauci Says U.S. Coronavirus Deaths May Be ‘More Like 60,000’; Antibody Tests on Way, S.C. PUBLIC RADIO (Apr. 9,
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27. The World Health Organization (WHO) estimates that approximately 20% of those who are infected by SARS-CoV-2 require hospitalization.11 COVID-19 can severely damage lung tissue, cause a permanent loss of respiratory capacity, and also damage tissues in the kidney, heart, and liver.12 The surge of COVID-19 cases causes mounting strains on healthcare systems, including critical shortages of doctors, nurses, hospital beds, medical equipment, and personal protective equipment (PPE).
28. Estimates from early March put the fatality rate for people infected with COVID19 at approximately ten times higher than even a severe flu season, including in countries with advanced healthcare systems.13
29. People of all ages have contracted COVID-19 and died from it, but the illness poses special risks for the elderly and those with certain preexisting medical conditions. Preliminary reports based on WHO data show a 3.6% mortality rate for individuals between 6069 years old, an 8% mortality rate for those 70-79 years old, and a 14.8% mortality rate for those who are 80 years old or older.14 COVID-19 also poses greater risks for people with preexisting heart and respiratory conditions, individuals with compromised immune systems, and those with
2020), https://www.southcarolinapublicradio.org/post/fauci-says-us-coronavirus-deaths-may-be-more60000-antibody-tests-way. 11 World Health Organization, Q&A on Coronaviruses (COVID-19), “Should I Worry About COVID19?,” https://www.who.int/news-room/q-a-detail/q-a-coronaviruses (last visited Apr. 21, 2020). 12 Ctrs. for Disease Control & Prevention, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinicalguidance-management-patients.html (last visited Apr. 21, 2020). 13 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020, 12:49 PM), https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier-11583856879; see also Castillo v. Barr, No. 20-00605, 2020 WL 1502864, at *2 (C.D. Cal. Mar. 27, 2020) (“COVID-19 is highly contagious and has a mortality rate ten times higher than influenza.”). 14 Ctrs. for Disease Control & Prevention, supra note 12.
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many other conditions.15
30. The effects of the pandemic on social life will last well into the summer of 2020,
if not much longer. Even into the summer months, experts have indicated that COVID-19 “will
face less immunity and thus transmit more readily even outside of the winter season,” and that
season changes are “unlikely to stop transmission.”16 Further, even those who develop an
immune response to the virus after an infection are not necessarily safe from reinfection, as we
do not yet have sufficient data about how long immunity to the virus will last.17 Dr. Anthony
Fauci, head of the National Institute of Allergy and Infectious Diseases, recently said that he
“can’t guarantee” in-person voting will be safe in November, because of a potential resurgence
of COVID-19 in the fall.18
31. With no known effective treatment, and vaccines months (or more) away, public
health officials have been left to urge the public to practice ‘social distancing,’ frequent (and
thorough) hand washing, and avoidance of close contact with others.19 The CDC has issued
guidance informing individuals to avoid public gatherings until at least May 15, 2020.
15 Ctrs. for Disease Control & Prevention, Groups at Higher Risk of Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last visited Apr. 21, 2020). 16 Marc Lipsitch, DPhil, Professor of Epidemiology and Director, Center for Communicable Disease Dynamics, Harvard T.H. Chan School of Public Health, Seasonality of SARS-CoV-2: Will COVID-19 go away on its own in warmer weather?, https://ccdd.hsph.harvard.edu/will-covid-19-go-away-on-its-ownin-warmer-weather/. 17 Apoorva Mandavilli and Katie Thomas, Will an Antibody Test Allow Us to Go Back to School or Work?, N.Y. TIMES (Apr. 10, 2020), https://www.nytimes.com/2020/04/10/health/coronavirus-antibodytest.html. 18 Jason Silverstein, Fauci says he “can’t guarantee” in-person voting in November will be safe, CBS NEWS (Apr. 13, 2020), https://www.cbsnews.com/news/coronavirus-fauci-says-he-cant-guarantee-inperson-voting-in-november-will-be-safe/?ftag=CNM-00-10aac3a. 19 Johns Hopkins University, Coronavirus, Social Distancing and Self-Quarantine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-social-
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32. The majority of American voters still vote in person, at a polling place, on Election Day.20 To some—such as homeless, visually impaired, limited English proficient or illiterate voters who need accessible voting machines and personal assistance—meaningful opportunities to physically vote in person early or on Election Day are critical. For this reason, the CDC has issued specific guidelines concerning voting during the COVID-19 pandemic. Among other things, it recommends that states “[e]ncourage voters to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations” including “mail-in methods of voting if allowed in the jurisdiction.”21
33. These are essential recommendations given the relatively minimal risks of voting in person during the pandemic versus voting by mail. There is no evidence that SARS-CoV-2 can be spread through the mail, and the U.S. Postal Service has further changed their policies to “eliminate the requirement that customers sign our Mobile Delivery Devices for delivery” and now require the customer “to step back a safe distance or close the screen door/door so that they may leave the item in the mail receptacle or appropriate location by the customer door.”22
34. In contrast, the risks of interpersonal interaction while voting are already evident.
distancing-and-self-quarantine (last visited Apr. 21, 2020); Declaration of Dr. Jonathan Louis Golob at ¶ 8, ECF No. 5, Dawson v. Asher, 2:20-cv-00409-JLRMAT (W.D. Wash. Mar. 16, 2020). 20 See, e.g., Jordan Misra, Behind the 2018 U.S. Midterm Election Turnout, Census.gov (Apr. 23, 2019) (showing 60% of voters who cast ballot in 2018 did so “in person on Election Day”), https://www.census.gov/library/stories/2019/04/behind-2018-united-states-midterm-election-turnout.html. 21 Ctrs. for Disease Control & Prevention, Recommendations for Election Polling Locations: Interim guidance to prevent spread of coronavirus disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html (last updated March 27, 2020). 22 United States Postal Service. USPS Statement on Coronavirus (April 2, 2020), https://about.usps.com/newsroom/statements/usps-statement-on-coronavirus.htm (citing guidance from World Health Organization, CDC, and Surgeon General).
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During Florida’s recent primary, two Broward County poll workers tested positive for COVID19, one of whom was handling driver’s license as part of the identification verification process.23
And on April 13, Chicago officials reported that a poll worker for the city’s March 17 election
died of COVID-19, prompting officials to send letters notifying voters, poll workers, field investigators, and cartage companies who were present at the same polling site.24
35. Elections held on April 7 in Wisconsin saw multi-hour waits and lines stretching
blocks upon blocks in places like Milwaukee and Green Bay, in part, because government
officials there were unable to create a viable vote-by-mail process for all voters. These crowded
lines are ideal places for person-to-person contagion, and led Wisconsin health officials to
anticipate that the large numbers of in-person voting on April 7 would result in “an increase in the number of cases in Wisconsin [and] more deaths.”25 By April 21, health officials in
Milwaukee had identified at least 19 individuals who either voted in-person or worked at a polling location on election day and now test positive COVID-19.26 At a minimum, health
officials believe that seven of those new cases are directly linked to in-person voting in
23 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.sunsentinel.com/coronavirus/fl-ne-browardelections-poll-workers-coronavirus-20200326wmgy775dvjc5jis2oagxlpmule-story.html. 24 See Mary Ann Ahern, Poll Worker at Chicago Voting Site Dies of Coronavirus, Election Officials Say, NBC CHICAGO (Apr. 13, 2020), https://www.nbcchicago.com/news/local/chicago-politics/poll-worker-atchicago-voting-site-dies-of-coronavirus-election-officials-say/2255072/. 25 Devi Shastri, In-person voting was likely a ‘disaster’ for Wisconsin’s efforts to flatten coronavirus curve, national experts say, MILWAUKEE J. SENTINEL (Apr. 8, 2020) (quoting Wisconsin Department of Health Services Secretary Andrea Palm), https://www.jsonline.com/story/news/politics/elections/2020/04/08/coronavirus-wisconsin-electionlikely-hurt-effort-flatten-curve/2961718001/. 26 Kendall Karson, 19 new cases of coronavirus in Wisconsin linked to election activities: State health officials, ABC NEWS (Apr. 21, 2020), https://abcnews.go.com/Politics/cases-coronavirus-wisconsinlinked-election-activities-state-health/story?id=70264956.
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Wisconsin, including six voters and one poll worker.27
II. COVID-19 in South Carolina
36. The COVID-19 pandemic has deeply affected the Palmetto State. As of April 17,
2020, the State had confirmed over 4,000 cases,28 with public health officials warning that
thousands more have likely gone uncounted or untested.29 Over 100 South Carolinians have died
from the disease.30
37. Models used by health officials predict that the State has not yet seen the worst of
the pandemic, which will reach its “peak” in early May and at that point demand the most of
South Carolina’s health resources.31 These models project a sustained outbreak in South
Carolina will continue into the summer, if not longer.32
38. As has been the case nationally, South Carolinians of all ages have tested positive
for COVID-19. As of April 14, the youngest person to test positive in South Carolina was 2
months old; the oldest was 101.33
27 Alex Seitz-Wald, 7 Wisconsin coronavirus infections linked to election day, health official says, NBC NEWS (Apr. 21, 2020), https://www.nbcnews.com/politics/2020-election/7-wisconsin-virus-cases-linkedperson-voting-n1188606. 28 Emily Bohatch, SC coronavirus cases top 4,000, state health officials say, THE STATE (Apr. 17, 2020) (citing Officials with the S.C. Department of Health and Environmental Control) https://www.thestate.com/news/coronavirus/article242084471.html. 29 See id. (citing state officials stating that “86% of COVID-19 cases in the state have not been identified or tested,” meaning, South Carolina “likely has more than 29,000 cases.”). 30 Id. 31 See Institute for Health Metrics and Evaluation, COVID-19 projections assuming full social distancing through May 2020: South Carolina, https://covid19.healthdata.org/united-states-of-america/south-carolina (last visited Apr. 21, 2020). 32 Id. 33 See DHEC, SC Demographic Data (COVID-19), https://www.scdhec.gov/infectiousdiseases/viruses/coronavirus-disease-2019-covid-19/sc-demographic-data-covid-19 (last visited Apr. 21, 2020); see also Laurel Mallory, Breaking down COVID-19 cases, deaths in SC by age, sex, race,
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39. In response, the South Carolina Department of Health and Environmental Control (“DHEC”) has urged social distancing by “staying home as much as possible, staying at least 6 feet away from other people while in public, and avoiding gatherings with many people present.”34 According to DHEC, “[t]hese are the best ways to protect yourself and our communities from the spread of COVID-19.”
40. To combat viral spread, Governor McMaster has also taken a series of increasingly aggressive steps since early March, including by issuing various executive orders. These orders have had the incremental effect of closing down most “non-essential” businesses and requiring residents of the State to essentially shelter in place.35
41. On March 13, Governor McMaster issued Executive Order No. 2020-08, declaring a State of Emergency for South Carolina.36 On the same day, President Donald Trump proclaimed a National Emergency concerning COVID-19.37
42. On March 15, Governor McMaster issued Executive Order No. 2020-09, directing the closure of all public schools in South Carolina beginning Monday, March 16 through
WISNEWS (Apr. 16, 2020), https://www.wistv.com/2020/04/15/breaking-down-covid-cases-deaths-scby-age-sex-race/. 34 DHEC, Protect Yourself & Those Around You (COVID-19), https://www.scdhec.gov/protect-yourselfthose-around-you-covid-19 (last visited Apr. 21, 2020). 35 S.C. Exec. Order No. 2020-07 (Mar. 11, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0311%20FILED%20Executive%20Order%20No.%20202007%20-%20Suspending%20Transportation%20Regulations%20Due%20to%20NC%20Emergency%20% 20Coronavirus%20(002).pdf. 36 Id. 37 Proclamation No. 9994, 85 Fed. Reg. 15337 (2020), https://www.whitehouse.gov/presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19outbreak/.
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Tuesday, March 31, 2020.38 43. Executive Order No. 2020-09 also postponed or rescheduled all elections
scheduled to be held in the state on or before May 1, 2020.39 It delegated responsibility to the State Election Commission (“SEC”) to ensure that candidate filing period(s) continued and that individuals could continue to register to vote. Town, city, and county referendums and elections planned for March 19, March 24, March 31, April 7, April 14, and April 28 were all postponed accordingly.40
44. On March 27, President Trump approved a major disaster declaration for South Carolina, which made federal emergency aid available for recovery efforts due to the COVID-19 pandemic.41
45. On March 28, Governor McMaster issued Executive Order No. 2020-15, declaring a “new, separate, and distinct” state of emergency based on his determination that COVID-19 posed an “actual, ongoing and evolving public health threat” to the State of South
38 S.C. Exec. Order No. 2020-09 §2 (Mar. 15, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0315%20FILED%20Executive%20Order%20No.%20202009%20-%20Closing%20Schools%20Cancelling%20Elections%20Other%20Provisions%20Due%20to%2 0COVID-19.pdf. 39 S.C. Exec. Order No. 2020-09 §3 (Mar. 15, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0315%20FILED%20Executive%20Order%20No.%20202009%20-%20Closing%20Schools%20Cancelling%20Elections%20Other%20Provisions%20Due%20to%2 0COVID-19.pdf. 40 South Carolina Election Commission, March & April Elections Postponed Due to Coronavirus (Mar. 15, 2020), https://www.scvotes.org/march-april-elections-postponed-due-coronavirus. 41 See FEMA, President Donald J. Trump Approves Major Disaster Declaration for South Carolina (Mar. 27, 2020), https://www.fema.gov/news-release/2020/03/27/president-donald-j-trump-approvesmajor-disaster-declaration-south-carolina.
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Carolina.42
46. On March 31, Governor McMaster issued Executive Order No. 2020-17, directing
“non-essential” businesses to close to non-employees and the public. That order was followed
by Executive Order No. 2020-18 on April 3, which expanded the definition of “non-essential”
businesses that should be closed to non-employees and the public to include retail stores.43
47. On Monday, April 6, Governor McMaster issued Executive Order No. 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.”44 The order
instructs residents of the State to “limit social interaction, practice ‘social distancing’ . . . and
take every possible precaution to avoid potential exposure to” viral infection. It directs
individuals in South Carolina to “take reasonable steps to maintain six (6) feet of separation from
any other person.”45 It orders residents to limit movement outside the home except for the
42 S.C. Exec. Order No. 2020-15 (Mar. 28, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0328%20eFILED%20Executive%20Order%20No.%20202015%20-%20State%20of%20Emergency%20Due%20to%20COVID-19%20Pandemic.pdf. 43 S.C. Exec. Order No. 2020-18 §1(B) (Apr. 3, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0403%20eFILED%20Executive%20Order%20No.%20202018%20-%20Closure%20of%20Additional%20Non-Essential%20Businesses.pdf. 44 S.C. Exec. Order No. 2020-21 at 6, (Apr. 6, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0406%20eFILED%20Executive%20Order%20No.%20202021%20-%20Stay%20at%20Home%20or%20Work%20Order.pdf; see also Office of Gov. McMaster, Governor McMaster Issues “Home or Work” Order, SC.Gov (Apr. 7, 2020), https://governor.sc.gov/news/2020-04/governor-mcmaster-issues-home-or-work-order. 45 S.C. Exec. Order No. 2020-21 (Apr. 6, 2020) https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0406%20eFILED%20Executive%20Order%20No.%20202021%20-%20Stay%20at%20Home%20or%20Work%20Order.pdf.
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purposes of visiting essential businesses, engaging in essential activities, or conducting critical infrastructure operations.
48. In issuing the “Home or Work” order, Governor McMaster explained that he took the steps, in part, because “[t]oo many people are not complying with [our] requests for social distancing.”46 Additionally, he clarified that, while not named as such, his April 6 order is a “stay-at-home order.”47
49. The April 6 “Home or Work” order expressly exempts gatherings of government officials, employees, or personnel needed to perform “essential government functions,” but directs state and local governments to “utilize any available technology or reasonable procedures” to “accommodate public participation via virtual or other remote or alternate means” in those functions “to the extent possible.”48
50. This Court has taken similar steps in light of the pandemic, including closing the Clerk’s Office public counters until further notice.49 On April 14, this District Court continued “[a]ll civil and criminal jury selections, jury trials, and roster meetings scheduled to commence through July 5, 2020.”50
51. On April 16, Governor McMaster sent a letter to the leadership of the State’s General Assembly to inform them of his view that the legislature should avoid returning for
46 Joseph Bustos & Maayan Schechter, Gov. McMaster toughens SC coronavirus stance, ordering state to work or ‘stay home’, THE STATE (Apr. 6, 2020), https://www.thestate.com/news/coronavirus/article241807571.html. 47 Id. (“Asked on Monday why not call his new executive order a ‘stay-at-home’ mandate, the governor said: ‘This is a stay-at-home order. You call it what you like, but it says, ‘stay at home.’”). 48 Id. 49 In re: District Clerk’s Office Operations, Misc. No. 20-mc-00122, Doc. No. 1 (D.S.C. Mar. 31, 2020). 50 In re: Court Operations Response to COVID-19, Misc. No. 20-mc-00139, Doc. No. 1 (D.S.C. Apr. 14, 2020).
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session any time before May 14, which “could place the health and safety of [its] members at an elevated risk for exposure to the virus.” A true and accurate copy of Governor McMaster’s letter is attached hereto as Exhibit 1. Governor McMaster explained that he “believe[d] – and hope[d] – that by late June that risk will have diminished to the extent that businesses and activities in our state may be safely resumed and conducted using personal safety precautions.”
52. On April 20, Governor McMaster issued Executive Order No. 2020-28, which, in relevant part, modified and amended his April 6 “Home or Work” order to ease restrictions on public beach use and on certain retail businesses including furniture, clothing, jewelry, and department stores.51 These and other listed businesses were authorized to re-open for business to the public as of 5:00 p.m. on April 20, provided they strictly follow social distancing measures.52 III. COVID-19’s Impact on African-American South Carolinians in Light of Ongoing and
Historical Discrimination 53. Nationally, the COVID-19 pandemic has had a particularly devastating effect on African-American communities. An analysis by the Associated Press—one of the first attempts to examine the racial disparities of COVID-19 cases and deaths nationwide—found that, in areas where the demographic data has been publicly shared by government officials, African Americans have made up 42% of people who have died from COVID-19, despite accounting for roughly only 21% of the total population in these areas.53 And a CDC report published April 8,
51 S.C. Exec. Order No. 2020-28 (Apr. 20, 2020). 52 Gov. Henry McMaster (@henrymcmaster), TWITTER (Apr. 20, 2020, 5:15 PM), https://twitter.com/henrymcmaster/status/1252345270588698627. 53 Kat Stafford et al., Outcry over racial data grows as virus slams black Americans, ASSOCIATED PRESS (Apr. 8, 2020), https://apnews.com/71d952faad4a2a5d14441534f7230c7c?fbclid=IwAR1plunY_qfeA2KrSUPA1TuJobA wQh53a_Qlkf5dw0dWjz-iz85GA1FOt4.
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2020, which included data from 1,482 patients hospitalized across 14 states, found that AfricanAmerican patients made up 33% of those for whom race or ethnicity information was available, despite representing only 18% of the states’ populations. This “suggest[ed] that black populations might be disproportionately affected by COVID-19.”54
54. Courtney Cogburn, an associate professor at the Columbia University School of Social Work, noted that “[t]here are patterns at this intersection of race and socioeconomic status that make it very clear this is just not a story about poverty.” That is, racial disparities in serious illness and death due to COVID-19 are inextricably linked to a long history and ongoing patterns of racial discrimination against African Americans:
A history of systemic racism and inequity in access to health care and economic opportunity has made many African Americans far more vulnerable to the virus. Black adults suffer from higher rates of obesity, diabetes and asthma, which make them more susceptible, and also are more likely to be uninsured. They also often report that medical professionals take their ailments less seriously when they seek treatment.55 55. These trends were in view relatively early in South Carolina, which as of early April already “reported a ratio of Black residents to white residents who ha[d] tested positive for the virus that well exceeds the general population ratio.”56 In South Carolina, there is welldocumented and alarming racially disparate patterns of serious illness and mortality due to
54 CDC Morbidity and Mortality Weekly Report, Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019—COVID-NET, 14 States, March 130, 2020 (Apr. 8, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6915e3-H.pdf. 55 Kat Stafford et al., Outcry over racial data grows as virus slams black Americans, ASSOCIATED PRESS (Apr. 8, 2020), https://apnews.com/71d952faad4a2a5d14441534f7230c7c?fbclid=IwAR1plunY_qfeA2KrSUPA1TuJobAwQh53a_Qlkf5dw0dWjz-iz85GA1FOt4. 56 See John Eligon et al., Black Americans Face Alarming Rates of Coronavirus Infection in Some States, N.Y. TIMES (Apr. 7, 2020).
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COVID-19. As of April 16, African Americans in South Carolina represented 41% of reported
COVID-19 cases and a staggering 57% of related deaths57 despite making up just 27% of the
State’s population.58 Based on these numbers, African-American South Carolinians have been
twice as likely to contract COVID-19 than white South Carolinians, and five times more likely to
die from it.
56. South Carolina has long experienced patterns of racial discrimination in health
and socioeconomic life patterns that render African-American South Carolinians at greater risk
of severe health complications from COVID-19. For example, because of longstanding racial
biases in medical care,59 African Americans with symptoms like cough and fever are less likely
than other patients to be given one of the scarce COVID-19 tests.60 Persistent structural
inequalities mean that African Americans have less access to healthcare, health insurance, or
emergency medical help. DHEC has recognized that African Americans are “disproportionately
affected by [lack] of access to care,”61 and that “[u]nderlying medical conditions such as
diabetes, heart disease, hypertension, obesity, and asthma might make it more likely that African
57 DHEC, SC Demographic Data (COVID-19), https://scdhec.gov/sc-demographic-data-covid-19 (last visited Apr. 21, 2020). 58 U.S. Census Bureau, QuickFacts South Carolina, https://www.census.gov/quickfacts/SC (last visited Apr. 21, 2020). 59 See, e.g., Michael O. Schroeder, Racial Bias in Medicine Leads to Worse Care for Minorities, U.S. NEWS (Feb. 11, 2016), https://health.usnews.com/health-news/patient-advice/articles/2016-02-11/racial-bias-inmedicine-leads-to-worse-care-for-minorities. 60 See Rubix Life Sciences, Health Data in the COVID-19 Crisis: How Racial Equity is Widening for Patients to Gain Access to Treatment (Mar. 20, 2020), https://rubixls.com/wpcontent/uploads/2020/04/COVID-19-Minority-Health-Access-7-1.pdf; see also Blake Farmer, The Coronavirus Doesn't Discriminate, But U.S. Health Care Showing Familiar Biases, NPR (Apr. 2, 2020), https://www.npr.org/sections/health-shots/2020/04/02/825730141/the-coronavirus-doesnt-discriminatebut-u-s-health-care-showing-familiar-biases. 61 SouthCarolinaETV, Governor's Update on Coronavirus (COVID-19) | April 16, 2020, YOUTUBE (Apr. 16, 2020), https://www.youtube.com/watch?v=Vv64tAZI_dY.
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Americans are admitted to the ICU or die from the disease.”62 Many of these underlying conditions, like asthma, result from the past and present policies that both relegate African Americans to particular neighborhoods and that disproportionately allocate landfills, factories, and other environmental risks to these Black neighborhoods.63 Racial discrimination in South Carolina has also resulted in socioeconomic inequalities that disadvantage African Americans, like higher rates of unemployment, disability, poverty, and inadequate health insurance than white people. These factors also make it more likely that African-American voters in South Carolina are forced to work outside the home even during the current pandemic and are therefore more exposed to COVID-19. For example, in South Carolina, the ACS shows that 24.5% of African Americans and just 15.2% of whites over age 16 work in “blue collar” service occupations. And 39.9% of white people versus only 23.1% of African Americans in South Carolina hold management or professional occupations—i.e., “white collar” jobs that are much more likely to allow employees to continue to work safely at home. Dr. Jason Cummings, a sociology professor at the University of South Carolina, recently highlighted these concerns in noting: “[p]oor people, and people of color, are more likely to be exposed to other people. The idea of social distancing is really a privilege for those who have money and resources[.]”64
62 Tonya Brown, More African Americans are dying from COVID-19 than other races in South Carolina, 15 NEWS (Apr. 9, 2020) (quoting DHEC statement), https://wpde.com/news/coronavirus/more-africanamericans-dying-from-covid-19-in-south-carolina. 63 See, e.g., Ihab Mikati et al., Disparities in Distribution of Particulate Matter Emission Sources by Race and Poverty Status, 108 Am J. Pub. Health 480 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5844406/; Diane Alexander & Janet Currie, Is it who you are or where you live? Residential segregation and racial gaps in childhood asthma, 55 J. Health Econ. 186 (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6112984/. 64 Fleming Smith et al., Long-term inequities put SC minorities at higher risk for coronavirus exposure and death, THE POST & COURIER (Apr. 15, 2020) (quoting Dr. Jason Cummings),
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IV. The COVID-19 Crisis and 2020 Elections in South Carolina 57. Dozens of elections are still scheduled to take place in South Carolina between
May and the end of the calendar year, including major statewide elections on June 9 and November 3.65
58. On March 30, 2020, Defendant Marci Andino, acting in her capacity as Executive Director of the South Carolina Election Commission, wrote various elected officials, including Defendant Governor Henry McMaster. A true and accurate copy of Director Andino’s letter is attached hereto as Exhibit 2 (hereinafter “SEC Letter”). The SEC Letter expressed the Commission’s “concern[] about the safe conduct of the June Primaries, November General Election and all other elections scheduled for 2020.” Ex. 2 at 1.
59. The SEC Letter stated the “main issue” in its view: “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.” Id. It added: “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 12. Also, there will likely be a shortage of polling locations, as polling locations that have been used in the past have stated they will not allow their facilities to be used for voting. For example, two fire stations in Murrells Inlet have already declined to allow their facility to be
https://www.postandcourier.com/health/covid19/long-term-inequities-put-sc-minorities-at-higher-risk-forcoronavirus-exposure-and-death/article_9d557788-799d-11ea-a89e-a7d97f6247a1.html. 65 See SCvotes, 2020 Election Calendar 1/1/2020 – 12/31/2020, https://www.scvotes.org/sites/default/files/2020-04-08%20Schedule%20of%20Elections.pdf.
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used for the June primary.66 60. The SEC Letter recommended various “changes to our election process” that the
SEC explained it understood were advisable “[i]n order to safely and securely conduct elections during and following the coronavirus pandemic.” Id. at 2. At the top of the SEC Letter’s listed options was the suggestion that South Carolina should “[a]llow no excuse absentee voting.” Id. The SEC Letter described adopting “no-excuse absentee voting” as a “relatively simple change.” Id. at 4. The SEC Letter also recommended “[r]emov[ing] the witness requirement on ballot return envelopes.” Id.
61. To date, Defendants have neither adopted nor implemented either recommendation. V. South Carolina’s Absentee Voting Process
62. South Carolina law sets out specific categories of qualified electors who may vote by mail ballot, known generally as “absentee voting.” S.C. Code Ann. § 7-15-320. Section 715-320 of the South Carolina Code lists 15 such categories. These include various categories of people absent from the jurisdiction in which they could vote in person on Election Day, including students, service members on active duty, overseas citizens, and people away from their county of residence on vacation. Id. § 7-15-320(A).
63. The election laws also set out several categories of qualified electors who may vote absentee “whether or not they are absent from their county of residence on election day.”
66 Charles Swenson, Polls workers ready to bow out of primary, COASTAL OBSERVER: POLITICS (Apr. 17, 2020), https://coastalobserver.com/polls-workers-ready-to-bow-out-of-primary/, (“We are extremely hesitant just because having several hundred to thousands of people come through on department property would not only put us at a risk for potential exposure, but for them to come into contact with us,” Murrells Inlet-Garden City Fire Chief J.R. Haney said. “We’re the ones that are transporting several people a day with symptoms.”).
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Id. § 7-15-320(B). This list includes “physically disabled persons.” Id. Physically disabled persons are any “who, because of injury or illness, cannot be present in person at his voting place on election day.” Id. § 7-15-310.
64. Individuals may request an absentee ballot in person, by visiting their county registration office, or by sending in a mail request, among other methods. S.C. Code Ann. § 715-330. A voter may request the application anytime during the calendar year in which the election in which they intend to vote absentee is being held. When applying, individuals must sign the application including a “reason for request” of an absentee ballot, among other information. Id. § 7-15-340. Applicants must also affirm an oath stating: “I do swear or affirm that I am a qualified elector, that I am entitled to vote in this election, and that I will not vote again in this election. The information above is true in all respects, and I hereby apply for an absentee ballot for the reason indicated above.” Id.
65. Fraudulently applying for an absentee ballot is a misdemeanor subject to “not less than one hundred dollars nor more than five hundred dollars or imprison[ment] not more than one year, or both.” Id.; see also S.C. Code Ann. § 7-25-20.
66. When a registrar receives an absentee ballot application and verifies that the individual properly competed the application and that they are a registered voter in the jurisdiction, the registrar mails to the individual the following items:
a. One of each ballot to be used in the election; b. Printed instructions as to the marking, folding, and return of each ballot; c. An envelope marked “Ballot Herein” in which all completed ballots must be
placed; d. A return-addressed envelope for use to return the “Ballot Herein” envelope
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and all ballots to the board of voter registration and elections, imprinted with an “oath of absentee ballot applicant.” The oath informs, among other things, that the applicant is qualified to vote in the election, has not already voted, and that the applicant received no assistance in voting that they would not have been entitled to receive had they voted in person. 67. Under S.C. Code Ann. § 7-15-220, an individual voting by absentee ballot must return their ballot in the envelope on which the oath is imprinted, which shall be “signed and witnessed.” Spaces for a third-party witness to sign the oath and provide their address are imprinted directly underneath blank lines to be filled in with the voter’s signature and date. 68. Once a voter receives their absentee ballot, the voter “must mark each ballot on which he wishes to vote,” place each in the single envelope marked “Ballot Herein,” and then place that envelope in the provided return-addressed envelope. S.C. Code Ann. § 7-15-385. The return-addressed envelope must then be sent to the board of voter registration and elections by mail, personal delivery, or by authorizing another person to return it as set forth in the law. Id. 69. The absentee ballot counting process is scheduled, by law, to begin at 9:00 a.m. on Election Day. See S.C. Code Ann. § 7-15-420. At that time, election managers must commence examining all return-addressed envelopes that have been received by the county board of voter registration and elections and make sure that each oath has been properly signed and witnessed, and that it includes the witness’s address. 70. A ballot determined not to be properly signed and witnessed by a third party, or one that does not include the witness’s signature and address, cannot be counted as a vote in the election. See S.C. Code Ann. § 7-15-420. 71. South Carolina law does not afford the voter notice or the opportunity to cure a
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ballot that is not counted because of a defective witness signature. VI. The Challenged Requirements Unduly and Unreasonably Burdens the Voting Rights
of South Carolinians. A. The Excuse Requirement deprives many South Carolina voters, including
Plaintiffs, of their fundamental right to vote. 72. Historically, most voters in South Carolina vote in person and on Election Day.67 For most voters, that means physically appearing at a designated polling place where they must not only be in close contact with other voters, observers, poll workers, but also repeatedly touch equipment and material such as voting machines, paper ballots, and shared writing instruments. At present, public health officials consider all of these activities as risking exposure to and/or transmission of COVID-19. They are therefore strongly disfavored and/or proscribed by various government orders. 73. Meaningful opportunities to vote in person are still necessary to many South Carolina voters, including those who lack access to reliable mail service or need the kinds of accommodations for persons with disabilities and personal assistance for people with limited literacy that are only available at in-person sites. To prevent viral spread at needed in-person sites, the CDC instructs that South Carolina encourage as many voters as possible “to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations.”68
67 See, e.g., U.S. Election Assistance Comm’n, Election Administration and Voting Survey 2018 Comprehensive Report 30 (2018) (72,806 absentee ballots of over 1.7 million ballots cast in South Carolina in 2018 midterm elections; 217,857 voted “in-person early”), https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report.pdf; U.S. Election Assistance Comm’n, The Election Admin. and Voting Survey 2016 Comprehensive Report 24 (2016) (497,436 absentee ballots of over 2 million total ballots cast in South Carolina in 2016 election), https://www.eac.gov/sites/default/files/eac_assets/1/6/2016_EAVS_Comprehensive_Report.pdf. 68 Ctrs. for Disease Control & Prevention, supra note 21.
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74. Even if the ongoing COVID-19 outbreak subsides, members of vulnerable or “high-risk” populations who would otherwise vote in person on Election Day will reasonably opt and/or be required to continue practicing “social distancing” for the foreseeable future. Some like Plaintiff Rev. Rutledge who risk grave medical complications from COVID-19 will reasonably decide to self-quarantine until a vaccine for the illness is the developed or a cure is identified.
75. Because South Carolina is an “excuse required” absentee voting state, eligible voters must fall under one of several enumerated categories of persons who are “qualified” to vote by absentee ballot. Relevant here, “physically disabled persons” and “persons sixty-five years of age or older” are qualified, and “must be permitted to vote by absentee ballot in all elections . . . .” S.C. Code Ann. § 7-15-320. Older South Carolinians at high risk of complications from COVID-19 are thus able to request an absentee ballot only if they are older than 65.
76. As Defendant Andino explained in the SEC Letter, none of the 18 categories that qualify a voter to vote absentee “include self-isolating due to a pandemic.” Ex. 2, at 2. Thus, at present, it is Defendants’ position that no provision of the South Carolina laws affords all eligible voters—including many who are at high risk of complications from COVID-19—the opportunity to vote absentee by mail-in ballot, even as mandatory orders currently instruct all South Carolinians to remain at “home or work,” and to rigidly adhere to social distancing practices at all times.
77. As currently construed, the Excuse Requirement severely burdens the fundamental right of all eligible voters practicing self-quarantining and social distancing to participate in elections in South Carolina. In particular, it egregiously burdens the right to vote
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of persons with pre-existing medical conditions who commonly vote in person and are not considered “physically disabled,” by placing them at “high-risk” of severe illness from COVID19 (e.g., by being immunocompromised).
78. The Excuse Requirement will therefore likely prevent tens of thousands of South Carolinians who might otherwise vote in scheduled elections from participating in those contests, as anyone not covered by an enumerated absentee “excuse” will have to choose between exposing themselves and others to the risk of illness from coronavirus and COVID-19 to vote in person or foregoing their right to vote.
79. The Excuse Requirement is also particularly burdensome for African Americans in South Carolina. African Americans in South Carolina continue to bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process. It is precisely because of these patterns that African Americans in South Carolina face particularly severe health risks from COVID-19 exposure arising from being forced to vote in-person rather than by mail. In these circumstances, the Excuse Requirement interacts with these conditions to deny African Americans in South Carolina an equal opportunity to participate in the political process.
80. The Excuse Requirement is plainly unreasonable. Because South Carolina already affords an excuse to eligible voters who “because of injury or illness, cannot be present in person at [a] voting place on election day[,]” S.C. Code Ann. § 7-15-310, Defendants could reasonably interpret the statute to include people who are self-isolating or who are subject to the Governor’s “Home or Work” order to be eligible to vote absentee “because of injury or illness” under the Excuse Requirement.
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81. Voters staying at home to follow social distancing measures prescribed by the Governor and other government and public health officials are all unable to vote in person “because of an illness”—namely, the novel coronavirus and COVID-19. And the listed absentee ballot qualifications do not expressly require that a voter must personally contract an illness like COVID-19 in order to qualify for an absentee ballot. Rather, the election laws instruct that the absentee ballot provisions “shall be liberally construed . . . to effectuate their purposes.” S.C. Code Ann. § 7-15-20.
82. Several of the remaining minority of states that require an excuse to vote by mail have interpreted their disability or illness basis for absentee eligibility in precisely this fashion during the ongoing crisis.
83. For example, West Virginia now permits all registered voters to vote absentee in forthcoming elections due to “Illness, injury or other medical reason which keeps me confined,” defining “medical condition” as “any threat to a person’s health posed by an epidemic, pandemic, outbreak, disease, virus, or other emergency, which creates potential harm to the public interest, peace, health, safety, or welfare of citizens or voters.” W. Va. Code R. §§ 15353-2–153-53-3.69 The State construes “confined” as being “restricted to a specific location for reasons beyond that person’s control, including a recommendation by state or federal authorities for the person to self-quarantine, avoid public places or close contact with other persons.” W. Va. Code R. § 153-53-2. Per issued rules, the State’s action “cannot violate or alter clear statutory requirements” but rather, simply construes existing state law “in favor of enfranchisement, not disenfranchisement.” W. Va. Code R. § 153-53-1.
69 W. Va. Sec’y of State Mac Warner, Admin. Law Div., Notice Of An Emergency Rule (Mar. 20, 2020), http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=53039&Format=PDF.
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84. Similarly, Alabama has allowed “any qualified voter who determines it is
impossible or unreasonable to vote at their voting place” as a result of COVID-19 to vote by mail
in primary runoff elections being held in July by reason that “a physical illness or infirmity []
prevents [the voter’s] attendance at the polls.”70 And, because of COVID-19, Arkansas
determined that Ark. Code Ann. §§ 7-5-402, which only allows absentee voting for people who
are “absent or unable to attend an election due to illness or physical disability,” should be read
“so that all eligible qualified electors currently entitled to vote in the March 31, 2020 election
may request the appropriate absentee ballots from their county of residence.”71
85. Virginia, Delaware and Massachusetts have likewise clarified that all registered
voters in their respective states can use existing reasons related to illness and physical disability
to vote by mail in the Upcoming Elections.72 And New Hampshire has interpreted its “physical
70 Ala. Leg. Servs. Agency, Absentee Voting During State of Emergency, 17-11-3(e) (Mar. 18, 2020), https://www.sos.alabama.gov/sites/default/files/SOS%20Emergency%20Rule%20820-2-3-.06-.01ER.pdf; see also Press Release, Alabama Secretary of State, 100 Days Left to Apply for Absentee Ballot for the Primary Runoff Election (Mar. 31, 2020), https://www.sos.alabama.gov/newsroom/100-days-left-applyabsentee-ballot-primary-runoff-election; see also Ala. Code § 17-11-3(a)(2). 71 Governor of Arkansas, Exec. Order No. 20-08, (Mar. 20, 2020), https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-08._.pdf 72 See Absentee Voting, Va. Dep’t of Elections, https://www.elections.virginia.gov/casting-aballot/absentee-voting/ (last visited April 5, 2020) (Virginia Department of Elections statement clarifying that “[v]oters may choose reason ‘2A My disability or illness’” to vote absentee in upcoming elections due to COVID-19); Governor of Delaware, Exec. Dep’t, Sixth Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat (Mar. 24, 2020), https://governor.delaware.gov/wp-content/uploads/sites/24/2020/03/Sixth-Modification-to-State-ofEmergency-03242020.pdf (Delaware executive order providing that for upcoming primary and special elections “the qualification of ‘sick or physically disabled’ [in Delaware vote-by-mail provisions] shall apply to and include any such voter who is asymptomatic of COVID-19 . . . and who herself or himself freely chooses to use such qualification to vote by absentee ballot.); An Act Granting Authority to Postpone 2020 Municipal Elections in the Commonwealth and Increase Voting Option in Response to the Declaration of Emergency to Respond to COVID-19, ch. 45 (2020), https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter45 (new Massachusetts law clarifying that “any person taking precaution related to COVID-19 in response to a declared state of emergency or from guidance from a medical professional, local or state health official, or any civil authority shall be
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disability” provision to “appl[y] equally to voters who are experiencing symptoms of COVID19 . . . and those who are self-quarantining as a preventative measure.”73 B. South Carolina’s Witness Requirement will deny large numbers of eligible voters the
right to vote yet provides only marginal benefits to the State. 86. As noted, election officials currently have no discretion on whether or not to count an unwitnessed absentee ballot—they must reject the ballot and are not required to give notice to the voter or opportunity to cure. S.C. Code Ann. § 7-15-420. 87. Yet in the current pandemic, individuals living alone have no safe means to have an individual witness and sign their ballot envelope. Under the Governor’s current “Home or Work” order, individuals are required to shelter in place. Even if people do leave their homes, the state directs them to maintain at least six feet of distance from others with whom they do not live. These orders also reflect the consensus of doctors and public health officials. Indeed, a recent study found that COVID-19 bearing droplets could travel as far as 23 to 27 feet.74 88. Older South Carolinians and those with certain preexisting medical conditions face even graver risks by interacting with another individual to obtain a witness signature. But because COVID-19 can afflict individuals of any age and those without preexisting conditions and can spread aggressively through asymptomatic people, any individual living alone faces a real risk of endangering themselves or others by seeking someone to witness their ballot.
deemed to be unable by reason of physical disability to cast their vote in person,” which is one of the reasons set forth in the state constitution that permits a Massachusetts voter to vote by mail). 73 Memorandum from the Sec’y of State and Att’y General to New Hampshire Election Officials re: Elections Operations During the State of Emergency 2 (Apr. 10, 2020), https://www.governor.nh.gov/news-media/press-2020/documents/20200410-absentee-voting.pdf. 74 Lydia Bourouiba, Turbulent Gas Clouds and Respiratory Pathogen Emissions: Potential Implications for Reducing Transmission of COVID-19, JAMA Insights (Mar. 26, 2020), https://jamanetwork.com/journals/jama/fullarticle/2763852.
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89. Nor will the impact of enforcing the witness requirement in an environment in which COVID-19 is still being transmitted be light. Instead, it will likely prevent thousands of eligible South Carolinians from casting ballots.
90. At present, South Carolina has over 3.3 million registered voters.75 Over 620,000 South Carolinians voted in the June 2018 Democratic and Republican primaries. And in the November 2016 general election, over 2.1 million South Carolinians cast ballots.
91. Yet according to 2018 American Community Survey (ACS) statistics from the Census Bureau, 29% of South Carolinians age 18 and older live alone.76 Assuming similar numbers in the 2020 November general election, over 550,000 South Carolinians will face the choice of either risking their health by voting in person or finding a witness for their absentee ballots, or not voting at all.77 Like Plaintiffs, many of them will be forced not to vote in order to protect their health and their community.
92. This burden on the right to vote will fall more heavily upon certain groups—older people, persons with disabilities, and African Americans in South Carolina, among others. For instance, about 39.8% of all South Carolinians living alone are age 65 and older.78 24.7% of South Carolinians age 65 and older live alone, compared to approximately 11% of the general
75 South Carolina Voter Registration Demographics, https://www.scvotes.org/cgibin/scsec/96vr?countykey=ALL&D1=None (last visited Apr. 21, 2020). 76 U.S. Census Bureau, supra note 3, https://data.census.gov/cedsci/table?q=south%20carolina%20single%20person%20households&g=04000 00US45&hidePreview=false&tid=ACSDP1Y2018.DP02&vintage=2018&layer=VT_2018_040_00_PY_ D1&cid=DP02_0001E. 77 Id. 78 Id.
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population.79 33.2% of South Carolinians 18 and older with a disability live alone and 33.8% of South Carolinians 65 and older with a disability live alone. Of all African American households, 33.2% are people who live alone. Of all white households, 28.2% are people who live alone. And 14.8% of all African American households in South Carolina are headed by women who live alone with their children under 18 (i.e., people who are not legally competent witnesses) versus just 3.9% of similar white households.
93. As noted above, older individuals already face higher rates of infection and death from COVID-19, further magnifying its impact. And the CDC has found that “some people with disabilities might be at a higher risk of infection or severe illness because of their underlying medical conditions.”80
94. Evidence has also revealed stark racial disparities in the impact of COVID-19 that will result in disparate burdens on minority voters. These figures mirror developing trends in other states, such as Maryland and North Carolina, which have both released data showing that African Americans face higher rates of both infection and death from COVID-19 than the population as a whole.81
79 U.S. Census Bureau, 2010-2018 American Community Survey 1-Year Estimates: ACS Demographic and Housing Estimates: South Carolina (2018), https://data.census.gov/cedsci/table?q=south%20carolina%20demographics&g=0400000US45&tid=ACS DP1Y2018.DP05 (last visited Apr. 21, 2020). 80 Ctrs. for Disease Control & Prevention, People with Disabilities, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-disabilities.html (last updated Apr. 7, 2020). 81 N. Carolina Dep’t Health & Human Servs., COVID-19 North Carolina Dashboard, https://www.ncdhhs.gov/divisions/public-health/covid19/covid-19-nc-case-count#by-race/ethnicity (last updated Apr. 21, 2020); Fenit Nirappil et al., Record set for single-day covid-19 deaths in D.C., Maryland and Virginia at 53; black residents hit hardest, WASH. POST (Apr. 9, 2020), https://www.washingtonpost.com/local/covid-19-deaths-hit-new-high-in-dc-maryland-and-virginia-at-53Black-residents-hit-hardest/2020/04/09/cc85cd14-77b3-11ea-b6ff-597f170df8f8_story.html.
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95. The Witness Requirement will therefore likely prevent tens of thousands of South Carolinians who might otherwise cast absentee ballots from doing so this year, with a disproportionate impact falling on older voters, voters with disability, and African-American voters.
96. The witness requirement is particularly burdensome for African Americans in South Carolina, who are more likely to live alone and thus will be more likely to risk exposure to COVID-19 in the course of obtaining a witness signature. African Americans in South Carolina continue to bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process. It is precisely because of these patterns that African Americans in South Carolina face particularly severe health risks from COVID-19 exposure. In these circumstances, the witness requirement interacts with these conditions to deny African Americans in South Carolina an equal opportunity to participate in the political process.
97. Protecting election integrity and preventing improper use of absentee ballots certainly are valid governmental interests, but maintaining the Witness Requirement during the current pandemic fails to serve or protect those interests. As Defendant Andino wrote in the SEC Letter urging changes to the elections process in light of the ongoing pandemic: “the witness signature offers no benefit to election officials as they have no ability to verify the witness signature.” Ex. 2, at 3. In fact, South Carolina already exempts voters in the military or living abroad from the Witness Requirement. S.C. Code Ann. § 7-15-380(B).
98. And to the extent the Witness Requirement did serve these or any other governmental interests, it would be substantially outweighed by its massive burden on South Carolina voters, particularly as compared to other procedures that serve the same interests.
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99. The Witness Requirement is not South Carolina’s sole method of policing the integrity of absentee ballots—far from it. Indeed, only 10 other states even contain a similar requirement, yet absentee balloting systems in the remaining 40 are not undermined by fraud.82
100. Meanwhile, South Carolina has several other vehicles to both confirm the legitimacy of the absentee ballot cast and disincentivize fraudulent use of absentee ballots.
101. For one, the board of voter registration and elections assigns each absentee ballot application a specific serial number, which is then memorialized in a “record book.” S.C. Code Ann. § 7-15-330. The record book is updated to reflect:
a. the applicant’s name, home address, and absentee mailing address (if different), the date on which the form is requested, and the date on which it is issued, id.;
b. the date on which the ballot(s), printed instructions, envelope marked “Ballot Herein,” return-addressed envelope are requested by written application and the date they are issued to the elector, S.C. Code Ann. § 7-15-370;
c. the date on which the return-addressed envelope and enclosed ballot(s) are received by the board, S.C. Code Ann. § 7-15-385.
102. Only return-addressed envelopes that are received and recorded in the record book by these procedures are securely stored “in a locked box within the office of the board of voter registration and elections.” S.C. Code Ann. § 7-15-385. By law, absentee ballots “remain in the custody of the county board of voter registration and elections until” they are transferred “for the
82 Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, Nat’l Conf. of State Legislatures (Apr. 14, 2020), https://www.ncsl.org/research/elections-and-campaigns/absentee-andearly-voting.aspx (select tab titled “Processing, Verifying, and Counting Absentee Ballots” and scroll down to the chart “Verifying Authenticity of Absentee/Mailed Ballots.”)
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purpose of tabulation and reporting . . . .” S.C. Code Ann. § 7-15-410. 103. Any elector or qualified watcher may challenge the absentee vote of any person
whom they suspect is not a qualified voter. S.C. Code Ann. § 7-13-810. Id. § 7-13-830, and § 715-420.
104. Most directly, of course, voters themselves must attest under penalty of perjury their identity, residence, and that they will not double vote when they request their absentee ballot. S.C. Code Ann. § 7-15-340. They must so attest again when they sign their ballot envelope. Id. § 7-15-380.
105. Any person who fraudulently attests to the absentee ballot application by voting more than once in the same election is guilty of a misdemeanor and subject to a fine of up to $500 or imprisonment for up to a year. S.C. Code Ann. §§ 7-15-340, 7-25-20. They are separately guilty of the offense of “voting more than once at elections” and may be fined at the discretion of the court or imprisoned as long as three years. Id. § 7-25-110.
106. Other provisions of law establish similar penalties for “impersonating a voter.” Id. § 7-25-120. And for “swearing falsely at elections or taking oath in another’s name.” Id. § 725-150.
107. In light of these attestation and verification requirements and criminal penalties associated with misusing absentee ballots, the additional step of requiring a witness signature adds no meaningful protection against fraud. Indeed, while instances of fraud are exceedingly rare, an individual determined to break these laws and risk the penalties can just as easily forge the signature of another individual as they can falsely attest when they sign their own name. Indeed, the Witness Requirement has little if any practical utility for election integrity because South Carolina law does not require witnesses to identify themselves by printing their name or
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providing any other information. Indeed, the Witness Requirement has little if any practical utility for election integrity because South Carolina law does not require witnesses to identify themselves by legibly printing their name or providing any information than an address. S.C. Code Ann. § 7-15-380.
108. As Defendant Andino explained: “Removing the requirement for a witness signature would remove a barrier many voters would likely encounter while in self-isolation.” Ex. 2, at 3. The burden on the voting rights of the many thousands of South Carolinians who will be prevented from either casting their ballots safely or having them counted by retaining the Witness Requirement far outweighs any upside of the requirement, if any.
CLAIM FOR RELIEF COUNT ONE
Violation of the Fundamental Right to Vote 42 U.S.C. § 1983, First and Fourteenth Amendments to the U.S. Constitution 109. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 110. Eligible individuals have a fundamental right to vote under the First and Fourteenth Amendments of the U.S. Constitution. Under the First and Fourteenth Amendments, a court considering a challenge to a state election law must carefully balance the character and magnitude of the injury to the rights that the plaintiff seeks to vindicate against the justifications put forward 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). 111. In light of the COVID-19 pandemic, South Carolina’s Excuse Requirement, Witness Requirement, and their enforcement severely and unreasonably burden the fundamental right to vote of South Carolina voters. These requirements will likely prevent thousands of
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eligible voters from casting ballots that are then counted, with particularly heavy burdens on older South Carolinians, voters with disabilities, and African American voters.
112. Therefore, Defendants, acting under color of state law, have and will continue to deprive Plaintiffs of rights secured to them by the First and Fourteenth Amendments to the U.S. Constitution—namely, the fundamental right to vote—and protected by 42 U.S.C. § 1983 by enforcing the Challenged Requirements.
COUNT TWO Violations of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301 113. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the Count below as though fully set forth herein. 114. Section 2 of the Voting Rights Act provides in part that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State . . . in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .” 52 U.S.C. § 10301(a). 115. The “essence of a [Section] 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 black and white voters to elect their preferred representatives.” League of Women Voters of N. Carolina v. North Carolina (“LWV”), 769 F.3d 224, 238–39 (4th Cir. 2014) (internal quotation marks and citation omitted). “[A] Section 2 vote-denial claim consists of two elements: First, the challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
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Second, that burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class. LWV, 769 F.3d at 240 (internal quotation marks and citations omitted). 116. As it has been interpreted by Defendants, the Excuse Requirement, if not enjoined, will materially burden the right to vote, and will have an adverse and disparate impact on African-American voters in South Carolina. Black voters in South Carolina are more likely to work in jobs that expose them to COVID-19, less likely to have insurance or financial resources, and more likely to suffer from severe health complications and/or to die from COVID-19 than white voters. Black voters are therefore significantly more burdened by the effects of the Excuse Requirement. 117. Likewise, the Witness Requirement, if not enjoined, will materially burden the right to vote, and will have an adverse and disparate impact on African-American voters in South Carolina. Black voters in South Carolina are more likely to work in jobs that expose them to COVID-19, less likely to have insurance or financial resources, more likely to live alone, and more likely to suffer from severe health complications and/or to die from COVID-19 than white voters. Black voters are therefore significantly more burdened by the effects of the Witness Requirement. 118. The disparate burden resulting from the Challenged Requirements is directly linked to social and historical conditions. South Carolina has a long history of voting-related discrimination, including the recent use of witness requirements, property qualifications, and photo ID laws. From 1965 to 2013, South Carolina was covered by the preclearance provisions of the Voting Rights Act. Since 2000, the U.S. Department of Justice has objected to eleven
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proposed voting changes in South Carolina due to those changes’ potentially racially discriminatory purpose or effect.
119. African Americans in South Carolina continue to suffer from discrimination in other areas such as education, employment, and health, which hinders their ability to participate effectively in the political process. According to the ACS, in South Carolina, 11.6% of African Americans and 8.3% of white people lack health insurance; 38.6% of African Americans and 33.1% of white people over age 65 have a disability; 14.2% of African Americans and 11.6% of white people age 18 to 64 have a disability; 16.1% of African-American and only 8.7% of white people lack a high school degree; 8% of Black and 4.1% of white people over age 16 are unemployed; 21.1% of African-American and 6.4% of white households in general lived below the poverty line; 17% of African Americans over 65 versus 7.1% of whites over 65 also live in poverty; 13.6% African-American and only 3.5% of white households lack a vehicle; 84.7% of African-American and 92% of white households have a computer or “smart phone”; even among those people with computers, 28.3% of African-American and just 14.9% of white households lack broadband internet; 24.2% of African-American and 6.5% of white households use SNAP/food stamps; and African-American median family income ($42,910) is nearly half that of white families ($76,382). In particular, as discussed above at ¶¶ 53-56, these discriminatory patterns render African-American voters more vulnerable to COVID-19, such that the Challenged Requirements are particularly burdensome for them as a group relative to other voters. In addition, voting is racially polarized in South Carolina and African Americans do not hold elected office in portion to their population, resulting in state elected officials who are less responsive to the health, voting, and other concerns of African-American voters amid the COVID-19 crisis.
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120. Under the totality of the circumstances, the Challenged Requirements interact with these social and historical conditions to abridge and deny African Americans in South Carolina the right to vote. As a result of the Challenged Requirements, African Americans in South Carolina will have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
COUNT THREE Violations of Sections 3 and 201 of the Voting Rights Act, 52 U.S.C. §§ 10302, 10501
121. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein.
122. Section 201 of the Voting Rights Act categorically prohibits the use of “any test or device” as a “prerequisite for voting or registration for voting,” stating that “[n]o 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.” 52 U.S.C. § 10501(a). Section 201 defines the phrase “test or device” as 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(b)(4).
123. Section 201 is a “potent weapon” and it applies to “any official with control over any aspect of the election . . . .” United States v. Bd. of Comm’rs of Sheffield, 435 U.S. 110, 12021 (1978). For that reason, the U.S. Department of Justice has employed the Voting Rights Act to block literacy and witness requirements in the absentee voting or voter registration process.83
83 Letter from Bill Lann Lee, Acting Assist. Att’y Gen., U.S. Dep’t of Just., Civ. Rights Div., to Hon. Robert A. Butterworth, Att’y Gen., State of Florida (Aug. 14, 1998), https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/FL-1030.pdf;
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124. “All literacy tests and similar voting qualifications were abolished” by the Voting Rights Act because, “[a]lthough such tests may have been facially neutral, they were easily manipulated to keep blacks from voting.” N.W. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 198 (2009). This per se ban on tests and devices “bars certain types of voting tests and devices altogether” and removes the burden of demonstrating the discriminatory application of a test or device. Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 338 n.6 (2000).
125. The Witness Requirement is a prohibited “test or device” insofar as it is a “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(b). An absentee “ballot may not be counted unless the oath is properly signed and witnessed . . . .” S.C. Code Ann. § 715-420. Under the plain text of the Voting Rights Act, this is per se prohibited as an illegal test or device.
126. The South Carolina Supreme Court has previously concluded that the Witness Requirement is justified because it has “as its purpose the assurance of the authenticity of the absentee vote . . . .” Gregory v. S.C. Democratic Exec. Comm., 247 S.E.2d 439, 444 (S.C. 1978).
127. That justification cannot overcome the plain text of the Voting Rights Act. Indeed, other “supporting witness” requirements outlawed by the Voting Rights Act were likewise justified as necessary to authenticate a voter’s identity. See, e.g., United States v. Ward, 349 F.2d 795, 799 (5th Cir. 1965). In any event, even if the interest in authenticating a voter’s identity could, in some circumstances, justify certain kinds of limited witness requirements, it
Letter from Jerris Leonard, Assist. Att’y Gen., U.S. Dep’t of Just., Civ. Rights Div., to Hon. MacDonald Gallion, Att’y Gen., State of Alabama (Mar. 13, 1970), https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/AL-1100.pdf.
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cannot justify the Witness Requirement where, as described above at ¶¶ 97-108, South Carolina law already includes other, more reliable means of confirming a voter’s identity.
128. In light of the COVID-19 pandemic, South Carolina’s Witness Requirement requires thousands of voters, including Plaintiffs, to either comply with a per se illegal “test or device” or have their vote discarded in violation of the Voting Rights Act.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully requests that this Court: A. Declare that South Carolina’s enforcement and interpretation of the Excuse Requirement (as stated in S.C. Code Ann. § 7-15-320 and § 7-15-310) while the risk of COVID19 transmission in South Carolina remains violates the fundamental right to vote under First and Fourteenth Amendments to the U.S. Constitution and the Voting Rights Act; B. Declare that South Carolina’s enforcement of the Witness Requirement (as stated in S.C. Code Ann. § 7-15-220) while the risk of COVID-19 transmission in South Carolina remains violates the fundamental right to vote under the First and Fourteenth Amendments to the U.S. Constitution and the Voting Rights Act. C. Issue a preliminary and permanent injunction that orders relief including:
1. Prohibiting Defendants from enforcing the Excuse Requirement (as stated in S.C. Code Ann. § 7-15-320 and § 7-15-310) to prevent any eligible voter, regardless of age and physical condition, to request, receive, and have counted, an absentee ballot, at least while emergency orders concerning COVID-19 are in place and/or while public health officials continue to recommend social distancing practices due to risk of community transmission of COVID-19; 47

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2. Prohibiting Defendants from enforcing the Witness Requirement (as stated in S.C. Code Ann. § 7-15-220) for all voters, at least while emergency orders concerning COVID-19 are in place and/or while public health officials continue to recommend social distancing practices due to risk of community transmission of COVID-19;
3. Ordering Defendants to issue guidance instructing city and county election officials to count otherwise validly cast absentee ballots that are missing a witness signature for South Carolina’s primary and general elections in 2020; and
4. Ordering Defendants to modify election materials, including absentee ballots, to reflect the elimination of the Excuse and Witness Requirements, and conduct a public information campaign informing South Carolina voters about the elimination of the Excuse and Witness Requirements, in coordination with city and county officials before and during the absentee balloting period, and ordering Defendants to issue guidance instructing city and county election officials to issue absentee ballots to all eligible voters and to count otherwise validly cast absentee ballots that are missing a witness signature;
D. Award Plaintiffs attorneys’ fees in this action; E. Award Plaintiffs their costs of suit; and F. Grant such other and further relief as this Court deems just and proper in the circumstances.
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Dated: April 22, 2020

Respectfully submitted,

Adriel I. Cepeda Derieux* Dale E. Ho* Sophia Lin Lakin* Davin M. Rosborough* Theresa J. Lee* Brian Hauss* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2500 acepedaderieux@aclu.org dho@aclu.org

/s/ Susan K. Dunn Susan K. Dunn (Fed. Bar #647) American Civil Liberties Union of South Carolina Charleston, SC 29413-0998 Tel.: (843) 282-7953 Fax: (843) 720-1428 sdunn@aclusc.org
Attorneys for Plaintiffs

Deuel Ross* NAACP Legal Defense &
Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 Tel.: (212) 965-2200 dross@naacpldf.org

*Motion for admission Pro Hac Vice forthcoming

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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

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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

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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.

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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-01552-JMC Date Filed 04/28/20 Entry Number 7 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
MARY T. THOMAS, et al.,

Plaintiffs, v.

Case No.: 3:20-cv-01552-JMC

MARCI ANDINO, et al.,

Defendants.

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs Mary T. Thomas, Nea Richard, Jeremy Rutledge, Trena Walker, Dr. Brenda Williams, and the Family Unit, Inc. (collectively, “Plaintiffs”) respectfully move the Court pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction restraining Defendants and their respective agents, officers, employees, and successors, and all persons acting in concert with each or any of them, from enforcing (a) the requirement that voters requesting a mail-in absentee ballot fall within a limited list of “excuses,” which does not include self-isolation due to COVID-19, S.C. Code Ann. § 7-15-320 and § 7-15-310 (the “Excuse Requirement”), and (b) the requirement that voters mailing in absentee ballots must have another adult sign as a witness on the ballot’s envelope, S.C. Code Ann. § 7-15-220 and § 7-15-420 (the “Witness Requirement,” collectively with the Excuse Requirement, the “Challenged Requirements” or “Requirements”). In support of their motion, Plaintiffs rely upon the accompanying Brief in Support of Plaintiffs’ Motion for a Preliminary Injunction, and the attached declaration and exhibits. South Carolina and the United States are in the middle of an unprecedented health crisis. To fight the spread of COVID-19, every American has been urged by public health authorities to

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7 Page 2 of 4
socially distance themselves to try to slow the spread of the virus, including the residents of South Carolina, who have been ordered by the Governor to remain at “home or work” to prevent contagion and greater loss of life. S.C. Exec. Order 2020-21.
However, the Challenged Requirements, together and separately, force voters, including the five individual Plaintiffs, to make the unconscionable choice between protecting their health and lives (and those of their families and communities) and exercising their fundamental right to vote. The Excuse Requirement severely burdens the right to vote of any South Carolina voter who does not fit one of the listed absentee “excuses” a way to safely vote from “home or work,” as the Governor’s order instructs and as public health social distancing guidelines recommend. And it imposes an extreme burden on voters—like Plaintiffs Jeremy Rutledge and Trena Walker—who are vulnerable to severe complications from COVID-19 (e.g., because they have chronic but treatable conditions like diabetes, asthma, or emphysema), but commonly vote in person and do not therefore qualify to vote absentee under South Carolina’s “physical disability” exception. See S.C. Code Ann. § 7-15-310.
Similarly, the Witness Requirement forces voters like Plaintiff Mary Thomas and Brenda Williams—both of whom are elderly—to break social distancing or self-quarantine guidelines in order to have someone witness and sign their absentee ballots.
If 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.
Plaintiffs are therefore entitled to a preliminary injunction because they are substantially likely to succeed on the merits of their claim that the Challenged Requirements severely burden the right to vote in violation of the First and Fourteenth Amendments to the U.S. Constitution for
2

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many thousands of South Carolinians, particularly elderly, disabled, and/or African-American voters. Plaintiffs are also likely to succeed on their claim that the Witness Requirement constitutes a per se illegal “test or device” under Section 201 of the Voting Rights Act of 1965. 52 U.S.C. § 10501.
Plaintiffs are also entitled to relief because they will suffer irreparable harm absent relief, and traditional legal remedies will not adequately protect their rights. Further, the harm to Plaintiffs and other voters in South Carolina outweighs any putative harm to the Defendants. Finally, the relief sought by Plaintiffs is in the public interest.
To protect the lives and rights of them and others, Plaintiffs respectfully request that the Court enter a preliminary injunction: (1) 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; (2) prohibiting Defendants from enforcing the Witness Requirement, id. § 7-15-220 and § 7-15-420, for all voters for the June 9 primary election; and (3) ordering 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.
3

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Dated: April 27, 2020

Respectfully submitted,

Adriel I. Cepeda Derieux* Dale E. Ho* Sophia Lin Lakin* Davin M. Rosborough* Theresa J. Lee* Brian Hauss* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2500 acepedaderieux@aclu.org dho@aclu.org

/s/ Susan K. Dunn Susan K. Dunn (Fed. Bar #647) American Civil Liberties Union of South Carolina Charleston, SC 29413-0998 Tel.: (843) 282-7953 Fax: (843) 720-1428 sdunn@aclusc.org
Attorneys for Plaintiffs

Deuel Ross* NAACP Legal Defense &
Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 Tel.: (212) 965-2200 dross@naacpldf.org

*Motion for admission Pro Hac Vice forthcoming

4

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

MARY T. THOMAS, et al.,
Plaintiffs, v. MARCI ANDINO, et al.,
Defendants.

Case No.: 3:20-cv-01552-JMC

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS
FACTUAL BACKGROUND..........................................................................................................3 I. The COVID-19 Pandemic................................................................................................... 3 II. Public Health Guidance Regarding COVID-19.................................................................. 4 III. The Effect of COVID-19 in South Carolina ....................................................................... 6 IV. South Carolina’s Upcoming Elections................................................................................ 8 V. South Carolina’s Absentee Ballot Excuse and Witness Requirements .............................. 9 VI. South Carolina’s Laws Supporting Absentee Voting Election Integrity .......................... 11 VII. The Public Health and Disenfranchisement Consequences of the Challenged
Requirements During Significant COVID-19 Transmission.............................................12
A. The Excuse Requirement ........................................................................................12 B. The Witness Requirement ......................................................................................13 C. The Challenged Requirements and COVID-19’s Severe Impact on African
Americans in South Carolina .................................................................................14 VIII. Injuries and Irreparable Harm to Plaintiffs ....................................................................... 17 ARGUMENT ................................................................................................................................ 19 I. Plaintiffs Are Likely to Prevail on the Merits of Their Claims Against the Challenged
Requirements. ................................................................................................................... 19 A. The First and Fourteenth Amendment require South Carolina to eliminate the
Excuse Requirement under current circumstances. ...............................................21 1. The Excuse Requirement should be assessed under heightened scrutiny
because it severely burdens the rights of all South Carolinians by depriving them of the ability to safely vote in State elections........................................21
a. Plaintiffs are likely to succeed in demonstrating the Excuse Requirement unreasonably burdens the right to vote of all South Carolina voters who would vote in person outside of the COVID-19 pandemic. .............................................................................................22
b. Plaintiffs will likely succeed in demonstrating that the Excuse Requirement unreasonably burdens voters who do not qualify to vote absentee and places voters and poll workers at higher-risk of COVID19 infections. ........................................................................................23 ii

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2. The Excuse Requirement’s burden on voters is unjustified because Defendants lack an interest in putting voters at risk of COVID-19 infection and have construed a state statute to violate the fundamental rights of voters. ...............................................................................................25
B. The Witness Requirement Severely Burdens and Violates the Constitution and Fundamental Right to Vote of People who are affected by COVID-19. ........28 1. The Witness Requirement significantly burdens many thousands of South Carolina voters who live alone—especially voters who are older, black, or have disabilities—faced with disenfranchisement or the risk of death. .............................................................................................28 2. The severe burdens imposed by the witness requirement in the context of the ongoing COVID-19 pandemic merit heightened judicial scrutiny. .............................................................................................32 3. The absentee witness requirement’s severe burdens on voters far outweighs its minimal-to-nonexistent promotion of election integrity. .........33 4. The Witness Requirement violates the categorical prohibition on “voucher” or supporting witness requirements in Section 201 of the VRA. ...............................................................................................................35
II. Plaintiffs Will Suffer Irreparable Harm Absent a Preliminary Injunction.........................36 III. The Balance of Equities and Public Interest Support Injunctive Relief. ...........................38 CONCLUSION............................................................................................................................. 39
iii

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TABLE OF AUTHORITIES

CASES

PAGE(S)

Action NC v. Strach, 216 F. Supp. 3d 597 (M.D.N.C. 2016) ....................................................... 38

Anderson v. Celebrezze, 460 U.S. 780 (1983) .............................................................................. 20

Arcia v. Fla. Sec’y of State, 772 F.3d 1335 (11th Cir. 2014) ....................................................... 36

Burdick v. Takushi, 504 U.S. 428 (1992)...................................................................................... 20

Common Cause Georgia v. Kemp, 347 F. Supp. 3d 1270 (N.D. Ga. 2018) ................................. 37

Common Cause Ind. v. Lawson, 327 F. Supp. 3d 1139 (S.D. Ind. 2018) ..................................... 37

Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008) ....................................................... 23

Di Biase v. SPX Corp., 872 F.3d 224 (4th Cir. 2017)................................................................... 19

Diretto v. Country Inn & Suites by Carlson, No. 16-cv-1037, 2016 WL 4400498 (E.D. Va. Aug. 18, 2016) ............................................... 39

Esshaki v. Whitmer, No. 20-cv-10831, 2020 WL 1910154 (E.D. Mich. Apr. 20, 2020) ............. 21

Faulkner v. Va. Dep’t of Elections, No. CL 20-1546 (Va. Cir. Ct. Mar. 25, 2020) ..................... 20

Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250 (N.D. Fla. 2016) ..................................... 21

Fusaro v. Cogan, 930 F.3d 241 (4th Cir. 2019) ........................................................................... 20

Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344 (S.D. Ga. 2016)............ 21

Giovani Carandola, Ltd. v. Bason, 303 F.3d 507 (4th Cir. 2002) ................................................ 38

Gregory v. S.C. Democratic Exec. Comm., 247 S.E.2d 439 (S.C. 1978) ..................................... 36

League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155 (N.D. Fla. 2012) .............. 38

League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205 (N.D. Fla. 2018) ......... 26

League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014) ................... 37

iv

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TABLE OF AUTHORITIES (CONTINUED)

CASES

PAGE(S)

Libertarian Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687 (N.D. Ill. Apr. 23, 2020)................................................. 21

Libertarian Party of Va. v. Judd, 718 F.3d 308 (4th Cir. 2013) ............................................. 22, 34

Lodge v. Buxton, 639 F.2d 1358 (5th Cir. 1981) .......................................................................... 36

Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591 (4th Cir. 2013) ................................................................................................... 19

N.C. State Conf. of NAACP v. Cooper, No. 18-cv-1034, 2019 WL 7372980 (M.D.N.C. Dec. 31, 2019) .............................................. 37

N.W. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009)........................................ 35

Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008).......................................................................... 32

Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612 (6th Cir. 2016) ................. 34

O’Brien v. Skinner, 414 U.S. 524 (1974)...................................................................................... 33

One Wisconsin Institute Inc. v. Thompson, 198 F.Supp. 3d 896 (W.D. Wis. 2016)..................... 37

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) ........................................................................................................... 21

Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013) ............................................................................. 39

Pisano v. Strach, 743 F.3d 927 (4th Cir. 2014) ............................................................................ 23

Price v. N.Y. State Bd. of Elections, 540 F.3d 101 (2d Cir. 2008)................................................ 28

Republican Party of Ark. v. Faulkner Cty., 49 F.3d 1289 (8th Cir. 1995) ................................... 35

Reynolds v. Sims, 377 U.S. 533 (1964)......................................................................................... 39

v

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TABLE OF AUTHORITIES (CONTINUED)

CASES

PAGE(S)

Tex. Democratic Party v. DeBeauvoir, No. D1-GN-001610 (Travis Cty. Dist. Ct. Apr. 17, 2020) ....................................................... 38

Thakker v. Doll, No. 1:20-cv-480, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) ....................... 37

Tolman v. Doe, 988 F. Supp. 582 (E.D. Va. 1997)....................................................................... 39

United States v. Cecil, 836 F.2d 1431 (4th Cir. 1988).................................................................. 19

United States v. Logue, 344 F.2d 290 (5th Cir. 1965) .................................................................. 37

United States v. Ward, 349 F.2d 795 (5th Cir. 1965) ................................................................... 36

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ............................................................ 19

STATUTES AND REGULATIONS 52 U.S.C. § 10310(c)(1)................................................................................................................ 38 52 U.S.C. § 10501(a) .................................................................................................................... 38 52 U.S.C. § 10501(b) .................................................................................................................... 38 52 U.S.C. § 10501(b)(4) ............................................................................................................... 38 S.C. Code Ann. § 7-13-830........................................................................................................... 14 S.C. Code Ann. § 7-15-310........................................................................................................... 13 S.C. Code Ann. § 7-15-310(4) ................................................................................................ 26, 27 S.C. Code Ann. § 7-15-220..................................................................................................... 11, 40 S.C. Code Ann. § 7-15-320..................................................................................................... 12, 40 S.C. Code Ann. § 7-15-320(B) ..................................................................................................... 13 S.C. Code Ann. § 7-15-330..................................................................................................... 13, 14
TABLE OF AUTHORITIES vi

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(CONTINUED)

STATUTES AND REGULATIONS

PAGE(S)

S.C. Code Ann. § 7-15-340..................................................................................................... 12, 13

S.C. Code Ann. § 7-15-370..................................................................................................... 13, 14

S.C. Code Ann. § 7-15-380........................................................................................................... 14

S.C. Code Ann. § 7-15-385........................................................................................................... 14

S.C. Code Ann. § 7-15-410........................................................................................................... 14

S.C. Code Ann. § 7-15-420........................................................................................................... 14

S.C. Code Ann. § 7-25-20............................................................................................................. 15

S.C. Code Ann. § 7-25-120........................................................................................................... 15

S.C. Code Ann. § 7-25-150........................................................................................................... 15

S.C. Code Ann. § 7-13-810........................................................................................................... 14

W. Va. Code R. § 153-53-1 .......................................................................................................... 30

W. Va. Code R. §§ 153-53-2–153-53-3........................................................................................ 30

OTHER AUTHORITIES

S. Rep. 103-6, 1993 WL 54278 (1993)......................................................................................... 36

S.C. Exec. Order No. 2020-21 ...................................................................................... 1, 22, 26, 39

vii

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COVID-19 has upended our lives in previously unthinkable ways. But the fundamental right to vote must endure in extraordinary times. This case concerns two requirements that threaten the right to vote of South Carolinians in the ongoing crisis: (a) the requirement preventing voters from requesting a mail-in ballot if they fall outside a list of “excuses” that does not, at present, include self-isolation due to a pandemic (the “Excuse Requirement”), and (b) South Carolina’s witness requirement, which mandates that voters submitting mail ballots must have another individual sign as a witness on the voter’s envelope (the “Witness Requirement,” collectively with the Excuse Requirement, the “Challenged Requirements” or “Requirements”).
In this pandemic, the Challenged Requirements will put voters to an untenable choice between disenfranchisement, on the one hand, and risking their lives and the health of their communities, on the other. Indeed, the Requirements will force tens or even hundreds of thousands of voters to do precisely the opposite of what the Governor and public health officials have ordered or recommended them to do. The Governor has ordered all South Carolinians to remain at home or work unless “commuting for work, visiting family, [or] obtaining essential goods or services.”1 Yet jointly and separately, these Requirements will compel countless South Carolina voters to venture from the safety of their homes to participate in their democracy, at serious risk to their health. Indeed, “[f]orty people in Milwaukee County may have become infected with the coronavirus as a result of participating in Wisconsin elections on April 7.” Attach. A to Cepeda Decl.2 And these Requirements will pose a particularly egregious burden
1 S.C. Exec. Order No. 2020-21 at 6 (Apr. 6, 2020) https://governor.sc.gov/sites/default/files/Documents/ExecutiveOrders/2020-04-06%20eFILED%20Executive%20Order%20No.%202020-21%20%20Stay%20at%20Home%20or%20Work%20Order.pdf; see also Off. of Gov. McMaster, Governor McMaster Issues “Home or Work” Order, S.C. GOV. (Apr. 7, 2020), https://governor.sc.gov/news/2020-04/governormcmaster-issues-home-or-work-order. 2 See also 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-wisconsin-election-health-official-says#stream/0.
1

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on Black voters, whom State health officials have acknowledged are at disproportionate risk of fatal or severe illness from the disease.
Without a preliminary injunction, voters will have to choose between accepting disenfranchisement or violating the social distancing rules and recommendations that the State itself has said are critical to preserving public health. This impossible choice severely burdens the right to vote, meriting strict, or at least heightened, scrutiny, which the Challenged Requirements cannot survive. The Excuse Requirement fails because South Carolina already allows voters to vote absentee “because of injury or illness,” and the Constitution demands that election laws be read to protect the lives of voters. Moreover, Defendant Andino admits that the burden to the State of making absentee ballots available to all voters is minimal. Separately, the Witness Requirement will compel thousands of voters who live alone to break social distancing to have a third party sign their ballot while “offer[ing] no benefit” to election officials, as Defendant Andino acknowledged. And it per se violates the Voting Rights Act (“VRA”) as an impermissible “test or device.” Even if the Witness Requirement did have some benefit, it is not appropriately tailored to justify the fact that complying with it now puts South Carolina voters in life threatening danger. It needlessly and severely burdens the right to vote and is therefore unconstitutional.
Finally, the balance of the equities and the public interest also support a preliminary injunction. Relief will vindicate the dual public interests of ensuring all qualified voters can vote in June and protecting lives and the public health with little, if any, burden on Defendants. Absent relief, tens or even hundreds of thousands of voters will be forced to risk their health and lives to vote—or simply not vote at all. Plaintiffs therefore request the Court grant a preliminary injunction against the Challenged Requirements for the June 9 statewide primary, and for any
2

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and all subsequent elections in South Carolina at least until such time as in-person interactions needed to comply with them no longer pose a risk to personal safety and the public health.
FACTUAL BACKGROUND I. The COVID-19 Pandemic
The United States is now the epicenter of the global COVID-19 pandemic. As Plaintiffs’ expert Dr. Arthur Reingold explains, the novel coronavirus SARS-CoV-2, causes individuals to contract COVID-19. Declaration of Dr. Arthur Reingold ¶ 7 (attached as Ex. 2). Dr. Reingold is a medical doctor, a public health expert in the area of infectious diseases and epidemiology, and the Division Head of Epidemiology and Biostatistics at the University of California, Berkeley, School of Public Health. Reingold Decl. ¶¶ 1, 3. He spent eight years at the Centers for Disease Control and Prevention (“CDC”), has directed or co-directed the CDC-funded California Emerging Infections Program for more than 25 years, and served as President of both the Society for Epidemiologic Research and the American Epidemiological Society. Id. ¶ 1.
COVID-19 spreads mainly from person-to-person through close contact with one another and through respiratory droplets when an infected person coughs or sneezes. Reingold Decl. ¶ 8. Medical experts are continuing to learn more about the ease with which COVID-19 spreads, including whether it is “aerosolized, such that tiny droplets containing the virus remain in the air and can be inhaled by others who come into contact with that air.” Id.3 People infected may transmit the virus to others even without showing symptoms themselves.4
3 See also Elizabeth Cohen, Experts tell White House coronavirus can spread through talking or even just breathing, CNN (Apr. 4, 2020), https://www.cnn.com/2020/04/02/health/aerosol-coronavirus-spread-white-houseletter/index.html. 4 See, e.g., How COVID-19 Spreads, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited Apr. 6, 2020).
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COVID-19 can cause severe consequences, including long-term illness and death. Reingold Decl. ¶ 7. Estimates from early March put the fatality rate for people infected with COVID-19 at approximately ten times higher than influenza even in a severe season and including in countries with advanced health care systems.5
COVID-19 threatens to infect any individual no matter their age. Reingold Decl. ¶ 7.6 While people of all ages have contracted and died from COVID-19, it is particularly fatal for older individuals. Reingold Decl. ¶ 7. COVID-19 also poses greater risks for people with preexisting heart and respiratory conditions including asthma and individuals with compromised immune systems. Reingold Decl. ¶ 7.7 II. Public Health Guidance Regarding COVID-19
No vaccine currently exists and will likely not for at least another year, at least for the public at large. Reingold Decl. ¶ 13. Public health experts have explained that social distancing measures including maintaining at least six feet of space between people (as well as consistent hygiene practices) are the only known effective measures for protecting against transmission of COVID-19. Id. ¶ 10.8 Accordingly, the South Carolina Department of Health and Environmental Control (“DHEC”) has urged social distancing by “staying home as much as
5See Betsy McKay, Coronavirus vs. Flu: Which Virus is Deadlier, WALL ST. JOURNAL (Mar. 10, 2020), https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier-11583856879; see also Castillo v. Barr, No. 20-00605, 2020 WL 1502864, at *2 (C.D. Cal. Mar. 27, 2020) (“COVID-19 is highly contagious and has a mortality rate ten times higher than influenza.”). 6 See also CDC COVID-19 Response Team, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19)—United States, February 12 – March 16, 2020, CDC Morbidity & Mortality Wkly. Rep., https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm (last updated Mar. 26, 2020). 7 See also Groups at Higher Risk for Severe Illness, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last updated Apr. 17, 2020). 8 See also Johns Hopkins Medicine & Lisa Lockerd Maragakis, Coronavirus, Social and Physical Distancing and Self-Quarantine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-socialdistancing-and-self-quarantine (last visited Apr. 26, 2020).
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possible, staying at least 6 feet away from other people while in public, and avoiding gatherings with many people present.”9 According to DHEC, “[t]hese are the best ways to protect yourself and our communities from the spread of COVID-19.”10
The CDC has also issued guidelines concerning voting during the COVID-19 pandemic. It recommends that states “[e]ncourage voters to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations[,]” including “mail-in methods of voting if allowed in the jurisdiction.”11 This is because there is no evidence that SARS-CoV-2— the virus that causes COVID-19—is being spread through the mail.12
The medical risks of widespread in-person voting during a pandemic are increasingly clear, particularly when polling locations are crowded because the State does not make mail-in voting readily available. In Chicago, a poll worker for the March 17 primary died from COVID19, prompting officials to send letters notifying voters, poll workers, field investigators, and cartage companies who were present at the same polling site.13 In Florida, two Broward County poll workers tested positive for COVID-19.14 And as noted, to date, Wisconsin officials believe
9 Protect Yourself & Those Around You (COVID-19), DHEC, https://www.scdhec.gov/protect-yourself-thosearound-you-covid-19 (last visited Apr. 26, 2020). 10 Id. 11 Recommendations for Election Polling Locations: Interim guidance to prevent spread of coronavirus disease 2019, CTRS. FOR DISEASE CONTROL & PREVENTION, (COVID-19), https://www.cdc.gov/coronavirus/2019ncov/community/election-polling-locations.html (last updated Mar. 27, 2020). 12 Press Release, U.S. Postal Serv., Media Statement – COVID-19 (Apr. 2, 2020), https://about.usps.com/newsroom/statements/usps-statement-on-coronavirus.htm (citing guidance from World Health Organization, CDC, and Surgeon General). 13 Mary Ann Ahern, Poll Worker at Chicago Voting Site Dies of Coronavirus, Election Officials Say, NBC CHICAGO (Apr. 13, 2020), https://www.nbcchicago.com/news/local/chicago-politics/poll-worker-at-chicago-voting-site-diesof-coronavirus-election-officials-say/2255072/. 14 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-coronavirus-20200326-wmgy775dvjc5jis2oagxlpmule-story.html.
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at least “[f]orty people in Milwaukee County may have become infected as a result of
participating in [] elections on April 7.”15
III. The Effect of COVID-19 in South Carolina Governor McMaster declared a State of Emergency on March 13, 2020.16 On March 15,
he closed all public schools through March 31,17 then extended that order through the end of
April.18 He also postponed or rescheduled all elections scheduled on or before May 1, 2020, and
delegated responsibility to the State Election Commission (SEC) to ensure that individuals could
continue to register to vote.19 On March 31, he ordered an enumerated list of “non-essential”
businesses closed.20 He expanded that order to include retail stores on April 3.21
On April 6, Governor McMaster indefinitely ordered all South Carolinians to remain at
home or work unless “commuting for work, visiting family, [or] obtaining essential goods or
15 Attach. A to Cepeda Decl. 16 S.C. Exec. Order No. 2020-08 (Mar. 13, 2020), https://governor.sc.gov/sites/default/files/Documents/ExecutiveOrders/2020-03-13%20FILED%20Executive%20Order%20No.%202020-08%20%20State%20of%20Emergency%20Due%20to%20Coronavirus%20(COVID-19).pdf. 17 S.C. Exec. Order No. 2020-09 §2 (Mar. 15, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0315%20FILED%20Executive%20Order%20No.%202020-09%20%20Closing%20Schools%20Cancelling%20Elections%20Other%20Provisions%20Due%20to%20COVID-19.pdf. 18 Joint Statement from Gov. Henry McMaster, S.C. Superintendent of Education Molly Spearman, S.C. GOV (Mar. 24, 2020), https://governor.sc.gov/news/2020-03/joint-statement-gov-henry-mcmaster-sc-superintendent-educationmolly-spearman. 19 S.C. Exec. Order No. 2020-09 §3 (Mar. 15, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0315%20FILED%20Executive%20Order%20No.%202020-09%20%20Closing%20Schools%20Cancelling%20Elections%20Other%20Provisions%20Due%20to%20COVID-19.pdf. 20 S.C. Exec. Order No. 2020-17 §1(Mar. 31, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0331%20eFILED%20Executive%20Order%20No.%202020-17%20-%20Closure%20of%20NonEssential%20Businesses.pdf. 21 S.C. Exec. Order No. 2020-18 §1(C) (Apr. 3, 2020) https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0403%20eFILED%20Executive%20Order%20No.%202020-18%20-%20Closure%20of%20Additional%20NonEssential%20Businesses.pdf.
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services.”22 Announcing these restrictions, the Governor explained: “‘It is now time to make
these recommended actions required’ . . . ‘too many people are not complying with o[u]r requests for social distancing.’”23 He added: “This is a stay-at-home order.”24 While the
Governor has since modified this order to relax certain restrictions on public beach use and retail businesses,25 the Home or Work order remains in effect.26
As of April 25, DHEC reported over 5,253 COVID-19 diagnoses in South Carolina, resulting in 166 deaths.27 The evidence suggests that community transmission of COVID-19 will persist for the next several months as season changes are “unlikely to stop transmission.”28 As
Dr. Reingold testifies, “transmission of the virus will continue through the population until the
development and widespread use of a vaccine and/or herd immunity.” Reingold Decl. ¶ 12.
Moreover, because other coronaviruses “do not appear to demonstrate seasonality of infection”
and the “current virus has circulated widely in countries currently in their hot seasons,” these
22 S.C. Exec. Order No. 2020-21, supra note 1; see also Off. of Gov. McMaster, supra note 1. 23 Joseph Bustos & Maayan Schechter, Gov. McMaster toughens SC coronavirus stance, ordering state to work or ‘stay home’, THE STATE (Apr. 6, 2020), https://www.thestate.com/news/coronavirus/article241807571.html. 24 Id. 25 See S.C. Exec. Order No. 2020-25 (Apr. 16, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0416%20eFILED%20Executive%20Order%20No.%202020-25%20%20Modification%20of%20Emergency%20Restrictions%20for%20Public%20Waters%20%26%20Emergency%20 Measures%20for%20Unemployment%20Claims%20%26%20Benefits.pdf; S.C. Exec. Order No. 2020-28 (Apr. 20, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0420%20eFILED%20Executive%20Order%20No.%202020-28%20%20Modification%20of%20Restrictions%20for%20Public%20Beaches%20%26%20Waters%20%26%20Increment al%20Modification%20of%20Non-Essential%20Business%20Closures.pdf. 26 See S.C. Exec. Order No. 2020-28, supra note 25. 27 News Release, DHEC, South Carolina Announces Latest COVID-19 Update (Apr. 25, 2020), https://www.scdhec.gov/news-releases/south-carolina-announces-latest-covid-19-update-april-25-2020. 28 Marc Lipsitch, Harvard T.H. Chan Sch. of Pub. Health, Ctr. for Communicable Disease Dynamics, Seasonality of SARS-CoV-2: Will COVID-19 go away on its own in warmer weather? https://ccdd.hsph.harvard.edu/will-covid-19go-away-on-its-own-in-warmer-weather/ (last visited Apr. 26, 2020).
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facts “suggest that transmission of and infection with the virus may not be affected by the weather.” Id. ¶ 12.
State public health officials expect to see 750 cases per week through early May and total cases to grow to almost 7,000 by May 9.29 As of April 20, DHEC advised it “‘remain[ed] absolutely critical that everyone continues to perform the recommended activities to stop the spread.’”30 “[A]s new activities are allowed,” DHEC stressed, it will be “very important that people continue to practice all of the social distancing measures that have been in place and should remain in place.”31 IV. South Carolina’s Upcoming Elections
South Carolina originally had elections for many local races scheduled for late March and April, but Governor McMaster rescheduled all those elections to take place after May 1, 2020.32 He took those actions on his “determination that the [outbreak] poses an actual or imminent public health emergency for the State of South Carolina.”33
South Carolina will hold statewide Democratic and Republican primaries on June 9 and primary runoffs on June 23. Absentee ballot applications for the June 9 primary must be returned to a voter’s county board of elections in person or by mail by June 5 at 5:00 p.m. S.C. Code Ann. § 7-15-330 (“[C]ompleted applications must be returned. . . before 5:00 p.m. on the
29 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. 30 Ray Rivera, DHEC: Reports show curve for COVID-19 cases in SC may have begun flattening; new cases reported, LIVE 5 WCSC NEWS (Apr. 20, 2020) (quoting Dr. Linda Bell, DHEC epidemiologist), https://www.live5news.com/2020/04/20/sc-health-officials-announce-new-cases-covid-more-virus-related-deaths/. 31 Id. 32 Press Release, S.C. Election Comm’n, March & April Elections Postponed Due to Coronavirus (Mar. 15, 2020), https://www.scvotes.org/taxonomy/term/1. 33 S.C. Exec. Order No. 2020-09 at 1 (Mar. 15, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0315%20FILED%20Executive%20Order%20No.%202020-09%20%20Closing%20Schools%20Cancelling%20Elections%20Other%20Provisions%20Due%20to%20COVID-19.pdf.
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fourth day before the day of the election”). Completed ballots must be returned to the county board in person or by mail no later than 7:00 p.m. on election day.34
On March 30, 2020, Defendant Marci Andino wrote various elected officials, including Governor McMaster. Attach. 2 to Cepeda Decl. (hereinafter “SEC Letter”). The SEC 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 1. In the SEC’s view, the “main issue is that [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. It added: “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 1-2.
The SEC Letter recommended various “changes to our election process” that the SEC understood were advisable “[i]n order to safely and securely conduct elections during and following the coronavirus pandemic . . . .” Id. at 2. Among them, the SEC explained, South Carolina should “[a]llow no excuse absentee voting,” id., which it considered a “relatively simple change,” id. at 4. The SEC Letter also recommended “[r]emov[ing] the witness requirement on ballot return envelopes[,]” id., which it explained “offers no benefit to election officials[,]” id. at 3.
To date, South Carolina has not implemented either recommendation. V. South Carolina’s Absentee Ballot Excuse and Witness Requirements
South Carolina is an “excuse-required” state: only specific categories of qualified voters may vote by absentee ballot. S.C. Code Ann. § 7-15-320. Individuals who apply for an absentee
34 Absentee Voting, S.C. Election Comm’n, https://www.scvotes.org/absentee-voting (last visited Apr. 26, 2020).
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ballot must sign an application that declares a “reason for request,” among other information. Id. § 7-15-340. The election laws set out several categories of qualified voters who may vote by mail “whether or not they are absent from their county of residence on election day.” Id. § 7-15320(B). That list includes “physically disabled persons[,]” id., who are voters that “cannot be present in person at [their] voting place on election day” “because of injury or illness,” id. § 715-310. Neither this category nor any of the others listed in the laws “include self-isolating due to a pandemic.” SEC Letter, at 2.
Individuals may apply for an absentee ballot in person or by mail. S.C. Code Ann. § 715-330. Voters must sign the application and affirm an oath stating “I do swear or affirm that I am a qualified elector, that I am entitled to vote in this election, and that I will not vote again during this election. The information above is true in all respects, and I hereby apply for an absentee ballot for the reason indicated above.” Id. § 7-15-340. When a registrar receives an absentee ballot application and verifies that the individual properly competed the application and that they are a registered voter in the jurisdiction, the registrar mails to the individual the several items, including: (a) one of each ballot to be used in the election; (b) printed instructions for each ballot; (c) an envelope marked “Ballot Herein” to place completed ballots; and (d) a returnaddressed envelope for use to return the “Ballot Herein” envelope and all ballots to the board of voter registration and elections, imprinted with an “oath of absentee ballot applicant.” Id. § 715-370.
The oath informs, among other things, that the applicant is qualified to vote in the election, has not already voted, and that the applicant received no assistance in voting that they would not have been entitled to receive had they voted in person.
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To vote, the voter “must mark each ballot on which he wishes to vote,” place each in the single envelope marked “Ballot Herein,” and then place that envelope in the provided returnaddressed envelope. S.C. Code Ann. § 7-15-385. The voter must return their ballot in the return-addressed envelope provided, which must be “signed and witnessed.” Id. § 7-15-220. Starting at 9:00 a.m. on election day, managers begin examining all return-addressed envelopes received by the county boards of election. Id. § 7-15-420. Managers must make sure that each oath has been properly signed and witnessed and includes the witness’s address. 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 that is not counted because of a defective witness signature. VI. South Carolina’s Laws Supporting Absentee Voting Election Integrity
Various South Carolina laws ensure the integrity of absentee balloting procedures. The board of voter registration and elections assigns each absentee ballot application a specific serial number, which is then memorialized in a “record book.” S.C. Code Ann. § 7-15-330. That record book is updated to reflect extensive information about the applicant, including: their name and address, the date on which the ballot and return-addressed envelope are issued, and the date on which the return-addressed envelope (containing the ballot) is received by the board. S.C. Code Ann. §§ 7-15-330, 7-15-370, 7-15-385. Only return-addressed envelopes that are received and recorded in the record book by these procedures are securely stored “in a lock box within the office of the board of voter registration and elections.” Id. § 7-15-385. And only ballots in the return-addressed envelopes in the lock box are counted. Id. § 7-15-410. Voters must attest under penalty of perjury their identity, residence, and that they will not double vote when they request their absentee ballot. Id. § 7-15-340. They must do so again when they sign their ballot
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envelope. Id. § 7-15-380. Moreover, any elector or qualified watcher may challenge the absentee vote of any person whom they suspect is not a qualified voter. See S.C. Code Ann. §§ 7-15-420, 7-13-810, and 7-13-830.
South Carolina also has various criminal laws to prevent and punish misuse of absentee ballots. A person who fraudulently attests to the absentee ballot application by “double-voting” is guilty of a misdemeanor and subject to a fine of up to $500 or imprisonment for up to a year. S.C. Code Ann. §§ 7-15-340, 7-25-20. They are separately guilty of “voting more than once at elections” and may be fined at the court’s discretion or imprisoned as long as three years. Id. § 7-25-110. Other provisions set penalties for “impersonating a voter.” Id. § 7-25-120. And for “swearing falsely at elections or taking oath in another’s name.” Id. § 7-25-150.
South Carolina is only one of eleven states with a witness or notarization requirement.35 There is no indication that the absentee voting systems of the 39 other states without a witness or notarization requirement are overrun by election integrity issues. VII. The Public Health and Disenfranchisement Consequences of the Challenged
Requirements During Significant COVID-19 Transmission A. The Excuse Requirement Voting in person while the risk of transmission of COVID-19 persists is firmly disfavored, and the CDC strongly encourages voters to use “mail-in methods of voting” wherever allowed, among other ways to “minimize direct contact with other people and reduce
35 See Chart, “Verifying Authenticity of Absentee/Mailed Ballots,” Voting Outside the Polling Place: Absentee, AllMail and other Voting at Home Options, Nat’l Conf. of State Legislatures (Apr. 3, 2020), https://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx; cf. Ala. Code §§ 17-930(b), 17-11-7, 17-11-10; Alaska Stat. § 15.20.030; La. Stat. Ann. § 18:1306(2)(a); Miss. Code Ann. §§ 23-15-627, 23-15-635, 23-15-633; Mo. Rev. Stat. §§ 115.279, 115.283, 115.295; N.C. Gen. Stat. § 163-231; Okla. Stat. tit. 26, § 14-108; 17 R.I. Gen. Laws § 17-20-23; S.C. Code Ann. §§ 7-15- 220, 7-15-230; Wis. Stat. § 6.87(4)(b)(1).
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crowd size at locations.”36 “Polling locations are a prime area for increased transmission of SARS-CoV-2 due to the close proximity of a large number of individuals—voters, observers, poll workers—in a limited space.” Reingold Decl. ¶ 17. Moreover, polling sites are “highly likely” to cause increased infection “[d]ue to the transmission of the virus via contaminated environmental surfaces.” Id.
These sobering facts will severely burden any South Carolina voter who lacks an absentee “excuse” and must instead decide between voting in person or not at all.
B. The Witness Requirement For “individuals without another person able to witness in their household, the requirement that they have someone witness their absentee ballot would place them at increased risk of exposure to and/or transmission of COVID-19.” Reingold Decl. ¶ 18. This is because coming “in close enough proximity to witness their ballot would place them at increased risk of infection,” and “would be particularly risky for those who are at a greater risk of complications and death from COVID-19.” Id. And for public health purposes, “to prevent increasing the scope of the outbreak of COVID-19, we must assume that anyone could be infected and infect another person.” Id. ¶ 11. Yet according to 2018 American Community Survey (ACS) statistics from the Census Bureau, 14.5% of South Carolinians age 18 and older live alone. Decl. of William Cooper ¶ 6 (attached as Ex. 3). Assuming similar numbers in the 2020 November general election, over 558,826 South Carolinians will face the choice of either risking their health by voting in person or finding a witness for their absentee ballots, or not voting at all. Id. Like Plaintiffs, the
36 Centers for Disease Control and Prevention, Recommendations for Election Polling Locations: Interim guidance to prevent spread of coronavirus disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019ncov/community/election-polling-locations.html (last updated Mar. 27, 2020).
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Witness Requirement will force most of these individuals to decide between protecting their lives and communities or not having their ballot counted.
This severe burden on the right to vote will fall more heavily on older people, persons with disabilities, and African Americans, among others. About 222,484, or 39.8%, of all South Carolinians living alone are age 65 and older. Cooper Decl. ¶ 6. That means 24.7% of South Carolinians age 65 and older live alone. Id. 148,897, or 26.6%, of South Carolinians 18 and older living alone are disabled and for the subset of 65 and over living alone, 88,940, or 39.2%, are disabled. Cooper Decl. ¶ 7. For the 1.02 million African American of voting age, 170,075, or 16.7%, live alone. Id. ¶ 8. Indeed, 33.2% of African Americans households contain person living alone, as opposed to just 28.2% of white households. Id. ¶ 11(d). And 14.8% of all African-American households in South Carolina are headed by women who live alone with their children under 18 (i.e., people who are not legally competent witnesses) versus just 3.9% of similar white households. Attach. A to Cooper Decl., at 29.
C. The Challenged Requirements and COVID-19’s Severe Impact on African Americans in South Carolina
Nationally, the COVID-19 pandemic has had a particularly devastating effect on AfricanAmerican communities. A CDC report published April 8, 2020, which included data from 1,482 patients hospitalized across 14 states, found that African-American patients made up 33% of those for whom race or ethnicity information was available, despite representing only 18% of the states’ populations.37
Plaintiffs’ expert, Dr. Courtney Cogburn, an associate professor at the Columbia University School of Social Work, explains that racial disparities in serious illness and death due
37 CDC Morbidity and Mortality Weekly Report, Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019—COVID-NET, 14 States, March 1-30, 2020 (Apr. 8, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6915e3-H.pdf.
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to COVID-19 are inextricably tied to past and present patterns of racial discrimination in healthcare, housing, and employment, not just poverty. Declaration of Dr. Courtney D. Cogburn ¶ 7-15 (attached as Ex. 4). This includes racial bias in medical care and the rationing of COVID19 testing and care, higher rates of un-insurance and blue collar “essential” jobs, and even the increased risk of diseases, which is linked to housing segregation. Id. Brenda C. Murphy, current president of the South Carolina State Conference of Branches of the NAACP, explains that “empirical evidence” leads her to “strongly believe . . . that this pandemic has exposed underlying inequalities that have long existed.” Declaration of Brenda C. Murphy ¶ 10 (attached as Ex. 5).
Well-documented trends of racially disparate patterns of illness and mortality due to COVID-19 also exist in South Carolina. As of April 16, African Americans in South Carolina represented 41% of reported COVID-19 cases and 57% of related deaths38 despite making up just 27% of the State’s population.39
South Carolina’s long pattern of racial discrimination results in the health and socioeconomic life patterns that put African Americans at greater risk from COVID-19. For example, because of longstanding racial biases in medical care, African Americans with symptoms like cough and fever are less likely to be given one of the scarce COVID-19 tests. Cogburn Decl. ¶ 15.40 DHEC has also recognized that African Americans are “disproportionately
38 DHEC, SC Demographic Data (COVID-19), https://scdhec.gov/sc-demographic-data-covid-19 (last visited Apr. 21, 2020). 39 U.S. Census Bureau, QuickFacts South Carolina, https://www.census.gov/quickfacts/SC (last visited Apr. 21, 2020). 40 See also Rubix Life Sciences, Health Data in the COVID-19 Crisis: How Racial Equity is Widening for Patients to Gain Access to Treatment (Mar. 20, 2020), https://rubixls.com/wp-content/uploads/2020/04/COVID-19-MinorityHealth-Access-7-1.pdf (Attach. C to Cepeda Decl.); see also Blake Farmer, The Coronavirus Doesn't Discriminate, But U.S. Health Care Showing Familiar Biases, NPR (Apr. 2, 2020), https://www.npr.org/sections/health-
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affected by [lack] of access to care,”41 and that “[u]nderlying medical conditions such as diabetes, heart disease, hypertension, obesity, and asthma might make it more likely that African Americans are admitted to the ICU or die from the disease.”42
Racial discrimination in South Carolina has also resulted in socioeconomic inequalities that disadvantage African Americans. For example, in South Carolina, 24.5% of African Americans and just 15.2% of whites over age 16 work in “blue collar” service occupations—i.e., jobs like grocers, nurses, or other essential workers who are forced to leave home and face increased exposure to COVID-19. Attach. A to Cooper Decl., at 13. Whereas 39.9% of white people versus only 23.1% of African Americans in South Carolina hold management or professional occupations—i.e., “white collar” jobs that are much more likely to allow employees to continue to work safely at home. Id.
According to the ACS, in South Carolina, African Americans are also more likely to lack health insurance (11.6% of African Americans and 8.3% of white people), id. at 18; have a disability (among people over 65, 38.6% of black and 33.1% of white people have a disability, and, among people 18 to 64, 14.2% of African Americans and 11.6% of whites have a disability), id. at 7; lack a high school degree (16.1% of black and only 8.7% of white people), id. at 5; and live below the poverty line (in general, 21.1% of African-American and 6.4% of white households, id. at 19, and, among those over 65, 17.8% of African Americans over 65 versus 7.1% of whites), id. at 22.
shots/2020/04/02/825730141/the-coronavirus-doesnt-discriminate-but-u-s-health-care-showing-familiar-biases (Attach. D to Cepeda Decl.). 41 SouthCarolinaETV, Governor's Update on Coronavirus (COVID-19) | April 16, 2020, YOUTUBE (Apr. 16, 2020), https://www.youtube.com/watch?v=Vv64tAZI_dY. 42 Tonya Brown, More African Americans are dying from COVID-19 than other races in South Carolina, 15 NEWS (Apr. 9, 2020) (quoting DHEC statement), https://wpde.com/news/coronavirus/more-african-americans-dying-fromcovid-19-in-south-carolina (Attach. E to Cepeda Decl.).
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VIII. Injuries and Irreparable Harm to Plaintiffs Individual Plaintiffs Mary Thomas, Nea Richard, Jeremy Rutledge, Trena Walker, and
Dr. Brenda Williams are South Carolina registered voters who regularly vote and wish to do so in the upcoming statewide June 9 primary. Decl. of Mary Thomas ¶ 5 (attached as Ex. 6); Decl. of Nea Richard ¶¶ 2, 5 (attached as Ex. 7); Decl. of Jeremy Rutledge ¶ 10 (attached as Ex. 8); Decl. of Trena Walker ¶ 4 (attached as Ex. 9); Decl. of Brenda Williams ¶¶ 2, 8 (attached as Ex. 10). They all, except Ms. Richard, wish to vote by absentee ballot because of the high risk of exposure to COVID-19 if they vote in person. Thomas Decl. ¶ 5; Richard Decl. ¶ 5; Rutledge Decl. ¶ 10; Walker Decl. ¶ 10; Williams Decl. ¶ 9.
Plaintiffs Rutledge and Walker usually vote in person, do not usually consider themselves unable to vote in person, and are under 65-years-old. Rutledge Decl. ¶¶ 1, 5; Walker Decl. ¶ 10. They do not believe they qualify for any of the absentee “excuses.” Rutledge Decl. ¶ 5; Walker Decl. ¶ 10. Because of the risk of COVID-19 transmission, they will be disenfranchised in the June 9 primary if the Excuse Requirement remains in place or, at a minimum, forced to make a devastating choice between their health and their right to vote. Rutledge Decl. ¶ 11; Walker Decl. ¶¶ 9-10. Plaintiffs Rutledge and Walker both have underlying medical conditions and are at severe risk of complications from COVID-19. Rutledge Decl. ¶¶ 6-7; Walker Decl. ¶¶ 6-7. Were Plaintiff Walker to qualify for an absentee ballot, she would also be disenfranchised by the Witness Requirement, as she lives with three children under the age of 12, none of whom are legally competent to witness and sign her ballot. Walker Decl. ¶¶ 2, 11.
Plaintiffs Thomas and Williams are over 65-years-old and qualify to vote by absentee ballot. Thomas Decl. ¶¶ 1, 5; Williams Decl. ¶¶ 1, 9. However, because Ms. Thomas lives alone, she would have to break social distancing guidelines to have her absentee ballot witnessed or counted to comply with the Witness Requirement. Thomas Decl. ¶¶ 6, 8. She does not intend
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to do so and thus will be disenfranchised if the Witness Requirement remains in place for the June 9 primary. Thomas Decl. ¶¶ 8-9. Dr. Williams, meanwhile, currently has COVID-19 and is self-quarantining. Williams Decl. ¶¶ 8, 11. She is concerned that unnecessarily breaking quarantine to have her absentee ballot witnessed or witnessing the ballots of others, like her husband, will endanger their lives. Williams Decl. ¶¶ 9, 11. Neither Ms. Thomas or Dr. Williams intends to vote in a manner that places them or others at higher risk from COVID-19 infection or death. Thomas Decl. ¶¶ 8-9; Williams ¶¶ 9-11; see also Murphy Decl. ¶ 12 (describing an elderly and disabled NAACP member who also lacks access to a witness).
Plaintiff Richard intends to vote in person and serve as a poll worker on election day. Richard Decl. ¶ 5. On Election Day, she must closely interact with hundreds of voters in a manner that risks COVID-19 infection. Id. ¶ 6. There will not be enough time to properly sanitize voting equipment. Id. ¶ 9. Because the Challenged Requirements will needlessly force voters, like Plaintiffs Rutledge and Walker, to vote in person, she worries that further congestion at the polls will place her at higher risk of infection. Id. ¶ 7.
Plaintiff the Family Unit, Inc. is a nonpartisan, charitable organization with the mission of empowering and serving the needs of the low-income community of Sumter County, South Carolina. Williams Decl. ¶ 3. It is led by Plaintiff Dr. Brenda C. Williams. Id. Its constituents and members are mostly African Americans and/or low-income people with a high school education or less. Id. To serve its mission, the Family Unit educates and registers voters; helps eligible voters to navigate absentee voting; restores abandoned homes for working-poor families to live in; helps people find employment; volunteers with elderly people; and advocates for improved school facilities for children in Sumter County. Id. In recent years, the Family Unit’s members and constituents have had their absentee ballots rejected because of the Witness
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Requirement. Id. ¶ 4. The difficulties experienced by the Family Unit’s members and constituents in attempting to vote absentee under the Challenged Requirements have been magnified substantially by the COVID-19 pandemic. Id.
As a direct result of the Challenged Requirements, the Family Unit has had to divert its limited resources and time from its core activities to investigate, respond to, mitigate, and address the concerns of its members and constituents impacted or disenfranchised by the Challenged Requirements and Defendants’ inadequate efforts to protect voters from COVID-19 ahead of the 2020 elections. Id. ¶ 5. For example, after learning about the impact of the Challenged Requirements on its members and constituents, Dr. Williams requested information from county election officials, interviewed affected voters, and reviewed information about the impact of the Challenged Requirements. Id. ¶ 6. In absence of the Challenged Requirements, the Family Unit would not have had to engage in these activities. Id.
ARGUMENT 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)). Here, each factor decisively favors Plaintiffs. In evaluating the burdens on voters, the Court may and should “take judicial notice of official government reports and statistics” including election and voter registration statistics and public health reports from government agencies such as the CDC and DHEC. United States v. Cecil, 836 F.2d 1431, 1452 (4th Cir. 1988) (internal citations omitted). I. Plaintiffs Are Likely to Prevail on the Merits of Their Claims Against the Challenged Requirements.
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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). They are. The First and Fourteenth Amendments do not allow a state to put voters to an unconscionable choice between protecting their health and the health of their families and communities or forfeiting their fundamental rights. The Challenged Requirements will deprive thousands of qualified citizens the right to vote or to have their vote counted. And they will do so by imposing restrictions on the franchise that are directly at odds with the Governor’s stay-at-home order and public health guidance expected to remain in place for the foreseeable future.
Under Anderson v. Celebrezze and Burdick v. Takushi, any government burden on the right to vote must be balanced against the stated government interest supporting the burden. Burdick v. Takushi, 504 U.S. 428, 434 (1992) (citing Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). The Fourth Circuit describes the framework as follows:
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) (citation omitted). Strict scrutiny is proper when the Court considers election laws that impose greater burdens on voters in the context of an emergency. Indeed, courts have recently applied strict scrutiny in challenges to ballot-access laws where “stay-at-home” orders collided with those laws to severely burden a candidate’s ability to collect enough signatures to get on the ballot.43 See
43 Ballot-access laws implicate “the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). In the COVID-19 pandemic, state courts have also closely scrutinized the burdens that these laws imposed on voters compelled to remain at home or under social distancing orders. See Faulkner v. Va. Dep’t of Elections, No. CL 20-1546, Slip Op. at 2 (Va. Cir. Ct. Mar. 25, 2020) (enjoining Virginia from enforcing 10,000 signature ballot-access requirement; citing state of emergency and stay at home order and noting “the circumstances as they exist . . . are not normal”) (Attach. F to Cepeda Decl.); see
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Libertarian Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687, at *4 (N.D. Ill. Apr. 23, 2020) (finding 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”).
The same has held true in non-pandemic emergencies. See 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).
Strict scrutiny applies here because the Challenged Requirements impose 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. Even if the Challenged Requirements ordinarily might pose a tolerable burden to a modest number of voters, it would be “nonsensical” to prioritize them over both the right to vote and people’s lives, “especially given the circumstances here.” Fla. Democratic Party, 215 F. Supp. 3d at 1258.
A. The First and Fourteenth Amendment require South Carolina to eliminate the Excuse Requirement under current circumstances. 1. The Excuse Requirement should be assessed under heightened
also Goldstein v. Sec’y of Commonwealth, 2020 WL 1903931, *10 (Mass. Apr. 17, 2020) (ordering the secretary to allow the submission and filing of nomination papers with electronic rather than “wet” signatures).
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scrutiny because it severely burdens the rights of all South Carolinians by depriving them of the ability to safely vote in State elections. The first step under the Anderson-Burdick inquiry with respect to the Excuse Requirement is for the Court to assess whether requiring South Carolinians to show up at the polls in person, in the middle of a pandemic, severely burdens the right to vote. The severity of the burden includes an analysis of the both breadth of affected people and the nature of the impact on them. See Libertarian Party of Va. v. Judd, 718 F.3d 308, 317 (4th Cir. 2013). The Excuse Requirement would force tens or even hundreds of thousands of voters to choose between putting themselves and others in serious physical jeopardy and forfeiting their fundamental right to vote. This severe burden on the right to vote triggers stringent scrutiny.44 a). Plaintiffs are likely to succeed in demonstrating the Excuse
Requirement unreasonably burdens the right to vote of all South Carolina voters who would vote in person outside of the COVID19 pandemic. Plaintiffs are likely to succeed in demonstrating that the Excuse Requirement puts them, like all South Carolina voters who lack a clear absentee “excuse,” in an untenable position. On the one hand, the gravity of the COVID-19 threat is clear. South Carolinians are under an unprecedented order to remain at “Home or Work,” and to “take every possible precaution to avoid potential exposure to . . . COVID-19.” S.C. Exec. Order No. 2020-21, at 6. Over 5,250 of their fellow residents have tested positive and over 160 have died.45 And no trusted model predicts that South Carolina will be in totally clear from the effects of the pandemic by June 9.
44 Even applying a less stringent balancing test the Excuse Requirement must give way. “[W]hen a law imposes only a slight burden on the right to vote, relevant and legitimate interests of sufficient weight still must justify that burden.” Democratic Exec. Comm. v. Lee, 915 F.3d 1312, 1318-19 (11th Cir. 2019); see also Norman v. Reed, 502 U.S. 279, 288-89 (1992)). The government lacks an interest in forcing citizens to leave their homes amidst a pandemic in direct contravention of what they’ve been directed to do to protect themselves and mitigate its spread. 45 DHEC, South Carolina Announces Latest COVID-19 Update (Apr. 25, 2020), https://www.scdhec.gov/newsreleases/south-carolina-announces-latest-covid-19-update-april-25-2020.
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On the other hand, Defendants are clear that voters need an additional “excuse” to vote by mail in the midst of the outbreak. Indeed, anyone who wishes to do so “must fall into one of 18 categories, none of which include self-isolating due to a pandemic.” SEC Letter, at 2.
The Excuse Requirement demands that voters do the opposite of what public health officials have advised all South Carolinians should do. They must leave the safety of their homes in contravention of the Governor’s Home or Work Order; congregate in person at the polls in close proximity to other people; and foreseeably touch and share various surfaces—like writing implements or voting machines or photo IDs—that persons unknown to them will touch as well. Otherwise, they forego their right to vote in their State’s elections.
The burdens on the right to vote “are severe if they go beyond the merely inconvenient.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J., concurring). That is clearly the case. For individuals who routinely vote in person, including Plaintiffs Richard, Rutledge, and Walker,46 the Excuse Requirement comes as close to fully depriving them of the franchise in this crisis as any restriction could. It forces voters to choose between two intolerable options: the very real risk of infection or disenfranchisement—and forces them to fully bear the costs of their choice. The Constitution demands that such a law survive exacting scrutiny.
b). Plaintiffs will likely succeed in demonstrating that the Excuse Requirement unreasonably burdens voters who do not qualify to vote absentee and places voters and poll workers at higher-risk of COVID-19 infections.
Plaintiffs are also exceedingly likely to successfully show that the Excuse Requirement severely burdens voters at high risk of complications from COVID-19 because of a chronic medical condition that falls short of rendering them “physically disabled persons” able to vote absentee. See S.C. Code Ann. § 7-15-320(B). Because contracting COVID-19 could easily
46 See Rutledge Decl. ¶ 5; Walker Decl. ¶ 4.
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prove fatal to these voters, the stakes of leaving their home to vote in person are even starker. The Excuse Requirement’s burden on their right to vote is therefore extreme. It deserves stringent review. See Pisano v. Strach, 743 F.3d 927, 933 (4th Cir. 2014) (“[E]lection laws that impose a severe burden on ballot access are subject to strict scrutiny . . . .”).
COVID-19 endangers all, but two distinct groups are at particularly severe risk: the elderly and people with certain underlying medical conditions. Thus, while “geriatric patients are at the greatest risk,” “[l]ikewise, those with immunologic conditions and with other preexisting conditions, such as hypertension, certain heart conditions, lung diseases . . . diabetes mellitus, obesity, and chronic kidney disease, are at high risk of a life threatening COVID-19 illness.” Reingold Decl. ¶ 7. South Carolina already allows voters “sixty-five years of age or older” to vote absentee in all elections. S.C. Code Ann. § 7-15-320(B).
However, no similar “excuse” currently applies to thousands of voters with various health conditions causing grave risk of illness from COVID-19, but which do not routinely prevent them from being “present in person at [their] voting place on election day.” S.C. Code Ann. § 715-310(4). Many of the voters most in danger of illness or death are African Americans like Plaintiffs Thomas and Walker. They have no reason to vote absentee other than “self-isolating due to a pandemic,” which Defendants have advised is not a valid “excuse.” SEC Letter, at 2.
Plaintiff Jeremy Rutledge, a reverend in Charleston, is such a voter. He was diagnosed over a decade ago with systemic schleroderma, an autoimmune disease that manifests in his body by causing the tissue in his lungs to thicken dangerously. Rutledge Decl. ¶¶ 6-7. For years, he has treated his condition by taking immunosuppressant drugs, which both suppress his autoimmune system to keep him safe but put him at extremely high risk of great harm from COVID-19. Id. ¶ 7. As a result, Rutledge has strictly self-quarantined himself at home with his
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wife and son since at least mid-March and does not anticipate that he will feel safe outside his home until a vaccine or cure for COVID-19 have been developed or found. Id. ¶ 8. Rutledge usually votes in person, does not consider himself “physically disabled,” and faces the prospect of not voting in the June 9 primary as a result. Id. ¶ 11.
Likewise, Plaintiff Trena Walker would be prevented from requesting an absentee ballot while she strictly self-quarantines, because in spite of her medical history of breast cancer and emphysema, she does not consider herself physically unable to vote in person—she is just rightly fearful that COVID-19 would have a devastating effect on her health or life. Walker Decl. ¶ 10. In rigidly following social distancing and stay-at-home recommendations, Ms. Walker has also closely followed the advice of public health officials to take precautions seriously, because of the disproportionate effect that the virus has already had on Black communities. Id. ¶ 8.
Finally, the Excuse Requirement requires poll workers, like Plaintiff Nea Richard, who must closely and personally interact with hundreds of voters on Election Day at heightened risk of infection. Richard Decl. ¶ 7. The Excuse Requirement needlessly, but inevitably will require thousands of voters who would otherwise vote absentee to appear in person and thus endangers the lives of Ms. Richard and hundreds of other poll workers in South Carolina. Id. ¶¶ 6-10.
As Dr. Reingold explains, increased absentee voting is a “much safer option” because it “substantially decrease[s] the number of people coming into proximity at polling locations and the spread [of COVID-19] via environmental surfaces.” Reingold Decl. ¶ 17.
2. The Excuse Requirement’s burden on voters is unjustified because Defendants lack an interest in putting voters at risk of COVID-19 infection and have construed a state statute to violate the fundamental rights of voters.
Because the Excuse Requirement imposes severe burdens, the Court should apply heightened review or “strictly scrutinize the state’s interest and the means . . . to achieve those
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interests, to ensure that . . . requirements are ‘narrowly drawn’ . . . .” Wood v. Meadows, 207 F.3d 708, 714 (4th Cir. 2000). The Excuse Requirement fails on this score.
Defendants cannot claim a discernible interest in compelling citizens to vote in person in the midst of a dangerous pandemic. To the contrary, Governor McMaster has required South Carolinians to remain at “home or work” unless absolutely necessary, and expects “the people of the State of South Carolina [to] do their part to slow the spread of COVID-19 . . . by remaining at home whenever possible . . . .” S.C. Exec. Order No. 2020-21, at 6. And even “as new activities are allowed,” DHEC has explained that residents must “continue to practice all of the social distancing measures that have been in place and should remain in place.”47 While the risk of contagion and bodily harm remains, Defendants cannot state an interest that “make[s] it necessary to burden the plaintiff’s rights.” Anderson, 460 U.S. at 789.
Nor could Defendants say that the Excuse Requirement would be “narrowly drawn” to achieve any asserted interest. The forbidding burdens that the Excuse Requirement forces on voters are particularly unjustified because the State’s laws can and should be construed to authorize all voters to vote absentee in this pandemic. South Carolina law allows all 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). In other words, South Carolina’s legislature has already seen fit to provide voters the option to cast a ballot by mail if an illness or ailment keeps them at home on Election Day. Defendants have rejected that construction, opting instead to severely burden the rights of South Carolina voters. The Anderson-Burdick framework allows the Court to reach this constitutional harm: “a federal court can review a state official’s interpretation of—or gloss over—state law when it is alleged to violate the United
47 Id.
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States Constitution.” League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d 1205, 1213 (N.D. Fla. 2018). The Court should “enjoin[] the state from enforcing [its] laws as a violation of the First and Fourteenth Amendments.”48 Id.
In the current environment, the arbitrariness of the Excuse Requirement is clear: voters staying at home to follow social distancing measures prescribed by the Governor and other public health officials are all unable to vote in person “because of an illness”—namely, COVID19. This reading is consistent with the absentee ballot laws, which “shall be liberally construed,” S.C. Code Ann. § 7-15-20, and nowhere say that a voter must personally contract an illness like COVID-19 in order to qualify for an absentee ballot.
It is also sensible. The absentee ballot laws do not say that a voter who fears they may have contracted an illness must still vote in person, putting countless other South Carolinians at an unacceptably high risk of contagion. And they do not, of course, say whether a voter must confirm that they either have or do not have COVID-19 to make sure they qualify “because of illness” before requesting an absentee ballot. See Reingold Decl. ¶ 11 (“Some individuals who are infected with the virus do not have any symptoms but can transmit the virus and/or are infectious before they develop any symptoms.”).
The Excuse Requirement need not cause widespread unconstitutional burdens on voters’ rights. Several of the remaining “excuse-required” states have construed near-identical disability or illness absentee “excuses” in ways that avoid such harm. For example, all West Virginia voters may vote absentee in forthcoming elections due to “illness, injury or other medical reason
48 See Obama for Am. v. Husted, 697 F.3d 423, 431 (6th Cir. 2012) (affirming injunction of Secretary of State’s interpretation of Ohio deadlines where Secretary “construed” the law to apply “particularly high” burdens on nonmilitary voters); Charles H. Wesley Educ. Found v. Cox, 324 F. Supp. 2d 1358, 1369 (N.D. Ga. 2004) (construing Secretary of State’s interpretation of state law as state policy and holding Secretary violated federal law), aff’d 408 F.3d 1349 (11th Cir. 2005).
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which keeps me confined,” because the State now defines “medical condition” as “any threat to a
person’s health posed by an epidemic, pandemic, outbreak, disease, virus, or other emergency,
which creates potential harm to the public interest, peace, health, safety, or welfare of citizens or voters.” W. Va. Code R. §§ 153-53-2-153-53-3.49 The State’s construction of law “cannot
violate or alter clear statutory requirements” but rather, simply construes existing state law “in
favor of enfranchisement, not disenfranchisement.” W. Va. Code R. § 153-53-1.
Similarly, in response to COVID-19, state officials in Alabama,50 Arkansas,51 Delaware,52
Kentucky,53 New Hampshire,54 and Virginia55 have interpreted their absentee voting laws to
permit all eligible voters to vote absentee under certain “illness” or “disability” related excuses.
B. The Witness Requirement Severely Burdens and Violates the Constitution and Fundamental Right to Vote of People who are affected by COVID-19. 1. The Witness Requirement significantly burdens many thousands of South Carolina voters who live alone—especially voters who are older, black, or have disabilities—faced with disenfranchisement or the risk of death.
49 W. Va. Sec’y of State Mac Warner, Admin. Law Div., Notice Of An Emergency Rule (Mar. 20, 2020), http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=53039&Format=PDF. 50 Ala. Leg. Servs. Agency, Absentee Voting During State of Emergency, 17-11-3(e) (Mar. 18, 2020), https://www.sos.alabama.gov/sites/default/files/SOS%20Emergency%20Rule%20820-2-3-.06-.01ER.pdf. 51 Ark. Exec. Order No. 20-08 (Mar. 20, 2020), https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-08._.pdf 52 Governor of Delaware, Exec. Dep’t, Sixth Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat (Mar. 24, 2020), https://governor.delaware.gov/wpcontent/uploads/sites/24/2020/03/Sixth-Modification-to-State-of-Emergency-03242020.pdf 53 Letter of Michael G. Adams, Sec’y of State, to Andy Beshear, Governor (Apr. 23, 2020), https://governor.ky.gov/attachments/20200423_Ltr-from-Sec-of-State-Adams.pdf. 54 Memorandum from the Sec’y of State and Att’y General to New Hampshire Election Officials re: Elections Operations During the State of Emergency 2 (Apr. 10, 2020), https://www.governor.nh.gov/news-media/press2020/documents/20200410-absentee-voting.pdf. 55 See Va. Dep’t of Elections, Absentee Voting, https://www.elections.virginia.gov/casting-a-ballot/absentee-voting/ (last visited April 5, 2020).
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Forcing thousands of people to put their life on the line or face disenfranchisement imposes a severe burden on the right to vote. See, e.g., Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 107 n.8 (2d Cir. 2008) (noting for “voters who are . . . housebound” the burden of a lack of absentee voting opportunity “could be quite significant”). The Witness Requirement has the potential to require over a quarter of the electorate to make this impossible “choice.”
Under the Governor’s “Home or Work” order, individuals are required to shelter in place. Even if people do leave their homes, the state directs them to maintain at least six feet of distance from others with whom they do not live. And the CDC encourages as many voters as possible “to use voting methods that minimize direct contact with other people.”56 These orders reflect the consensus of doctors and public health officials. As Dr. Reingold explains, “[r]equiring individuals to have someone they are not otherwise being exposed to come into close enough proximity to witness their ballot would place them at increased risk of infection.” Reingold Decl. ¶ 18. This risk is even greater for those over 65, who “are at the greatest risk of severe cases, long-term impairment, and death.” Id. ¶ 7. Similarly, people with “immunologic conditions,” like Plaintiff Rutledge, and those with “other pre-existing conditions,” like Plaintiff Thomas who has gout and hypertension, “are at high risk of a life-threatening COVID-19 illness.” Id. ¶ 17; Rutledge Decl. ¶¶ 6-7; Thomas Decl. ¶ 7.
The number of South Carolinians who will be forced to either brave the polls or break social distancing guidelines to have someone witness and sign their ballot envelope are striking. As of 2018, 14.5% of South Carolinians (i.e., 558,826) 18 and older live alone. Cooper Decl.
56 Recommendations for Election Polling Locations: Interim guidance to prevent spread of coronavirus disease 2019 (COVID-19), Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019ncov/community/election-polling-locations.html (last updated Mar. 27, 2020).
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¶ 6. At present, South Carolina has over 3.3 million registered voters.57 Over 620,000 South Carolinians voted in the June 2018 Democratic and Republican primaries.58 And over 540,000 people voted in the February 29, 2020 presidential primary.59 Applying this February 2020 figure to the 14.5% of all South Carolina adults living alone, suggests that 78,300 South Carolina voters in the 2020 presidential primary live alone. Conservatively then, because of the expected and unprecedented surge in absentee ballots, the Witness Requirement will force tens of thousands to risk their lives to vote.
Worse, the affected voters will disproportionately be members of populations at heightened risk of death or severe health complications from COVID-19. Although 14.5% of all South Carolinian adults live alone, 39.8% of those South Carolinians living alone are age 65 and older live alone. Cooper Decl. ¶ 6. About 24.7% of South Carolinians age 65 and older live alone. Id. ¶ 6. And 26.6% of all South Carolinians of voting age who live alone are disabled; in the subset of residents over 65 who live alone, 39.2% have a disability. Id. ¶ 7.
The Witness Requirement places a significantly heavier and deadlier burden on AfricanAmerican voters amid the pandemic, who face much higher likelihood of death or serious complications from COVID-19. As of April 24, African Americans in South Carolina represented 43% of reported COVID-19 cases and a staggering 56% of related deaths60 despite making up just 27% of the State’s population.61 Attach. G Cepeda Decl., at 8, 14. Black South
57 South Carolina Voter Registration Demographics, https://www.scvotes.org/cgibin/scsec/96vr?countykey=ALL&D1=None (last visited Apr. 21, 2020). 58 S.C. Election Comm’n, 2018 Statewide Primaries Election Night Reporting, https://www.enrscvotes.org/SC/75708/Web02-state.203322/#/. 59 S.C. Election Comm’n, 2020 Democratic Presidential Preference Primary, Election Night Reporting, https://www.enr-scvotes.org/SC/100517/Web02-state.242137/#/. 60 DHEC, SC Demographic Data (COVID-19), https://scdhec.gov/sc-demographic-data-covid-19 (last visited Apr. 25, 2020) 61 U.S. Census Bureau, QuickFacts South Carolina, https://www.census.gov/quickfacts/SC (last visited Apr. 21, 2020).
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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. Black people’s higher rates of COVID-19 infection and death result from racial disparities in health insurance access, the higher rates of service occupations for African-American workers, which may limit their ability to work from home, and higher rates of disability. See Cogburn Decl. ¶ 12; Cooper Decl. at 7, 13, 18. In turn, these racial disparities come from past and present discrimination. See Cogburn Decl. ¶¶ 6, 7, 12.
African-American absentee voters are also more likely to have no choice but to defy social distancing guidelines in order to satisfy the Witness Requirement. Black people in South Carolina are more likely to both live alone and live as the alone adult among children under 18 (i.e., legally incompetent witnesses). About 33.2% of all African-American households in the state are people living alone, as compared to 28.2% of white households. And 14.8% of all African-American households in the state are headed by women who live alone with their children versus just 3.9% of similar white households with children.
Beyond statistics, Plaintiffs show the significant barrier that the Witness Requirement imposes on voters. Plaintiff Thomas lives alone and Plaintiff Walker does not live with anyone old enough to witness her ballot. Plaintiff Williams lives with her husband, but her present COVID-19 diagnosis makes it dangerous for her to interact with him. These Plaintiffs cannot both follow public health advice and government orders to isolate and socially distance and have their vote by absentee ballot counted.
Even in normal circumstances, the Witness Requirement causes election officials to reject the ballots of a significant number of absentee voters. In the 2018 elections, 798 South Carolina voters had their absentee ballots rejected for lack of a witness signature. See Attach. I to Cepeda Decl. (data from 2018 Election Administration and Voting Survey). But in that election, only
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80,271 people or 4.6% of all voters cast mail-in absentee ballots. Id.; see also Attach. A to
Williams Decl. (incorporating correspondence from election officials and records showing that
several hundred ballots were rejected because of the Witness Requirement in 2016). Absentee
voting in South Carolina is expected to increase exponentially in 2020 because of COVID-19.
For example, in Wisconsin’s recent election—where thousands of voters waited in long, crowded
lines at the polls62—absentee ballot requests were still five times higher than in the 2016 primary.63 Under present circumstances, the Witness Requirement will disenfranchise many
thousands more voters than it did in 2018 or 2016.
2. The severe burdens imposed by the Witness Requirement in the context of the ongoing COVID-19 pandemic merit heightened judicial scrutiny.
The breadth and severity of the Witness Requirement’s burdens merits strict scrutiny.
The Anderson-Burdick framework requires courts to take a context-specific approach to its
burden analysis. Burdick, 504 U.S. at 434. Strict scrutiny applies where, as here, state laws
needlessly force voters to make impossible choices. Cf. Republican Party of Ark. v. Faulkner
Cty., 49 F.3d 1289, 1298-99 (8th Cir. 1995) (applying strict scrutiny to state requirements that
political parties conduct and pay for primary elections because such provisions had the effect of
62 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-and-politics/wisconsin-s-pandemic-election-long-waitsfacemasksas-voters-go-to-polls/article_bfd2c391-f390-5364-8c14-a88b548fe017.html; Benjamin Swasey, Wisconsin Vote Ends As Trump Blames Governor For Long Lines, NPR (Apr. 7, 2020 12:23 PM), https://www.npr.org/2020/04/07/828835153/long-lines-masks-and-plexiglas-barriers-greet-wisconsin-voters-atpolls. 63 Compare Wisc. Election Comm’n, Absentee Ballot Report - April 7, 2020 Spring Election and Presidential Preference Primary, https://elections.wi.gov/node/6833 (reporting over 1.28 million absentee ballots requested for April 7, 2020 primary) with Riley Vetterkind, Absentee ballot requests in Wisconsin already exceed number in recent spring elections, WISC. STATE JOURNAL (Mar. 18, 2020), https://madison.com/wsj/news/local/govt-andpolitics/absentee-ballot-requests-in-wisconsin-already-exceed-number-in-recent-spring-elections/article_dfb34fc56aa8-5428-90c3-26c3f82a1d70.html (noting that just under 250,000 absentee ballots were requested for the spring 2016 Wisconsin primary).
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forcing “many voters who wish[ed] to vote in the Republican primary to vote either in the Democratic primary or not at all”). “‘[T]he severity of the burden the election law imposes on the plaintiff’s rights dictates the level of scrutiny applied by the court.’” Libertarian Party, 718 F.3d at 317 (quoting Nader v. Brewer, 531 F.3d 1028, 1034 (9th Cir. 2008)). A law that endangers the lives of thousands of voters demands the most exactingly level of scrutiny.
Here, Plaintiffs are “disabled from voting” because they cannot safely “go to the polls on election day” as a result of the COVID-19 crisis and stay-at-home order. See O’Brien v. Skinner, 414 U.S. 524, 525 (1974) (striking down an absentee ballot law as-applied to eligible voters in jail). It does not matter that the burdens imposed by the Witness Requirement result from unusual circumstances. Cf. Libertarian Party, 718 F.3d at 316-17 (finding that the plaintiff could challenge an election petition law even where his legal injury resulted in part from an unexpected physical injury). Even if the Witness Requirement did not ordinarily burden a large number of voters, which it does, South Carolina cannot impose it when voters cannot comply without endangering their lives and safety. See Fla. Democratic Party, 215 F. Supp. 3d at 1258.
3. The Witness Requirement’s severe burdens on voters far outweighs its minimal-to-nonexistent promotion of election integrity.
Because Plaintiffs and other voters face significant danger in voting under the Witness Requirement, it is subject to strict scrutiny. But, even if the Court declines to apply strict scrutiny, the burden on voters in complying with the Witness Requirement far outweighs any nominal benefits to South Carolina from enforcing the witness requirement.
The Witness Requirement does nothing to protect the integrity of an absentee ballot. As Defendant Andino wrote in the SEC Letter urging changes to the elections process in light of the ongoing pandemic: “the witness signature offers no benefit to election officials as they have no ability to verify the witness signature.” SEC Letter, at 3. In fact, South Carolina already
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exempts voters in the military or living abroad from the Witness Requirement. S.C. Code Ann. § 7-15-380. Nor does South Carolina even require witnesses to identify themselves by legibly printing their name. S.C. Code Ann. § 7-15-380. The ineffectiveness of witness requirements in securing elections is exactly the reason that Congress eliminated witness signature requirements in the mail-in absentee voter registration process. S. Rep. 103-6, 1993 WL 54278, at *13 (1993).
And, even if the Witness Requirement did marginally serve some interest, South Carolina has ample other methods to police the integrity of absentee ballots, as outlined supra at 11-12. Given those robust attestation and verification requirements and criminal penalties, the additional step of requiring a witness signature adds no meaningful protection against fraud. And while instances of fraud are exceedingly rare,64 an individual determined to risk the penalties can just as easily forge a witness signature as they can falsely attest when they sign their own name.
Courts have struck down election-related restrictions in similar contexts. In Libertarian Party of Virginia v. Judd, for example, the Fourth Circuit applied strict scrutiny to a residency restriction bearing on petition witnesses because it “impose[d] a severe burden” on First Amendment rights. 718 F.3d at 316. Even after presuming that this restriction was effective at preventing fraud, the Court held that the burden was not sufficiently tailored to justify the barrier it imposes on the plaintiffs’ constitutional rights. Id. at 317-18.
Similarly, in Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612 (6th Cir. 2016), the Sixth Circuit affirmed the invalidation an Ohio law that rejecting absentee ballot
64 Even a database from the Heritage Foundation—an organization committed to “[p]reventing, deterring, and prosecuting election fraud,” https://www.heritage.org/voterfraud—identifies just one case of election fraud in South Carolina concerning absentee voting in the past 13 years. See The Heritage Foundation, Election Fraud Cases, https://www.heritage.org/voterfraud/search?combine=&state=SC&year=&case_type=All&fraud_type=24489 (last accessed April 26, 2020). During the same time period, approximately 16 million voters cast their ballots in South Carolina elections. See SEC, Voter Participation History (1998-2018), https://www.scvotes.org/sites/default/files/Voter%20Participation%20History%20(1998-2018)_0.pdf.
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envelopes that had technical errors in the birthdate or address field. It explained that although “the burden is small for most voters, . . . none of the precise interests put forward by Ohio justifies it” including a generalized interest in “[c]ombatting voter fraud.” Id. at 632. Because Ohio’s interest was justified by only “the ‘rare’ instances where a fraudster manages to swipe the ballot of a valid voter, forge the signature, and return the ballot” with a voter’s identifying information, a burden on even a few voters was enough to render the law unconstitutional. Id.
And, in One Wisconsin, the court held that the shortening of the early voting period was only a moderate burden because those voters still had other opportunities to early vote and “can vote using mail-in absentee voting or vote on election day.” 198 F. Supp. 3d at 933. Despite this, the Court held that the rollback violated the fundamental right to vote because the state’s asserted interests “do not justify the moderate burdens that the challenged provisions impose.” Id. at 934.
These cases apply with even more force here, where the burdens are significant and the State’s interest marginal (if any). The Witness Requirement cannot survive scrutiny.
4. The Witness Requirement violates the categorical prohibition on “voucher” or supporting witness requirements in Section 201 of the VRA.
Section 201 of the VRA mandates that “[n]o 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.” 52 U.S.C. § 10501(a). Section 201 defines a “test or device” as including requiring any person to “prove his qualifications by the voucher of registered voters or members of any other class.” 52 U.S.C. § 10501(b)(4).
“All literacy tests and similar voting qualifications were abolished” by Section 201 because, “[a]lthough such tests may have been facially neutral, they were easily manipulated to keep blacks from voting.” N.W. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 198 (2009). Section 201 “bars certain types of voting tests and devices altogether,” and removes the
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burden of demonstrating that a test or device results in discrimination. Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 338 n.6 (2000).
Under the Witness Requirement, an absentee “ballot may not be counted unless the oath is properly signed and witnessed . . . .” S.C. Code Ann. § 7-15-420. Under the plain text of the VRA, it is per se illegal insofar as it 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.” 52 U.S.C. § 10501(b); see also Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1344 (11th Cir. 2014) (“when Congress does not add any language limiting the breadth of that word, ‘any’ means all”); 52 U.S.C. § 10310(c)(1) (defining “voting” in the VRA to include “all action necessary to make a vote effective”).
The South Carolina Supreme Court has previously concluded that the Witness Requirement is justified because it has “as its purpose the assurance of the authenticity of the absentee vote . . . .” Gregory v. S.C. Democratic Exec. Comm., 247 S.E.2d 439, 444 (S.C. 1978). That justification, however, cannot overcome the plain text of the VRA, which reflects Congress’s judgment that prohibited tests and devices “unduly lend themselves to discriminatory application, either conscious or unconscious.” Oregon v. Mitchell, 400 U.S. 112, 216 (1970) (opinion of Harlan, J.). Indeed, before the VRA, “voucher” or “witness” requirements were likewise justified as necessary to authenticate a voter’s qualifications. See, e.g., United States v. Ward, 349 F.2d 795, 799 (5th Cir. 1965); United States v. Logue, 344 F.2d 290, 291 (5th Cir. 1965). Whatever the governmental interest, the banned tests or devices are presumptively discriminatory. See Lodge v. Buxton, 639 F.2d 1358, 1363 (5th Cir. 1981), aff’d sub nom. Rogers v. Lodge, 458 U.S. 613, 625 (1982). And, although proof of a discriminatory effect is irrelevant under, the Witness Requirement’s racial impact is clear. Supra at 30-31.
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The Witness Requirement violates the VRA because it requires absentee voters to either comply with an illegal “test or device” or have their vote discarded. II. Plaintiffs Will Suffer Irreparable Harm Absent a Preliminary Injunction.
“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). This is because “the right of suffrage is a fundamental matter in a free and democratic society.” Reynolds v. Sims, 377 U.S. 533, 561-62 (1964). Further, “once 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.
Here, both individual Plaintiffs and the Family Unit’s members wish to vote by absentee ballot to protect their health. They face an unconscionable risk to their lives and others if they are compelled to vote in person or forced to have their absentee ballots witnessed. There “can be no injury more irreparable” than “serious, lasting illness or death.” Thakker v. Doll, No. 1:20-cv480, 2020 WL 1671563, at *4 (M.D. Pa. Mar. 31, 2020). Courts have “specifically held that COVID-19 constitutes an irreparable harm that supports the grant of a TRO.” Id. at *7 (collecting cases). A preliminary injunction provides the only effective means for protecting Plaintiffs’ and many other South Carolinians’ constitutional rights to vote in the June primary.
The Family Unit also faces irreparable harm. A voting rights organization is “irreparably harmed when the right to vote is wrongfully denied or abridged—whether belonging to its membership or the electorate at large.” N.C. State Conf. of NAACP v. Cooper, No. 18-cv-1034, 2019 WL 7372980, at *24 (M.D.N.C. Dec. 31, 2019); see also Common Cause Georgia v. Kemp, 347 F. Supp. 3d 1270, 1295 (N.D. Ga. 2018) (finding plaintiff organization’s harm “to its organizational interests is coterminous with the harms suffered by its citizen members”);
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Common Cause Ind. v. Lawson, 327 F. Supp. 3d 1139, 1154 (S.D. Ind. 2018), aff’d 937 F.3d 944 (7th Cir. 2019) (similar).
Further, the Challenged Requirements irreparably harm the Family Unit’s mission of ensuring that qualified citizens are registered to vote. The Family Unit will need to continue divert its limited resources from voter registration to educate its community about the Challenged Requirements. Williams Decl. ¶ 5. These harms are irreparable: “when a plaintiff loses an opportunity to register a voter, the opportunity is gone forever.” League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1167 (N.D. Fla. 2012); see also LWV, 769 F.3d at 247; Action NC v. Strach, 216 F. Supp. 3d 597, 642-43 (M.D.N.C. 2016).
Finally, the harm to Plaintiffs is also imminent. All of the evidence shows that “COVID19 will continue to transmit widely” through the June 9 primary. See Reingold Decl. ¶¶ 14, 16; see also 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”) (Attach. H to Cepeda Decl.). And Governor McMaster has expressed his “hope” that “businesses and activities . . . may be safely resumed and conducted using personal safety precautions” “by late June,” which is well after the election. ECF No. 1, Ex 1 at 1. III. The Balance of Equities and Public Interest Support Injunctive Relief.
The public interest “favors permitting as many qualified voters to vote as possible.” LWV, 769 F.3d at 247-48 (citations and internal quotation marks omitted). A “state is in no way 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 improved by such an
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injunction.” Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002) (citation and internal quotation marks omitted). After all, “upholding constitutional rights surely serves the public interest,” of which the State is the custodian. Id.
Enjoining the Challenged Requirements also promotes “the public interest in . . . safeguarding public health.” Pashby v. Delia, 709 F.3d 307, 331 (4th Cir. 2013). “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). The State recognizes this. The Governor has ordered people to stay in their homes. S.C. Exec. Order No. 2020-21, at 6. DHEC has urged social distancing by “staying home as much as possible.”65 Per DHEC, these are the “best ways” to protect against COVID-19.66 The CDC agrees and recommends that voters “use voting methods that minimize direct contact with other people.”67 These public health entities’ views are entitled to considerable deference. See Tolman v. Doe, 988 F. Supp. 582, 586 (E.D. Va. 1997) (explaining that the CDC’s “views are relied upon by the medical profession as authoritative” and that it is “the type of public medical health officials to which courts should defer”).
Conversely, no public interest will be compromised by an injunction authorizing all South Carolina registered voters to vote absentee to prevent harm to themselves or others and the further spread of COVID-19. Strict vote integrity provisions already protect absentee voting, and the Challenged Requirements are an ineffectual method to achieve that goal, in any event.
CONCLUSION
65 DHEC, Protect Yourself & Those Around You (COVID-19), https://www.scdhec.gov/protect-yourself-thosearound-you-covid-19 (last visited Apr. 21, 2020). 66 Id. 67 Ctrs. for Disease Control & Prevention, Recommendations for Election Polling Locations: Interim guidance to prevent spread of coronavirus disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019ncov/community/election-polling-locations.html (last updated Mar. 27, 2020).
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For the foregoing reasons, Plaintiffs respectfully request that the Court enter a preliminary injunction: (1) 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; (2) prohibiting Defendants from enforcing the Witness Requirement, S.C. Code Ann. § 7-15-220 and § 7-15-420, for all voters for South Carolina’s June 9 primary; and (3) ordering Defendants to publicly inform all South Carolina voters about the elimination of the Challenged Requirements, in coordination with city and county election officials.

Dated: April 27, 2020

Respectfully submitted,

Adriel I. Cepeda Derieux* Dale E. Ho* Sophia Lin Lakin* Davin M. Rosborough* Theresa J. Lee* Brian Hauss* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2500 acepedaderieux@aclu.org dho@aclu.org

/s/ Susan K. Dunn Susan K. Dunn (Fed. Bar #647) American Civil Liberties Union of South Carolina Charleston, SC 29413-0998 Tel.: (843) 282-7953 Fax: (843) 720-1428 sdunn@aclusc.org
Attorneys for Plaintiffs

Deuel Ross* NAACP Legal Defense &
Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 Tel.: (212) 965-2200 dross@naacpldf.org

*Motion for admission Pro Hac Vice forthcoming

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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-2 Page 1 of 4
EXHIBIT 1

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-2 Page 2 of 4

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

MARY T. THOMAS, et al.,

Plaintiffs, v.
MARCI ANDINO, et al.,
Defendants.

Case No.: 3:20-cv-01552-JMC

DECLARATION OF ADRIEL I. CEPEDA DERIEUX (pursuant to 28 U.S.C. § 1746)
My name is Adriel I. Cepeda Derieux. I am over the age of 18 and fully competent to make this declaration. Under penalty of perjury, I declare the following based upon my personal knowledge:
1. I am attorney with the American Civil Liberties Union Foundation. I personally located and/or prepared the attached materials.
2. Attached as Attachment A is a true and current copy of an article titled “40 Coronavirus Cases In Milwaukee County Linked To Wisconsin Election, Health Official Says” published by Milwaukee, Wisconsin NPR station WUWM 89.7 FM, as accessed at https://www.wuwm.com/post/40-coronavirus-cases-milwaukee-county-linked-wisconsinelection-health-official-says#stream/0.
3. Attached as Attachment B is a true and correct copy of a March 30, 2020 Letter sent by Marci Andino, in her capacity as Executive Director of the South Carolina State Election Commission, to South Carolina Governor Henry McMaster and other recipients.
4. Attached as Attachment C is a true and correct copy of a report titled “COVID19 and Minority Health Access” published by Rubix Life Sciences, as accessed at https://rubixls.com/wp-content/uploads/2020/04/COVID-19-Minority-Health-Access-7-1.pdf.
5. Attached as Attachment D is a true and correct copy of an article titled “The

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-2 Page 3 of 4
Coronavirus Doesn't Discriminate, But U.S. Health Care Showing Familiar Biases” published by National Public Radio (NPR), as accessed at https://www.npr.org/sections/healthshots/2020/04/02/825730141/the-coronavirus-doesnt-discriminate-but-u-s-health-careshowing-familiar-biases.
6. Attached as Attachment E is a true and correct copy of an article titled “More African Americans are dying from COVID-19 than other races in South Carolina” published by 15 News, as accessed at https://wpde.com/news/coronavirus/more-african-americansdying-from-covid-19-in-south-carolina.
7. Attached as Attachment F is a true and correct copy of a March 25, 2020 Order granting a preliminary injunction in Faulkner v. Virginia Department of Elections, No. CL 201546, in the Circuit Court for the City of Richmond.
8. Attached as Attachment G is a true and correct copy of demographic data of South Carolina COVID-19 patients published by the South Carolina Department of Health and Environmental Control (DHEC), as accessed at https://scdhec.gov/sc-demographic-datacovid-19.
9. Attached as Attachment H is a true and correct copy of an April 17, 2020 Order granting a temporary injunction in the case Texas Democratic Party v. DeBeauvoir, No. D1-GN-001610, in Travis County District Court in Texas.
10. Attached as Attachment I is a true and current copy of data from the 2018 Election Assistance Commission (EAC) Election Administration and Voting Survey reflecting data, broken down by South Carolina city and county, of the total number of mail ballots received for counting and the number rejected for lack of a witness signature. I created this table from data accessed on the EAC’s website at https://www.eac.gov/research-anddata/datasets-codebooks-and-surveys, using the EAVS Data Codebook and the EAVS Datasets Version 1.2 (released February 18, 2020).

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-2 Page 4 of 4
I declare under penalty of perjury that the foregoing is true and correct. Executed on April 27, 2020.
__________________________ Adriel I. Cepeda Derieux

4/27/2020

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40 Coronavirus Cases In Milwaukee County Linked To Wisconsin Election, Health Ofﬁcial Says | WUWM

40 Coronavirus Cases In Milwaukee County Linked To Wisconsin Election, Health Official Says
By TERAN POWELL • APR 24, 2020

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People line up to vote at Washington High School in the April 7 election, which took place during the coronavirus pandemic.
TERAN POWELL

Forty people in Milwaukee County may have become infected with the coronavirus as a result of participating in Wisconsin elections on April 7.

Milwaukee Health Commissioner Jeanette Kowalik says data is still being analyzed to show the connection between more people that may have contracted COVID-19 due to election activities, like being a poll worker or voting in person, earlier this month. Kowalik hopes the data will be finalized by May 1.

https://www.wuwm.com/post/40-coronavirus-cases-milwaukee-county-linked-wisconsin-election-health-ofﬁcial-says#stream/0

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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-3 Page 2 of 2
40 Coronavirus Cases In Milwaukee County Linked To Wisconsin Election, Health Ofﬁcial Says | WUWM

Wisconsin’s April 7 elections consisted of local races and the presidential primary. Approximately 400,000 people voted in person.

>>The Latest WUWM & NPR Coronavirus Coverage

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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-4 Page 1 of 4

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-01552-JMC Date Filed 04/28/20 Entry Number 7-4 Page 2 of 4
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-01552-JMC Date Filed 04/28/20 Entry Number 7-4 Page 3 of 4
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-01552-JMC Date Filed 04/28/20 Entry Number 7-4 Page 4 of 4
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

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Racial Bias Showing Up In Coronavirus Testing And Treatment : Shots - Health News : NPR

THE CORONAVIRUS CRISIS

The Coronavirus Doesn't

Discriminate, But U.S. Health Care

Showing Familiar Biases

April 2, 202012:37 PM ET

BLAKE FARMER

FROM

3-Minute Listen

PLAYLIST

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While more afﬂuent parts of Nashville have had testing sites for weeks, this drive-through testing site at Meharry Medical College, in a historically African American neighborhood, experienced weeks of delays because staff couldn't acquire the needed testing supplies and gear like masks and gloves. It ﬁnally opened March 30.
Ken Morris/Meharry Medical College

The new coronavirus doesn't discriminate. But physicians in public health and on the front lines say that in the response to the pandemic, they can already see the emergence of familiar patterns of racial and economic bias.

In one analysis, it appears doctors may be less likely to refer African Americans for testing when they show up for care with signs of infection.

The bio-tech data firm Rubix Life Sciences, based in Boston, reviewed recent billing information in several states, and found that an African American with symptoms like cough and fever was less likely to be given one of the scarce coronavirus tests.

Delays in diagnosis and treatment can be harmful, especially for racial or ethnic minority groups that

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have higher rates of certain diseases, such as diabetes,

high blood pressure and kidney disease. Those

chronic illnesses can lead to more severe cases of

COVID-19.

In Nashville, three drive-through testing centers sat empty for weeks because the city couldn't acquire the necessary testing equipment and protective gear like gloves and masks. All of them are in diverse neighborhoods. One is on the campus of Meharry Medical College — a historically black institution.

"There's no doubt that some institutions have the resources and clout to maybe get these materials faster and easier," says Dr. James Hildreth, president of Meharry and an infectious disease specialist.

His medical school is located in the heart of Nashville, where there were no screening centers until this week.

Most of the testing in the region took place at walk-in clinics managed by Vanderbilt University Medical

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Center, and those are primarily located in historically

white areas like Belle Meade and Brentwood,

Tennessee.

Hildreth says he's observed no overt bias on the part of health care workers, and doesn't suspect any.

But he says the distribution of testing sites shows a disparity in access to medical care that has long persisted.

'I pray I'm wrong'

But if anyone should be prioritized, Hildreth says it's minority communities, where people already have more risk factors like diabetes and lung disease.

"We cannot afford to not have the resources to be distributed where they need to be," he says. "Otherwise, the virus will do great harm in some communities and less in others."

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In Memphis, a heat map shows where coronavirus

testing is taking place. It reveals that most screening

is happening in the predominantly white and well-off

suburbs, not the majority black, lower-income

neighborhoods.

Rev. Earle Fisher has been warning his African American congregation that the response to the pandemic may fall along the city's usual divides.

"I pray I'm wrong," Fisher says. "I think we're about to witness an inequitable distribution of the medical resources too."

Around the nation, concentrated pockets are popping up. In Milwaukee, African Americans made up all of the city's first eight fatalities.

Wisconsin Governor Tony Evers says he wants to know why black communities seem to be hit so hard. "It's a crisis within a crisis," Evers said in a video statement.

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The Centers for Disease Control and Prevention is

also on the ground on the north side of Milwaukee, as

well as several other hot spots, looking into the

outbreak in black neighborhoods. Nationwide, it's

difficult to know how minority populations are faring

because the CDC isn't reporting any data on race.

A few states are releasing more demographic data, but it's incomplete. Virginia is reporting race, yet the state's report is missing that information for twothirds of confirmed cases.

Dr. Georges Benjamin of the American Public Health Association has been pushing health officials to start monitoring race and income in the response to COVID-19.

"We want people to collect the data in an organized, professional, scientific manner and show who's getting it and who's not getting it," Benjamin says. "Recognize that we very well may see these health inequities."

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The subjectivity of symptoms

Until he's convinced otherwise, Benjamin says he assumes the usual disparities are at play.

"Experience has taught all of us that if you're poor, if you're of color, you're going to get services second," he says.

The subjectivity of coronavirus symptoms is what worries Dr. Ebony Hilton the most.

"The person comes in, they're complaining of chest pain, they're complaining of shortness of breath, they have a cough, I can't quantify that," she says.

Hilton is an anesthesiologist at the University of Virginia Medical Center who has been raising concerns.

She sees problems across the board, from the way social media is being used as a primary way of educating the public to how quickly drive-through

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testing has expanded. The first requires internet

connection. The second, a car.

Hilton says the country can't afford to overlook race, even during a swiftly moving pandemic.

"If you don't get a test, if you die, you're not going to be listed as dying from COVID," she says. "You're just going to be dead."

This story comes from NPR's reporting partnership with Nashville Public Radio and Kaiser Health News.
coronavirus in the u.s. racial disparities

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More African Americans are dying from COVID-19 than other races in South Carolina | WPDE

More African Americans are dying from COVID-19 than other races in South Carolina

by Tonya Brown Thursday, April 9th 2020

AA

3
Associated Press said as the coronavirus tightens its grip across the country, it is cutting a particularly devastating swath through an already vulnerable population — black Americans. (WWMT/MGN)

FLORENCE, S.C. (WPDE) — Data from the South Carolina Department of Health and Environmental Control show more African Americans are dying from coronavirus in the state.

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DHEC's most recent numbers say African Americans account for 38% of COVID-19 positive cases, but 46% of

deaths from the virus in the state.

According to the most recent statistics from Census Bureau, there are a few more than 5 million people living in South Carolina. White people make up 68.5% and black people 27.1% of the population.

Marlboro County Representative Patricia Moore Henegan said the coronavirus case numbers are alarming when you look at the racial makeup of the state.

"We are at the top of individuals when it comes to this coronavirus. But, we are in the minority, not the majority of the people that are black in these areas. Yet, we have the highest cases of coronavirus. So, that's why I became very interested in knowing. You know, is anyone tracking what is going on in the state of South Carolina?" Moore Henegan said.

Reported coronavirus cases by race as of April 9, 2020. (CDC)
Moore Henegan believes the virus is impacting minority communities at higher rates, primarily because of underlying medical conditions.

"Marlboro County -- we are number one when it comes to diabetes. We are number one when it comes to people who are on kidney machines, a state of having to have kidney dialysis. We are number one when it comes to heart

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disease. Then I started looking at the other statistics of surrounding counties and looking at things that are going

on with them, too. And they're high, too."

RELATED: 'A call-to-action moment': Data shows stark racial disparities in coronavirus deaths

Acts of kindness continue to spread across the country durin…

Reported coronavirus-related deaths by race as of April 9, 2020. (CDC)
Moore Henegan and fellow Rep. John King co-wrote a letter to DHEC about the impacts of the deadly virus on minorities. She praised the agency for its efforts to ﬁght the spread of the virus but raised other points.
Below is an excerpt from the letter:
"We believe it must be a DHEC priority to prevent this disturbing national trend from occurring in our state. The provisional data provided by the agency that reports African Americans already make up a disproportionate percentage of the state’s COVID-19 cases, relative to the state’s overall population is truly alarming. We must work quickly to find solutions to address this troubling statistic."
"That's the answer that I want. You know, this is something taking place, and tell me what are we doing. What are we doing to make sure we counteract this? Is anything going on? That's my concern," said Moore Henegan.
She also said she would like to see more testing.

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"I'm not blaming anyone for this virus, but I do want to make sure that we test people. We can't send people home

and they die. And then come up with coronavirus, we don't know why. It may have been. It may not have been.

We're not counting them in the statistics," said Moore Henegan.

Florence NAACP Branch President Jerry Keith, Jr. believes testing is part of the problem. He believes racial disparities across the state also play a role.
“Lots of these folks are uninsured. A lot of them don’t have the availability of healthcare where they need to have it," Keith said.
Dr. Rami Zebian with Florence MUSC Health said the numbers are troubling, but adds that COVID-19 is a novel virus with many unanswered questions.

"We're seeing it throughout the country that African Americans are having being hit harder by this, or they are getting more percentage of deaths or complications. You know, it is unfortunate. We are learning a lot about this disease. I will tell you -- not fast enough. Everybody is struggling for information. We want to know more about it," said Dr. Zebian.

RELATED: Outcry over racial data grows as virus slams black Americans

ABC 15 reached out to DHEC in reference to Henegan's letter.

The agency sent the following statement:

South Carolina and other states across the U.S. have reported a disproportionate number of cases and deaths in African Americans. There are multiple factors that contribute to various rates of infection and death among different races and ethnicities. Underlying medical conditions such as diabetes, heart disease, hypertension, obesity, and asthma might make it more likely that African Americans are admitted to the ICU or die from the disease.

As an example of the increased prevalence of underlying health conditions in South Carolina, approximately 528,000 adults in our state have been diagnosed with diabetes. However, the prevalence of diabetes is higher among black adults (17.8%) than among white adults (12.4%) in our state.

This data is why we and the CDC are urging the elderly and people with underlying health conditions to stay home if possible, practice social distancing and wear a cloth mask if you have to go out in public, and to call a health care provider or MUSC's free telehealth service if you develop COVID-19 symptoms.

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SC Demographic Data (COVID-19) | SCDHEC

SC Demographic Data (COVID-19)

Friday, April 24, 2020, 5:25 pm The data below will be updated every Tuesday & Friday afternoon.

Demographic information for reported COVID-19 cases and deaths may provide information on populations that are at higher risk for COVID-19 infection and death. By monitoring demographics, we can provide education and outreach to high-risk populations and identify any disparities that deserve further investigation or focus.

Recovery Rate
As of April 23, of the total positive cases of COVID-19 in South Carolina, we have symptom onset data (meaning, the date when a person ﬁrst showed signs of illness) for 4,032 of those individuals. Of those individuals, 154 have unfortunately died. Our recovery rate data is based on symptom onset information, so the percentages below are based on the number of individuals we have symptom onset data for, not the total number of cases in the state.
As of April 23, 73 percent of those 3,878 individuals for which we have symptom onset data are estimated to have recovered from COVID-19, and 27 percent are estimated to remain ill.
Note: These data are provisional. The estimated percent of those who may have recovered from COVID-19 is based upon the following parameters:
Those who reported being hospitalized were deemed as “recovered” based upon having no reported adverse outcome reported as of > 32 days since their illness onset. Those who reported not being hospitalized were deemed as “recovered” based upon having no reported adverse outcome reported as of > 14 days since their illness onset. Those where hospitalization status was unknown were deemed as “recovered” based upon having no reported adverse outcome reported as of > 32 days since their illness onset.

By Cases

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Nursing Homes and Extended Care Facilities Impacted by COVID-19
DHEC prioritizes the identiﬁcation of COVID-19 infections in congregate settings like nursing homes, assisted living facilities and extended care facilities because the spread of respiratory illnesses like COVID-19 is common in these types of facilities, and the residents who live there are at high risk for developing complications or death from COVID-19 infection.
To better inform the public about the scope of COVID-19 within these types of facilities, DHEC is providing a twice weekly update on the names of facilities in the state that have an associated conﬁrmed case of COVID-19, as well as the number of positive cases for either residents or staff members.
DHEC is continuing its partnership with nursing home facilities across the state to help them implement infection control practices that protect the residents and those who care for them from this unprecedented disease.

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COVID-19

Testing & Projections

County & ZIP Code

Hospital Bed Capacity

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By Deaths

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Data, analysis and visualization performed by Population Health Data Analytics & Informatics and the Division of Acute Disease Epidemiology

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FIPSCode 4500100000 4500300000 4500500000 4500700000 4500900000 4501100000 4501300000 4501500000 4501700000 4501900000 4502100000 4502300000 4502500000 4502700000 4502900000 4503100000 4503300000 4503500000 4503700000 4503900000 4504100000 4504300000 4504500000 4504700000 4504900000 4505100000 4505300000 4505500000 4505700000 4505900000 4506100000 4506300000 4506500000 4506700000 4506900000 4507100000 4507300000 4507500000 4507700000 4507900000 4508100000 4508300000 4508500000 4508700000 4508900000 4509100000

Jurisdiction_Name ABBEVILLE COUNTY AIKEN COUNTY ALLENDALE COUNTY ANDERSON COUNTY BAMBERG COUNTY BARNWELL COUNTY BEAUFORT COUNTY BERKELEY COUNTY CALHOUN COUNTY CHARLESTON COUNTY CHEROKEE COUNTY CHESTER COUNTY CHESTERFIELD COUNTY CLARENDON COUNTY COLLETON COUNTY DARLINGTON COUNTY DILLON COUNTY DORCHESTER COUNTY EDGEFIELD COUNTY FAIRFIELD COUNTY FLORENCE COUNTY GEORGETOWN COUNTY GREENVILLE COUNTY GREENWOOD COUNTY HAMPTON COUNTY HORRY COUNTY JASPER COUNTY KERSHAW COUNTY LANCASTER COUNTY LAURENS COUNTY LEE COUNTY LEXINGTON COUNTY MCCORMICK COUNTY MARION COUNTY MARLBORO COUNTY NEWBERRY COUNTY OCONEE COUNTY ORANGEBURG COUNTY PICKENS COUNTY RICHLAND COUNTY SALUDA COUNTY SPARTANBURG COUNTY SUMTER COUNTY UNION COUNTY WILLIAMSBURG COUNTY YORK COUNTY

State_Abbr SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC SC

Total Mail ballots received 249 1747 556 1963 258 221 3117 3699 238 10328 240 354 222 508 475 953 616 2316 505 233 1042 999 5663 1228 773 4254 382 524 1307 477 64 3797 121 608 804 258 1251 2084 938 7198 158 3318 2065 169 336 4190

Mail ballots rejected lack of witness sig 0 8 4 56 6 0 7 64 1 0 0 0 0 0 0 0 7 76 0 0 8 8 3 35 4 39 0 15 35 0 0 38 0 28 2 5 26 59 1 109 0 48 34 3 15 54

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EXHIBIT 2

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

MARY T. THOMAS, et al.,
Plaintiffs,
v.
MARCI ANDINO, in her official capacity as Executive Director of the South Carolina State Election Commission, et al.,
Defendants.

Case No.: 3:30-cv-01552-JMC

DECLARATION OF DR. ARTHUR L. REINGOLD Pursuant to 28 U.S.C. § 1746, I hereby declare as follows: 1. I am the Division Head of Epidemiology and Biostatistics at the University of California, Berkeley, School of Public Health. I have worked on the prevention and control of infectious diseases in both the United States, including eight years at the US Centers for Disease Control and Prevention (“CDC”), and with numerous developing countries around the world for over forty years. Since its inception in 1994, I have directed or co-directed the CDC-funded California Emerging Infections Program. I am a member of the Society for Epidemiologic Research and the American Epidemiological Society; an elected Fellow of the Infectious Disease Society of America and of the American Association for the Advancement of Science; and an elected member of the Institute of Medicine of the National Academy of Sciences. I was previously the President of both the Society for Epidemiologic Research and the American Epidemiological Society. I have served on the editorial boards of the journals: American Journal of Epidemiology, Epidemiology, and Global Public Health.

1

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2. I received my A.B. in biology from the University of Chicago in 1970, and my M.D. from the University of Chicago in 1976. Among other things, I completed a residency in internal medicine and a preventative medicine residency with the CDC.
3. My career in public health has been in the area of infectious diseases and epidemiology. Following my positions at the CDC (1979–87), I joined the faculty of the School of Public Health at Berkeley as a Professor of Epidemiology (1987–present), the faculty of the Department of Epidemiology and Biostatistics at the University of California, San Francisco (“UCSF”) (1989–present), and as a Clinical Professor in the Department of Medicine at UCSF (1991–present). From 1990–94, I was the Head of the Epidemiology Program, Department of Biomedical and Environmental Health Sciences, University of California, Berkeley; from 1994– 2000, I was the Head of the Division of Public Health Biology and Epidemiology, University of California, Berkeley; from 2000–18, I was the Head of the Division of Epidemiology, School of Public Health, University of California, Berkeley; from 2018 continuing through the present, I am the Head of the Division of Epidemiology and Biostatistics, School of Public Health University of California, Berkeley.
4. My research focuses on emerging and re-emerging infections in the United States and in developing countries; vaccine-preventable diseases in the United States and in developing countries; and disease surveillance, outbreak detection, and outbreak response.
5. Attached and incorporated by reference to this declaration is a copy of my curriculum vitae. (Attached here as Attachment A).
6. I am currently collaborating on research concerning SARS-CoV-2 and its incidence, and serving on SARS-CoV-2 advisory groups for multiple organizations, including UC Berkeley, the University of California system, and the City and County of San Francisco, among
2

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others. 7. SARS-CoV-2 is a novel coronavirus that causes Coronavirus Disease 2019
(COVID-19). The virus is a respiratory virus with patients typically presenting with acute respiratory signs and symptoms, which can escalate in some patients to respiratory failure and other serious, life-threatening complications. The most common symptoms are fever, cough, and shortness of breath. Other identified symptoms include muscle aches, headaches, chest pain, diarrhea, coughing up blood, sputum production, runny nose, nausea, vomiting, sore throat, confusion, lack of senses of taste and smell, and anorexia. Due to the respiratory impacts of the disease, individuals may need to be put on oxygen, and in severe cases, patients may need to be intubated and put on a ventilator. People of every age can and have contracted COVID-19, including severe cases, but geriatric patients are at the greatest risk of severe cases, long-term impairment, and death. Likewise, those with immunologic conditions and with other pre-existing conditions, such as hypertension, certain heart conditions, lung diseases (e.g., asthma, COPD), diabetes mellitus, obesity, and chronic kidney disease, are at high risk of a life-threatening COVID19 illness. Information available to date shows that, if infected with the SARS-CoV-2 virus, racial and ethnic minority populations, especially African-Americans, are at a substantially elevated risk of developing life-threatening COVID-19 illnesses and to die of COVID-19.
8. SARS-CoV-2 is readily spread through respiratory transmission. All people are susceptible to and capable of getting COVID-19 because of the ease with which it spreads. The virus is spread through droplet transmission; that is, when an infected individual speaks, coughs, sneezes, and the like, they expel droplets which can transmit the virus to others in their proximity. Though not yet determined, scientists are currently assessing whether the virus is aerosolized, such that tiny droplets containing the virus remain in the air and can be inhaled by others who come
3

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into contact with that air. The virus is also known to be spread through the touching of contaminated surfaces, for example, when an infected person touches a surface with a hand they have coughed into and then another person touches that same surface before it has been disinfected and then touches their face. Each infected individual is estimated to infect two to eight others. In addition, some people are so-called “superspreaders,” who cause widespread infections.
9. Diagnostic testing for the virus is currently most often done through use of a reverse-transcriptase polymerase chain reaction (RT-PCR) test. There has not been sufficiently wide-spread and easily accessible testing throughout the United States, including in South Carolina. Serologic tests, which detect antibodies to the virus and thus indicate whether someone has already been exposed to it, are being developed but have not yet been validated or produced at scale.
10. There is not yet any FDA-approved vaccine against SARS-CoV-2, which could be used to immunize the population to the virus. As a result, the only ways to limit its spread are selfisolation, social distancing, frequent handwashing, and disinfecting surfaces. Self-isolation involves not physically interacting with those outside one’s household. Social or physical distancing is maintaining at least six feet of distance between individuals. Both of these interventions are aimed at keeping infected individuals far enough apart from other individuals so that they do not pass the virus along. Frequent handwashing and regular disinfecting of surfaces curb the spread via contaminated surfaces.
11. Transmission of SARS-CoV-2 can occur in any location where there is close proximity (less than six feet) between individuals. And because transmission of the virus can occur via environmental surfaces, there is also risk of spread of the virus at any location where multiple individuals touch surfaces. Some individuals who are infected with the virus do not have
4

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any symptoms but can transmit the virus and/or are infectious before they develop any symptoms. This means that isolating only persons known to be infected will not stop the spread of infection. Rather, to prevent increasing the scope of the outbreak of COVID-19, we must assume that anyone could be infected and infect another person.
12. Due to the lack of adequate testing, the time lag in getting results back from laboratories, and the lengthy incubation time, we cannot yet definitely determine the full effects of stay-at-home orders and social distancing. But social distancing has worked to slow the spread of respiratory viruses generally and in places that are ahead of South Carolina and the United States in the current pandemic. There is evidence that cities and states that have implemented stay-athome orders earlier than South Carolina are experiencing reduced transmission. Current modeling shows that social distancing and stay-at-home orders are lessening transmission. However, transmission of the virus will continue through the population until the development and widespread use of a vaccine and/or herd immunity.
13. It is unlikely that an FDA-approved vaccine will be available for approximately 12 to 18 months, and indeed may take longer than that due to the number of steps in the process of development, trial and error, scaling to clinical trials, assessing side effects, and assessing efficacy across the population at large.
14. Herd immunity occurs when a high percentage of the population become immune to an infectious disease, such that the spread is dramatically slowed, as infected persons can become dead-ends for the virus, so to speak, because they are not interacting with anyone to whom they can transmit the virus. Approximately 80-95% of a population must be immune in order to achieve herd immunity, depending on the infectiousness of the agent. In this context, an individual’s immunity can come from either a vaccine or from previous infection. Herd immunity
5

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can protect those in a population who cannot be vaccinated and for whom infection can be particularly serious. Without herd immunity, we can expect that COVID-19 will continue to transmit widely.
15. As SARS-CoV-2 is a new virus, also referred to as a novel virus, only those who have been infected and recovered are possibly immune; there is not a pre-existing population already immune to the virus. Anyone who has not yet been infected is susceptible to infection. Also, due to the virus’s novelty, we do not know whether any immunity generated by previous infection lasts permanently, for a specified period, or whether reinfection is possible. As a result, herd immunity is unlikely unless and until the development and widespread use of an effective vaccine or a sufficiently high proportion of the population has been infected. Only once serologic antibody testing is widely available will we be able to determine who in the population is not susceptible to either infection or transmission based on their immunity due to earlier infection. As a result, even if transmission slows due to behavioral interventions such as social distancing and stay-at-home orders, we can expect resurgences of COVID-19, including significant community transmission, throughout 2020 and into 2021 across the United States, until the development and widespread use of a vaccine. Such resurgence is particularly likely if/when these behavioral modifications are lifted when community transmission is still continuing.
16. As SARS-CoV-2 is novel, we also cannot say definitively whether its incidence and prevalence will rise and fall based on weather / what season it is. If virus transmission and prevalence do decline over the summer months, it remains likely that they will resurge in the fall and winter. However, certain other coronaviruses—such as SARS and MERS-CoV—do not appear to demonstrate seasonality of infection. And the current virus has circulated widely in countries currently in their hot seasons. These two points suggest that transmission of and infection
6

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with the virus may not be affected by the weather. 17. Due to the ease of transmission, the high risk to certain parts of the population, and
the fact that the virus will continue to surge unless and until wide-spread vaccination and/or herd immunity is achieved, individuals will need to continue to take steps to prevent infection. Polling locations are a prime area for increased transmission of SARS-CoV-2 due to the close proximity of a large number of individuals—voters, observers, poll workers—in a limited space. A polling location also has a large number of common surfaces that multiple people touch: the doors, the poll books to sign in, pens, voting booths, and voting machines. Due to the transmission of the virus via contaminated environmental surfaces, polling locations are highly likely to cause increased infection. My opinion has been further confirmed by reports like the one from health officials in Milwaukee, Wisconsin, who have reported that six voters and a poll worker have been identified as having contracted SARS-CoV-2 via in-person voting in the primary election held on April 7, 2020.1 This is one example of the risks of transmission I have described. Widespread vote-by-mail or absentee balloting would be a much safer option for public health, in light of COVID-19, as it would vastly decrease the number of individuals needing to vote in person and thus substantially decrease the number of people coming into proximity at polling locations and the spread via environmental surfaces.
18. With widespread vote by mail, however, for individuals without another person able to witness in their household, the requirement that they have someone witness their absentee ballot would place them at increased risk of exposure to and/or transmission of COVID-19. Requiring individuals to have someone they are not otherwise being exposed to come into close enough
1 Nick Corasaniti & Reid J. Epstein, “At Least Seven in Wisconsin Contract Coronavirus During Voting,” N.Y. Times, Apr. 21, 2020.
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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-12 Page 1 of 8
EXHIBIT 3

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-12 Page 2 of 8

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

Thomas et al. Plaintiffs,
v. Andino et al.
Defendants.

) ) ) ) ) ) ) ) CASE NO. No 3:20-cv-01552 )

DECLARATION OF WILLIAM S. COOPER WILLIAM S. COOPER, acting in accordance with 28 U.S.C. §1746, 26(a)(2)(B), the Federal Rules of Civil Procedure, and Rules 702 and 703, the Federal Rules of Evidence, does hereby declare and say: 1. My name is William S. Cooper. I have a B.A. degree in Economics from Davidson College. As a private consultant, I currently serve as a demographic expert for the Plaintiffs. 2. I have testified at trial as an expert witness on redistricting and demographics in federal courts in about 40 voting rights cases in 16 states. My testimony in these lawsuits almost always included a review of demographics and socioeconomic characteristics for the jurisdictions at issue.

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-12 Page 3 of 8
3. The attorneys for the plaintiffs asked me to review measures of socioeconomic status for African Americans and non-Hispanic Whites in South Carolina, as reported in the 1-Year 2018 American Community Survey (2018 ACS) published by the U.S. Census Bureau.
4. According to the 2018 ACS, the citizen voting age population in South Carolina is 3,850,077, of whom 1,021,072 are single-race African-American (25.5%), 115,494 are Latino (3.0%), and 2,605,101 (67.7%) are non-Hispanic White.1
5. According to the 2018 ACS, the 2018 voting age population of South Carolina is 3,979,718, of whom 25.7% are non-Hispanic African-American, 4.8% are Latino, and 66.1% are non-Hispanic White. 2 (See Attachment B at p. 1)
1 Source: Table S2901 -- CITIZEN, VOTING-AGE POPULATION BY SELECTED CHARACTERISTICS https://data.census.gov/cedsci/table?q=south%20carolina%20voting%20age%20population&g=0400000 US45&tid=ACSST1Y2018.S2901&t=Age%20and%20Sex&vintage=2018 2 Source: Table S0201 – SELECTED POPULATION PROFILE
As of April 21, 2020, the PDF version of Table S0201 is not yet available from the Census Bureau’s new website which replaced American Factfinder. Right click on any cell in the webpage source below to download an Excel compatible version of the S0201 dataset. https://data.census.gov/cedsci/table?q=s0201&tid=ACSSPP1Y2018.S0201&y=2018&t=400%20%20Hispanic%20or%20Latino%20%28of%20any%20race%29%20%28200-299%29%3A451%20%20White%20alone,%20not%20Hispanic%20or%20Latino%3A453%20%20Black%20or%20African%20American%20alone,%20not%20Hispanic%20or%20Latino%3ARace% 20and%20Ethnicity&hidePreview=true&moe=false&g=0400000US45
2

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6. For the 3.98 million South Carolinians of voting age, 558,826 (14.5%) live alone. Of the 899,754 persons who are 65 and over3, 222,484 (24.7%) live alone. 4 Thus, about 39.8% of persons who live alone are over 65.
7. For South Carolinians of voting age living alone, 26.6% (148,897) are disabled.5 And for the subset of 65 and over living alone, 39.2% (88,940) are disabled.
8. For the 1.02 million African Americans of voting age, 170,075 (16.7%) live alone.6 Of the 162, 697 African Americans who are 65 and over, 53,591 (32.9%) live alone.
3 Source: Table S0101 -- AGE AND SEX https://data.census.gov/cedsci/table?q=population%20by%20age&g=0400000US45&tid=ACSST1Y2018 .S0101&t=Age%20and%20Sex 4 Source: Table DP02 -- SELECTED SOCIAL CHARACTERISTICS IN THE UNITED STATES https://data.census.gov/cedsci/table?q=south%20carolina%20single%20person%20households&g=04000 00US45&hidePreview=false&tid=ACSDP1Y2018.DP02&vintage=2018&layer=VT_2018_040_00_PY_ D1&cid=DP02_0001E 5 Source: ACS 1-Year Estimates - Public Use Microdata Sample (2018) https://data.census.gov/mdat/#/search?ds=ACSPUMS1Y2018&vv=AGEP(18:99)&cv=RACBLK,DIS&rv =ucgid&nv=HHT(4,6)&wt=PWGTP&g=0400000US45 6 Source: ACS 1-Year Estimates - Public Use Microdata Sample (2018) https://data.census.gov/mdat/#/search?ds=ACSPUMS1Y2018&vv=AGEP(18:99)&cv=RACBLK&rv=ucgid&nv=H HT(4,6)&wt=PWGTP&g=0400000US45
3

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9. In South Carolina, for voting age African Americans (incl. Hispanic Black) living alone, 27.1% (46,066) are disabled. 7 For the subset of 65 and over living alone, 41.2% of African Americans (22,092) are disabled. For voting age Whites (incl. Hispanic White) living alone, 26.7% (101,164) are disabled. 8 For the subset of 65 and over living alone, 38.6% of Whites (64,389) are disabled.
10. In South Carolina, African Americans and Latinos trail non-Hispanic Whites across most key indicators of socioeconomic well-being. This disparity is summarized in the charts in Attachment A and the table in Attachment B, as reported in Table S0201 from the 2018 ACS.
11. The following items specifically compare single race non-Hispanic African Americans and non-Hispanic Whites, according to the 2018 ACS: a) Income
• About a quarter (25.4%) of African Americans in South Carolina live in poverty, compared to 10.0% of Whites. (Attach. A at p. 22 and Attach. B at p. 7)
• Nearly two in five (38.7%) of African-American children live in poverty, compared to 11.4% of White children. (Attach. A at p. 22 and Attach. B at p. 7)
7 Source: ACS 1-Year Estimates - Public Use Microdata Sample (2018) https://data.census.gov/mdat/#/search?ds=ACSPUMS1Y2018&vv=AGEP(18:99)&cv=RACBLK,DIS&rv=ucgid&n v=HHT(4,6)&wt=PWGTP&g=0400000US45 8 Source: ACS 1-Year Estimates - Public Use Microdata Sample (2018)
4

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• About two in five (43.1%) of African American female-headed households with children live below poverty, compared to a 33.0% poverty rate for White female-headed households. (Attach. A at p. 20 and Attach. Bat p. 7)
• African-American median household income is $34,594, compared $61,600 for White households. (Attach. A at p. 14 and Attach. B at p. 6)
• Per capita income disparities in South Carolina track the disparities seen in median household income. African-American per capita income is $18,982, compared to White per capita income of $34,663. (Attach. A at p. 17 and Attach. B at p. 7)
• About a quarter (24.2%) of African-American households rely on food stamps (SNAP) –nearly four times the 6.6% SNAP participation rate of White households. (Attach. A at p. 15 and Attach. B at p. 6)
(b) Education
• Of persons 25 years of age and over, nearly one-sixth (16.1%) of African Americans have not finished high school, compared to 8.7% of their White counterparts. (Attach. A at p. 5 and Attach. B at p. 3)
• At the other end of the educational scale, for ages 25 and over, 15.3% of African Americans have a bachelor’s degree or higher, compared to 33.4% of Whites. (Attach. A at p. 5 and Attach. B at p. 3)
(c) Employment
• The Black unemployment rate (for the population over 16 (expressed as a percent of the civilian labor force) is 8.0% – compared to a 4.1% White unemployment rate. (Attach. A at p. 11 and Attach. B at p. 5)
• Of employed African Americans, 23.1% are in management or professional occupations, compared to the 39.9% rate of Whites. (Attach. A at p. 13 and Attach. B at p. 5)
5

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(d) Household Composition • Of all African American households, 33.2% contain persons living
alone. Of all White households, 28.2% contain persons living alone. (Attach. A at p. 28 and Attach B. at p. 2) 9
• Of all African American households, 14.8% are female-headed, with children under 18. By comparison, 3.9% of White households are femaleheaded with children. (Attach. A at p. 29 and Attach. B at p. 2) (e) Home ownership
• About half of African-American householders (51.4%) are homeowners, while more than three-fourths of White households (77.5%) are owner-occupied. (Attach. A at p. 21 and Attach. B at p. 8)
• Median home value for African-American homeowners is $106,700, compared to the $189,800 median home value for Whites. (Attach. A at p. 25 and Attach. B at p. 9) (f) Health
• Nearly two in five African Americans (38.6%) aged 65 and over have a disability, compared to 33.1% of their White cohorts. (Attach. A at p. 7 and Attach. B at p. 4)
• About one in nine African Americans (11.6%) has no health insurance coverage, compared to 8.3% of Whites. (Attach. A at p. 18 and Attach. B at p. 7)
9 As noted in ¶8 supra, at the individual-level, 16.7% of African Americans of voting age live alone and 32.9% of those 65 and over live alone.
6

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(g) Transportation/Communication • About one in eight African-American households (13.6%) lacks
access to a vehicle, while 3.5% of White households are without a vehicle. (Attach. A at p. 23 and Attach. B at p. 8)
• There is an 8-point Black-White gap in households with a computer, smartphone, or tablet – 84.7% versus 92.0%. (Attach. A and Attach B. at p. 9)
• More than one fourth (28.3%) of African American households do not have a broadband internet connection, compared to 14.9% of White households. (Attach. A at p. 27 and Attach. B at p. 9 )
## #
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury of the laws of the United States that the foregoing is true and correct according to the best of my knowledge, information and belief. Executed on: April 27, 2020
WILLIAM S. COOPER
7

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 1 of 29
Selected Socio-Economic Data South Carolina
NH African American and Latino vis-à-vis NH White Data Set: 2018 American Community Survey 1-Year Estimates
27-Apr-20

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 2 of 29

Population by Age South Carolina

90.0% 80.0% 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0%
0.0%

6.0%

9.5%

4.8%

Under 5 years

75.9%

81.5%

64.7%

18 years and over

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

African American Latino Non-Hispanic White

13.7%

21.3%

5.0%

65 years and over

Page 2 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 3 of 29

80.0% 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0%
0.0%

Household Type for Population in Households South Carolina
African American Latino Non-Hispanic White

62.3%

73.2%

65.9%

37.7%

26.8%

34.1%

In family households

In nonfamily households

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 3 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 4 of 29

Marital Status for the Population 15 Years and Over South Carolina

60.0% 50.0% 40.0%

49.8% 40.1%

African American 58.1%

Latino

Non-Hispanic White

45.0%

30.0%

25.9%

28.1%

20.0%

10.0%

0.0%

Never married

Now married (except separated)

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

4.2% 3.2% 1.3%
Separated

7.4% 3.1% 4.2%
Widowed

Page 4 of 29

10.5%

10.5%

8.7%

Divorced

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 5 of 29

Educational Attainment for the Population 25 Years and Older South Carolina

40.0% 35.0% 30.0% 25.0% 20.0% 15.0% 10.0%

30.5%
16.1% 8.7%

African American 37.7%

Latino

Non-Hispanic White

31.7% 27.2%

30.8%

30.8%

20.6%

33.4%
17.2% 15.3%

5.0%

0.0%

Less than high school diploma

High school graduate, GED, or alternative

Some college or associate's degree

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Bachelor's degree or higher

Page 5 of 29

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10.0% 9.0% 8.0% 7.0% 6.0% 5.0% 4.0% 3.0% 2.0% 1.0% 0.0%

Veterans in the Civilian Population 18 Years and Over South Carolina
African American Latino Non-Hispanic White

` 8.3%

10.0%

4.9%

Veteran

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 6 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 7 of 29

40.0% 35.0% 30.0% 25.0% 20.0% 15.0% 10.0%
5.0% 0.0%

Disability by Age -- Civilian Noninstitutionalized Population South Carolina

African American

Latino

Non-Hispanic White 38.6% 36.4%
33.1%

3.9% 4.6% 4.5% Under 18 with a disability

14.2%

9.9%

11.6%

18 to 64 with a disability

65 and over with a disability

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 7 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 8 of 29

Geographical Mobility in the Past Year (Population 1 Year and Over) South Carolina

90.0% 80.0%

85.9%

86.1%

82.5%

African American Latino Non-Hispanic White

70.0%

60.0%

50.0%

40.0%

30.0%

20.0%
10.0%
0.0% Same house 1 year ago

8.1% 7.5% 6.5%

3.6% 3.2% 2.9%

4.7% 4.2% 2.2%

Moved within same county

Moved from different county within same state

Moved from different state

0.1% 2.2% 0.3% Moved from abroad

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 8 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 9 of 29

Speak English Less than "Very Well" (Population 5 Years and Over) South Carolina
African American Latino Non-Hispanic White

30.0%

29.0%

25.0%

20.0%

15.0%

10.0%

5.0% 0.0%

0.3%

0.5%

Speak English less than "very well"

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 9 of 29

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80.0% 70.0% 60.0% 50.0% 40.0% 30.0%

Employment Status for the Population 16 years and over South Carolina
African American Latino Non-Hispanic White

70.1%

60.3%

59.4%

63.5%

54.9%

56.3%

39.7%

40.6%

29.9%

20.0%

10.0% 0.0%

In labor force:

0.6% 2.2% 0.7% In Armed Forces

Employed

4.8% 4.4% 2.4%
Unemployed

Not in labor force

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 10 of 29

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Unemployment (Civilian Labor Force -- Ages 16 and Over) South Carolina
African American Latino Non-Hispanic White

8.0%

8.0%
6.4% 7.0%

6.0%

5.0%

4.1%

4.0%

3.0%

2.0%

1.0%

0.0%

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 11 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 12 of 29

Means of Transportation to Work (Workers 16 Years and Over) South Carolina

90.0% 80.0% 70.0%

80.6%

83.2%

69.2%

African American Latino Non-Hispanic White

60.0%

50.0%

40.0%

30.0% 20.0% 10.0%

22.1%
11.2% 7.4%

0.0%

Car, truck, or van - drove alone

Car, truck, or van - carpooled

1.2% 0.6% 0.3%
Public transportation (excluding taxicab)

4.8% 5.2% 2.8%
Taxicab, motorcycle, bicycle, walked, or other means

6.3% 2.3% 3.1%
Worked at home

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 12 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 13 of 29

Occupation for the Civilian Employed 16 Years and Over Population South Carolina

40.0%

39.9%

African American Latino Non-Hispanic White

35.0%

30.0% 25.0% 20.0% 15.0% 10.0%
5.0%

23.1% 19.4%

24.5% 24.6%

22.4%

22.7%

15.2%

15.1%

25.6%

5.7%

9.5%

24.3%
15.2% 12.7%

0.0%

Management, professional, and related occupations

Service occupations

Sales and office occupations

Natural resources,

Production, transportation,

construction, and

and material moving

maintenance occupations:

occupations

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 13 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 14 of 29
Median Household Income in the Past 12 Months South Carolina
African American Latino Non-Hispanic White

$70,000 $60,000 $50,000 $40,000 $30,000 $20,000 $10,000
$-

$34,594

$42,280

$61,600

Median household income in the past 12 months (in 2018 inflation-adjusted dollars)

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 14 of 29

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Receipt of Food Stamps/SNAP in the Past 12 Months by Household South Carolina
African American Latino Non-Hispanic White

25.0% 20.0% 15.0% 10.0%
5.0% 0.0%

24.2% 13.6% 6.5%
HH received Food Stamps/SNAP in the past 12 months

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 15 of 29

$80,000 $70,000 $60,000 $50,000 $40,000 $30,000 $20,000 $10,000
$-

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 16 of 29
Median Family Income in the Past 12 Months South Carolina
African American Latino Non-Hispanic White $76,382

$42,910

$46,120

Median family income in the past 12 months (in 2018 inflation-adjusted dollars)

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 16 of 29

$35,000 $30,000 $25,000 $20,000 $15,000 $10,000
$5,000 $-

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 17 of 29
Per capita Income in the Past 12 Months South Carolina
African American Latino Non-Hispanic White $34,663

$18,982

$16,990

Per capita income in the past 12 months (in 2018 inflation-adjusted dollars)

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 17 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 18 of 29

Lack of Health Insurance Coverage -- Civilian Noninstitutionalized Population South Carolina

African American

Latino

Non-Hispanic White

30.0% 25.0% 20.0% 15.0% 10.0%
5.0% 0.0%

27.6%

11.6%

8.3%

No health insurance coverage

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 18 of 29

25.0% 20.0% 15.0% 10.0%
5.0% 0.0%

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 19 of 29

Family Households Below Poverty in the Past 12 Months South Carolina

African American

Latino

Non-Hispanic White

21.1%

23.3%

6.4% Income in the past 12 months below poverty level:

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 19 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 20 of 29

Female-headed Households with Related Children Below Poverty in the Past 12 Months South Carolina

African American

Latino

Non-Hispanic White

70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0%
0.0%

43.1%

65.7%

33.0%

With related children under 18 years below poverty

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 20 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 21 of 29

80.0% 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0%
0.0%

Home Owners and Renters by Household South Carolina

African American 77.5%

Latino

Non-Hispanic White

51.4%

49.0%

48.6%

51.0%

22.5%

Owner occupied

Renter occupied

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 21 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 22 of 29

Population Below Poverty in the Past 12 Months South Carolina

40.0% 35.0%

38.7% 36.6%

African American

Latino

Non-Hispanic White

30.0% 25.0% 20.0%

27.0% 25.4%

21.8% 21.9%

18.9% 17.8%

15.0% 10.0%
5.0%

10.0%

11.4%

10.5%

7.1%

0.0%

Income in the past 12 months below poverty level:

Under 18 years

18 to 64 years

65 years and over

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 22 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 23 of 29

No Vehicles Available by Household South Carolina
African American Latino Non-Hispanic White

14.0% 12.0% 10.0%
8.0% 6.0% 4.0% 2.0% 0.0%

13.6%
5.7% 3.5%
No Vehicle available

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 23 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 24 of 29
More than One Person per Room (Crowding) by Household South Carolina
African American Latino Non-Hispanic White

8.0% 7.0% 6.0% 5.0% 4.0% 3.0% 2.0% 1.0% 0.0%

7.6%
3.3% 1.2%
1.01 or more occupants per room

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 24 of 29

$200,000 $180,000 $160,000 $140,000 $120,000 $100,000
$80,000 $60,000 $40,000 $20,000
$-

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 25 of 29

Median Home Value -- Owner-Occupied South Carolina
African American Latino Non-Hispanic White

$158,300

$189,800

$106,700

Median Home Value -- Owner-Occupied

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 25 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 26 of 29
Rent as a Percentage of Household Income (30% or more) -- Renter-Occupied South Carolina
African American Latino Non-Hispanic White

60.0% 50.0% 40.0% 30.0% 20.0% 10.0%
0.0%

54.9%

54.7%

43.7%

Rent as a Percentage of Household Income (30% or more)

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 26 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 27 of 29

Computers and Internet Use South Carolina

African American Latino Non-Hispanic White

100.0% 90.0% 80.0% 70.0% 60.0% 50.0% 40.0% 30.0% 20.0% 10.0% 0.0%

84.7%

92.1%

92.0%

Total households - With a computer, smartphone, or tablet

71.7%

78.9%

85.1%

Total households - With a broadband Internet subscription

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

Page 27 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 28 of 29
Households with Householder Living Alone South Carolina
African American Latino Non-Hispanic White

35.0% 30.0% 25.0% 20.0% 15.0% 10.0%
5.0% 0.0%

33.2% 18.6%
Householder Living alone

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates

28.2%

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-13 Page 29 of 29

Female-Headed Households with Children Under 18 (As a Percentage of all Households) South Carolina
African American Latino Non-Hispanic White

16.0% 14.0% 12.0% 10.0%
8.0% 6.0% 4.0% 2.0% 0.0%

14.8%

11.4%

3.9% Female-Headed Households with Children

Source: S0201 SELECTED POPULATION PROFILE Data Set: 2018 American Community Survey 1-Year Estimates
Page 29 of 29

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-14 Page 1 of 9

South Carolina
TOTAL NUMBER OF RACES REPORTED Total population One race Two races Three races Four or more races SEX AND AGE Total population Male Female Under 5 years 5 to 17 years 18 to 24 years 25 to 34 years 35 to 44 years 45 to 54 years 55 to 64 years 65 to 74 years 75 years and over Median age (years) 18 years and over 21 years and over 62 years and over 65 years and over Under 18 years Male Female 18 years and over Male Female 18 to 34 years Male Female 35 to 64 years Male Female 65 years and over Male Female RELATIONSHIP Population in households

All Persons Estimate

Black or

White

African Hispanic or alone, not

American Latino (of Hispanic

alone, not any race) or Latino

Estimate Estimate Estimate

5,084,127 97.60% 2.20% 0.10% 0%

1,345,077 100% (X) (X) (X)

294,502 3,229,793

93.60% 100%

5.70%

(X)

0.60%

(X)

0.10%

(X)

5,084,127 48.60% 51.40% 5.70% 16.10% 9.60% 12.90% 12.30% 12.50% 13.30% 10.90% 6.80% 39.7 78.30% 73.80% 21.50% 17.70%
1,104,409 51.50% 48.50%
3,979,718 47.70% 52.30%
1,141,718 50.40% 49.60%
1,938,246 47.70% 52.30% 899,754 44.40% 55.60%

1,345,077 46.60% 53.40% 6% 18% 11.10% 13.40% 12.70% 12.30% 12.70% 8.90% 4.80% 35.9 75.90% 70.90% 17.20% 13.70% 323,832 51.10% 48.90%
1,021,245 45.20% 54.80% 330,058 48.40% 51.60% 507,133 44.60% 55.40% 184,054 41.10% 58.90%

294,502 3,229,793

52.40% 48.90%

47.60% 51.10%

9.50% 4.80%

25.80% 13.70%

12.70% 8.40%

14.70% 12.40%

17.30% 11.70%

9% 13.20%

6% 14.60%

3.40% 12.80%

1.60% 8.50%

26.4

44.1

64.70% 81.50%

58% 77.50%

6.50% 25.50%

5% 21.30%

104,063 599,044

51% 51.40%

49% 48.60%

190,439 2,630,749

53.10% 48.30%

46.90% 51.70%

80,511 670,956

54.90% 50.60%

45.10% 49.40%

95,111 1,273,388

53.70% 48.60%

46.30% 51.40%

14,817 686,405

39.30% 45.50%

60.70% 54.50%

4,948,304 1,296,971 286,056 3,158,402

Page 1 of 9

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-14 Page 2 of 9

South Carolina
Householder or spouse Child Other relatives Nonrelatives Unmarried partner HOUSEHOLDS BY TYPE Households Family households With own children of the householder under 18 years Married-couple family With own children of the householder under 18 years Female householder, no husband present, family With own children of the householder under 18 years Nonfamily households Male householder Living alone Not living alone Female householder Living alone Not living alone Average household size Average family size MARITAL STATUS Population 15 years and over Now married, except separated Widowed Divorced Separated Never married Male 15 years and over Now married, except separated Widowed Divorced Separated Never married Female 15 years and over Now married, except separated Widowed Divorced Separated Never married

All Persons Estimate 57.10% 29.40% 7.90% 5.50% 2.20%

Black or

White

African Hispanic or alone, not

American Latino (of Hispanic

alone, not any race) or Latino

Estimate Estimate Estimate

48.50% 40.40% 63.30%

34.80% 40.40% 25.40%

12.10% 10.80% 5.70%

4.60%

8.40% 5.60%

2.20%

2.60% 2.10%

1,927,991 65.30% 24.80% 46.50% 15.70% 14.30% 7.10% 34.70% 16% 12.90% 3.10% 18.70% 16.10% 2.60% 2.57 3.18

494,124 62.30% 24.90% 27.10%
7.80% 29.70% 14.80% 37.70% 16.80% 14.30%
2.50% 20.90% 18.90%
2% 2.64 3.44

76,939 1,304,391

73.20% 65.90%

45.40% 23.30%

47.40% 53.50%

28.30% 17.60%

16.50% 8.50%

11.40% 3.90%

26.80% 34.10%

15.60% 15.70%

9.60% 12.60%

6% 3.10%

11.20% 18.40%

9% 15.60%

2.10% 2.80%

3.42

2.48

3.88

3.03

4,165,633 46.40% 6.80% 11.20% 2.70% 32.90%
1,997,791 48.50% 3.20% 10.10% 2.50% 35.70%
2,167,842 44.40% 10.10% 12.30% 2.80% 30.40%

1,078,642 28.10% 7.40% 10.50% 4.20% 49.80% 491,173 32.10% 3.40% 9.20% 3.60% 51.60% 587,469 24.80% 10.70% 11.60% 4.70% 48.20%

205,133 2,735,887

45% 53.80%

3.10%

7%

8.70% 11.80%

3.20% 2.10%

40.10% 25.30%

109,297 1,325,662

45.50% 55.10%

1% 3.40%

6.60% 10.80%

3.80% 2.10%

43.10% 28.60%

95,836 1,410,225

44.40% 52.50%

5.60% 10.30%

11% 12.80%

2.40% 2.10%

36.60% 22.20%

Page 2 of 9

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-14 Page 3 of 9

South Carolina

All Persons

Estimate

SCHOOL ENROLLMENT

Population 3 years and over enrolled in school

1,202,171

Nursery school, preschool

5.30%

Kindergarten

5.60%

Elementary school (grades 1-8)

41.90%

High school (grades 9-12)

21.30%

College or graduate school

25.90%

Male 3 years and over enrolled in school

596,545

Percent enrolled in kindergarten to grade 12

71.50%

Percent enrolled in college or graduate school

22.70%

Female 3 years and over enrolled in school

605,626

Percent enrolled in kindergarten to grade 12

66.20%

Percent enrolled in college or graduate school

29%

EDUCATIONAL ATTAINMENT

Population 25 years and over

3,492,355

Less than high school diploma

11.60%

High school graduate (includes equivalency)

29.90%

Some college or associate's degree

30.20%

Bachelor's degree

18%

Graduate or professional degree

10.40%

High school graduate or higher

88.40%

Male, high school graduate or higher

87.20%

Female, high school graduate or higher

89.60%

Bachelor's degree or higher

28.30%

Male, bachelor's degree or higher

27.80%

Female, bachelor's degree or higher

28.80%

FERTILITY

Women 15 to 50 years

1,172,188

Women 15 to 50 years who had a birth in the past 12 months

63,951

Unmarried women 15 to 50 years who had a birth in the past 12 months

29,241

As a percent of all women with a birth in the past 12 months

45.70%

RESPONSIBILITY FOR GRANDCHILDREN UNDER 18 YEARS

Population 30 years and over

3,152,637

Grandparents living with grandchild(ren)

3.90%

Grandparents responsible for grandchildren as a percentage of living with grandchi4ld2r.e2n0%

VETERAN STATUS

Civilian population 18 years and over

3,948,709

Civilian veteran

9.20%

DISABILITY STATUS

Total civilian noninstitutionalized population

4,990,240

With a disability

14.40%

Black or

White

African Hispanic or alone, not

American Latino (of Hispanic

alone, not any race) or Latino

Estimate Estimate Estimate

353,932 5.50% 5.90%
41.90% 23.30% 23.30% 167,598 76.70% 16.40% 186,334 66.30% 29.50%

96,497 3.80% 7.40% 49.20% 21.40% 18.10% 48,492
82% 14.70% 48,005 74.10% 21.60%

670,403 5.60% 5.10%
40.50% 20.70% 28.10% 335,341 67.70% 26.40% 335,062
65% 29.80%

871,834 16.10% 37.70% 30.80%
9.70% 5.60% 83.90% 81.30% 85.90% 15.30% 12.40% 17.70%

153,094 2,359,200

30.50% 8.70%

31.70% 27.20%

20.60% 30.80%

11.40% 21.10%

5.90% 12.20%

69.50% 91.30%

67.10% 90.50%

72.30%

92%

17.20% 33.40%

14.70% 33.50%

20% 33.30%

344,485 20,273 16,188 79.90%

73,629 4,724 1,900
40.20%

702,581 36,226 10,200 28.20%

775,683 6.80%
41.30%

131,662 2,153,556 4.90% 2.80%
29.40% 44.80%

1,015,395 8.30%

186,071 2,612,088

4.90%

10%

1,309,600 15%

286,346 3,184,441 9.30% 14.90%

Page 3 of 9

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-14 Page 4 of 9

South Carolina
Civilian noninstitutionalized population under 18 years With a disability Civilian noninstitutionalized population 18 to 64 years With a disability Civilian noninstitutionalized population 65 years and older With a disability RESIDENCE 1 YEAR AGO Population 1 year and over Same house Different house in the U.S. Same county Different county Same state Different state Abroad PLACE OF BIRTH, CITIZENSHIP STATUS AND YEAR OF ENTRY Native Male Female Foreign born Male Female Foreign born; naturalized U.S. citizen Male Female Foreign born; not a U.S. citizen Male Female Population born outside the United States Entered 2010 or later Entered 2000 to 2009 Entered before 2000 WORLD REGION OF BIRTH OF FOREIGN BORN Foreign-born population excluding population born at sea Europe Asia Africa Oceania Latin America Northern America LANGUAGE SPOKEN AT HOME AND ABILITY TO SPEAK ENGLISH

All Persons Estimate
1,102,091 4.40%
3,006,493 12.20% 881,656 34.30%

Black or

White

African Hispanic or alone, not

American Latino (of Hispanic

alone, not any race) or Latino

Estimate Estimate Estimate

322,888 103,847 597,944

3.90%

4.60% 4.50%

808,637 167,807 1,911,984

14.20%

9.90% 11.60%

178,075 14,692 674,513

38.60% 36.40% 33.10%

5,029,034 85.70% 13.90% 7.10% 6.80% 3.10% 3.70% 0.40%

1,330,562 85.90% 13.90% 8.10% 5.80% 3.60% 2.20% 0.10%

289,750 3,198,855 82.50% 86.10% 15.40% 13.60%
7.50% 6.50% 7.90% 7.10% 3.20% 2.90% 4.70% 4.20% 2.20% 0.30%

4,827,362 48.50% 51.50% 256,765 50.50% 49.50% 111,188 47% 53% 145,577 53.20% 46.80% 256,765 28.90% 26.60% 44.50%

1,331,457 46.50% 53.50% 13,620 56.40% 43.60% 7,302 58.40% 41.60% 6,318 54% 46% 13,620 38.90% 22.20% 38.80%

181,509 3,161,511

51.10% 48.90%

48.90% 51.10%

112,993 68,282

54.40% 46.10%

45.60% 53.90%

30,165 40,086

48.60%

46%

51.40%

54%

82,828 28,196

56.50% 46.30%

43.50% 53.70%

112,993 68,282

27.50% 20.60%

37.20% 16.20%

35.40% 63.20%

256,765 18.80% 24.90%
3% 0.40% 49.10% 3.80%

13,620 N N N N N N

112,993 N N N N N N

68,282 67.90%
7.10% 3%
1.10% 7.40% 13.40%

Page 4 of 9

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-14 Page 5 of 9

South Carolina
Population 5 years and over English only Language other than English Speak English less than "very well" EMPLOYMENT STATUS Population 16 years and over In labor force Civilian labor force Employed Unemployed Unemployment Rate Armed Forces Not in labor force Females 16 years and over In labor force Civilian labor force Employed Unemployed Unemployment Rate COMMUTING TO WORK Workers 16 years and over Car, truck, or van - drove alone Car, truck, or van - carpooled Public transportation (excluding taxicab) Walked Other means Worked at home Mean travel time to work (minutes) OCCUPATION Civilian employed population 16 years and over Management, business, science, and arts occupations Service occupations Sales and office occupations Natural resources, construction, and maintenance occupations Production, transportation, and material moving occupations Male civilian employed population 16 years and over Management, business, science, and arts occupations Service occupations Sales and office occupations Natural resources, construction, and maintenance occupations Production, transportation, and material moving occupations

All Persons Estimate
4,796,771 92.60% 7.40% 2.60%

Black or

White

African Hispanic or alone, not

American Latino (of Hispanic

alone, not any race) or Latino

Estimate Estimate Estimate

1,263,990 266,525 3,073,891

98.40% 30.10% 97.50%

1.60% 69.90% 2.50%

0.30%

29% 0.50%

4,105,778 60.30% 59.50% 56.40% 3.10% 5.30% 0.80% 39.70%
2,139,047 56.30% 56% 53% 3.10% 5.50%

1,061,993 60.30% 59.70% 54.90% 4.80% 8% 0.60% 39.70% 580,149 59.80% 59.40% 55.10% 4.40% 7.40%

200,034 2,700,028 70.10% 59.40% 67.90% 58.70% 63.50% 56.30%
4.40% 2.40% 6.40% 4.10% 2.20% 0.70% 29.90% 40.60% 93,487 1,391,885 59.30% 54.40% 58.70% 54.30% 52.80% 51.90% 5.90% 2.40%
10% 4.40%

2,303,417 81.40% 9.40% 0.60% 2.10% 1.50% 5% 25.1

575,302 80.60% 11.20%
1.20% 2.50% 2.30% 2.30%
25.2

129,730 1,512,081

69.20% 83.20%

22.10% 7.40%

0.60% 0.30%

4% 1.60%

1.20% 1.20%

3.10% 6.30%

26.8

25.1

2,315,748 34.60% 18.30% 22.10% 9.30% 15.70%
1,182,781 29.90% 15.50% 14.70% 17.20% 22.70%

583,517 23.10% 24.50% 22.40%
5.70% 24.30% 264,069 16.10% 22.40% 13.10% 11.60% 36.80%

127,045 1,519,503 19.40% 39.90% 24.60% 15.20% 15.10% 22.70% 25.60% 9.50% 15.20% 12.70% 77,709 796,688 15.60% 35.30% 19.50% 12.80%
8.70% 15.60% 39.40% 17.30% 16.80% 18.90%

Page 5 of 9

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-14 Page 6 of 9

South Carolina

Black or

White

African Hispanic or alone, not

American Latino (of Hispanic

All Persons alone, not any race) or Latino

Estimate Estimate Estimate Estimate

Female civilian employed population 16 years and over

1,132,967 319,448 49,336 722,815

Management, business, science, and arts occupations

39.50%

29% 25.40%

45%

Service occupations

21.20% 26.30% 32.70% 17.90%

Sales and office occupations

29.90%

30% 25.30% 30.50%

Natural resources, construction, and maintenance occupations

1%

0.90%

3.90% 0.80%

Production, transportation, and material moving occupations

8.40% 13.90% 12.70% 5.70%

INDUSTRY

Civilian employed population 16 years and over

2,315,748 583,517 127,045 1,519,503

Agriculture, forestry, fishing and hunting, and mining

0.80%

0.60%

1.90% 0.80%

Construction

6.80%

2.90%

23% 7.10%

Manufacturing

13.40%

16% 12.30% 12.50%

Wholesale trade

2.20%

1.60%

1.70% 2.50%

Retail trade

11.80%

12% 10.10% 11.70%

Transportation and warehousing, and utilities

5.20%

6.30%

2.40% 5.10%

Information

1.50%

1.60%

1.30% 1.50%

Finance and insurance, and real estate and rental and leasing

6%

5.20%

3.80% 6.60%

Professional, scientific, and management, and administrative and waste manageme1n0t.5se0r%vices 8.70% 11.40% 11.10%

Educational services, and health care and social assistance

22% 24.60% 12.70% 21.80%

Arts, entertainment, and recreation, and accommodation and food services

10.10% 11.60% 12.10% 9.20%

Other services (except public administration)

5.10%

4.20%

5.10% 5.30%

Public administration

4.50%

4.70%

2.30% 4.60%

CLASS OF WORKER

Civilian employed population 16 years and over

2,315,748 583,517 127,045 1,519,503

Private wage and salary workers

80% 80.20% 84.30% 79.70%

Government workers

14.40% 16.40%

9%

14%

Self-employed workers in own not incorporated business

5.40%

3.30%

6.70%

6%

Unpaid family workers

0.20%

0.10%

0% 0.30%

INCOME IN THE PAST 12 MONTHS (IN 2018 INFLATION-ADJUSTED DOLLARS)

Households

1,927,991 494,124 76,939 1,304,391

Median household income (dollars)

52,306 34,594 42,280 61,600

With earnings

74.30% 74.90% 89.10% 72.80%

Mean earnings (dollars)

73,930 49,749 57,789 84,175

With Social Security income

36.20% 33.20% 14.10% 39.30%

Mean Social Security income (dollars)

19,423 14,750 16,023 21,047

With Supplemental Security Income

5.20%

9.20%

4.50% 3.70%

Mean Supplemental Security Income (dollars)

9,412

8,860

8,510 9,960

With cash public assistance income

1.40%

3%

1.30% 0.80%

Mean cash public assistance income (dollars)

2,595

2,278

3,629 2,905

With retirement income

21.60% 18.30%

9.50%

24%

Mean retirement income (dollars)

24,454 16,415 14,814 26,941

With Food Stamp/SNAP benefits

11.40% 24.20% 13.60% 6.50%

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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-14 Page 7 of 9

South Carolina

Black or

White

African Hispanic or alone, not

American Latino (of Hispanic

All Persons alone, not any race) or Latino

Estimate Estimate Estimate Estimate

Families

1,258,273 307,895 56,351 858,947

Median family income (dollars)

65,742 42,910 46,120 76,382

Married-couple family

71.20% 43.50% 64.70% 81.30%

Median income (dollars)

80,418 64,635 58,545 85,680

Male householder, no spouse present, family

6.90%

8.90% 12.90% 5.80%

Median income (dollars)

44,165 36,216 44,861 49,559

Female householder, no husband present, family

21.90% 47.60% 22.50% 12.90%

Median income (dollars)

32,589 30,232 20,134 40,236

Individuals

5,084,127 1,345,077 294,502 3,229,793

Per capita income (dollars)

28,957 18,982 16,990 34,663

With earnings for full-time, year-round workers:

Male

930,513 197,666 61,420 640,159

Female

764,044 224,013 30,698 480,928

Mean earnings (dollars) for full-time, year-round workers:

Male

62,752 41,377 42,989 71,214

Female

46,736 35,627 35,447 52,128

Median earnings (dollars) full-time, year-round workers:

Male

46,080 32,338 34,183 51,926

Female

36,720 30,226 26,575 41,286

HEALTH INSURANCE COVERAGE

Civilian noninstitutionalized population

4,990,240 1,309,600 286,346 3,184,441

With private health insurance

65.90% 52.20% 43.60% 73.70%

With public coverage

37.80% 47.50% 34.20% 34.70%

No health insurance coverage

10.50% 11.60% 27.60% 8.30%

POVERTY RATES FOR FAMILIES AND PEOPLE FOR WHOM POVERTY STATUS IS DETERMINED

All families

10.80% 21.10% 23.30% 6.40%

With related children of the householder under 18 years

18% 32.30%

31% 10.20%

With related children of the householder under 5 years only

17.20% 35.40% 18.70% 9.60%

Married-couple family

4.70%

8.40%

13% 3.50%

With related children of the householder under 18 years

6% 11.60% 18.60% 3.70%

With related children of the householder under 5 years only

4.90% 14.20% 20.60% 2.40%

Female householder, no husband present, family

28.90% 31.90% 59.20% 21.90%

With related children of the householder under 18 years

40.40% 43.10% 65.70%

33%

With related children of the householder under 5 years only

42.50% 44.10%

N 42.20%

All people

15.30% 25.40%

27%

10%

Under 18 years

22.60% 38.70% 36.60% 11.40%

Related children of the householder under 18 years

22.40% 38.50%

36% 11.20%

Related children of the householder under 5 years

24.10% 43.10%

34% 11.90%

Related children of the householder 5 to 17 years

21.80%

37% 36.80%

11%

18 years and over

13.20%

21% 21.60% 9.60%

18 to 64 years

14.30% 21.80% 21.90% 10.50%

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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-14 Page 8 of 9

South Carolina

Black or

White

African Hispanic or alone, not

American Latino (of Hispanic

All Persons alone, not any race) or Latino

Estimate Estimate Estimate Estimate

65 years and over

9.50% 17.80% 18.90% 7.10%

People in families

12.50% 23.20% 25.20% 6.80%

Unrelated individuals 15 years and over

26.90% 34.50% 37.10% 22.90%

HOUSING TENURE

Occupied housing units

1,927,991 494,124 76,939 1,304,391

Owner-occupied housing units

69.30% 51.40%

49% 77.50%

Renter-occupied housing units

30.70% 48.60%

51% 22.50%

Average household size of owner-occupied unit

2.59

2.68

3.39

2.53

Average household size of renter-occupied unit

2.51

2.6

3.45

2.29

UNITS IN STRUCTURE

Occupied housing units

1,927,991 494,124 76,939 1,304,391

1-unit, detached or attached

69.20% 56.20% 54.90% 75.30%

2 to 4 units

4.50%

8.60%

5.40% 2.80%

5 or more units

10.70% 14.90% 15.30% 8.50%

Mobile home, boat, RV, van, etc.

15.50% 20.30% 24.30% 13.30%

YEAR STRUCTURE BUILT

Occupied housing units

1,927,991 494,124 76,939 1,304,391

Built 2014 or later

5.90%

4.10%

5.30% 6.50%

Built 2010 to 2013

4.30%

3.60%

3.50% 4.70%

Built 2000 to 2009

19.30% 14.10% 22.60% 20.70%

Built 1980 to 1999

34.20% 34.40% 37.20%

34%

Built 1960 to 1979

22.90% 29.60% 21.60% 20.80%

Built 1940 to 1959

9.30% 10.60%

7.20%

9%

Built 1939 or earlier

4.10%

3.70%

2.60% 4.40%

VEHICLES AVAILABLE

Occupied housing units

1,927,991 494,124 76,939 1,304,391

None

6.20% 13.60%

5.70% 3.50%

1 or more

93.80% 86.40% 94.30% 96.50%

HOUSE HEATING FUEL

Occupied housing units

1,927,991 494,124 76,939 1,304,391

Gas

26.20% 18.40%

20% 29.50%

Electricity

71.70% 79.10% 78.10% 68.60%

All other fuels

1.70%

2.10%

1.50% 1.70%

No fuel used

0.30%

0.40%

0.50% 0.30%

SELECTED CHARACTERISTICS

Occupied housing units

1,927,991 494,124 76,939 1,304,391

No telephone service available

1.50%

2.20%

1.40% 1.20%

1.01 or more occupants per room

2%

3.30%

7.60% 1.20%

SELECTED MONTHLY OWNER COSTS AS A PERCENTAGE OF HOUSEHOLD INCOME IN THE PAST 12 MONTHS

Housing units with a mortgage (excluding units where SMOC cannot be computed7) 76,383 136,699

21,899 596,756

Less than 30 percent

74.40% 63.80% 72.30% 77.20%

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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-14 Page 9 of 9

South Carolina

All Persons

Estimate

30 percent or more

25.60%

OWNER CHARACTERISTICS

Owner-occupied housing units

1,335,486

Median value (dollars)

170,800

Median selected monthly owner costs with a mortgage (dollars)

1,225

Median selected monthly owner costs without a mortgage (dollars)

371

GROSS RENT AS A PERCENTAGE OF HOUSEHOLD INCOME IN THE PAST 12 MONTHS

Occupied units paying rent (excluding units where GRAPI cannot be computed) 524,808

Less than 30 percent

51.20%

30 percent or more

48.80%

GROSS RENT

Occupied units paying rent

538,418

Median gross rent (dollars)

892

COMPUTERS AND INTERNET USE

Total households

1,927,991

With a computer

90.30%

With a broadband Internet subscription

81.50%

Black or

White

African Hispanic or alone, not

American Latino (of Hispanic

alone, not any race) or Latino

Estimate Estimate Estimate

36.20% 27.70% 22.80%

253,822 106,700
1,075 352

37,716 1,010,651

158,300 189,800

1,186 1,269

390

374

211,192 45.10% 54.90%

36,661 45.30% 54.70%

259,608 56.30% 43.70%

217,475 816

37,278 265,698

894

954

494,124 84.70% 71.70%

76,939 1,304,391

92.10%

92%

78.90% 85.10%

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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-15 Page 1 of 10
EXHIBIT 4

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-15 Page 2 of 10
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA MARY T. THOMAS, et al., Plaintiffs, v. MARCI ANDINO, et al., Defendants.
Declaration of Dr. Courtney D. Cogburn Pursuant to 28 U.S.C. § 1746, I hereby declare as follows: 1. I am an associate professor at the Columbia University School of Social Work, faculty of the
Columbia Population Research Center and a core member of the Columbia Data Science Institute. I am also a faculty affiliate of the Center on African American Politics and Society. At Columbia, I direct the Cogburn Research Group and co-Direct the Justice Equity + Technology lab. I am a member of the Interdisciplinary Association of Population Health Science, Society for Personality and Social Psychology. I have also served as an ad hoc reviewer for Social Science & Medicine, Annals of Behavioral Medicine, Ethnicity & Health, Developmental Psychology and the Journal of the American Medical Association Network Open. 2. I received my B.A. in psychology from the University of Virginia in 2001, my Master of Social Work from the University of Michigan in 2002 and my PhD in education and psychology from the University of Michigan in 2010. I also completed postdoctoral training at the Institute for Social Research in 2012 as well as the Harvard TH Chan School of Public Health and the Harvard Center for Population and Development Studies in 2014.
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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-15 Page 3 of 10
3. I joined the faculty of the School of Social Work at Columbia as an assistant professor (20142019). I held a visiting scientist position at the Harvard TH Chan School of Public Health (2014-2016). I am currently an associate professor at the Columbia University School of Social Work (2019-present), faculty of the Columbia Population Research Center (2014present), core member of the Data Science Institute (2019-present), co-chair of the computational social science group (2019-present) and faculty affiliate of the Center for African American Politics and Society all at Columbia University.
4. My scholarship focuses on the ways we characterize the meaning and significance of racism in academic and public discourse and how these characterizations inform the ways we measure and assess the effects of racism in empirical health research. I focus specifically on structural and cultural dimensions of racism in US contexts and identifying social, structural and cultural factors that contribute to racial inequities in health and disease in US populations. In a secondary line of work, I explore applications of emerging technologies in addressing racial inequities in health.
5. Attached and incorporated by reference to this declaration is a copy of my curriculum vitae. (Attached here as Attachment A).
6. Racial Inequities in Population Health: Racial Discrimination and racism are the fundamental causes of racial inequities in health. As such, racial inequalities in health cannot be eliminated without directly addressing structural racism. Namely, racial inequalities across social and cultural institutions, including housing and neighborhoods, labor, credit markets, education, criminal justice, economic, health care and media systems interact to create systems of disadvantage that create pervasive adverse conditions for the health of Black
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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-15 Page 4 of 10
people living in the United States.1 As a result of structural racism, the Black population in the US has a higher rate of chronic illness, co-occurring illness and tend to develop these illnesses earlier in life than Whites. This includes illnesses that pose elevated risk to the effects of COVID-19, such as diabetes, asthma, hypertension, heart disease, obesity and cancer.2 7. The relationship between structural racism and increased disease risk have been demonstrated in several different ways, I will highlight two factors, racial residential segregation and racial discrimination in medical care, which are related to racial inequities in COVID-19 infection and mortality risk in South Carolina. 8. First, racial residential segregation,1 which was produced and maintained in South Carolina by state laws and practices, as well as by federal programs and federally supported private policies, resulted in discriminatory zoning, predatory mortgage lending and redlining (systematic denial of resources to designated areas). The systematic restriction of resources in Black communities has contributed to higher concentrations of poverty and low-quality housing, unemployment and under-employment, uninsured or underinsured (limited coverage, high co-pays and deductibles), restricted access to quality and affordable foods (greater number of fast food outlets and fewer supermarkets) as well as elevated exposures to physical and chemical environmental hazards (5 to 20 times higher in Black communities compared to White communities, even after controlling for socioeconomic factors). Each of
1 Cogburn, CD. (2019) Culture, race and health: Implications for racial inequities and population health. Milbank Quarterly, 97(3); 736-761; Phelan, J.C., Link, B.G. (2015). Is racism a fundamental cause of inequalities in health? Annual Review of Sociology, 41; 311-30; Williams, DR, Lawrence, JA, Davis, BA (2019). Racism and health: Evidence and needed research. Annual Review of Public Health, 40; 105-25. 2 Assessing risk factors for severe COVID-19 illness. Centers for Disease Control and Prevention: https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/assessing-risk-factors.html (Apr 23, 2020)
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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-15 Page 5 of 10
these factors are independently critical to disease risk and outcomes, such as obesity, cancer and asthma and are more likely to co-occur in Black as opposed to White communities. 9. At least one national study suggests that eliminating residential segregation would erase Black-White differences in income, education and unemployment, which are significant predictors of health and health inequality.3 For Black people, residential segregation is also associated with risk of low birth weight and pre-term birth, later stage diagnosis of cancer, elevated mortality and lower survival rates for certain cancers and higher rates of obesity. This is attributed to a number of structural factors including, increased exposure to environmental pollutants and restricted access quality health insurance. Regardless of income, Black people are more likely to live in communities with poorer socioeconomic resources. Some data suggest that the average affluent Black household (income of $75,000 of more) lives in poorer neighborhoods than average lower income White households (less than $40,000). Racial bias in housing valuation is also evident such that homes in Black communities are undervalued by $48,000 per home on average around the country. In Columbia, SC, for instance, homes in Black communities are devalued by an average of 10%, which amount to significant cumulative losses in household and community resources over time.4 10. Second, there is substantial evidence of racial discrimination in medical care provision (preventive care, early intervention and management of chronic disease), even after adjusting factors, such as insurance coverage.5 Black people compared to Whites receive inferior
3 Cutler, DM, Glaeser, EL. 1997. Are ghettos good or bad? Q.J. Econ. 112; 827-72. 4 Perry, AM, Rothwell, J, Harshbarger, D. The devaluation of assets in black neighborhoods: The case of residential property. https://www.brookings.edu/research/devaluation-of-assets-in-black-neighborhoods/ (Nov. 27 2018) 5 Williams, DR, Rucker, TD (2000). Understanding and Addressing Racial Disparities in Health Care. Health Care Financial Review, 21(4), 75-90.
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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-15 Page 6 of 10
health services across a wide range of illnesses, health care services and treatment interventions, which is in turn associated with greater mortality for Black patients. Across nearly every type of diagnostic and Black patients are less likely to be referred for major therapeutic procedures (e.g., invasive diagnostic, therapeutic and innovative interventions for heart disease, stroke, cancer, disease prevention screenings and programming), are systematically undertreated for pain (even among children) and are more likely to be misdiagnosed when compared to White patients with similar clinical disease characteristics and accounting for medical histories, quality of health insurance and other socioeconomic factors. Racial bias in algorithms used to automate the allocation of health care to patients have also been observed, such that Black patients were less likely to be referred to programs aimed at care for complex needs even when they were equally as sick as White patients.6 11. Racial Inequities in COVID-19: Emerging data related to COVID-19 infection and mortality rates indicate a disproportionate burden of illness and death among racial and ethnic minority groups. Recent reports indicate that Black individuals who comprise approximately 21% of the population in areas included in the analysis, make up over 40% of infection-related mortality.7 Other estimates based on national data place the COVID-19 related mortality rate for Black people at 2-5 times greater than the rate observed for Whites. Substantial empirical evidence examining associations between race and health would suggest that the racial inequities being observed in COVID-19 are not the result of immutable differences between racial groups. Effectively addressing racial inequities in COVID-19
6 Obermeyer, Z., Powers, B., Vogeli, C. & Mullainathan, S. Dissecting racial bias in an algorithm used to manage the health of populations, Science 336, 447–453 (2019). 7 Cases of Coronavirus Disease (COVID-19) in the U.S. Centers for Disease Control. https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (Apr 26 2020)
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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-15 Page 7 of 10
related infection and death will require careful consideration of structures and processes that systematically disadvantage Black persons and buoy health advantages among Whites. 12. Southern Region Estimates8: Black people are generally at greater risk of COVID-19 infection and infection-related mortality and are also concentrated in the South. Nearly half of the Black US population resides in southern states, which recent regional estimates predict will ultimately experience the highest rates of death related to COVID-19 infections. 13. South Carolina Estimates: Early data for COVID-19 infection and mortality in South Carolina are 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.9 The racial disparities in COVID-19 infection rates and deaths in South Carolina are among the most startling in the country. The structural factors believed to contribute most significantly to elevated risk at the national level are also evident in South Carolina, including state legislators opting out of Medicaid expansion and instead imposing work requirements that disadvantage access for the
8 Dixie in the crosshairs: The south is likely to have America’s highest death rate from COVID-19, Eth Economist: https://www.economist.com/graphic-detail/2020/04/25/the-south-is-likely-to-have-americas-highest-death-ratefrom-covid 19?fsrc=scn/tw/te/bl/ed/dixieinthecrosshairsthesouthislikelytohaveamericashighestdeathratefromcovid19graphicdeta il (Apr 25 2020) 9 Fleming Smith et al., Long-term inequities put SC minorities at higher risk for coronavirus exposure and death, THE POST & COURIER (Apr. 15, 2020); Tonya Brown, More African Americans are dying from COVID-19 than other races in South Carolina, 15 NEWS (Apr. 9, 2020) https://wpde.com/news/coronavirus/more-africanamericans-dying-from-covid-19-in-south-carolina.
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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-15 Page 8 of 10
underemployed10. These policy decisions are particularly harmful to health care for Black residents in South Carolina11.
14. Black residents in South Carolina are also more likely than White residents to be employed
in “essential roles” (e.g. manufacturing and service jobs) that increase risk of exposure and infection9,12. It should also be noted that due to national shortages of personal protective equipment (PPE)13, individuals employed non-health essential roles may be less likely to
have access to and be trained for effective use of PPE. Higher rates of chronic illness among
Black South Carolina residents and lower access and quality of health care compared to
Whites are also tied to structural inequities in income, employment, and exposure to
environmental pollutants concentrated in Black neighborhoods. 15. COVID-19 Testing and Ventilator Use14-15: Racial bias in access to testing are also
emerging and suggest that Black people are less likely than White people to be referred for
testing when presenting comparable signs of infection, such as cough and fever. Racial
discrimination in testing may actually contribute to an underestimation of racial inequities in
infection rate and mortality for Black individuals. Current data regarding ventilator use by
10 South Carolina gets green light to impose Medicaid work requirements. National Public Radio, https://www.npr.org/2019/12/13/787927652/south-carolina-gets-green-light-to-impose-medicaid-work-requirements (Dec 13 2019). 11 Garfield, R, Orgera, K (2020). The coverage gap: uninsured poor adults in states that do not expand Medicaid. https://www.kff.org/medicaid/issue-brief/the-coverage-gap-uninsured-poor-adults-in-states-that-do-not-expandmedicaid/ 12 https://www.theguardian.com/commentisfree/2020/apr/16/black-workers-coronavirus-covid-19 13 Ventilator stockpiling and availability in the US. Johns Hopkins Bloomberg School of Public Health, Center for Health Security. https://www.centerforhealthsecurity.org/resources/COVID-19/COVID-19-fact-sheets/200214VentilatorAvailability-factsheet.pdf (Apr. 1, 2020) 14 Farmer, B. The Coronavius doesn’t discriminate but U.S. health care showing familiar biases. National Public Radio: https://www.npr.org/sections/health-shots/2020/04/02/825730141/the-coronavirus-doesnt-discriminate-but-us-health-care-showing-familiar-biases (Apr 2 2020) 15 Health data in the COVID-19 crisis: How racial equity is widening for patients to gain access to treatment: https://rubixls.com/2020/04/01/health-data-in-the-covid-19-crisis-how-racial-equity-is-widening-for-patients-togain-access-to-treatment/
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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-15 Page 9 of 10
race do not yet appear to be publicly available16. It is clear that the need for ventilators significantly outweighs supply, requiring medical personnel to deny life-saving care to those in need. The “save-the-most-lives” principle many for ventilator access has been called into question (and recently modified) and represents the ways in which medical decision can perpetuate racial inequities in health. Following this principle perpetuates existing inequities such that those who exhibit worse health and lower life expectancy as a result of historical and structural inequality, particularly Black people, are most likely to be denied life-saving care17-18. In addition to substantial evidence of racial discrimination in medical care provision, there is also evidence that in times of scarcity (perceived and actual) White people are more likely to perceive racial and ethnic minorities as less deserving of scarce resources, including life-saving efforts19-20. The complexities surrounding these decisions in response to COVID-19 and implications for racial inequities in mortality rates will be revealed in the coming months and years. There is a precedent for concern, however, that additional racial bias will emerge in medical decisions related to the employment of life saving procedures by race. 16. Conclusion: Due to the factors discussed above, I conclude that Black people’s elevated risk in 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
17 McLane, H (2020). A disturbing medical consensus is growing. Here’s what it could mean for Black patients with coronavirus. https://whyy.org/articles/a-disturbing-medical-consensus-is-growing-heres-what-it-could-mean-forblack-patients-with-coronavirus/ (Apr 10 2020). 18 Schmidt, H (2020). The way we ration ventilators is biased: Not every patient has a fair chance. https://www.nytimes.com/2020/04/15/opinion/covid-ventilator-rationing-blacks.html (Apr 15 2020) 19 Krosch, AR, Tyler, TR, Amodio, DM (2017). Race and recession: Effects of economic scarcity on racial discrimination. Journal of Personality and Social Psychology, 113(6), 892-909. 20 Krosch, AR (2020). The pandemic could lead to more discrimination against Black people: https://blogs.scientificamerican.com/voices/the-pandemic-could-lead-to-more-discrimination-against-black-people/ (Apr 23 2020).
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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-15 Page 10 of 10 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 Black people. 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. This includes city and state regulation of social distancing practices to minimize exposure and spread of infection to support safe voting practices under the conditions of COVID-19. 17. I declare under penalty of perjury that the foregoing is true and correct. Executed on April 27, 2020.
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3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-16 Page 1 of 11
Cogburn
Courtney D. Cogburn, Ph.D.

Columbia University School of Social Work 1255 Amsterdam Ave., NYC, NY, 10027 E: cc3803@columbia.edu M: 773.710.8649 O: 212-851-2101

Education
Ph.D. (2010) MSW (2002) BA (2001)

University of Michigan, Ann Arbor, MI Combined Program in Education and Psychology
University of Michigan, Ann Arbor, MI Interpersonal Practice, Children Youth & Families in Society
University of Virginia, Charlottesville, VA Psychology

Academic Appointments

2019 - Present

Associate Professor (tenure-track): Columbia University School of Social Work

2014 - 2019

Assistant Professor (tenure-track): Columbia University School of Social Work

2016 - Present

Affiliate, Columbia Data Science Institute

2014 - Present

Faculty, Columbia Population Research Center

2015 - Present

Faculty Affiliate, Center on African American Politics and Society Columbia University

2014 - 2016

Visiting Scientist, Harvard T.H. Chan School of Public Health

2012 - 2014

Robert Wood Johnson Health & Society Scholar: Harvard Center for Population and Development Studies

2012 - 2014

Research Fellow: Department of Social and Behavioral Sciences, Harvard T.H. Chan School of Public Health

2011 - 2012

NIH Postdoctoral Fellow: Institute for Social Research, University of Michigan

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Cogburn

Grant and Gift Support

2019

Oculus (Facebook) Award amount: $100,000 Social Work, Emerging Technology and Media Innovation lab Role: Co-PI Courtney D. Cogburn, Columbia School of Social Work, Desmond Patton, Columbia School of Social Work

2019

Oculus (Facebook) Award amount: $200,000 Data Visualization, Virtual Reality and Structural Racism project Role: Co-PI Courtney D. Cogburn, Columbia School of Social Work, Desmond Patton, Columbia School of Social Work

2019

Hearst Foundation / Brown Institute Media Innovation 1000 Cut Journey Award amount: $500,000 Role: Co-PI Courtney D. Cogburn, Columbia School of Social Work, Jeremy Bailenson, Stanford University Department of Communication

2016 - 2017

Brown Institute Media Innovation Magic Grant 1000 Cut Journey from Harlem to Soho: Examining the Psychosocial and Physiological Impact of an Immersive Racism Experience in Virtual Reality Award amount: $250,000 Role: Co-PI Courtney D. Cogburn, Columbia School of Social Work, Jeremy Bailenson, Stanford University Department of Communication

2016 - 2017

Lerner Innovation Pilot Program Grant Sticking to your guns: Can framing public health advocacy bridge political and social differences? Award amount: $20,000 Role: Co-PI Amy Fairchild, Mailman School of Public Health; Merlin Chowkwanyun, Mailman School of Public Health; Courtney D. Cogburn, Columbia School of Social Work

2016 -

Columbia Population Research Center Seed Grant #Racism: Examining cultural racism and multiple stress responses in the context of contemporary media Award amount: $12,000 Role: Principal Investigator

2014 - 2015

Provost’s Grants Program for Junior Faculty Black face to Ferguson: A mixed methodological examination of media racism, media activism and health Award amount: $25,000 Role: Principal Investigator

2013 - 2014 Robert Wood Johnson Foundation

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Cogburn

Mixed methodological assessment of racial and non-racial psychosocial stress exposure on HPA and ANS Stress Reactivity Award amount: $30,000 Role: Principal Investigator

2012 - 2013

Robert Wood Johnson Foundation Sociocultural racial stress exposure effects on stress reactivity and executive functioning Award amount: $33,734 Role: Principal Investigator

2012 - 2013

National Institute on Minority Health and Health Disparities Loan Repayment Program Racial stress and social cognition: Measurement and implications for health and racial health disparities Award amount: $40,748.73

2004 - 2009

Graduate Student Retention Grant, University of Michigan Award amount: $3,200 Role: Co-Principal Investigator

2004 - 2009

Experiential Learning Grant, International Institute University of Michigan Award amount: $8,000 Role: Co-Principal Investigator

Honors and Awards

2019 2018 2018 2018 2018 2012 2011*
2011*
2010 2009 2008 2008

Atlantic Fellows for Racial Equity (Semi Finalist) Soros Equality Fellowship, Open Society (Finalist) Los Angeles Film Festival, Official Selection: 1000 Cut Journey New Orleans Film Festival, Official Selection: 1000 Cut Journey Tribeca Film Festival, Official Selection Virtual Reality Arcade: 1000 Cut Journey Robert Wood Johnson Foundation Health & Society Scholar Science and Technology Fellowship - Executive Branch, American Academy of Arts and Science, Health Education and Human Services *declined Science and Technology Fellowship - Executive Branch, American Psychological Association *declined National Institute of Child Health and Human Development Diversity Training Grant Rackham Predoctoral Fellowship, University of Michigan Holmes Award, University of Michigan Barbara Perry Roberson Award, University of Michigan

3

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2007 2005* 2004

Roger W. Brown Award, University of Michigan Ford Predoctoral Fellowship *Honorable Mention Rackham Merit Fellowship, University of Michigan

Publications
Cogburn, C.D., Bailenson, J.N., Ogle, E., Asher, T. & Nichols, T. (2018). 1000 cut journey. ACM SIGGRAPH (2018). Virtual, Augmented, and Mixed Reality, DOI: https://doi.org/10.1145/3226552.3226575
DeVylder, J. E., Hyun-Jin, J., Fedina, L., Coleman, D., Anglin, D., Cogburn, C., Link, B. & Barth, R.P. (2018). Association of exposure to police violence with prevalence of mental health symptoms among urban residents in the United States. JAMA Open Network, 1(7): e18495.
DeVylder, J. E., Frey, J. J., Cogburn, C.D., Wilcox, H., Sharpe, T., Oh, H.Y., Link, B. (2017). Elevated prevalence of suicide attempts among victims of physical and sexual victimization by the police in the U.S, Journal of Urban Health e-pub ahead of print.
DeVylder, J. E., Cogburn, C.D., Anglin, D., Smith, M., Sharpe, T., Jun, H-J, Schiffman, J., Lukens, E., Link, B. (2017). Psychotic Experiences in the Context of Police Victimization: Data from the Survey of Police-Public Encounters, Schizophrenia Bulletin, 43(5), 993-1001.
Oh, H., Cogburn, C. D., Anglin, D., Lukens, E. & DeVylder, J. (2016). Major racist events for psychotic experiences among Black Americans. American Journal of Orthopsychiatry, 86(3), 277-285.

Lewis, T., Cogburn, C.D., & Williams, D.R. (2015). Self-reported experiences of discrimination and health: Scientific advances, ongoing controversies and emerging issues. Annual Review of Clinical Psychology, 11(1).
Garces, L. and Cogburn, C. D. (2015). Beyond declines in student body diversity: How campus-level administrators understand a prohibition on race-conscious postsecondary admissions policies. American Educational Research Journal, 52(5), 828-860.
Garces, L., & Cogburn, C. D. (2015). Navigating legal barriers while promoting racial diversity in higher education. E. Frankenberg, L. Garces & M. Hopkins (Eds.), School integration matters: Research-based strategies to advance equity. Teachers College Press.
Cogburn, C. D., Griffin, T., & Jackson, J. S. Race and mental health disparities (2013). In: Mason, P (Ed). Encyclopedia of Race and Racism, 2nd Edition, Volume 3 (126-131).
Hurd, N. M., Sellers, R. M., Cogburn, C.D., Butler-Barnes, S. T., & Zimmerman, M. A. (2012). Racial identity and mental health among Black emerging adults: The moderating effects of neighborhood racial composition. Developmental Psychology, 49(5), 938-950.
Brodish, A., Cogburn, C.D., Fuller-Rowell, T., Peck, S., Malanchuk, O. & Eccles, J. (2011). Perceived racial discrimination as a predictor of health behaviors: The moderating role of
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gender. Journal of Race and Social Problems, 3(1), 160-169.
Fuller-Rowell, T., Cogburn, C.D., Brodish, A., Peck, S., Malanchuk, O. & Eccles, J. (2011). Racial discrimination and substance use: Longitudinal associations and identity moderators. Journal of Behavioral Medicine, 35(6), 581-590.
Cogburn, C.D., Chavous, T., & Griffin, T. M. (2011) School-based racial and gender discrimination among African American adolescents: Exploration variation in frequency and impact among girls and boys. Journal of Race and Social Problems, 3(1), 25-37.
Lun, J., Sinclair, S. & Cogburn, C.D. (2009). Cultural stereotypes and the self: A closer examination of implicit self-stereotyping. Basic and Applied Social Psychology, 31(2), 117-127.
Chavous, T., Rivas, D., Smalls, C., Griffin, T. & Cogburn, C.D. (2008). Gender matters, too: The influences of school racial discrimination and racial identity on academic engagement outcomes among African American adolescents. Developmental Psychology, 44(3), 637-654.
Chavous, T. & Cogburn, C.D. (2007). The superinvisible woman: The study of Black women in education. Black Women, Gender and Families. Black Women, Gender and Families: Women’s Studies and Black Studies Journal, 1(2).
Chavous, T., Branch, L., Cogburn, C.D., Griffin, T., Maddox, J., & Sellers, R. (2007). Achievement motivation among African American college students at predominantly White institutions: Risk and protective processes related to group identity and contextual experiences. F. Salili & R. Hoosain (Eds.), Culture, Motivation and Learning: A multicultural, perspective. Information Age Publishing.
Neblett, E., Philip, C., Cogburn, C.D. & Sellers, R. (2006). African American adolescents’ discrimination experiences and academic achievement: Racial socialization as a cultural compensatory and protective factor. Journal of Black Psychology, 32(2), 1–20.
In Press
Cogburn, C. D. Culture, race and health: Implications for Racial Inequities and Population Health. Milbank Quarterly.
Versey, H. S., Cogburn, C. D., Wilkins, C. L., & Joseph, N. Appropriated racial oppression: Implications for mental health in Whites and Blacks. Social Science & Medicine, Online First, 295-302.
Under Review
Cogburn, C. D., McLaughlin, K., & Kubzansky, L. #Racism: Cultural racism and physiological, psychological and behavioral stress response racism. Social Science & Medicine. *R&R: invited revision resubmitted
In Preparation (listed in order of planned submission) *Graduate student
Cogburn, C. D., Jackson, J. S., & Abdou, C. Composite versus delineated measures of discrimination: How framing alters associations between racial and non-racial discrimination and depression in a
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multiethnic sample. Cultural Diversity and Ethnic Minority Psychology. * R&R Cogburn, C. D., Chavous, T., Frey, W.* & Deshmukh, N.* Race-related social cognition and mental health
among Black adolescents. Target journal: Child Development (4.19).
Cogburn, C.D., Herrera, F*., & Bailenson, J. Investigating implicit racial bias and embodiment among Whites experiencing racism in virtual reality. Target journal: Human Computer Interaction (4.667)/Psychological Science (6.128)
Cogburn, C. D., Kubzansky, L., Boem, J.K., Seeman, T., Jacobs, D., Williams, D.R., & Diez-Roux, A. Race and cardiovascular health: The role of chronic psychosocial stress, psychological framings of adversity and endocrine stress responses among Blacks and Whites in the CARDIA sample. Target journal: JAMA (47.661)
Cogburn, C. D., Geller, A., Allen, A*. & Rajput, A*. National media coverage of police violence and health. Target journal: NEJM (79.25)/JAMA (47.661)
Cogburn, C. D. & Bailenson, J. Designing racism in virtual reality: A transdisciplinary approach. Target journal: TBD, Impact Factor: TBD
Invited Talks and Expert Convenings
Cogburn, C.D. (2019, May). Twitter. Faculty Advisory Session. NY, NY.
Cogburn, C.D. (2019, May). National Center for Women in Technology (NCWIT) Summit. Culture and Racism: Using VR for Empathy and Engagement. Nashville, TN.
Cogburn, C.D. (2019, May). Social Media Governance Initiative Inaugural Conference. The Social Justice Collaboratory: Yale Law School. Expert convening. New Haven, CT.
Cogburn, C.D. (2019, April). Washington University in St. Louis. Collaboration on Race, Inequality and Social Mobility, Measurement and Methodology Panel. St. Louis, MO.
Cogburn, C.D. (2019, March). Interprofessional Education Day (IPE) Keynote: Columbia University. NY, NY.
Cogburn, C.D. (2019, March). Story Movements: Center for Media & Social Impact, American University. 1000 Cut Journey: Why + What + Process. Washington, DC.
Cogburn, C.D. (2019, March). Digital Activism Panel: CUNY Graduate Center. NY, NY.
Cogburn, C.D. (2019, March). City Block (Health and Medical Center). Characterizing, Measuring and Undoing Racism: Implications for Racial Inequities in Health. NY, NY.
Cogburn, C.D. (2019, January). PCMA Convening Leaders. Experiencing Racism in VR. Pittsburgh, PA.
Cogburn, C.D. (2019, January). Planned Parenthood. Expert meeting. NY, NY.
Cogburn, C.D. (2019, January). Research Center for Group Dynamics Speaker Series: University of Michigan. A Culture of Racism: Conceptual and Methodological Innovations. Ann Arbor, MI.
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Cogburn, C.D. (2019, January). Institute for Social Research: University of Michigan. 1000 Cut Journey. Ann Arbor, MI.
Cogburn, C.D. (2018, December). Planned Parenthood Headquarters. Expert meeting. Washington, DC.
Cogburn, C.D. (2018, November). Social Science Research Council (SSRC), Special Convening on Anticipatory Social Research. NY, NY.
Cogburn, C.D. (2018, November). 1000 Cut Journey, featured speaker. Google: NY, NY.
Cogburn, C.D. (2018, December). World of Minds Summit: Zürich, Switzerland. Invited participant.
Cogburn, C.D. (2018, September). Los Angeles Film Festival: Los Angeles, CA.
Cogburn, C.D. (2018, September). Oculus Connect 5 (Facebook): Menlo Park, CA.
Cogburn, C.D. (2018, November). Virtual Identity (v-ID) Summit: Park City, UT.
Cogburn, C.D. (2018, November). Virtual Reality Privacy Summit: Stanford, Palo Alto, CA.
Cogburn, C.D. (2018, July:). The Future of Animation: AI-Generated Characters. NYC Media Lab and Samsung NEXT private event, panelist: NYC, NY.
Cogburn, C.D. (2018, July:). High Fidelity Fireside Chat with Philip Rosedale.
Cogburn, C.D. (2018, June). Oculus VR for Good Creators Lab. Advisory Session. Palo Alto, CA.
Cogburn, C.D. (2018, June). Growing Pains: Virtual reality, documentary and a search for answers. American Film Institute Documentary Forum. Washington, D.C.
Cogburn, C.D. (2018, April). Racial Inequality in Health and Economic Outcomes (Discussant). 50 Years After the Kerner Commission. Institute for New Economic Thinking. The Eisenhower Foundation, Roosevelt Institute and The American Assembly Columbia University.
Cogburn, C.D. (2018, April). Education and Advocacy in VR. Tribeca Film Festival.
Cogburn, C.D. (2018, March). Innovations in VR. Games for Change XR for Change Talk and Play.
Cogburn, C.D. (2018, February). Virtual Reality + Racism. Stanford University 52nd Carlos Kelly McClatchy Symposium.
Cogburn, C.D. (2018, January). Characterizing and Measuring Racism: Implications for Addressing Racial Inequities in Health. New York Department of Health Commissioner’s (Dr. Mary Bassett) Brown Bag Series.
Cogburn, C.D. (2017, November). Panelist: NYC Media Lab: Exploring Future Reality 2017: https://www.youtube.com/watch?list=PLfUpyxzvpGBM0mV0q5u5lEu6kHFoLYv Vg&v=B3WHOjRhAss
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Cogburn, C.D. (2017, October). The Culture of Racism: Exposing and Fighting Racism on Cultural Terrain. Distinguished Diversity Scholar Award Conference: Discrimination and Social Identity Panel.
Cogburn, C.D. (2017, October). Designing Racism in Virtual Reality. Black in Design Conference: Designing Resistance, Building Coalitions. Harvard Graduate School of Design.
Cogburn, C.D. (2017, June). Cultural racism and health. Lives of Color: Race-Ethnicity and the Life Course. Pennsylvania State University, Center for Life Course and Longitudinal Studies.
Cogburn, C.D. (2017, June). Virtual Reality and Racism. TEDxRVA. Richmond, VA.
Cogburn, C.D. (2016, November). Keynote Address: Robert Wood Johnson Foundation Clinical Scholars Annual Meeting.
Cogburn, C.D. (2016, September). Ending racism in America: Agendas from and for science. Interdisciplinary Association for Population Health Science.
Cogburn, C.D. (2016, June). Innovations in measuring racism-related stress: Implications for understanding racial disparities in stress-related disease. Program for Research on Black Americans. Institute for Social Research. University of Michigan.
Cogburn, C.D. (2016, May). Characterizing and measuring racism: Implications for addressing racial disparities in health. Robert Wood Johnson Foundation Health & Society Scholars Annual Meeting. New Orleans.
Cogburn, C.D. (2016, April). What is racism? Framing thought and innovation in measurement. Center for Justice Working Group. Columbia University.
Cogburn, C.D. (2015, February). Black health equity: Using a social lens to frame discussions on racial health disparities. Wesleyan University.
Cogburn, C.D. (2015, January). Health effects of structural racism: Using social science data in human rights advocacy. Leitner Center for International Law and Justice at Fordham University Law School.
Cogburn, C.D. (2015, January). Technology and structural discrimination. Discussant: Technology Salon New York. Brooklyn Community Foundation.
Cogburn, C. D. (2014, November). Effects of prejudice on mental and physical health. Princeton University, Department of Psychology.
Cogburn, C. D. (2014, October). Culture wars and race. Harvard University Kennedy School of Government.
Cogburn, C.D. (2014, October). The role of social scientists and data scientists in humans rights advocacy & illuminating issues of structural discrimination. Fordham University and the International Center for Advocates Against Discrimination.
Cogburn, C.D. (2014, October). Racism, stress and health: Using transdisciplinary science to tackle the grand challenge of health disparities. Columbia University School of Social Work, Dean’s Advisory Council.
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Cogburn, C.D. (2014, April). The role of race in stress and health. Harvard University School of Public Health.
Cogburn, C.D. (2013, April). Racism and health: Research and action. Southern Jamaica Plain Health Center, Racial Healing Project: Boston, MA.
Conference Presentations
Cogburn, C.D. (2019, June). Can racism experienced in VR shift racial attitudes among Whites? SPSSI. San Diego, CA.
Cogburn, C.D. (2019, March). Exploring racism in VR. International Convention on Psychological Science. Paris, France.
Cogburn, C.D., Bailenson, J., Asher, T., Ogle, E & Nichols, T. (2018, August). Experiencing racism in VR: A 1000 Cut Journey. SIGGRAPH. Vancouver, BC.
Cogburn, C.D. (2018, August). Exploring racism in VR. American Sociological Association: Section on Science, Knowledge and Digital Inequality. Philadelphia: PA.
Cogburn, C.D. (2018, October). Exploring racism in VR. Interdisciplinary Association for Population Health Science. Washington, DC.
Cogburn, C.D. (2015, November). Early Life Stress and Coping in African Americans: Effects of Racial Discrimination and Awareness on Adult Health. The Gerontological Society of America Annual Meeting: Orlando, FL.
Cogburn, C.D. (2013, May). Why does race matter for health?: Using multidimensional assessments of racism to understand health and racial health disparities. Robert Wood Johnson Health & Society Scholars Annual Meeting: San Diego, CA.
Cogburn, C. D., Peck, S., Fuller-Rowell, T., Malanchuk, O., Brodish, A., & Eccles, J. (2013, April).“Generic” and racial stress proliferation: Effects on anxiety and anger between adolescence and early adulthood. Accepted for presentation at the Society for Research on Child Development Biennial Meeting: Seattle, WA.
Cogburn, C. D., Hurd, N., Butler-Barnes, S. & Sellers, R. (2012, March). The mediating role of environmental mastery in explaining potential effects of racial discrimination and racial identity on depressive symptoms. Presented at the Society for Research on Adolescence Biennial Meeting: Vancouver, CA.
Jackson, J. S., Cogburn, C. D., Adou, C., Uzogara, E. (2012, January). Stress and HPA-Axis functioning among both targets and perpetrators of prejudice. Presented at the annual Society for Personality and Social Psychology meeting: San Diego, CA.
Cogburn, C.D., Brodish, A., Fuller-Rowell, T., Peck, S. & Malanchuk, O. (2011, February). Racial discrimination during young adulthood: Effects on mental health and the moderating role of adaptive self-regulatory processes. Poster presented at The Science of Research on Discrimination and Health. National
Institutes of Health: Bethesda, MD.
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Cogburn, C.D. (2009, April). Cognition, behavior and affect: A model of adaptive regulatory patterns among African American adolescents. Presented at the biennial meeting of the Society for Research in Child Development. Denver, Colorado.
Griffin, T., Cogburn, C.D., Gonzalez, R. & Chavous, T. (2008, July). Intersectionality, affirmative action and higher education: Implications for policy and discrimination. Presented at the annual meeting of the International Society of Political Psychology, Paris, France.
Cogburn, C.D., Chavous, T. & Griffin, T. (2008, June). Race and gender: Discrimination and identity among African American Adolescents. Presented at the biennial convention of the Society for the
Psychological Study of Social Issues. Chicago, IL.
Cogburn, C.D. (2006, April). An introduction to psychological approaches to studying social and cultural groups. Invited lecture for Introduction to Psychology, University of Michigan, Ann Arbor, MI.
Cogburn, C.D. & Chavous, T. (2006, April). Academic and psychological adjustment among African American adolescents: Considering race and gender experiences in context. Presented at the annual meeting of the American Educational Research Association. San Francisco, CA.
Cogburn, C.D. (2005, July). Identity development amongst African American and Caribbean immigrants: A comparative framework. Presented at the annual meeting of the Caribbean Studies Association Conference. Santo Domingo, Dominican Republic.
Cogburn, C.D., Neblett, E. & Philip, C. (2005, June). “My mama told me”: Racial socialization as a protective factor in the discrimination experiences and academic achievement of African American adolescents. Presented at the annual meeting of the Society for Community Research in Action. Urban-Champaign, IL.
Neblett, E., Philip, C., & Cogburn, C.D. (2004, March). Socialization, discrimination and achievement. Presented at the biennial meeting for the Society for Research on Adolescence. Baltimore, MD.
Teaching Experience
Trainer, Center for Research on Learning and Teaching, University of Michigan
Instructor, Educational Psychology and Human Development
Graduate Student Instructor, Research Methods in Psychology, University of Michigan, Department of Psychology
Graduate Student Instructor, Educational Psychology, University of Michigan, Department of Psychology
Graduate Student Instructor, Introduction to Psychology, University of Michigan, Department of Psychology
Service
PROP to Advocacy Sub-Committee Dean Search Committee
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Cogburn Faculty Search Committee Demands Power Race Oppression and Privilege Sub-Committee Curriculum Committee (Member) Diversity Committee (Member) Diversity Committee (Co-Chair)
Professional Affiliations American Public Health Association Association of Psychological Science Society for Personality and Social Psychology Society for Research in Child Development Society for the Psychological Study of Social Issues Ad-Hoc Reviewer Annals of Behavioral Medicine Social Science & Medicine Developmental Psychology Journal for Research on Adolescence Developmental Review Ethnicity & Health International Journal of Psychology Educational Psychology
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EXHIBIT 6

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insufficiency, and esophageal stricture. I am also partially blind. Approximately one year ago, I fell and fractured my left femur, which has involved a protracted recovery process.
8. I understand that my age and preexisting conditions put me at substantial risk of the health consequences of contracting COVID-19. I therefore do not intend to break my strict self­ quarantine for any avoidable reason until the threat has completely subsided.
9. I understand that a witness signature is needed to vote by absentee ballot in South Carolina. I have no way to obtain a witness's signature on my absentee ballot without putting my health in grave danger by breaking my quarantine. If the witness requirement is not removed, I will be forced to make a devastating choice between my health and my right to vote. I declare under penalty of perjury that the foregoing is true and correct. Executed: April 27, 2020.
01 1,�,
71 Mary T. Thomas

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-19 Page 1 of 4
EXHIBIT 7

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-19 Page 2 of 4
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA MARY T. THOMAS, et al., Plaintiffs, v. MARCI ANDINO, et al., Defendants.
DECLARATION OF NEA RICHARD NEA RICHARD declares, pursuant to 28 U.S.C. § 1746, as follows:
1. I am over 22 years old and competent to make this declaration. 2. I am a U.S. citizen, an African American, and a lawfully registered voter in Cross Hill, South Carolina. 3. I am a student at Claflin University, a historically Black university in Orangeburg, South Carolina. I currently reside in Orangeburg while completing online instruction after the closure of Claflin due to COVID-19. My graduation has been delayed due to the virus until December 2020, when I will receive my undergraduate degree in African American Studies and Political Science. 4. As a student, I have served in student government and multiple extracurricular nonprofit leadership roles. For example, I registered voters through a political awareness group I founded in order to make politics more accessible to college students. 5. While in school, I have travelled two hours home to Cross Hill for each election so that I can vote in-person and serve as a poll worker. I intend to vote in person and serve as a poll worker again in Cross Hill for the 2020 state primary in June and general elections in November.

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6. I believe the Excuse Requirement and the Witness Requirement (together, the “Challenged Provisions”) will force many South Carolinians who do not wish to lose their right to vote to appear in person at polling sites or otherwise interact with other people in order to cast a ballot. The Challenged Provisions do not allow all voters with reasonable fear of contracting or spreading COVID-19 to vote by mail and require voters who do qualify to vote by mail to have a witness sign their ballot envelop. These requirements will lead to unnecessary encounters that I fear will cause risk to both personal and public health.
7. From my seven years of experience as a poll worker, I have witnessed and experienced the many forms of close contact that poll workers and voters are forced to make at polling sites including sharing pens, handling photo IDs, and touching doors, doorframes, and voting machines. If the Challenged Provisions are not eliminated, I fear that they will result in increased congestion at in-person polling sites, which would contribute to the spread of COVID19 and risk of my own potential infection.
8. Poll workers at my polling site are disproportionately elderly, and I anticipate that many will not be able or willing to work because of COVID-19—further exacerbating issues at polling sites. For example, my grandmother, who has served in a leadership role at our polling site and who initially inspired me to volunteer as a poll worker, will not be able to work at our precinct due to the health risks she faces from COVID-19 because of her age and prior health issues. I feel it is necessary that I serve as a poll worker this year to ensure that elder poll workers, like my grandmother, are not put at risk and voters are not left without polling site staff.
9. Hundreds of voters cast a ballot at my polling site – I would estimate 300 in most elections, and around 600 for presidential elections. On Election Day, poll worker cancellations and the added time and process of constantly cleaning and re-cleaning equipment and communal

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spaces will likely result in increased congestion and delays that will make it nearly impossible to take the necessary steps to practice proper social distancing and sufficient sanitization. I have seen reports from Wisconsin where numerous people contracted COVID-19 after visiting polling sites on Election Day, and I fear South Carolina could face similar outcomes if the Challenged Provisions remain in place.
10. The elimination of the Challenged Provisions would help protect me, as well as other voters and poll workers, by significantly reducing the number of in-person voters and the concomitant increased risk of COVID-19 transmission caused by excessive congestion at polling sites. I declare under penalty of perjury that the foregoing is true and correct. Executed on: April 24, 2020
_____________________ Nea Richard

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EXHIBIT 8

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.

years. These drugs help me maintain a relatively healthy, active life by preventing my immune

system from dangerously causing my lung tissue to thicken, but also make me particularly

vulnerable to respiratory ailments like COVID-19 and pneumonia.

8. I have stl'ictly self-quarantined myself at home with my wife and son since at least

mid-March and do not anticipate that I will feel safe outside my home until a vaccine or cure for

the novel coronavirus and COVID-19 has been developed or found. 9. In the likely event public officials ease social distancing restrictions before a

vaccine or cure are available, I anticipate my family will find another place to live so that my

wife and son may return to work and school while I remain self-quarantined in our family home.

.. I 0. I would vote absentee in this year's elections, ·including the June primary and

November general, in part, to avoid the health risks related to COVID-19. However, I will have

no way to obtain a witness's signature on an absentee ballot without putting myself in grave

•

danger of severe illness.

11. If the wi!Jless requirement is not removed, I will be forced to make a devastating

choice between my health and my right to vote.

I declare under penalty of perjury that the foregoing is true and correct.

�r?w�
The Rev. Dr. Jeremy Rutledge

Dated: April� 2020

•

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EXHIBIT 9

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EXHIBIT 10

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
MARY T. THOMAS, et al.,

Plaintiffs,
V.

Case No.: 3:20-cv-01552-JMC

MARCI ANDINO, et al.,

Defendants.

DECLARATION OF BRENDA C. WILLIAMS, M.D. BRENDA C. WILLIAMS declares, pursuant to 28 U.S.C. § 1746, as follows:
1. I am over 68 years old and competent to make this declaration. 2. I am a U.S. citizen, an African-American, and a lawfully registered voter in Sumter County, South Carolina. I am also a medical doctor with an active South Carolina medical license. I graduated from the Medical College of Georgia School of Medicine. Since 1982, I have lived and worked in Sumter County with my husband who is also a medical doctor. 3. I founded and currently serve as the executive director of the Family Unit, Inc. ("Family Unit"). The Family Unit is a 501(c)(3) nonpartisan, charitable non-profit organization with the mission of empowering and serving the needs of the low-income community of Sumter County. The Family Unit's constituents and members are mostly African Americans and/or low-income people with a high school education or less. As part of its mission, the Family Unit educates and registers voters, including people who are pretrial detainees; helps eligible voters to understand and navigate the absentee voting process; restores abandoned homes and donates them to working-poor families

1

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to live in; helps people find employment; volunteers with elderly people; and advocates for improved school facilities for children in the Sumter County area.
4. In recent years, the Family Unit's members and constituents have had their absentee ballots rejected because of the Witness Requirement. The difficulties experienced by the Family Unit's members and constituents in attempting to vote absentee under the witness and excuse requirements ("Challenged Requirements") have been magnified substantially by the COVID-19 pandemic.
5. As a direct result of the Challenged Requirements, the Family Unit has been forced to divert its extremely limited resources and time away from its core activities to investigate, respond to, mitigate, and address the concerns of its members and constituents impacted or disenfranchised by the Challenged Requirements and Defendants' inadequate efforts to protect voters from COVID-19 ahead of the 2020 elections.
6. For example, after learning about the impact of the Challenged Requirements on its members and constituents, Dr. Williams began an investigation that included requesting information from county election officials, interviewing affected voters, and reviewing information about the impact of the Challenged Requirements. Based on data provided by election officials, every year, the ballots of hundreds of voters are rejected because of the Witness Requirement. In the absence the Challenged Requirements, the Family Unit would not have had to engage in these activities.
7. In Attachment A to my declaration, I have included copies of email correspondence sent from local election officials to me. This correspondence shows
2

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-22 Page 4 of 5
that Orangeburg County discarded 55 absentee ballots, Laurens County discarded 36 ballots, and Hampton county discarded 28 ballots in the 2016 elections because of the Witness Requirement. This correspondence also shows that some county election officials disagree with efficacy of the witness requirement. Upon information and belief, Richland County discarded 412 absentee ballots, Sumter County discarded 101 ballots and Marion County discarded 53 ballots.
8. Personally, I intend to vote in the 2020 state primary and general elections. I recently learned that I have contracted COVID-19. As a result, I am self­ quarantining at home. My infection will prevent her from assisting or witnessing the absentee ballots for many of the Family Unit's members and constituents who have no one else to assist them with or witness their absentee ballots.
9. As a registered voter over age 65, I qualify for an absentee ballot. Because of my diagnosis and the need to self-quarantine, however, the witness requirement acts as a stumbling block for me and others trying to vote while practicing safe social distancing.
10. I usually assist scores of eligible absentee voters, including senior citizens and persons who are incarcerated. But, I am not able to visit the homes, nursing homes, long-term care facilities, local jail, the Sumter County Sheriffs Department Correctional Facility, senior citizens facilities, churches where I often instruct these voters on how to properly handle the Challenged Requirements. In the context of the COVID-19 pandemic, the Challenged Requirements make it nearly impossible for the Family Unit's members and constituents to cast effective absentee ballots.
11. Even after my COVID-19 symptoms subside, I fear that, if I appear in-
3

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-22 Page 5 of 5
person to vote or go in-person to assist the Family Unit's members and constituents in complying with the Challenged Requirements, I still may unintentionally and unknowingly infect others.
12. The fact is that the multiple steps and fine details that accompany absentee voting in South Carolina, including the Challenged Requirements, make it mandatory that the senior citizens, the marginally-educated and the pretrial inmates that I have help must have close personal contact and intense and detailed instruction, so that they are able to vote absentee. All of that work demands a mammoth effort on the part of people like myself.
13. I declare under penalty of perjury that, to the best of my knowledge, the foregoing is true and correct.
�I, Dated: April 2020
Brenda C. Williams, MD
4

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 1 of 15

DebraBryant

tome M
m m

RE: Hampton County

4:17PM(5

Good afternoon, Ms. Williams:

Absentee ballot

return

envelopes

are NOT counted. Exception: UOCAVA Ballots (military/overseas).

that are not witnessed

Absentee ballot return envelopes that are returned with no witness signature must be placed in their own “Attention” envelope. “Attention” envelopes are sealed, kept with election records, and never opened.

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 2 of 15 During the 2016 election year, a total of twenty-eight (28) absentee ballots were not counted due to no witness signature on the return envelope.
If a voter personally brings in his/her own ballot that is not witnessed, we assist that voter and have them sign again in our presence and we witness the return envelope.
Thank you.
DebraB.Bryant Director
HamptonCounty BoardofVoterRegistration&Elections 201JacksonAvenue,West Hampton,SouthCarolina29924 Telephone:(803)914Ǧ2082 Fax:(803)914Ǧ2083 Email:dbryant@hamptoncountysc.org Email:Vote.Hampton@elections.sc.gov

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 3 of 15

ShannaProctor

tome M
m m


10:41AM(5

Dear Directors of Voter Registration and Elections in the State of South Carolina:
Please answer the following question:
(1) What methods and or procedures are implemented by your County's Voter Registration and Elections Commission if and when an Absentee Ballot is returned, either by person or by mail, without the Return Envelope being signed by a witness? In person, we check for signatures and ask the person to sign if the ballot belongs to them. If the ballot is being dropped off by someone else we ask them to return it to the voter for their signature or we can mail it. If by mail and we have a phone number we call the voter to notify them.
(2) How many or what percentage of ballots were not counted in your county during the 2016 Election Year due to the lack of a second signature or "Witness Signature" on the Return Ballot Envelopes? Less than 1% of mailed in ballots.

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 4 of 15

LynneWest<LWEST@co.laurens.sc.us>

tome M
m m

Ifitisreturnedinperson,weoffertoletthevoterreͲsignandwewitnessit.
Ifitisreturnedinpersonbyanauthorizedrep,weoffertoletthereptaketheballotbacktothevotertoresignand haveitwitnessed.
Ifitismailed,wesimplydepositintheballotboxanditislaterputinthe“notwitnesssignature”envelope.

Wehadapprox.36ballotsthewerenotcountedthistime,duetonotwitnesssignature.

Nov30,

DebraBryant<dbryant@hamptoncountysc.org>

tome M
m m

Mon,Dec5,2



All absentee ballots returned are time and date stamped. The date and time of ballot return is entered in the Voter Registration and Election Management System. Ballots returned with no witness

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 5 of 15 signature (except UOCAVA) are placed in their own “Attention” envelope. Attention envelopes are sealed, kept with election records, and never opened. These are not provisional ballots, so they are not considered at the provisional ballot hearing and are not counted.
There was a total of six ballots not witnessed that were placed in the attention envelopes for the 2016 General Election.
Thank you.
Debra
DebraBryant,Dir. HamptonCounty BoardofVoterReg.&Elections 201JacksonAve.,W. Hampton,SC29924 Telephone:(803)914Ͳ2082 Fax:(803)914Ͳ2083 Email:dbryant@hamptoncountysc.org
  Ps.ItisalegislativepriorityoftheSCAREorganizationtodeletethatwitnesssignaturerequirement.  Lynne 

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 6 of 15

BOARDOF
VOTERREGISTRATION&ELECTIONS
OFLAURENSCOUNTY
lynnewest,director 864Ͳ984Ͳ4431 864Ͳ871Ͳ2937cell
scVOTES.org

Hoyt

N

Campbell
I look forward to the day that the witness is moved.

Aurora Smalls
Voter Registration & Elections Director 
(803) 533-6213 Office
(803) 533-6215 Fax
asmalls@orangeburgcounty.org

From:BrendaWilliams[mailto:familyunitinc@gmail.com] Sent:Tuesday,November29,201612:01AM To:klondon;cholland;Sprince;acvote;effcoatpp;voter;catie.allison;scampbell;tgraham;vrcfield;sblackoliver;AngelaUpchurch dalford;bscott;epilot;vote;cbelangia;voterregistration;mahudson;TeresaMoody;ShannaProctor;JoyScharich;AbsenteeBallo dpettit;elections;PatriciaJefferson;StanBarnhill;LynneWest;Dean;DebraBryant;ConnieMoody;TriciaButler;Shayla;Hoyt Campbell;jeffcoatpp@bambergcounty.sc.gov Subject:AbsenceofWitnessSignatureandtheAbsenteeBallot

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 7 of 15

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 8 of 15

From:BrendaWilliams[mailto:familyunitinc@gmail.com] Sent:Tuesday,November29,201612:01AM To:klondon;cholland;Sprince;acvote;effcoatpp;voter;catie.allison;scampbell;tgraham;vrcfield;sblackoliver;AngelaUpchurch dalford;bscott;epilot;vote;cbelangia;voterregistration;mahudson;TeresaMoody;ShannaProctor;JoyScharich;AbsenteeBallo dpettit;elections;PatriciaJefferson;StanBarnhill;LynneWest;Dean;DebraBryant;ConnieMoody;TriciaButler;Shayla;Hoyt Campbell;jeffcoatpp@bambergcounty.sc.gov Subject:AbsenceofWitnessSignatureandtheAbsenteeBallot
Dear Directors of Voter Registration and Elections in the State of South Carolina:
Please answer the following questions:
(1) What methods and/or procedures are implemented by your County's Voter Registration and E and/or Commission if and when an Absentee Ballot is returned, either by person or by mail, witho Envelope being signed by a witness?[Aurora Smalls ] If Absentee Ballot is returned by voter we ID then ask them to sign the Return envelope in our present and we will sign as a witness. If Abs returned by mail we try to contact the voter and ask them to come to the office present ID and the envelope in our present and we will witness the envelope. If voter don’t come to the office the ba counted.
(2) How many or what percentage of ballots were not counted in your county during the 2016 El the lack of a second signature or "Witness Signature" on the Return Ballot Envelopes? [Aurora S


3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 9 of 15
ͲͲͲͲͲͲͲͲͲͲForwardedmessageͲͲͲͲͲͲͲͲͲ From:BrendaWilliams<familyunitinc@gmail.com> Date:Thu,Dec5,2019,10:46AM Subject:AbsenteeBallotsEnvelopeswithoutaWitnessSignature To:klondon<klondon@abbevillecountysc.com>,cholland<cholland@aikencountysc.gov>,Sprince <Sprince@allendalecounty.com>,acvote<acvote@andersoncountysc.org>,effcoatpp <effcoatpp@bambergcounty.sc.gov>,voter<voter@bcgov.net>,catie.allison<catie.allison@cherokeecountysc.com>, scampbell<scampbell@charlestoncounty.org>,tgraham<tgraham@chestercounty.org>,vrcfield <vrcfield@hotmail.com>,sblackoliver<sblackoliver@clarendoncountygov.org>,AngelaUpchurch <aupchurch@colletoncounty.org>,Sedwardsvr17<Sedwardsvr17@aol.com>,vote<vote@dorchestercounty.net>, dalford<dalford@florenceco.org>,bscott<bscott@florenceco.org>,epilot<epilot@florenceco.org>,vote <vote@georgetowncountysc.org>,cbelangia<cbelangia@greenvillecounty.org>,voterregistration <voterregistration@kershaw.sc.gov>,mahudson<mahudson@lancastercountysc.net>,TeresaMoody <tmoody@marionsc.org>,ShannaProctor<sproctor@newberrycounty.net>,JoyScharich<jscharich@oconeesc.com>, absentee<absentee@orangeburgcounty.org>,rcvoterapplication<rcvoterapplication@rcgov.us>,dpettit <dpettit@countyofunion.com>,elections<elections@yorkcountygov.com>,PatriciaJefferson <pjefferson@sumtercountysc.org>,StanBarnhill<sbarnhill@leecountysc.org>,LynneWest<lwest@co.laurens.sc.us>, Dean<dcrepes@lexͲco.com>,DebraBryant<dbryant@hamptoncountysc.org>,ConnieMoody <cmoody@greenwoodsc.gov>,HoytCampbell<hcampbell@darcosc.com>,TriciaButler <tbutler@edgefieldcounty.sc.gov>,Shayla<sjenkins@calhouncounty.sc.gov>,NaomiDeFrenn <ndefrenn@barnwellsc.com> 
DearDirectorsofVoterRegistrationandElectionsintheStateofSouthCarolina: Pleaseanswerthefollowingquestion:

(1)WhatmethodsandorproceduresareimplementedbyyourCounty'sVoterRegistrationand ElectionsCommissionifandwhenanAbsenteeBallotisreturned,eitherbypersonorbymail, withouttheReturnEnvelopebeingsignedbyawitness?

(2)Howmanyorwhatpercentageofballotswerenotcountedinyourcountyduringthe2016 ElectionYearduetothelackofasecondsignatureor"WitnessSignature"ontheReturnBallot Envelopes?

Pleaseexpoundonyourresponses.


3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 10 of 15
Thankyouforyourattentiontotheabovequestions.Yourcooperationinthisrequestwouldbe greatlyappreciated.

YoursSincerely, BrendaC.Williams,MD TheFamilyUnit,Inc.,a501(c)(3),nonͲprofit,charitableorganization 2AubreyCircle Sumter,SouthCarolina29153 FederalID#:26Ͳ3342684

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 11 of 15
ͲͲͲͲͲͲͲͲͲͲForwardedmessageͲͲͲͲͲͲͲͲͲ From:BrendaWilliams<familyunitinc@gmail.com> Date:Mon,Nov28,2016,11:49PM Subject:WitnessSignatureonAbsenteeBallotReturnEnvelope To:klondon<klondon@abbevillecountysc.com>,cholland<cholland@aikencountysc.gov>,Sprince <Sprince@allendalecounty.com>,acvote<acvote@andersoncountysc.org>,effcoatpp <effcoatpp@bambergcounty.sc.gov>,voter<voter@bcgov.net>,catie.allison<catie.allison@cherokeecountysc.com>, scampbell<scampbell@charlestoncounty.org>,tgraham<tgraham@chestercounty.org>,vrcfield <vrcfield@hotmail.com>,sblackoliver<sblackoliver@clarendoncountygov.org>,AngelaUpchurch <aupchurch@colletoncounty.org>,Sedwardsvr17<Sedwardsvr17@aol.com>,vote<vote@dorchestercounty.net>, dalford<dalford@florenceco.org>,bscott<bscott@florenceco.org>,epilot<epilot@florenceco.org>,vote <vote@georgetowncountysc.org>,cbelangia<cbelangia@greenvillecounty.org>,voterregistration <voterregistration@kershaw.sc.gov>,mahudson<mahudson@lancastercountysc.net>,TeresaMoody <tmoody@marionsc.org>,ShannaProctor<sproctor@newberrycounty.net>,JoyScharich<jscharich@oconeesc.com>, absentee<absentee@orangeburgcounty.org>,rcvoterapplication<rcvoterapplication@rcgov.us>,dpettit <dpettit@countyofunion.com>,elections<elections@yorkcountygov.com>,PatriciaJefferson <pjefferson@sumtercountysc.org>,StanBarnhill<sbarnhill@leecountysc.org>,LynneWest<lwest@co.laurens.sc.us>, Dean<dcrepes@lexͲco.com>,DebraBryant<dbryant@hamptoncountysc.org>,ConnieMoody <cmoody@greenwoodsc.gov>,HoytCampbell<hcampbell@darcosc.com>,TriciaButler <tbutler@edgefieldcounty.sc.gov>,Shayla<sjenkins@calhouncounty.sc.gov>,NaomiDeFrenn <ndefrenn@barnwellsc.com> 
DearDirectorsofVoterRegistrationandElectionsintheStateofSouthCarolina: Pleaseanswerthefollowingquestion:

(1)WhatmethodsandorproceduresareimplementedbyyourCounty'sVoterRegistrationand ElectionsCommissionifandwhenanAbsenteeBallotisreturned,eitherbypersonorbymail, withouttheReturnEnvelopebeingsignedbyawitness?

(2)Howmanyorwhatpercentageofballotswerenotcountedinyourcountyduringthe2016 ElectionYearduetothelackofasecondsignatureor"WitnessSignature"ontheReturnBallot Envelopes?

Pleaseexpoundonyourresponses.


3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 12 of 15
Thankyouforyourattentiontotheabovequestions.Yourcooperationinthisrequestwouldbe greatlyappreciated.

YoursSincerely, BrendaC.Williams,MD TheFamilyUnit,Inc.,a501(c)(3),nonͲprofit,charitableorganization 2AubreyCircle Sumter,SouthCarolina29153 FederalID#:26Ͳ3342684
 

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 13 of 15
ͲͲͲͲͲͲͲͲͲͲForwardedmessageͲͲͲͲͲͲͲͲͲ From:BrendaWilliams<familyunitinc@gmail.com> Date:Tue,Nov29,2016,12:00AM Subject:AbsenceofWitnessSignatureandtheAbsenteeBallot To:klondon<klondon@abbevillecountysc.com>,cholland<cholland@aikencountysc.gov>,Sprince <Sprince@allendalecounty.com>,acvote<acvote@andersoncountysc.org>,effcoatpp <effcoatpp@bambergcounty.sc.gov>,voter<voter@bcgov.net>,catie.allison<catie.allison@cherokeecountysc.com>, scampbell<scampbell@charlestoncounty.org>,tgraham<tgraham@chestercounty.org>,vrcfield <vrcfield@hotmail.com>,sblackoliver<sblackoliver@clarendoncountygov.org>,AngelaUpchurch <aupchurch@colletoncounty.org>,Sedwardsvr17<Sedwardsvr17@aol.com>,vote<vote@dorchestercounty.net>, dalford<dalford@florenceco.org>,bscott<bscott@florenceco.org>,epilot<epilot@florenceco.org>,vote <vote@georgetowncountysc.org>,cbelangia<cbelangia@greenvillecounty.org>,voterregistration <voterregistration@kershaw.sc.gov>,mahudson<mahudson@lancastercountysc.net>,TeresaMoody <tmoody@marionsc.org>,ShannaProctor<sproctor@newberrycounty.net>,JoyScharich<jscharich@oconeesc.com>, absentee<absentee@orangeburgcounty.org>,rcvoterapplication<rcvoterapplication@rcgov.us>,dpettit <dpettit@countyofunion.com>,elections<elections@yorkcountygov.com>,PatriciaJefferson <pjefferson@sumtercountysc.org>,StanBarnhill<sbarnhill@leecountysc.org>,LynneWest<lwest@co.laurens.sc.us>, Dean<dcrepes@lexͲco.com>,DebraBryant<dbryant@hamptoncountysc.org>,ConnieMoody <cmoody@greenwoodsc.gov>,TriciaButler<tbutler@edgefieldcounty.sc.gov>,Shayla <sjenkins@calhouncounty.sc.gov>,HoytCampbell<hcampbell@darcosc.net>,<jeffcoatpp@bambergcounty.sc.gov> 
DearDirectorsofVoterRegistrationandElectionsintheStateofSouthCarolina: Pleaseanswerthefollowingquestions:

(1)Whatmethodsand/orproceduresareimplementedbyyourCounty'sVoterRegistrationand ElectionsOfficeand/orCommissionifandwhenanAbsenteeBallotisreturned,eitherbyperson orbymail,withouttheReturnEnvelopebeingsignedbyawitness?

(2)Howmanyorwhatpercentageofballotswerenotcountedinyourcountyduringthe2016 ElectionYearduetothelackofasecondsignatureor"WitnessSignature"ontheReturnBallot Envelopes?

Pleaseexpoundonyourresponses.

Thankyouforyourattentiontotheabovequestions.Yourcooperationinthisrequestwouldbe greatlyappreciated.

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 14 of 15

YoursSincerely, BrendaC.Williams,MD TheFamilyUnit,Inc.,a501(c)(3),nonͲprofit,charitableorganization 2AubreyCircle Sumter,SouthCarolina29153 FederalID#:26Ͳ3342684

3:20-cv-01552-JMC Date Filed 04/28/20 Entry Number 7-23 Page 15 of 15
ͲͲͲͲͲͲͲͲͲͲForwardedmessageͲͲͲͲͲͲͲͲͲ From:BrendaWilliams<familyunitinc@gmail.com> Date:Thu,Dec5,2019,9:06PM Subject:WitnessSignatureonAbsenteeBallotReturnEnvelope To:<h.campbell@darcosc.net>,<mbrack@lexͲco.com>,<kroach@chesterco.org>, <amanda.walker@cherokeecountysc.com>,<jeffcoatpp@bambergcounty.sc.gov> 
DearDirectorsofVoterRegistrationandElectionsintheStateofSouthCarolina: Pleaseanswerthefollowingquestion:

(1)WhatmethodsandorproceduresareimplementedbyyourCounty'sVoterRegistrationand ElectionsCommissionifandwhenanAbsenteeBallotisreturned,eitherbypersonorbymail, withouttheReturnEnvelopebeingsignedbyawitness?

(2)Howmanyorwhatpercentageofballotswerenotcountedinyourcountyduringthe2016 ElectionYearduetothelackofasecondsignatureor"WitnessSignature"ontheReturnBallot Envelopes?

Pleaseexpoundonyourresponses.

Thankyouforyourattentiontotheabovequestions.Yourcooperationinthisrequestwouldbe greatlyappreciated.

YoursSincerely, BrendaC.Williams,MD TheFamilyUnit,Inc.,a501(c)(3),nonͲprofit,charitableorganization 2AubreyCircle Sumter,SouthCarolina29153 FederalID#:26Ͳ3342684

 
 3:20-cv-01552-JMC Date Filed 05/01/20 Entry Number 11 Page 1 of 6

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 Carolan )

State Election Commission, and

)

HENRY D. MCMASTER in his official )

capacity as Governor of South Carolina )

)

Defendants.

)

)

Case No.: 3:20-cv-01552-JMC
SOUTH CAROLINA REPUBLICAN PARTY’S MOTION TO INTERVENE

Pursuant to Federal Rule of Civil Procedure 24(a)–(b), the South Carolina Republican Party (the Republican Party) moves to intervene in the above-referenced matter as a matter of right or, in the alternative, permissively. For the reasons set forth below, the Court should grant the Republican Party’s motion to intervene in this matter of public importance.1
Under Federal Rule of Civil Procedure 24(a), on timely motion, the Court must permit anyone to intervene who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that

1 Pursuant to Local Civil Rule 7.04, DSC, a memorandum is not submitted because a full explanation of the argument is contained within the motion and a memorandum would serve no useful purpose.

3:20-cv-01552-JMC Date Filed 05/01/20 Entry Number 11 Page 2 of 6
interest.” Fed. R. Civ. P. 24(a)(2). The U.S. Court of Appeals for the Fourth Circuit has interpreted this rule as requiring a party seeking to intervene to meet the following requirements:
(1) the application to intervene must be timely; (2) the applicant must have an interest in the subject matter of the underlying action; (3) the denial of the motion to intervene would impair or impede the applicant’s ability to protect its interest; and (4) the applicant’s interest is not adequately represented by the existing parties to the litigation. Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999). Further, the party seeking to intervene “bears the burden of demonstrating to the court a right to intervene.” In re Richman, 104 F.3d 654, 658 (4th Cir. 1997). Additionally, Federal Rule of Civil Procedure 24(b) provides that the Court may permit, on timely motion, “anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1). Although “some standards have been developed to guide the courts in making intervention determinations,” the Court’s decision to allow permissive interventions under Rule 24(b) “lies within [its] sound discretion.” Hill v. W. Elec. Co., 672 F.2d 381, 386 (4th Cir. 1982). In the Fourth Circuit, a movant seeking permissive intervention as a plaintiff must satisfy four criteria. First, the motion must be timely. Second, the movant must have “a claim or defense that shares with the main action a common question of law or fact.” Third, there must be an independent ground of subject matter jurisdiction. Finally, the proposed intervention must not “unduly delay or prejudice the adjudication of the rights of the original parties.” S.C. Coastal Conservation League v. Pruitt, No. 2:18-cv-330-DCN, 2018 WL 2184395, at *3 (D.S.C. May 11, 2018) (internal citations omitted) (quoting Fed. R. Civ. P. 24(b)(1)(B), (b)(2) & (b)(3)). “Rule 24(b) is to be liberally construed in favor of intervention.” Backus v. South Carolina, No. 3:11-cv-03120, 2012 WL 406860, at *2 (D.S.C. Feb. 8, 2012).
2

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“Both intervention of right and permissive intervention require timely application.” Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989). In analyzing this factor, the Fourth Circuit generally considers how far the suit has progressed, the prejudice that delay might cause other parties, and the reason for the tardiness in moving to intervene. See id. Because the plaintiffs filed their complaint in this Court on April 22, 2020, this motion undoubtedly is timely under either method of intervention. The lawsuit has just begun, no responsive pleadings have been filed, no motions have been argued or decided, and allowing the Republican Party to intervene would not cause any delay. Therefore, under either intervention standard, this motion is timely.
Further, to support a right to intervene, the potential intervenor’s interest in the dispute “must be direct, rather than remote or contingent.” Dairy Maid Dairy, Inc. v. United States, 147 F.R.D. 109, 111 (E.D. Va. 1993). The Republican Party has a direct interest in the subject matter of this litigation because the law the plaintiffs are challenging as unconstitutional governs the absentee voting process currently being encouraged by the Republican Party to increase voter participation. Not allowing the Republican Party “to intervene would impair or impede the [Republican Party’s] ability to protect its interest” in electing Republicans—especially in 2020 with important races up and down the ballot in both the primary and general election—while maintaining ballot integrity and preventing voter fraud. The plaintiffs are asking the Court to implement changes prior to the June 9, 2020 primary. Any changes to the state’s election laws at this late date will have a significant effect on the Republican Party’s ability to elect Republican candidates.2 Thus, the Republican Party wants an opportunity to weigh in on this matter.
2 In a similar lawsuit currently pending in the original jurisdiction of the Supreme Court of South Carolina, the petitioners are challenging the state’s absentee ballot voting process. The Republican Party filed a motion to intervene in that case, as well, which the court granted on April 28, 2020. See Ex. A, Order, Bailey v. S.C. State Election Comm’n, App. Case No. 2020-000642 (S.C. Sup. Ct. filed Apr. 28, 2020).
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Respectfully, the Republican Party’s interests also are not adequately represented by the original parties to this action. As a state agency, the State Election Commission’s purpose is to administer the state’s elections pursuant to the laws established by the South Carolina General Assembly. Thus, it must remain neutral and cannot adequately represent the interest of any political party, much less the SCGOP. For the same reasons, nor can its executive director. Further, Governor McMaster’s interest is to defend the law and take care that the laws be faithfully executed. While the Republican Party certainly wishes to likewise defend the law, its interests are narrower in this case. In other words, the Republican Party may not necessarily share the same objectives as Governor McMaster, who may be confined to a more institutional perspective instead of focusing on electing Republicans. Regardless, the Republican Party simply wants a seat at the table to ensure all stakeholders have a voice in this matter of public interest and importance. To that end, if the Democratic Party wants the same opportunity to intervene to protect its interests, the Republican Party would welcome its participation.
The Complaint makes unsupported allegations of how South Carolina’s current absentee ballot process harms specific voters in South Carolina. ECF No. 1 at ¶ 83. Although the plaintiffs have members of the Election Commission, Executive Director Andino, and Governor McMaster in their official capacities, this lawsuit seeks to expand our current voting laws, which could impact the Republican Party. The Court need look no further than the third paragraph of the plaintiffs’ complaint, in which they challenge the “requirement setting forth exclusive categories of ‘persons qualified to vote by absentee ballot.’” ECF No. 1 at ¶ 3. The Plaintiffs ask this Court to authorize a change in the voting process by doing away with all criteria a voter must meet to cast an absentee ballot. Changing the way South Carolinians vote will have a large impact on the interests of the Republican Party.
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Finally, given the very early stages of this lawsuit, the plaintiffs can hardly argue the Republican Party’s intervention would “unduly delay or prejudice the adjudication of the rights of the original parties.” If granted permission to intervene in this matter, the Republican Party intends to meet the expedited briefing deadline of May 11, 2020 and be ready for a hearing on May 15, 2020.
Based upon the foregoing, the Republican Party respectfully requests that the Court enter an order granting its motion to intervene to defend the constitutionality of South Carolina’s absentee ballot procedures either as of right or under the permissive intervention rule. Cf. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1209 (2020) (per curiam) (Ginsburg, J., dissenting) (noting the state and national political “parties intervened as defendants” in a similar dispute over changing absentee ballot requirements in Wisconsin prior to its primary).
Pursuant to Local Civil Rule 7.02, DSC, the undersigned counsel certifies that counsel for all parties were consulted prior to filing this motion. Defendants Marci Andino, John Wells, Clifford Edler, Scott Mosely, and Governor Henry D. McMaster do not oppose the South Carolina Republican Party’s motion to intervene. Counsel for Plaintiffs have indicated they will oppose motion.
(Signature Page Follows)
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Columbia, South Carolina May 1, 2020

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

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3:20-cv-01552-JMC Date Filed 05/01/20 Entry Number 11-1 Page 1 of 2
THOMAS, ET AL V. ANDINO, ET AL CA: 3:20-CV-01552-JMC
EXHIBIT A
SOUTH CAROLINA REPUBLICAN PARTY’S MOTION TO INTERVENE
ORDER DATED APRIL 28, 2020 FROM APPELLATE CASE NO.: 2020-000642

3:20-cv-01552-JMC Date Filed 05/01/20 Entry Number 11-1 Page 2 of 2
Zb upreme (Court of iboutb (Carolina
Rhodes Bailey, Robert Wehrman, South Carolina Democratic Party, and DCCC, Plaintiffs-Petitioners, V. South Carolina State Election Commission and Marci Andino as Executive Director of the State Election Commission, Defendants-Respondents. Appellate Case No. 2020-000642
ORDER
The South Carolina Republican Party moves to intervene in this action. The motion is granted. All returns shall be served and filed by May 1, 2020.
Columbia, South Carolina April 28, 2020 cc: Christopher James Bryant, Esquire Alan McCrory Wilson, Esquire Harrison D. Brant, Esquire Karl Smith Bowers, Jr., Esquire J. Robert Bolchoz, Esquire Mary Elizabeth Crum, Esquire William Grayson Lambert, Esquire Robert E. Tyson, Jr., Esquire Vordman Carlisle Traywick, III, Esquire

 
 3:20-cv-01552-JMC Date Filed 05/05/20 Entry Number 22 Page 1 of 12

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

MARY T. THOMAS, et al.,
Plaintiffs, v.
MARCI ANDINO, et al.,
Defendants.

Case No.: 3:20-cv-01552-JMC

PLAINTIFFS’ OPPOSITION TO MOTION TO INTERVENE OF THE SOUTH CAROLINA REPUBLICAN PARTY
Movant the South Carolina Republican Party (“SCRP” or “Movant”), seeks to intervene in this time-sensitive election matter in which individual Plaintiffs’ right to vote is on the line. Not mentioning the public health crisis once, it never explains how the resolution of this case will affect its own interests differently from how it will affect the public generally. This is because Movant’s asserted interest in electoral integrity generally does not justify intervention. And while SCRP may have associational interests in who may be eligible to participate in its primary, this case does not implicate voter eligibility, but rather concerns ballot-access restrictions that, absent relief, will disenfranchise tens of thousands of indisputably eligible South Carolina voters—including Republicans. Thus, because Movant does not “stand to gain or lose by the direct legal operation of the district court’s judgment” in any particularized way, it is not entitled to intervene. Teague v. Bakker, 931 F.2d 259, 261 (4th Cir. 1991).
As detailed below, federal courts have repeatedly rejected efforts of political parties and officials whose personal right to vote is not at stake to intervene in a case by asserting generalized interests in election integrity. This Court should do the same.

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Movant also seeks to permissively intervene in the case, citing the benefits of bringing together all interested parties for one resolution of the relevant issues. But SCRP has no specific interests in this case. Instead, the Court can gain the benefit of Movant’s views through participation as amici curiae—to which Plaintiffs consent—without the downsides of delay, prejudice, and confusion. See Stuart v. Huff, 706 F.3d 345, 355 (4th Cir. 2013).
ARGUMENT Rule 24 of the Federal Rules of Civil Procedure provides the standards governing intervention, whether as a matter of right or permissive. Fed. R. Civ. P. 24. Movant cannot satisfy either standard, and its participation in this case would prejudice Plaintiffs by delaying relief to this time-sensitive case. Because the Movant has no substantial interests in this case different from that of the general public, it cannot justify intervention and can adequately express its views as amici curiae. I. The Court should deny intervention as a matter of right because SCRP lacks any significantly protectable interest and instead asserts only generalized interests shared by the public at large—interests adequately protected by existing Defendants. Rule 24(a)(2) allows intervention as a matter of right “if the movant can demonstrate ‘(1) an interest in the subject matter of the action; (2) that the protection of this interest would be impaired because of the action; and (3) that the applicant’s interest is not adequately represented by existing parties to the litigation.’” Stuart, 706 F.3d at 349 (quoting Teague, 931 F.2d at 260– 61). Each of these elements is required for intervention as a matter of right; Movant satisfies none of them. A. Movant asserts only generalized interests shared by the public at large and interests not directly implicated by this case. To demonstrate it has an interest in the action sufficient to intervene, a movant must establish a “‘significantly protectable interest,’” Teague, 931 F.2d at 261 (quoting Donaldson v.
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United States, 400 U.S. 517, 531 (1971)), and that “‘the denial of the motion to intervene would impair or impede the [] ability to protect its interest.’” S.C. Elec. & Gas Co. v. Whitfield, No. 18-cv-01795-JMC, 2018 WL 3470660, at *3 (D.S.C. July 18, 2018) (quoting Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999)). In other words, the intervenors must have an interest that is “contingent on the outcome of other litigation,” meaning that they must “stand to gain or lose by the direct legal operation of the district court’s judgment.” Teague, 931 F.2d at 261. A “petitioner-intervenor must demonstrate more than a general interest in the subject matter of the litigation [for] intervention [to] be allowed.” Alexander v. Hall, 64 F.R.D. 152, 157 (D.S.C. 1974). See RLI Ins. Co. v. Nexus Servs., Inc., No. 5:18-CV-00066, 2018 WL 5621982, at *3 (W.D. Va. Oct. 30, 2018) (“‘general interest in the subject matter of pending litigation does not constitute a protectable interest within the meaning of Rule 24(a)(2)’” (quoting Dairy Maid Dairy, Inc. v. United States, 147 F.R.D. 109, 111 (E.D. Va. 1993))).
Here, SCRP has not shown specific interests in this case such that they “stand to gain or lose” depending on the outcome. Rather, it cites vague concerns on “maintaining ballot integrity and preventing voter fraud.” ECF No. 11, at 3. These generalized interests and amorphous concerns in ensuring the integrity of the electoral process shared broadly by all members of the public are not “unique to the proposed intervenor,” Wis. Educ. Ass’n Council v. Walker, 705 F.3d 640, 658 (7th Cir. 2013), and are thus not “sufficiently specific . . . to be cognizable” for intervention, Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 948 (7th Cir. 2000).
1. SCRP’s broad interest in election integrity and the right to vote are the shared by all South Carolina voters and are not the type of specific interests that mandate intervention.
Courts have repeatedly held that individual voters’ and voting-related organizations’ broad interests in election integrity do not support intervention under Rule 24(a). See Common Cause Ind. v. Lawson, No. 17-cv-03936, 2018 WL 1070472, at *4–5 (S.D. Ind. Feb. 27, 2018)
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(in organizational plaintiff’s challenge to voter registration law under the National Voter Registration Act, denying intervention to organization whose mission includes election integrity and ensuring voter roll list maintenance laws are followed); One Wis. Inst., Inc. v. Nichol, 310 F.R.D. 394, 397 (W.D. Wis. 2015) (legislators, voters, and local election officials denied intervention in challenge to various Wisconsin election laws); Order Denying Intervention of True the Vote, Veasey v. Perry, No. 2:13-cv-00193, at 1–2 (S.D. Tex. Dec. 11, 2013) (finding that the “election integrity” organization’s “interests are generalized” and denying intervention in litigation challenging a voter identification law), aff’d 577 F. App’x 261 (5th Cir. 2014); United States v. Florida, No. 4:12-cv-285, 2012 WL 13034013, at *2-3 (N.D. Fla. Nov. 6, 2012); Wis. Right to Life Political Action Comm. v. Brennan, No. 09-CV-764-VIS, 2010 WL 933809, at *3 (W.D. Wis. Mar. 11, 2010). This is because “generalized, public policy interests are insufficient to create [the] direct, substantial interest required.” Wis. Right to Life, 2010 WL 933809, at *3; see also Hollingsworth v. Perry, 570 U.S. 693, 706 (2013) (intervenor’s interest in “vindicat[ing] the constitutional validity of a generally applicable California law” was a “‘generalized grievance’ . . . insufficient to confer standing”).
For example, in United States v. Florida, the court held that the interest of organizations and their members in ensuring confidence in the election process through accurate voting rolls are generalized interests that are “the same for the proposed intervenors . . . as for every other registered voter in the state” and thus “plainly do not afford a voter—or an organization with members who are voters—a right to intervene under Rule 24(a).” 2012 WL 13034013, at *1. And in One Wisconsin Institute, the court rejected proposed intervenor’s “asserted interest in fraud-free elections” as insufficient to justify intervention as of right because such interest was “really just the proposed intervenors’ agreement with the policy underlying the challenged
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legislation.” 310 F.R.D. at 397. The court explained that such an “[a]bstract agreement with the position of one side or another is not the type of ‘direct, significant, and legally protectable’ interest that gives rise to a right to intervene.” Id. (citation omitted).
The same is true here. Without any showing that SCRP members will be deprived of the right to vote—as the individual Plaintiffs and the Family Unit’s members will be if the Challenged Requirements remain in place—its generalized interest in election integrity cannot support intervention. But this is all that Movant offers, vague assertions about having a “direct interest in the subject matter of this litigation because the [Challenged Requirements] govern[] the absentee voting process currently being encouraged by the Republican Party to increase voter participation.” ECF No. 11, at 3. These interests are not only shared by all South Carolina voters, but are the very stuff of Plaintiffs’ claims, which seek to stop unduly burdensome requirements from “prevent[ing] tens of thousands of South Carolinians who might otherwise vote in scheduled elections from participating in those contests,” Compl. ¶ 78—that is, to protect or “increase voter participation.” Cf. Somers v. S.C. State Election Comm’n, 871 F. Supp. 2d 490, 496 (D.S.C. 2012) (three-judge court) (holding that a candidate lacked standing in voting rights litigation where she failed to articulate a “particularized” harm because she sought to represent the interests of “every” voter).
Likewise, the public at large holds an obvious interest in “maintaining ballot integrity and preventing voter fraud.” ECF No. 11, at 3. Allowing intervention on such a basis would allow “anyone with an interest—however broad or universal—to intervene in any lawsuit in which the government is a party” and the case touches upon voting. Sokaogon Chippewa Cmty., 214 F.3d at 948.
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Not only does SCRP share no interests different from the public at large, courts have rejected intervention based on a lack of significantly protectable interests even where proposed intervenors possessed a more direct connection to the action at issue. For example, in North Carolina State Conference of NAACP v. Cooper, 332 F.R.D. 161, 168 (M.D.N.C. 2019), the court denied intervention to state representatives in a case challenging the constitutionality of a voter identification law, holding that the movants “failed to demonstrate that they have a significantly protectable interest in likewise defending the constitutionality of S.B. 824 sufficient to warrant a right to intervene under Rule 24(a)(2).” See also One Wis. Inst., Inc., 310 F.R.D. at 397.
Because Movant’s generalized interests are insufficient to support intervention, they fail to meet the “significantly protectable interest” test.
2. Movant’s other asserted interests are also entirely unaffected by this case. Movant offers an additional reason for why they have sufficient interests to intervene in this case: SCRP’s broad interest in “electing Republicans.” ECF No. 11, at 3. But that interest is not at all affected by this case. However, the case is resolved, there is no factual or legal basis to claim SCRP’s interests will be affected whatsoever. First, this case concerns the administrative procedures whereby all eligible voters may exercise their fundamental right to vote in either party’s primary elections. Thus, Plaintiffs’ claims challenging the state’s election administration procedures do not implicate associational rights in any way. The SCRP has not even alleged, let alone offered a factual basis, that enjoining the Challenged Requirements will offer any particular advantage or disadvantage to one Republican candidate or another in the primary, or one political party over another in the general election. Rather, there is every reason to believe that all candidates and voters will
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benefit equally from the opportunity to vote safely amid the COVID-19 pandemic free from fear that they might be putting themselves at grave risk of bodily harm by voting in person.
Suspending the Excuse and Witness Requirements during a pandemic will only affect the standards for whether certain ballots are counted—a prerogative of the State of South Carolina and its officers, not the SCRP. It is the Defendant South Carolina State Election Commission that sets standards to regulate state elections, not SCRP. Because the presence or absence of the Excuse and Witness requirements does nothing to change the structure of the competitive environment in a way from which the SCRP stands to gain or lose, SCRP has no significantly protectable interest in this case.1 Cf. Marcellus v. State Bd. of Elections, 849 F.3d 169, 172 (4th Cir. 2017) (concluding “burden on associational rights imposed by” ballot regulations governing use of party identifiers “at most minimal”).
B. Movant has not overcome the strong presumption that Defendants are adequately representing the interest in election integrity they assert. In the Fourth Circuit, a movant seeking to intervene as a defendant alongside the
government in a challenge to the constitutionality of a state statute must make a “very strong showing” of inadequacy of representation. Stuart, 706 F.3d at 351 (emphasis added). This is because in “matters of public law litigation that may affect great numbers of citizens, it is the government’s basic duty to represent the public interest.” Id. Otherwise, intervention would place “severe and unnecessary burden on government agencies as they seek to fulfill” their assigned duties. Id. at 352. Further, “the prospect of a deluge of potential intervenors” could
1 SCRP also lacks standing for similar reasons to why it lacks a significant interest in this case. Its general interest in election integrity and vague fear that this case threatens Republican candidates is insufficient to establish a “substantial risk” of harm. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). For Movant SCRP to be added to the case as an intervenor, it must establish standing separate from the plaintiffs and the defendants. See Town of Chester, New York v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017); Banks v. St. James Par. Sch. Bd., 757 F. App’x 326, 331 (5th Cir. 2018).
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compel the government “to modify its litigation strategy to suit the self-interested motivations of those who seek party status, or else suffer the consequences of a geometrically protracted, costly, and complicated litigation.” Id. at 351.
To rebut this strong “presumption of adequacy,” an applicant “must show either collusion between the existing parties, adversity of interests between themselves and the State Defendants, or nonfeasance on the part of the State Defendants.” N.C. State Conf. of NAACP, 332 F.R.D. at 169. SCRP does not show any of these.
Defendants have indicated that they intend to defend the case and are scheduled to oppose Plaintiffs’ motion for injunctive relief on May 11. There is no reason to expect nonfeasance or a “clear dereliction of duty.” Chiglo v. City of Preston, 104 F.3d 185, 188 (8th Cir. 1997). In any event, to the extent SCRP is concerned that Defendants may take a different approach to defending this case than SCRP would, a mere “disagreement over how to approach the conduct of the litigation is not enough to rebut the presumption of adequacy.” Stuart, 706 F.3d at 353; see also Saldano v. Roach, 363 F.3d 545, 555 (5th Cir. 2004) (“Simply because the [intervenor] would have made a different [litigation] decision does not mean that the Attorney General is inadequately representing the State’s interest.”); N.C. State Conf. of NAACP, 332 F.R.D. at 170 (“The Court is unpersuaded by Proposed Intervenors’ contention that there is adversity of interests because State Defendants will not employ the same approach to the litigation as would the General Assembly.”); Va. Uranium, Inc. v. McAuliffe, No. 4:15-CV00031, 2015 WL 6143105, at *3 (W.D. Va. Oct. 19, 2015).
SCRP has no reason to distrust Defendants’ position in this lawsuit. Indeed, it is the state Attorney General who is “charged with the duty to represent the State in defense of its existing laws,” and a disagreement as to how to defend this case is insufficient to supplant this role. N.C.
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State Conf. of NAACP, 332 F.R.D. at 169. And while SCRP may even have a “fervent desire to protect the statute, ‘stronger, more specific interests do not adverse interests make.’” United States v. North Carolina, No. 1:13CV861, 2014 WL 494911, at *3 (M.D.N.C. Feb. 6, 2014) (quoting Stuart, 706 F.3d at 353). SCRP has come nowhere close to making the needed “very strong showing” of nonfeasance, collusion, or adversity of interests necessary to overcome the presumption of adequacy of representation. II. The Court should deny permissive intervention because Proposed-Intervenors will
only complicate and delay the case and their views can be sufficiently shared through amicus curiae participation. Federal Rules of Civil Procedure 24(b) permits intervention in the court’s discretion “when a movant ‘has a claim or defense that shares with the main action a common question of law or fact.’” Lee, 2015 WL 5178993, at *4 (quoting Fed. R. Civ. P. 24(b)). In evaluating permissive intervention, however, “the court must consider ‘whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.’” Stuart, 706 F.3d at 349 (quoting Fed. R. Civ. P. 24(b)(3)). In Stuart, the Fourth Circuit affirmed the district court’s denial of permissive intervention for this very reason, agreeing that adding multiple intervenors would “complicate the discovery process and consume additional resources of the court and the parties.” Id. at 355 (internal citation & quotation marks omitted). Instead, the Fourth Circuit and courts within it have repeatedly counseled that amicus curiae participation offers a way for movants to “present their views” without consuming additional time and resources of the court and parties. Id.; see also Lee, 2015 WL 5178993, at *5. These “alternative avenues of expression reinforce[] our disinclination to drive district courts into multi-cornered lawsuits by indiscriminately granting would-be intervenors party status and all the privileges pertaining thereto.” Id.
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Courts have also recognized that these concerns about intervenors complicating electionrelated litigation in the months leading up to an election create an additional disincentive for allowing intervention. See, e.g., N.C. State Conf. of NAACP, 332 F.R.D. at 172 (“The nature of the claims at issue and the imminence of the election require a swift resolution on the merits to bring certainty and confidence to the voting process.”). Rather, in “cases like this one, where a group of plaintiffs challenge state legislation, the court should evaluate requests to intervene with special care, lest the case be swamped by extraneous parties who would do little more than reprise the political debate that produced the legislation in the first place.” One Wis. Inst., 310 F.R.D. at 397.
Permitting intervention here would only serve to delay and complicate resolution of this case and lead to greater risk of confusion close to the election through, among other things, additional (and likely repetitive) briefing. SCRP ought instead be permitted to participate as amicus curiae which would allow it to express its views on the case without hindering its timely resolution. Plaintiffs do not oppose such participation.
CONCLUSION For the foregoing reasons, Plaintiffs request that the Court deny SCRP’s motion to intervene.
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Dated: May 5, 2020

Respectfully submitted,

Adriel I. Cepeda Derieux* Dale E. Ho* Sophia Lin Lakin** Theresa J. Lee* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2500 acepedaderieux@aclu.org dho@aclu.org
Deuel Ross* NAACP Legal Defense &
Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 Tel.: (212) 965-2200 dross@naacpldf.org

/s/ Susan K. Dunn Susan K. Dunn (Fed. Bar #647) American Civil Liberties Union of South Carolina Charleston, SC 29413-0998 Tel.: (843) 282-7953 Fax: (843) 720-1428 sdunn@aclusc.org
Attorneys for Plaintiffs

* Appearing Pro Hac Vice

** Pro Hac Vice application pending

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CERTIFICATE OF SERVICE I certify that on May 5, 2020, I served a copy of the foregoing Consolidated Brief in Opposition to Motions in Intervene via filing with the Court’s CM/ECF system, which sent copies of this document to Counsel of Record.

/s/ Susan K. Dunn Susan K. Dunn (Fed. Bar #647) American Civil Liberties Union of South Carolina Charleston, SC 29413-0998 Tel.: (843) 282-7953 Fax: (843) 720-1428 sdunn@aclusc.org

Counsel for Plaintiffs

12

 
 3:20-cv-01552-JMC Date Filed 05/06/20 Entry Number 28 Page 1 of 5

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 Carolan )

State Election Commission, and

)

HENRY D. MCMASTER in his official )

capacity as Governor of South Carolina )

)

Defendants.

)

)

Case No.: 3:20-cv-01552-JMC
SOUTH CAROLINA REPUBLICAN PARTY’S REPLY IN SUPPORT OF
MOTION TO INTERVENE

The South Carolina Republican Party (the Party) submits this reply in support of its motion

to intervene in the above-referenced case as a matter of right or, in the alternative, permissively.

Although the Party recognizes replies are typically discouraged in this district, it writes solely to

address a few issues raised by the plaintiffs. For the reasons below, as well as those set forth in

the Party’s motion to intervene, the Court should enter an Order granting intervention.

Initially, the Court should grant the Party’s motion to intervene as of right because it has a

“significantly protectable interest.” Teague v. Bakker, 931 F.2d 259, 261 (4th Cir. 1991). While

the plaintiffs cite case law from other jurisdictions, those cases have no application here and are

not binding on this Court. What is more, the Supreme Court of South Carolina recently allowed

the Party to intervene in another similar lawsuit challenging state absentee voting requirements.

3:20-cv-01552-JMC Date Filed 05/06/20 Entry Number 28 Page 2 of 5
Contrary to the plaintiffs’ assertions, the Party’s interest in this case is not purely political. The Party is actually involved in the administration of the election.
To be sure, the June primary is a political party primary. The Party actually collects the filing fees from Republican candidates to then send to the State Election Commission to administer the election. See S.C. Code Ann. § 7-13-40. The Party is also responsible for certifying the candidates. See id. But its participation does not end there. The Party is also responsible for handling protest hearings stemming from election contests and deciding these cases. See S.C. Code Ann. §§ 7-17-520 through -570. Often times, these hearings center on whether certain votes should have counted. Protests are often lodged against absentee ballots. Given the great confusion that will undoubtedly ensue if the Court grants the extraordinary relief sought by the plaintiffs and changes state election law on the eve of the June primary, these protest hearings will become even more difficult.
Accordingly, the Party does have a significantly protectable interest in the State Election Commission’s administration of the upcoming election pursuant to state law.1 See Teague, 931 F.2d at 261. For the reasons set forth in the motion to intervene, the Party also meets the other elements necessary for intervention as a matter of right. See Fed. R. Civ. P. 24(a).
Even if intervention as of right is unavailable, the plaintiffs barely mounted a defense to permissive intervention. As previously noted, the Party undoubtedly “has a claim or defense that
1 The plaintiffs apparently take the position that no political party has standing to raise these issues. If that is the case, then it certainly raises the question of how state and national Democrats have had standing to bring the very same challenges in jurisdictions around the country—including South Carolina—that the plaintiffs bring here. But that is a question for another day. In the interim, the Court should reject this myopic reading of the law. Last month, the U.S. Supreme Court noted that a lower court had allowed both national political parties to intervene in a dispute regarding Wisconsin’s absentee voting laws. See Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1209 (2020) (per curiam) (Ginsburg, J., dissenting) (noting the state and national political “parties intervened as defendants” in a similar dispute over changing absentee ballot requirements in Wisconsin prior to its primary).
2

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shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1). The
plaintiffs hang their hat on the Party delaying or prejudicing the adjudication of the original parties’
rights. This argument is disingenuous. Having to prove their case on the merits does not result in
any cognizable prejudice. Further the lawsuit has just begun, no responsive pleadings have been filed, and allowing the Party to intervene would not cause any delay.2 While the plaintiffs contend
the Party’s participation will needlessly complicate the case, the plaintiffs ignore the Court’s text
order of May 5, 2020, stating that if the Court grants the Party’s motion to intervene, the Party
“shall file its response to Plaintiffs’ Motion for Preliminary Injunction on May 11, 2020.” See
ECF No. 20. The Party already told the Court that—if allowed in the case—it will meet this deadline and be ready for a hearing on May 15, 2020.3 In any event, given that the plaintiffs have
the resources of two national organizations, the Party is confident opposing counsel can handle an
additional brief addressing the merits.
Further, the plaintiffs’ reliance on Stuart v. Huff, 706 F.3d 345 (4th Cir. 2013), is misplaced. See ECF No. 22 at 9. Unlike in Stuart, the Party’s involvement here will not
“complicate the discovery process and consume additional resources of the court and the parties.”
706 F.3d at 355. The plaintiffs are trying to get the Court to change South Carolina law governing
absentee ballots and enter an injunction to prevent the defendants from enforcing the law on the
2 Indeed, counsel for the State Election Commission just filed a notice of appearance in the case yesterday. See ECF Nos. 23 & 24. 3 Though not addressed by the plaintiffs, the Party did wish to inform the Court that it is aware of the pleading requirement. See Fed. R. Civ. P. 24(c). The Fourth Circuit, however, “has noted . . . that a motion that clearly spells out the intervener’s position satisfies Rule 24(c), as it provides notice to the Court and the parties of the intervener’s interest in the litigation.” Veasey v. Wilkins, No. 5:14-cv-369-BO, 2015 WL 7776557, at *2 (E.D.N.C. Dec. 2, 2015); see also Spring Constr. Co. v. Harris, 614 F.2d 374, 376–77 (4th Cir. 1980) (recognizing that, while “some cases have held that intervention should be denied when the moving party fails to comply strictly with the requirements of Rule 24(c), the proper approach is to disregard non-prejudicial technical defects”). Here, the deadline for filing a responsive pleading has not passed, so it would be anomalous to require an earlier answer or other pleading from the Party. Regardless, the Party has clearly spelled out its interest and given notice of its intent to oppose the plaintiffs’ requested relief.
3

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eve of an election. At this juncture, no discovery is required to answer the questions in the case before the injunction hearing. And the involvement of one additional party will not consume the Court’s resources. Thus, intervention will not complicate the case given the expedited nature of the matter. Notably, no other party to this action objected to the Party’s intervention.
Finally, the Party must address the plaintiffs’ assertion that “[p]ermitting intervention here would only serve to delay and complicate resolution of this case and lead to greater risk of confusion close to the election.” ECF No. 22 at 10. South Carolina’s absentee laws are hardly new. In fact, they have been on the books for years. Sections 7-15-310 and -320 of the South Carolina Code were last amended in 2015 and 2014, respectively. See S.C. Code Ann. §§ 7-15310 & -320 (including legislative history in the statute). And section 7-15-220—the other statutory provision under challenge—was last amended in 2011 and received preclearance that same year. S.C. Code Ann. § 7-15-220 (noting the changes would take effect upon preclearance from U.S. Department of Justice or U.S. District Court for the District of Columbia, and preclearance was obtained on June 7, 2011).
Yet at the eleventh hour before the June primary, the plaintiffs are trying to change state law through the courts. They now feign outrage that a political party wanting to defend the law will create a “greater risk of confusion.” Respectfully, the plaintiffs are the ones creating the confusion. To be sure, this conundrum was manufactured by the plaintiffs, who waited until the last minute to challenge these laws that have been in place for at least five years—some even longer. This tardy legal challenge on the eve of the June primary election is consistent with a welldocumented strategy to use the COVID-19 pandemic as a basis to change longstanding election processes. See, e.g., John Monk & Emma Dumain, Citing COVID-19 Threat to African
4

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Americans, 3rd Lawsuit Filed to Expand SC Mail Voting, THE STATE (May 2, 2020), https:// www.thestate.com/news/coronavirus/article242443566.html.
In sum, “Rule 24(b) is to be liberally construed in favor of intervention.” Backus v. South Carolina, No. 3:11-cv-03120, 2012 WL 406860, at *2 (D.S.C. Feb. 8, 2012). Again, the Party has an interest in this matter of public importance due to its role in the administration of the June primary and simply wants a seat at the table. The Court should therefore grant the Party’s motion to intervene and allow it to submit a filing in accordance with the expedited briefing schedule.
Respectfully submitted, ROBINSON GRAY STEPP & LAFFITTE, LLC

Columbia, South Carolina May 6, 2020

By: s/Robert E. Tyson, Jr. Robert E. Tyson, Jr. Fed. ID No. 7815 1310 Gadsden Street Post Office Box 11449 Columbia, South Carolina 29201 (803) 929-1400 rtyson@robinsongray.com
Counsel for Intervenor South Carolina Republican Party

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 3:20-cv-01552-JMC Date Filed 05/06/20 Entry Number 34 Page 1 of 9

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, 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 Election Commission; CLIFFORD J. EDLER and SCOTT MOSELEY, in their official capacities as members of the South Carolina Election Commission; and HENRY D. McMASTER, in his official capacity as Governor of South Carolina,
Defendants.

Case No.: 3:20-cv-01552-JMC
BRIEF OF AMICUS CURIAE PROTECTION AND ADVOCACY FOR PEOPLE WITH DISABILITIES, INC. IN SUPPORT OF PLAINTIFFS’ COMPLAINT FOR INJUCTIVE AND DECLARATORY RELIEF

TABLE OF CONTENTS
Table of Authorities……………………………………………………………………………...2 Interest of Amicus Curiae………………………………………………………………………..2 Summary of Argument…………………………………………………………………………..3 Argument………………………………………………………………………………………...3
1. People With Disabilities Are Put At Particular Risk by COVID-19 and Have Maximum Incentive to Adhere to Social Distancing……………………………4
2. The Challenged Requirements and the State’s Existing Absentee Voting Procedures Violate the Americans with Disabilities Act, the Voting Rights Act, and the Help America Vote Act…………………………………………………6
Conclusion………………………………………………………………………………………7
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TABLE OF AUTHORITIES FEDERAL STATUTES
Americans with Disabilities Act, Title II………………………………………………………..6 Help America Vote Act
§271(b)(1)……………………………………………………………………………….6 §301(a)(3)(A)……………………………………………………………………………7 Voting Rights Act §4(e)(2)……………………………………………………………………...7
OTHER AUTHORITIES
U.S. Department of Justice, Civil Rights Division, Disability Rights Section, “The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities…………………………………………………………………………...5
I. INTEREST OF AMICUS CURIAE Protection and Advocacy for People With Disabilities, Inc. (P&A) is an independent, statewide, nonprofit corporation that protects and advances the legal rights of people with disabilities.1 Since 1977, P&A has been the recipient of federal protection and advocacy funds under the Developmental Disabilities Assistance and Bill of Rights Act of 1975. Currently, every state receives federal protection and advocacy funding under this Act and other expanded legislation, which authorizes assistance for all other disabilities including mental illness, traumatic brain injury, and physical/medical disabilities.
1 No counsel for a party authored this brief in whole or in part, and no counsel or entity other than amicus curiae or its counsel have made any monetary contributions intended to fund the preparation or submission of this brief.
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P&A is part of the National Disability Rights Network, the nonprofit membership organization for the federally mandated protection and advocacy systems. Collectively, the P&A network is the largest provider of legally based advocacy services to people with disabilities in the United States.
The Protection and Advocacy for Voting Access program was introduced in 2003 as part of the Help America Vote Act of 2002. P&A uses these funds to ensure people with disabilities have full and equal opportunities to vote. The goals of this program include increasing voter registration, nonpartisan voter education, and ensuring the accessibility of ballots and polling places.
P&A employs eight full time attorneys and ten disability advocates. Staff have long been considered experts in disability rights and law and have wide experience in the field.
This case concerns the ability of people with disabilities to cast their vote in the state of South Carolina. P&A has been charged, through the Developmental Disabilities Act and the Help America Vote Act, to protect that right and ability. P&A is well suited to provide assistance to the Court on whether the actions of the South Carolina Election Commission and the Governor impermissibly limit the constitutionally and legislatively protected right to vote.
II. SUMMARY OF THE ARGUMENT The Challenged Requirements set forth in the complaint, namely the witness requirement and the excuse requirement, are barriers to voting. Plaintiffs contend that these requirements place restrictions on the absentee voting process that will result in unsafe voting conditions during the COVID-19 emergency. Amicus agrees with plaintiffs’ position and adds that these unsafe voting conditions place voters with disabilities in particular danger.
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Because of the refusal of the State Election Commission and the Governor to ease restrictions on absentee voting, people with disabilities will be forced from their homes in order to exercise their constitutional right to vote.
Further, the challenged requirements, in particular the witness requirement, violate the Americans with Disabilities Act, the Help America Vote Act, and the Voting Rights Act of 1965. The Challenged Requirements fail to consider the vulnerable position of voters with disabilities and ignore accommodation requirements enumerated in these laws.
The Challenged Requirements and the current absentee voting system also fail to take into consideration voters with certain types of disabilities, namely those with visual disabilities. Voting machines currently in use by South Carolina can read the ballot and instruction aloud. Absentee paper ballots do not offer a similar opportunity As a result; people with these types of disabilities are particularly disenfranchised in the voting process.
Amicus respectfully requests that this Court grant the declaratory and injunctive relief sought by Plaintiffs.
III. ARGUMENT 1. People With Disabilities Are Put At Particular Risk by COVID-19 and Have
Maximum Incentive to Adhere to Social Distancing. According to the Centers for Disease Control, adults with disabilities are three times more likely than adults without disabilities to have heart disease, stroke, diabetes, or cancer than adults without disabilities.2 In turn, these underlying conditions indicate an elevated risk of
2 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-disabilities.html
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severe illness from COVID-19.3 For these individuals, reducing social contacts and limiting possible exposure are key to maintaining health during the length of the pandemic.
Seventeen percent (17%) of the voting age population in South Carolina identifies as having a disability.4 According to information from the US Census Bureau, this translates to approximately 625,000 voters. Voters with disabilities have three options for casting a vote in South Carolina, voting inside at their polling place, voting curbside at their polling place, and voting by absentee ballot. Each of these options presents its own obstacles, especially in the context of the pandemic.
Even with the best efforts of the precinct staff, in person voting increases the likelihood of coming into contact with the virus while in line to vote, when communicating with election officials, and using shared apparatus like pens, blank ballots, and the touchscreen voting machine itself. While curbside eliminates the risk from standing in line, a voter still has to come into close contact with two poll workers, use a shared touchscreen, and pass a paper ballot back and forth. Absentee is clearly the safest of these options, but the Challenged Requirements and indeed the nature of the ballot itself limit who is able to use this option.
Some voters can vote only using the technology available in person on Election Day. People who are blind, have physical disabilities, or have low literacy can request assistance in marking their ballot from someone working at the precinct.5 In order to protect these high-risk individuals who must physically come to their precinct to vote, the election commission and state administration must take steps to reduce overcrowding at the polls on Election Day. Reducing
3 Id. 4 Resource Manual – Voting Rights For People With Disabilities in SC (June, 2016) http://www.pandasc.org/wpcontent/uploads/2016/07/Voting-Rights-for-People-with-Disabilities-in-SC-Final.pdf 5 https://www.scvotes.org/voters-disabilities
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barriers to absentee voting so more people may vote from the safety of their home is an excellent first step.
2. The Challenged Requirements and the State’s Existing Absentee Voting Procedures Violate the Americans with Disabilities Act, the Voting Rights Act, and the Help America Vote Act.
Title II of the Americans with Disabilities Act guarantees people with disabilities full and equal opportunities to vote. According to guidance from the Department of Justice, this guarantee applies to every part of the voting process including but not limited to registration, accessibility of polling places, and casting of ballots, whether in person or using an early or alternative process.
Voters whose disabilities preclude them from reading or fully understanding a paper absentee ballot have no option other than appearing at their polling place on Election Day and possibly exposing themselves to the virus. Full and equal access to the mechanics of voting cannot mean that in order to vote a person with a disability such as Ms. Thomas or Ms. Walker must risk infection because their disabilities are not contemplated by the current absentee scheme. Because of such deficiencies in our system, people like the Plaintiffs may well have to vote in person on Election Day and there is little the State can do to remedy that before Election Day. The State can, however, eliminate barriers to our current absentee process to ensure that those who are able to vote from their homes are eligible to do so.
The ADA mandates that if a voting system is available to the public, it must be accessible for voters with disabilities. The Help America Vote Act refines this idea and says that people with disabilities, like the general public, have the right to vote privately and independently. No extra burdens are authorized. The Witness Requirement is a prima facie violation of this
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mandate. In order to vote by absentee ballot in South Carolina, the voter must locate a witness to certify that ballot after the voter herself signs an affidavit affirming the voter’s identity. No such third party input is required when voting in person.
Further, in order to read an absentee ballot a person with a visual disability would be required to have assistance in reading the ballot. When voting in person, someone with a visual disability is able to use the accessibility features of the voting machine to increase readability (adjusting font size and backlighting) or to listen to an audio ballot. If people with a visual disability wish to vote absentee, they cannot do so privately or independently. Early absentee voting is offered, but only at one location per county, the county election office. In some counties, this is a distance of more than 30 miles one way, making this an unfeasible option for voters in rural areas or voters without access to reliable transportation.
The Voting Rights Act prohibits conditioning the right to vote on the basis of literacy level or level of education. People with disabilities, especially those with vision and hearing related disabilities, are more likely to experience low literacy levels.6 If a person with a disability needs assistance reading the ballot and lives alone, the voter must seek assistance from someone outside his or her home or go to the polling place, either of which risks exposure to COVID-19.
IV. CONCLUSION Proponents of the current absentee system believe it to be a sufficient alternative to voting in person for people with disabilities. For the majority of this population, absentee voting is the best, safest, and most accessible option. For that reason, the Challenged Requirements of excuse
6 McKee, Michael M., et al., Assessing Health Literacy in Deaf American Sign Language Users, J Health Commun. 2015 Oct; 20(0 2): 92–100.
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absentee ballots and use of a witness are unreasonable. However, many with particular disabilities and living situations are not able to vote absentee. These people will be left with one option, to vote in person at their polling place on Election Day. By refusing to ease restrictions, the state ensures more people voting in person on Election Day, which in turn makes voting more dangerous for those who must vote in person.
People with disabilities, by virtue of their disability, face a bigger threat from COVID-19 than the general public. There is no way to totally eliminate the need for every person with a disability or underlying medical issue to cast a vote in person. The State does, however, have the ability to remove barriers to at home voting for the vast majority of registered voters in South Carolina. Allowing no-excuse absentee voting without a witness requirement is an excellent way to ensure voters that must vote in person on Election Day do not encounter crowds and that polling places are not overwhelmed while available poll workers try to adhere to social distancing and sanitation standards.
The State has a responsibility to safeguard public health. Elimination of the Challenged Requirements is a modest change in policy, which many of our neighbors have had in place for years. As we have seen already in other States, voting presents a very serious threat to the social distancing guidelines recommended by the CDC and other experts. The potential danger faced by people with disabilities who must leave their homes to exercise their right to vote is deeply concerning to P&A, and we urge the court to grant the relief requested by the Plaintiffs in this case.
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Respectfully submitted, /s/ David H. Zoellner David H. Zoellner (Fed. Bar# 5821) PROTECTION AND ADVOCACY FOR PEOPLE WITH DISABILITIES, INC. 3710 Landmark Drive, Suite 208 Columbia, SC 29204 (843) 763-8571 Fax (843) 571-0880 zoellner@pandasc.org Attorney for Amicus Curiae Protection and Advocacy for People with Disabilities, Inc.
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 3:20-cv-01552-JMC Date Filed 05/08/20 Entry Number 39 Page 1 of 10

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.

)

)

Civil Action No.: 3:20-cv-01552-JMC ORDER AND OPINION

Plaintiffs Mary T. Thomas, Nea Richard, Jeremy Rutledge, Trena Walker, Dr. Brenda

Williams, and The Family Unit, Inc. (collectively “Plaintiffs”) filed this action seeking declaratory,

preliminary, and permanent injunctive relief from specified laws promulgated by the State of South

Carolina that define persons qualified to vote by absentee ballot and requiring the solicitation of a

witness signature for the ballot to count. (See ECF No. 1 at 2 ¶ 2–3 ¶ 5.)

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. 11.) Plaintiffs oppose the SCRP’s Motion in its entirety. (ECF No. 22.) For the reasons

set forth below, the court GRANTS the SCRP’s Motion to Intervene pursuant to Rule 24(b).

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

“The COVID-19 pandemic, also known as the coronavirus pandemic, is an ongoing

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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/COVID19_pandemic#cite_note-auto-5 (last visited May 7, 2020). The World Health Organization (“WHO”) has specified that the outbreak initiated in Wuhan, China in December 2019. WHO, https://www.who.int/csr/don/12-january-2020-novel-coronavirus-china/en/ (last visited May 7, 2020). On January 30, 2020, WHO declared the outbreak a Public Health Emergency of International Concern and a pandemic on March 11, 2020. Id. at https://www.who.int/newsroom/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations -(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov) (last visited May 7, 2020). As of May 7, 2020, there are more than 1.2 million reported cases in the United States and more than 3.74 million reported cases of COVID-19 worldwide, resulting in more than 264,000 deaths. 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 94740 fd402994 2 3467b48e9ecf6 (last visited May 7, 2020).
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/questionand-answers-hub/q-a-detail/q-a-coronaviruses (last visited May 7, 2020). People may also become infected by touching a contaminated surface and then touching their eyes, nose, or mouth. Id. The COVID-19 virus is most contagious “within the first 3 days from the onset of symptoms,” although spread may be possible before symptoms appear and in later stages of the disease. Id. at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200402-sitrep-73covid-19.pdf?sfvrsn=5ae25bc7_4 (last visited May 7, 2020).
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On April 22, 2020, Plaintiffs filed a Complaint for Declaratory Judgment, Preliminary and Permanent Injunctive Relief against Defendants Marci Andino, John Wells, Clifford J. Edler, and Scott Moseley, in their official capacities as South Carolina State Election Commissioners, and Henry D. McMaster, the Governor of South Carolina (collectively “Defendants”). (ECF No. 1.) Due to an alleged vulnerability to COVID-19, 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” and (2) the constitutionality of South Carolina’s witness signature requirement on absentee ballots, codified at S.C. Code Ann. § 7-15220 (the “Witness Requirement[).]” (ECF No. 1 at 2 ¶ 3, 3 ¶ 4.) On April 28, 2020, 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 (a) the requirement that voters requesting a mail-in absentee ballot fall within a limited list of ‘excuses,’ which does not include self-isolation due to COVID-19, . . . , and (b) the requirement that voters mailing in absentee ballots must have another adult sign as a witness on the ballot’s envelope, . . . .” (ECF No. 7 at 1.) Plaintiffs asserted 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.”1 (Id. at 2.)
On May 1, 2020, the SCRP filed a Motion to Intervene seeking to intervene as a matter of right under Rule 24(a) or, alternatively, with the court’s permission under Rule 24(b)(1)(b) in order to “maintain[] ballot integrity[,] prevent[] voter fraud,” and “to protect its interest in electing Republicans.” (ECF No. 11 at 1, 3 (internal quotation mark omitted).) On May 5, 2020, Plaintiffs
1 In light of this assertion and Plaintiffs’ subsequently filed Motion for Expedited Briefing Schedule on Their Motion for Preliminary Injunction (ECF No. 8), the court entered an Order setting forth an expedited schedule for this case. (ECF No. 27.)
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filed their Opposition to Motion to Intervene. (ECF No. 22.) II. JURISDICTION
The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 based on 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, 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, 10501–10508, 10701–10702 (formerly 42 U.S.C. §§ 1973– 1973bb).
III. LEGAL STANDARD Pursuant to Rule 24(a)(2), “the court must permit anyone to intervene [as a matter of right] who: . . . (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). A party seeking intervention as a matter of right must meet the following requirements: “(1) the application to intervene must be timely; (2) the applicant must have an interest in the subject matter of the underlying action; (3) the denial of the motion to intervene would impair or impede the applicant’s ability to protect its interest; and (4) the applicant’s interest is not adequately represented by the existing parties to the litigation.” Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999). In Feller v. Brock, the United States Court of Appeals for the Fourth Circuit noted that “liberal intervention is desirable to dispose of as much of a controversy ‘involving as many apparently concerned persons as is compatible with
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efficiency and due process.’” 802 F.2d 722, 729 (4th Cir. 1986) (quoting Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967)). “The party moving to intervene ‘bears the burden of demonstrating to the court a right to intervene.’” S.C. Coastal Conservation League v. Pruitt, No. 18-CV-330-DCN, 2018 WL 2184395, at *3 (D.S.C. May 11, 2018) (quoting Matter of Richman, 104 F.3d 654, 658 (4th Cir. 1997)). Failure to satisfy even one of the requirements is sufficient to warrant denial of a motion to intervene as a matter of right. See N.A.A.C.P. v. New York, 413 U.S. 345, 369 (1973).
The court may also grant permissive intervention to anyone who “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). “Permissive intervention [under Rule 24(b)] is left to the broad discretion of the Court and should be construed liberally in favor of intervention.” Savannah Riverkeeper v. U.S. Army Corps of Eng’rs, No. CV 9:12-610-RMG, 2012 WL 13008326, at *2 (D.S.C. Aug. 14, 2012). “Among the factors a Court should consider in passing upon a motion for permissive intervention includes (1) the timeliness of the motion; (2) the presence of a common question of law or fact; and (3) whether the intervention will unduly delay or prejudice the original parties.” Id. (citing Backus v. S.C., No. 3:11-cv-03120-HFF-MBS-PMD, 2012 WL 406860, at *2 (D.S.C. Feb. 8, 2012)); but see S.C. Coastal Conservation League, 2018 WL 2184395, at *3 (adding a fourth prong that “there must be an independent ground of subject matter jurisdiction.”) (citing Shanghai Meihao Elec., Inc. v. Leviton Mfg. Co., 223 F.R.D. 386, 387 (D. Md. 2004)).
IV. ANALYSIS A. The Parties’ Arguments
1. Intervention as a Right The SCRP argues that it should be allowed to intervene as a right. In support of this
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argument, the SCRP asserts that it has submitted a timely Motion because “[t]he lawsuit has just begun, no responsive pleadings have been filed, no motions have been argued or decided, and allowing the Republican Party to intervene would not cause any delay.” (ECF No. 11 at 3.) The SCRP further asserts that it “has a direct interest in the subject matter of this litigation because the law [] [P]laintiffs are challenging as unconstitutional governs the absentee voting process currently being encouraged by the Republican Party to increase voter participation.” (Id.) Moreover, because the June 9, 2020 primary is a political party primary, the SCRP is responsible for collecting filing fees, certifying candidates, and handling protest hearings from the elections. (ECF No. 28 at 2.) Finally, the SCRP asserts that its interests are narrowly focused “on electing Republicans,” which “are not adequately represented by the original parties to this action” in that Defendants only administer and/or defend the laws at issue. (ECF No. 11 at 4.) In this regard, the SCRP states that “[c]hanging the way South Carolinians vote will have a large impact on the interests of the Republican Party.” (Id.)
In opposing the Motion to Intervene, Plaintiffs contend that the SCRP’s alleged main interest in intervening in this action–“maintaining ballot integrity and preventing voter fraud”– shows that it “lacks any significantly protectable interest and instead asserts only generalized interests shared by the public at large—interests adequately protected by existing Defendants.” (ECF No. 22 at 2 (quoting ECF No. 11 at 3).) Plaintiffs further contend that the SCRP’s other stated interest, i.e., “electing Republicans,” is not “affected by this case” because “this case concerns the administrative procedures whereby all eligible voters may exercise their fundamental right to vote in either party’s primary elections.” (Id. at 6 (quoting ECF No. 11 at 3).)
2. Permissive Intervention In support of permissive intervention, the SCRP argues that its Motion is timely and that
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allowing intervention would not “unduly delay or prejudice the adjudication of the rights of the original parties.” (ECF No. 11 at 5.) It is prepared to “meet the expedited briefing deadline of May 11, 2020 and be ready for a hearing on May 15, 2020.” (Id. (referencing ECF Nos. 27, 30).)
Plaintiffs oppose permissive intervention claiming that it “would only serve to delay and complicate resolution of this case and lead to greater risk of confusion close to the election through, among other things, additional (and likely repetitive) briefing.” (Id. at 10.) The “SCRP ought instead be permitted to participate as amicus curiae which would allow it to express its views on the case without hindering its timely resolution.” (Id.) B. The Court’s Review
1. Intervention as a Right In assessing the threshold requirement under either prong of Rule 24, the court finds that the SCRP’s Motion to Intervene (ECF No. 11) is timely, as it was filed before Defendants either entered their appearance or filed any responsive pleadings. See, e.g., Alt v. U.S. E.P.A., 758 F.3d 588, 591 (4th Cir. 2014) (“In order to properly determine whether a motion to intervene in a civil action is sufficiently timely, a trial court in this Circuit is obliged to assess three factors: first, how far the underlying suit has progressed; second, the prejudice any resulting delay might cause the other parties; and third, why the movant was tardy in filing its motion.” (citation omitted)); S.C. Coastal Conservation League v. Pruitt, No. 18-CV-330-DCN, 2018 WL 2184395, at *8 (D.S.C. May 11, 2018) (“[The] motions to intervene are timely, as they were filed within twenty-two days of the filing of the initial complaint. No discovery has been conducted or dispositive motions decided.”). As to the second prong for intervention as a matter of right under Houston Gen. Ins. Co., the SCRP’s interest in this action “‘must be direct, rather than remote or contingent.’” S.C. Coastal
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Conservation League, 2018 WL 2184395, at *8 (quoting Dairy Maid Dairy, Inc. v. United States, 147 F.R.D. 109, 111 (E.D. Va. 1993)). The intervenor’s interest must also be a “significantly protectable interest.” Donaldson v. United States, 400 U.S. 517, 531 (1971). As it outlined in its brief, the SCRP is tasked with “handling protest hearings stemming from election contests and deciding these cases” (ECF No. 28 at 2 (citing S.C. Code Ann. §§ 7-17-520 through -570 (West 2020))), and the court is persuaded that these protest hearings would be significantly affected by changes in state election law on the eve of the June primary. Therefore, the court finds that SCRP’s role as overseer of both the June 9 political party primary and the party’s candidates demonstrates the sufficiency of the SCRP’s interest relating to the subject of the action.
The third requirement for intervention as a matter of right necessitates the SCRP demonstrating that the ability to protect its interest would be impaired if denied the ability to intervene. See Teague v. Bakker, 931 F.2d 259, 260–61 (4th Cir. 1991). “This requirement is one of ‘practical impairment.’” Maxum Indem. Co. v. Biddle Law Firm, PA, 329 F.R.D. 550, 555 (D.S.C. 2019) (citations omitted). Through the expression of its role in the party primary and its responsibility to Republican candidates (see ECF No. 28 at 2), the SCRP demonstrates how its desire to defend the challenged statutes practically diverges from that of Defendants. As a result, the court finds that the SCRP has sufficiently shown that its ability to protect its interest would be impaired if not allowed to intervene in this litigation.
Finally, as to the fourth requirement for intervention as a matter of right, the court observes that in assessing the adequacy of representation by the existing parties, “the burden on the applicant of demonstrating a lack of adequate representation ‘should be treated as minimal.’” Teague, 931 F.2d at 262 (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). However, “[i]n matters of public law litigation that may affect great numbers of citizens, it is the
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government’s basic duty to represent the public interest.” Stuart v. Huff, 706 F.3d 345, 351 (4th Cir. 2013). “And the need for government to exercise its representative function is perhaps at its apex where, as here, a duly enacted statute faces a constitutional challenge.” Id. “In such cases, the government is simply the most natural party to shoulder the responsibility of defending the fruits of the democratic process.” Id.
In this matter, both the SCRP and Defendants want the court to sustain the statutes constitutionally challenged in the Complaint. Upon its review, the court observes that Stuart necessitates a finding that the SCRP’s arguments regarding Defendants’ neutral interests in defending the law (see ECF No. 11 at 4) do not demonstrate the necessary inadequacy of representation by the existing parties. See Commonwealth of Va. v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976) (While the “burden of showing an inadequacy of representation is minimal . . . .[w]hen the party seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented, against which the petitioner must demonstrate adversity of interest, collusion, or nonfeasance.”). Accordingly, the court finds that the SCRP cannot intervene in this action as a matter of right. See N.A.A.C.P., 413 U.S. at 369 (1973) (implying that the failure to satisfy one of the requirements for intervention as a matter of right is a sufficient reason for the court to deny intervention as a matter of right).
2. Permissive Intervention Permissive intervention is appropriate when an intervenor “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). The court has discretion to allow permissive intervention. Smith v. Pennington, 352 F.3d 884, 892 (4th Cir. 2003) (citation omitted). In its Motion to Intervene (ECF No. 11), the SCRP implores the court to allow it the
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opportunity to defend the “Excuse Requirement” and the “Witness Requirement” from Plaintiffs’ constitutional challenge. The SCRP persuasively argues the timeliness of its Motion and contends that its intervention would not “unduly delay or prejudice the adjudication of the original parties’ rights,” because it is ready “to meet the expedited briefing deadline of May 11, 2020 and be ready for a hearing on May 15, 2020.” (See ECF No. 11 at 5.) Taking into consideration the factors for permissive intervention, the court finds that upon its consideration of the arguments presented by the SCRP, it should be allowed to permissively intervene in this case.
V. CONCLUSION For the reasons stated above, the court GRANTS the South Carolina Republican Party’s Motion to Intervene pursuant to Rule 24(b)(2) of the Federal Rules of Civil Procedure. (ECF No. 11.) The South Carolina Republican Party is subject to the same expedited scheduling previously entered by the court. (See ECF Nos. 27, 30.) IT IS SO ORDERED.

May 8, 2020 Columbia, South Carolina

United States District Judge

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

Mary T. Thomas, et al.,

No.: 3:20-cv-01552-JMC

Plaintiffs,

v. Marci Andino, et al.,
Defendants.

STATE ELECTION COMMISSION DEFENDANTS’ ANSWER TO COMPLAINT

John Wells, Clifford J. Edler and Scott Moseley (collectively “Commission”) and Andino (“Andino” or “Executive Director”) (collectively the Commission and Andino are referred to as the “Election Defendants”), all of whom have been sued in their official capacities with the State Election Commission, submit this answer to the Complaint:
PRELIMINARY STATEMENT The Election Defendants deny that the Plaintiffs are entitled to any relief. Neither the facts nor the law supports their claims. The Plaintiffs challenge two of South Carolina’s long standing absentee-voting requirements—S.C. Code § 7-15320 (“Qualification Requirement”) and S.C. Code §§ 7-15-220 and 7-15-380 (“Witness Requirement”)—based solely on the effect they allege COVID-19 will have on a qualified elector’s ability to vote absentee as opposed to in person. Section 7-15-320 allows an otherwise qualified elector to qualify to vote absentee (by mail or in person at an approved site before Election Day) if the voter qualifies for one of the fifteen listed categories. The Plaintiffs allege, that in the face of COVID-19, S.C. Code § 3-15-320 “unreasonably burdens their fundamental

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right to vote” when following Governor McMaster’s “home or work” order and practicing social distancing.
Sections 7-15-220 and 7-15-380 require a person voting by absentee mail in ballot to have his or her oath of office witnessed. Again, in light of COVID-19, the Plaintiffs allege that the Witness Requirement is a constitutionally unreasonable requirement and is a test or device that violates Sections (3)(b) and 201 of the Voting Rights Act.
It is only the advent of COVID-19 that has brought these legal challenges to the long held and, until now, unchallenged provisions of South Carolina law.
The Commission, as a state agency, and Andino, as its Executive Director, have only the statutory authority expressly conferred or necessarily implied for it to effectively fulfill the duties they have been given by the General Assembly. As an executive branch of state government, neither the Commission nor Andino have the authority to modify the plain meaning of statutes or to add to or otherwise modify statutes, particularly not on a temporary basis, as requested in this case.
FOR A FIRST DEFENSE Each allegation not specifically admitted in this Answer is expressly denied. The headings in the First Defense are quotations from the Complaint and are included solely for ease of reference. To the extent any of these heading contain an allegation against these Election Defendants, the allegations are denied. In response to the Paragraphs in the Complaint:
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1. Paragraph 1 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 1 contains factual allegations against any the extent Paragraph 1 references, describes, or depends on the March 15, 2020 “Updates, Securing South Carolina Elections, SC votes.org” from the South Carolina Election Commission, the Election Defendants crave reference to the cited website and deny any inconsistent allegations or characterizations. To the extent Paragraph 1 relies on Governor McMaster’s “home or work” order, Governor McMaster lifted the ‘home and work” order effective May 4, 2020, and the Election Defendants crave reference to Governor McMaster’s Executive Order 2020-31 and deny any inconsistent allegations or characterizations. To the extent Paragraph 1 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
2. Paragraph 2 of the Complaint is denied. 3. Paragraph 3 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 3 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 3 relies on S.C. Code § 7-15-320, Election Defendants crave reference to section 7-15-320 and deny any inconsistent allegations or characterizations. To the extent Paragraph 3 contains factual
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allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. The Election Defendants aver that the provision of S.C. Code § 7-15320 set forth qualification requirements for a South Carolina elector to available himself or herself of the absentee ballot requirements of the State’s Election Laws. As to the second sentence of Paragraph 3, the Election Defendants admit that if a duly registered voter does not qualify under one of the requirements listed in sections 7-15-110 or 7-15-320, the voter has to vote in person on Election Day.
4. Paragraph 4 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 4 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 4 relies on S.C. Code § 7-15-220, section 3(b) and 201 of the Voting Rights Act, the Election Defendants crave reference to section 7-15-220, section 3(b) and 201 of the Voting Rights Act and deny any inconsistent allegations or characterizations. To the extent Paragraph 4 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
5. Paragraph 5 of the Complaint is denied. To the extent Paragraph 5 of the Complaint relies on data from the U.S. Census Bureau, the Election
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Defendants crave reference to the website cited in footnote 3 and deny any inconsistent allegations or characterizations.
6. Paragraph 6 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 6 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 6 relies on section 2 of the Voting Rights Act, the Election Defendants crave reference to section 2 of the Voting Rights Act and deny any inconsistent allegations or characterizations. To the extent Paragraph 6 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
7. Paragraph 7 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 7 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 7 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
8. Paragraph 8 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 8 contains factual allegations against
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any of these Election Defendants to which a response is required, the allegations are denied. To the extent that Paragraph 8 relies on S.C. Code § 7-15-310, the Election Defendants crave reference to section 7-15-310 and deny any inconsistent allegations or characterizations. To the extent Paragraph 8 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 8 relies on actions by states other than the State of South Carolina, Election Defendants crave reference to the laws of the State of South Carolina. Only the Generally Assembly of South Carolina has the authority to “remedy” the laws of this State.
9. Paragraph 9 of the Complaint, Election Defendants admit that “election integrity is a critical interest.” As to the remainder of the first sentence of Paragraph 9 and the remainder of the Paragraph, they consist of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 9 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 9 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 9 relies on actions by states other than the State of South Carolina, the Election Defendants crave reference to the laws of the State of South Carolina.
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10. As to Paragraph 10, it consists of the Plaintiffs’ legal conclusions, to which no response is required, and request for relief, which the Election Defendants assert should be denied.
PARTIES 11. As to Paragraph 11, the Election Defendants admit that Plaintiff Nea Richard is a registered voter in her hometown of Cross Hill, South Carolina. As to the remaining allegations of the Paragraph, the Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations and therefore, they are denied. 12. As to Paragraph 12, the Election Defendants admit that Plaintiff the Reverend Jeremy Rutledge is a registered voter in Charleston County. As to the remaining allegations of the Paragraph, the Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations and therefore, they are denied. 13. As to Paragraph 13, the Election Defendants admit that Plaintiff Mary Thomas is a registered South Carolina voter. As to the remaining allegations of the Paragraph, the Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations and therefore, they are denied. 14. As to Paragraph 14, the Election Defendants admit that Plaintiff Trena Walker is a registered South Carolina voter. As to the remaining allegations of the Paragraph, the Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations and therefore, they are denied.
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15. As to Paragraph 15, the Election Defendants admit that Plaintiff Dr. Brenda Williams, MD is a registered voter in Sumter County. As to the remaining allegations of the Paragraph, the Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations and therefore, they are denied.
16. As to Paragraph 16, the Election Defendants admit that Plaintiff Family Unit, Inc. is an entity incorporated in South Carolina. As to the remaining allegations of the Paragraph, the Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations and therefore, they are denied.
17. As to Paragraph 17, the Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations and therefore, they are denied.
18. As to Paragraph 18, the Election Defendants admit Andino is the executive director of and the chief administrative officer for the State Election Commission and sued in her official capacity. As to Andino’s duties and responsibilities Election Defendants crave reference to S.C. Code § 7-3-20(C), which proscribes the Executive Director’s duties and responsibilities1 and deny any
1 The Executive Director’s duties include, but are not limited to, supervising the conduct of the county boards of elections and voter registration (County Boards): maintaining a complete master list of qualified voters by county and precinct; furnish each County Board with a master list of all registered voters in the county at least ten days prior to each election; and serve as the chief state election official for implementing and coordinating the State’s responsibilities
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inconsistent allegations or characterizations. As a statutorily created position, the executive director possesses only those powers expressly conferred or necessarily implied for her effectively to fulfill the duties with which she is charged.
19. As to Paragraph 19, the Election Defendants admit that John Wells is the Chair of the South Carolina Election Commission and is sued in his official capacity. The Election Defendants admit that Clifford J. Edler and Scott Moseley are members of the South Carolina Election Commission and are sued in their official capacities. The Election Defendants aver that Governor McMaster appointed JoAnn Day and Linda McCall on April 28, 2020 to fill the two vacancies on the Commission. As to the remaining allegations of the Paragraph, the Election Defendants crave reference to S. C. Code § 7-3-20 and the website cited in footnote 7 of the Paragraph and deny any inconsistent allegations or characterizations. “As a creature of statute, a regulatory body is possessed of only those powers expressly conferred or necessarily implied for it to effectively fulfill the duties with which it is charged.” Captain’s Quarters Motor Inn, Inc. v. S.C. Coastal Council, 306 S.C. 488, 490, 413 S.E.2d 13, 14 (1991); see also S.C. Coastal Conservation League v. S.C. Dep’t of Health & Envtl. Control, 363 S.C. 67, 74, 610 S.E.2d 482, 485 (2005). The Commission has only that statutory authority granted to it by the General Assembly of South Carolina.
under the National Voter Registration Act of 1993 and for the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). S.C. Code § 7-3-20(C).
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20. As to Paragraph 20, the Election Defendants admit that Henry D. McMaster is the Governor of South Carolina. To the extent that the remaining allegations of Paragraph 20 rely on Article IV, § 1 of the Constitution of South Carolina and S.C. Code § 1-3-430, the Election Defendants crave reference to Article IV, § 1 of the Constitution of South Carolina and S.C. Code § 1-3-430 and deny any inconsistent allegations or characterizations.
JURISDICTION AND VENUE 21. Paragraph 21 of the Complaint is a statement of the Plaintiffs’ legal contentions to which no response is required. These Election Defendants do not contest whether this Court’s subject matter jurisdiction is proper. The Election Defendants crave reference to 42 U.S.C. §§ 1983 and 1988 and 52 U.S.C. §§ 10301, 10302(b), and 10501. 22. Paragraph 22 of the Complaint is a statement of the Plaintiffs’ legal contentions to which no response is required. These Election Defendants do not contest whether this Court has personal jurisdiction over the Election Defendants is their official capacities. 23. Paragraph 23 of the Complaint is a statement of the Plaintiffs’ legal contentions to which no response is required. These Election Defendants do not contest whether declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202, but deny that declaratory relief is proper in this case.
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24. Paragraph 24 of the Complaint is a statement of the Plaintiffs’ legal contentions to which no response is required. These Election Defendants do not contest whether this Court’s and venue is proper under 28 U.S.C. § 1391(b)(2).
STATEMENT OF FACTS I. Transmission of COVID-19 and Public Health Guidelines
25. Paragraph 25 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 25 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 25 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 25 relies on information from the United States Centers for Disease Control and Prevention (CDC) cited in footnote 8 to Paragraph 25, the Election Defendants crave reverence to the cited website and deny any inconsistent allegations or characterizations.
26. Paragraph 26 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 26 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 26 contains factual allegations about another
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person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
27. Paragraph 27 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 27 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 27 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 27 relies on information from the CDC cited in footnote 12 to Paragraph 27, the Election Defendants crave reverence to the cited website and deny any inconsistent allegations or characterizations.
28. Paragraph 28 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 28 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 28 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
29. Paragraph 29 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 29 contains factual allegations against
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any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 29 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 29 relies on information from the CDC cited in footnotes 14 and 15 to Paragraph 29, the Election Defendants crave reverence to the cited websites and deny any inconsistent allegations or characterizations.
30. Paragraph 30 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 30 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 30 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
31. Paragraph 31 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. The Election Defendants admit that the CDC has issued guidance informing individuals to avoid public gatherings and crave reference to the CDC’s public guidance and deny any inconsistent allegations or characterizations. To the extent Paragraph 31 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 31 contains factual allegations about another
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person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
32. Paragraph 32 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 32 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 32 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 32 relies on the CDC guidelines referenced in footnote 21 of the Paragraph 32, the Election Defendants crave reference to the cited website and deny any inconsistent allegations or characterizations.
33. Paragraph 33 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 33 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 33 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 33 relies on the CDC guidelines referenced in footnote 22 of the Paragraph 33, the Election Defendants crave reference to the cited website and deny any inconsistent allegations or characterizations.
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34. Paragraph 34 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 34 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 34 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
35. Paragraph 35 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 35 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 35 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. II. COVID-19 in South Carolina
36. Paragraph 36 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 36 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 36 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
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37. Paragraph 37 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 37 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 37 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
38. Paragraph 38 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 38 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 38 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 38 relies on information from South Carolina Department of Health and Environmental Control (“DHEC”) cited in footnote 33 of Paragraph 38, the Election Defendants crave reference to the cited website and deny any inconsistent allegations or characterizations.
39. Paragraph 39 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 39 contains factual allegations against any of these Election Defendants to which a response is required, the allegations
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are denied. To the extent Paragraph 39 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 39 relies on information from DHEC cited in footnote 34 of Paragraph 39, the Election Defendants crave reference to the cited website and deny any inconsistent allegations or characterizations.
40. Paragraph 40 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 40 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 40 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 40 relies on Governor McMaster’s Executive Orders, the Election Defendants crave reference to the Executive Orders issued by Governor McMaster. To the extent Paragraph 40 relies on Executive Order 2020-11, the Election Defendants crave reference to the website cited in footnote 35 and deny any inconsistent allegations or characterizations. The Election Defendants aver that Governor McMaster lifted the “Home or Work” order in Executive Order 2020-31.
41. The Election Defendants admit that Governor McMaster issued Executive Order No. 2020-08 declaring a State of Emergency in South Carolina and crave reference to Executive Order No. 2020-08 and deny any inconsistent
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allegations or characterizations. The Election Defendants admit that President Donald J. Trump proclaimed a National Emergency and crave reference to Proclamation No. 9994, 85 Fed. Reg. 15337 (2020), and deny any inconsistent allegations or characterizations.
42. The Election Defendants admit that Governor McMaster issued Executive Order No. 2020-9 directing the closure of public school in South Carolina and crave reference to Executive Order No. 2020-9 and the website cited in footnote 38 of Paragraph 42 and deny any inconsistent allegations or characterizations.
43. The Election Defendants admit that Governor McMaster issued Executive Order No. 2020-9 postponed or rescheduled certain elections scheduled to be held in the state on or before May 1, 2020 directed the State Election Commission to ensure that candidate filing periods and voter registration continue and crave reference to Executive Order No. 2020-9 and the website cited in footnotes 39 and 40 of Paragraph 43 and deny any inconsistent allegations or characterizations.
44. The Election Defendants admit that President Trump approved a major disaster declaration for South Carolina and crave reference to the website cited in footnote 41 of Paragraph 44 and deny any inconsistent allegations or characterizations.
45. The Election Defendants admit that Governor McMaster issued Executive Order No. 2020-15 and crave reference to Executive Order No. 2020-15
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issued on March 28, 2020 and the website cited in footnote 42 of Paragraph 45 and deny any inconsistent allegations or characterizations.
46. The Election Defendants admit that Governor McMaster issued Executive Order No. 2020-17 on March 31, 2020 directing the closure of “nonessential” business, which “non-essential” business were enumerated by Executive Order No. 2020-18, issued on April 4, 2020 and crave reference to Executive Orders No. 2020-17 and 2020-18 and the website cited in footnotes 43 of Paragraph 46 and deny any inconsistent allegations or characterizations.
47. The Election Defendants admit Governor McMaster issued Executive Order No. 2020-21 mandating that “[a]ll South Carolinians remain at home or work unless visiting family, exercising or obtaining goods or services” on April 6, 2020 (“Home or Work Order” or “Executive Order No. 2020-21”) and crave reference to Executive Orders No. 2020-21 and the website cited in footnotes 44 and 45 of Paragraph 47 and deny any inconsistent allegations or characterizations.
48. Paragraph 48 of the Complaint consists of conclusions, editorial comments, and generalizations about Governor McMaster’s Home and Work Order rather than allegations of fact. To the extent Paragraph 48 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 48 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 48 relies on Governor McMaster’s Home or
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Work Order, the Election Defendants crave reference to Executive Order 2020-21 crave reference to the website cited in footnotes 46 and 47 in Paragraph 48 and deny any inconsistent allegations or characterizations.
49. Paragraph 49 of the Complaint consists of conclusions, editorial comments, and generalizations about Governor McMaster’s Home and Work Order rather than allegations of fact. To the extent Paragraph 49 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 49 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 49 relies on Governor McMaster’s Home or Work Order, the Election Defendants crave reference to Executive Order 2020-21 crave reference to the website cited in footnote 48 in Paragraph 49 and deny any inconsistent allegations or characterizations.
50. Paragraph 50 of the Complaint consists of conclusions, editorial comments, and generalizations about actions taken by this Court rather than allegations of fact. To the extent Paragraph relies on the Court’s orders, the Election Defendants crave reference to the Court’s orders cited in footnotes 49 and 50 in Paragraph 50 and deny any inconsistent allegations or characterizations.
51. The Election Defendants admit that Governor McMaster sent a letter to the leadership of the General Assembly of South Carolina on May 14, 2020, and
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crave reference to the Plaintiffs’ Exhibit 1 and deny any inconsistent allegations or characterizations.
52. The Election Defendants admit that Election Defendants McMaster issued Executive Order No. 2020-28 on April 20, 2020 modifying and amending his Home or Work Order and crave reference to Executive Order No. 2020-28, cited in footnotes 51 of Paragraph 52 and deny any inconsistent allegations or characterizations. III. COVID-19’s Impact on African-American South Carolinians in
Light of Ongoing and Historical Discrimination 53. Paragraph 53 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 53 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 53 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 53 relies on information from the CDC cited in footnote 54 of Paragraph 53, the Election Defendants crave reference to the cited website and deny any inconsistent allegations or characterizations. 54. Paragraph 54 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 54 contains factual allegations against any of these Election Defendants to which a response is required, the allegations
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are denied. To the extent Paragraph 54 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
55. Paragraph 55 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 55 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 55 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 55 relies on information from the DHEC and the CDC cited in footnotes 57 and 58 respectively of Paragraph 55, the Election Defendants crave reference to the cited websites and deny any inconsistent allegations or characterizations.
56. Paragraph 56 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 56 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 56 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
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IV. The COVID-19 Crisis and 2020 Elections in South Carolina 57. The Election Defendants admit that elections are scheduled to take
place in South Carolina between May and the end of the calendar year. To the extent Paragraph 57 relies on information from SCvotes cited in footnote 65 of Paragraph 57, the Election Defendants crave reference to the cited website and deny any inconsistent allegations or characterizations.
58. The Election Defendants admit that Andino wrote a letter to Governor McMaster, Senator Peeler, and Speaker Lucas (collectively McMaster, Peeler, and Lucas are referred to as “State Leaders”) on March 30, 2020 (“Andino Letter”). The Election Defendants aver that the Andino Letter was sent by Andino in her capacity as the Executive Director of the State agency responsible for overseeing elections and not as letter from Commission members of the Commission. Andino wrote the Andino Letter in concert with her statutory duties pursuant to S.C. Code § 7-3-20(C). To the extent that Paragraph 58 relies on the Andino Letter, the Election Defendants crave reference to the Andino Letter (Plaintiffs’ Exhibit. 2) and deny any inconsistent allegations or characterizations.
59. Paragraph 59 relies in whole on the content of the Andino Letter and the Election Defendants crave reference to the Andino Letter and deny any inconsistent allegations or characterizations.
60. Paragraph 60 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 60 contains factual allegations against
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any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 60 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 60 relies on information from the Andino Letter, the Election Defendants crave reference to the Andino Letter and deny any inconsistent allegations or characterizations. The Election Defendants deny that the Andino Letter made recommendations to the State Leaders to amend any existing South Carolina Election Laws.
61. Paragraph 61 is admitted. The Election Defendants aver they do not have the statutory authority to adopt or implement any of the options referenced in the Andino Letter and that authority rests solely with the General Assembly of the State of South Carolina under the Constitution of South Carolina. V. South Carolina Absentee Voting Process
62. As to Paragraph 63, the Paragraph paraphrase the provision of S.C. Code § 7-15-320. The Election Defendants crave reference to S.C. Code § 7-15-320 and deny any inconsistent allegations or characterizations.
63. As to Paragraph 63, the Paragraph paraphrase the provision of S.C. Code §§ 7-15-320 and 7-15-310. The Election Defendants crave reference to S.C. Code §§ 7-15-320 and 7-15-310(4) and deny any inconsistent allegations or characterizations.
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64. As to Paragraph 64, the Paragraph paraphrase the provision of S.C. Code §§ 7-15-330 and 7-15-340. The Election Defendants crave reference to S.C. Code §§ 7-15-330 and 7-15-340 and deny any inconsistent allegations or characterizations.
65. As to Paragraph 65, the Paragraph paraphrase the provision of S.C. Code § 7-15-340 and references S.C. Code § 7-25-20. The Election Defendants crave reference to S.C. Code §§ 7-15-340 and 7-25-20 and deny any inconsistent allegations or characterizations.
66. As to Paragraph 66, the Paragraph appears to be paraphrasing the provisions of S.C. Code § 7-15-370, although the statute is not cited. The Election Defendants crave reference to S.C. Code § 7-15-370 and deny any inconsistent allegations or characterizations. To the extent that Paragraph 66 is not relying on section 7-15-370, the allegations are denied.
67. As to Paragraph 67, the Paragraph paraphrase the provision of S.C. Code §§ 7-15-220 and 7-15-380. The Election Defendants crave reference to S.C. Code §§ 7-15-220 and 7-15-380 and deny any inconsistent allegations or characterizations.
68. As to Paragraph 68, the Paragraph paraphrase the provision of S.C. Code § 7-15-385. The Election Defendants crave reference to S.C. Code § 7-15-385 and deny any inconsistent allegations or characterizations.
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69. As to Paragraph 69, the Paragraph paraphrase the provision of S.C. Code § 7-15-420. The Election Defendants crave reference to S.C. Code § 7-15-420 and deny any inconsistent allegations or characterizations.
70. As to Paragraph 70, the Paragraph paraphrase the provision of S.C. Code § 7-15-420. The Election Defendants crave reference to S.C. Code § 7-15-420 and deny any inconsistent allegations or characterizations.
71. As to Paragraph 71, the Election Defendants aver that the South Carolina Election Law does not authorize county boards to provide notice to voters who return their absentee ballot envelopes with no witness signature and does not authorize county boards to allow a voter to correct his failure to follow the instructions accompanying the absentee ballots. See S.C. Code § 7-15-370. The Election Defendants crave reference to S.C. Code § 7-15-385 and deny any inconsistent allegations or characterizations. VI. The Challenged Requirements Unduly and Unreasonably Burdens
the Voting Rights of South Carolinians. A. The Excuse Requirement deprives many South Carolina
voters, including Plaintiffs, of their fundamental right to vote. 72. Paragraph 72 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 72 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 72 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
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73. Paragraph 73 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 73 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 73 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 73 relies on the CDC guidelines cited in footnote 21 of Paragraph 32, the Election Defendants crave reference to the website cited in footnote 21 or Paragraph 32 and deny any inconsistent allegations or characterizations.
74. Paragraph 74 of the Complaint consists of conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 74 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 74 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
75. Paragraph 75 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 75 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 75 contains factual allegations about another
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person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 75 relies on S. C. Code § 7-15-320, Election Defendants crave reference to the S.C. Code § 7-15-320 and deny any inconsistent allegations or characterizations.
76. Paragraph 76 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 76 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 76 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 76 relies on the Andino Letter, the Election Defendants crave reference to the Andino Letter and deny any inconsistent allegations or characterizations. The Election Defendants deny that there is a “mandatory” order in place for all South Carolinians to remain “at home or work” and which requires rigid adherence to social distancing at all times.
77. Paragraph 77 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 77 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 77 contains factual allegations about another
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person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
78. The allegations of Paragraph 78 of the Complaint are denied. 79. The allegations of Paragraph 79 of the Complaint are denied. 80. The allegations of Paragraph 80 of the Complaint are denied. 81. The allegations of Paragraph 81 of the Complaint are denied. The Election Defendants aver that S.C. Code § 7-15-310(4) requires that the voter personally be injured or disabled to meet the Qualification Requirement of S.C. Code § 7-15-310(4). 82. The Election Defendants deny that the interpretation by other states under those state laws is relevant to and have no relevance to the legal issues regarding S.C. Code §§ 7-15-320, 7-15-220, and 7-15-380 as raised in the Complaint. 83. Paragraph 83 consists of legal conclusions, editorial comments, and generalizations regarding the state of West Virginia’s election laws and West Virginia’s interpretation of those laws, which have no relevance to the legal issues regarding S.C. Code §§ 7-15-320, 7-15-220, and 7-15-380 as raised in the Complaint. To the extent Paragraph 83 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 83 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
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84. Paragraph 84 consists of legal conclusions, editorial comments, and generalizations regarding the state of Alabama’s election laws and Alabama’s interpretation of its laws and the state of Arkansas and Arkansas’s interpretation of its laws, neither of which have no relevance to the legal issues regarding S.C. Code §§ 7-15-320, 7-15-220, and 7-15-380 as raised in the Complaint. To the extent Paragraph 84 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 84 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
85. Paragraph 85 consists of legal conclusions, editorial comments, and generalizations regarding the states of Virginia, Delaware and Massachusetts and the states clarification of their respective election laws, none of which have no relevance to the legal issues regarding S.C. Code §§ 7-15-320, 7-15-220, and 7-15380 as raised in the Complaint. To the extent Paragraph 85 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 85 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
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B. South Carolina’s Witness Requirement will deny large numbers of eligible voters the right to vote yet provides only marginal benefits to the State.
86. Paragraph 86 relies on S. C. Code § 7-15-420, and the Election Defendants crave reference to S.C. Code § 7-15-420 and deny any inconsistent allegations or characterizations.
87. Paragraph 87 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 87 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 87 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
88. Paragraph 88 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 88 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 88 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
89. Paragraph 89 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 89 contains factual allegations against
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any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 89 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
90. In answer to Paragraph 90 of the Complaint, the Election Defendants crave reference the website cited in footnote 73 of Paragraph 90 and deny any inconsistent allegations or characterizations
91. Paragraph 91 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 90 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 90 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 91 relies on data from the U.S. Census Bureau, the Election Defendants crave reference to the website cited in footnotes 76 and 77 of Paragraph 91 and deny any inconsistent allegations or characterizations.
92. Paragraph 92 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 92 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 92 contains factual allegations about another
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person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 91 relies on data from the U.S. Census Bureau, the Election Defendants crave reference to the website cited in footnotes 78 and 79 of Paragraph 92 and deny any inconsistent allegations or characterizations.
93. Paragraph 93 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 93 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 93 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 93 relies on data from the CDC, the Election Defendants crave reference to the website cited in footnote 80 Paragraph 91 and deny any inconsistent allegations or characterizations.
94. Paragraph 94 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 94 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 94 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
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95. Paragraph 95 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 95 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 95 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
96. Paragraph 96 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 96 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 96 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
97. Paragraph 97 of the Complaint consists of legal conclusions, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. The Election Defendants admit that protecting election integrity and preventing improper use of absentee ballots are valid governmental interest and aver that they are essential for South Carolina elections. To the extent Paragraph 97 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 97 contains factual allegations about another person or entity,
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these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 97 relies on the Andino Letter, the Election Defendants crave reference to the Andino Letter and deny any inconsistent allegations or characterizations.
98. The allegations of Paragraph 98 are denied. 99. Paragraph 99 of the Complaint consists of legal conclusions, editorial comments, and generalizations, rather than allegations of fact. To the extent Paragraph 99 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 99 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. 100. Paragraph 100 consists of legal conclusions, to which no response is required. 101. As to Paragraph 101 the Paragraph paraphrases the provisions of S.C. Code §§ 7-15-330, 7-15-370, and 7-15-385. The Election Defendants crave reference to S.C. Code §§ 7-15-330, 7-15-370, and 7-15-385 and deny any inconsistent allegations or characterizations. 102. As to Paragraph 102 the Paragraph paraphrases the provisions of S.C. Code §§ 7-15-385 and 7-15-410. The Election Defendants crave reference to S.C. Code §§ 7-15-385 and 7-15-410 and deny any inconsistent allegations or characterizations.
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103. As to Paragraph 103 the Paragraph paraphrases the provisions of S.C. Code §§ 7-15-810 and 7-15-410. The Election Defendants crave reference to S.C. Code §§ 7-15-810 and 7-15-410 and deny any inconsistent allegations or characterizations.
104. As to Paragraph 104 the Paragraph paraphrases the provisions of S.C. Code §§ 7-15-340 and 7-15-380. The Election Defendants crave reference to S.C. Code §§ 7-15-340 and 7-15-380 and deny any inconsistent allegations or characterizations.
105. As to Paragraph 105 the Paragraph paraphrases the provisions of S.C. Code §§ 7-15-340 and 7-25-20. The Election Defendants crave reference to S.C. Code §§ 7-15-340 and 7-25-20 and deny any inconsistent allegations or characterizations.
106. As to Paragraph 106 the Paragraph paraphrases the provisions of S.C. Code §§ 7-25-120 and 7-25-150. The Election Defendants crave reference to S.C. Code §§ 7-25-120 and 7-25-150 and deny any inconsistent allegations or characterizations.
107. Paragraph 107 of the Complaint consists of legal conclusions, editorial comments, and generalizations, rather than allegations of fact. To the extent Paragraph 107 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 107 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief
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as to the truth of the allegations. To the extent Paragraph 107 relies on S.C. § 715-380, the Election Defendants crave reference to S.C. § 7-15-380 and deny any inconsistent allegations or characterizations.
108. Paragraph 108 of the Complaint consists of legal conclusions, editorial comments, and generalizations, rather than allegations of fact. To the extent Paragraph 108 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 108 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations. To the extent Paragraph 108 relies on the Andino Letter, the Election Defendants crave reference to the Andino Letter and deny any inconsistent allegations or characterizations.
CLAIM FOR RELIEF COUNT ONE
Violation of the Fundamental Right to Vote 42 U.S.C. § 1983, First and Fourteenth Amendments to the U.S.
Constitution 109. As to Paragraph 108, the Election Defendants reallege and reincorporate by reference all prior responses to the Paragraphs of this Complaint. 110. The Election Defendants admit that duly qualified South Carolina electors have a fundamental right to vote under the First and Fourteenth Amendments of the U.S. Constitution. The remainder of Paragraph 110 is a legal conclusion to which no response is required.
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111. Paragraph 111 of the Complaint consists of legal conclusions, editorial comments, and generalizations, rather than allegations of fact. To the extent Paragraph 111 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 111 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
112. The Election Defendants deny the allegations of Paragraph 112. COUNT TWO
Violations of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301 113. As to Paragraph 113, the Election Defendants reallege and
reincorporate by reference all prior responses to the Paragraphs of this Complaint. 114. As to Paragraph 114, the Paragraph paraphrases the provisions of
Section of the Voting Rights Act, 52 U.S.C. § 10301(a). The Election Defendants crave reference to Section 2 of the Voting Rights Act and deny any inconsistent allegations or characterizations.
115. As to Paragraph 115, the Paragraph quotes from the League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224, 238–39 (4th Cir. 2014), discussing the provisions of section 2 of the Voting Rights Act, 52 U.S.C. § 10301(a). The Election Defendants crave reference to that case and deny any inconsistent allegations or characterizations.
116. The Election Defendants deny the allegations of Paragraph 116. 117. The Election Defendants deny the allegations of Paragraph 117.
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118. Paragraph 118 of the Complaint consists of legal conclusions, editorial comments, and generalizations, rather than allegations of fact. To the extent Paragraph 118 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 118 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
119. Paragraph 119 of the Complaint consists of legal conclusions, editorial comments, and generalizations, rather than allegations of fact. To the extent Paragraph 119 contains factual allegations against any of these Election Defendants to which a response is required, the allegations are denied. To the extent Paragraph 119 contains factual allegations about another person or entity, these Election Defendants lack knowledge or information sufficient to form a belief as to the truth of the allegations.
120. The Election Defendants deny the allegations of Paragraph 120. COUNT THREE
Violations of Sections 3 and 201 of the Voting Rights Act, 52 U.S.C. §§ 10302, 10501
121. As to Paragraph 121, the Election Defendants reallege and reincorporate by reference all prior responses to the Paragraphs of this Complaint.
122. As to Paragraph 122, the Paragraph quotes from the provisions of section 201 of the Voting Rights Act, 52 U.S.C. §§ 10501(a) and 10501(b)(4). The
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Election Defendants crave reference to Section 201 of the Voting Rights Act and deny any inconsistent allegations or characterizations.
123. As to Paragraph 123, the Paragraph quotes from United States v. Board of Commissioner of Sheffield, 435 U.S. 110, 120–21 (1978). The Election Defendants crave reference to Sheffield and deny any inconsistent allegations or characterizations. To the extent Paragraph 123 relies on the Letter from the Acting Assistant Attorney General cited in footnote 83 to of Paragraph 123, the Election Defendants crave reference to the website cited in footnote 83 and deny any inconsistent allegations or characterizations.
124. Paragraph 124 of the Complaint consists of legal conclusions, editorial comments, and generalizations, rather than allegations of fact. Paragraph 124 quotes from Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193, 198 (2009), and Reno v. Bossier Parish School Board, 528 U.S. 320, 338 n.6 (2002). The Election Defendants crave reference to these two cases and deny any inconsistent allegations or characterizations.
125. The Election Defendants deny the allegations of Paragraph 125. 126. The Election Defendants admit the allegations of Paragraph 126 and crave reference to Gregory v. S.C. Democratic Executive Committee, 247 S.E.2d 439 (S.C. 2978). 127. The Election Defendants deny the allegations of Paragraph 127. 128. The Election Defendants deny the allegations of Paragraph 128.
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FOR A SECOND DEFENSE The Andino Letter addressed the current South Carolina Election Law enacted by the General Assembly that the Executive Director is charges by law with implementing and enforcing. See S.C. Code § 7-3-20(C)(1) (supervise the conduct of the County Boards with regard to the conduct of elections or the voter registration process). No state law authorizes either the Executive Director or the Commission to amend or modify the Election Law during an emergency. The Andino Letter did not recommend that the State Leaders take specific action on the Election Law. Rather the Andino Letter requested that the State Leaders give consideration to making emergency changes to the Election Law and provided the State Leaders with options for such potential changes to existing laws. Only the General Assembly can amend or modify the Election Law. There are bills pending in the South Carolina General Assembly that address modifications or amendments to existing South Carolina Election Laws. There bills are: S141 (allows counties to begin opening absentee ballots the day before the election); S142 (early voting without excuse); S331 (creates penalty for collecting/returning absentee ballots by person not authorized to do so); S628 (absentee voting in Presidential Preference Primary); S867 (challenges to an inperson absentee ballot made at the time the ballot is cast and allows counties to begin opening absentee ballots the day before the election); and H4215 (companion bill to S628).
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FOR A THIRD DEFENSE
Andino, on April 13, 2020, sent a request to Attorney General Alan Wilson for
a formal opinion regarding his interpretation of section 7-15-310(4)’s “physically
disabled persons” and whether, “consistent with the mandate of § 7-15-20[,] . . . voters
staying home due to the pandemic qualify for absentee voting under this reason.”
This case was filed on April 22, 2020, and the Election Defendants were not
served with the Complaint almost a week later. Consistent with the policy of the
Attorney General’s Office, the Attorney General declined to give an opinion on a
pending legal action.
FOR A FOURTH DEFENSE
The Plaintiffs’ Complaint alleges no acts by any of these Election Defendants
other than ministerial functions they are required by law to perform.
FOR A FIFTH DEFENSE
On May 1, 2020 Governor McMaster announced, effective May 4, 2020 he was
lifting the Home or Work Order. Executive Order No. 2020-31 was issued May 3,
2020. Executive Order No. 2020-31 deleted Section 1(B) and inserted the following:
B. I hereby urge any and all residents and visitors of the State of South Carolina to limit social interaction, practice “social distancing” in accordance with CDC guidance, and take every possible precaution to avoid potential exposure to, and to slow the spread of, COVID19, and further encourage residents and visitors of the State of South Carolina to limit their movements outside of their home, place of residence, or current place of abode (collectively, “Residence”), except as specified by this Order, for purposes of engaging in Essential Business, Essential Activities, or Critical Infrastructure Operations, as set forth below and as such terms are further defined herein.
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Ex. 1, Exec. Order No. 2020-31, p. 4 § 1.A. (emphasis added) There is no mandatory Home or Work Order in effect in South Carolina.
Unless Governor McMaster declares a new emergency on or before May 12, 2020 and readopts this Executive Order, Executive Order No. 2020-31 expires as a matter of law. See S.C. Code § 25-1-440(a)(2).
This Executive Order “is not intended to create, and does not create, any individual right, privilege, or benefit, whether substantive or procedural, enforceable at law or in equity by any party against the State of South Carolina, its agencies, departments, political subdivision, or other entities, or any officers, employees or agents thereof, or any other person.” Executive Order 2020-31, § 3(A).
FOR A SIXTH DEFENSE S.C. Code §§ 7-15-310(4) and 7-15-320 have been in State law since 1975. The legal efficacy of this provision has not been challenged until this lawsuit. A witness requirement has been in State law since 1953 and in its current form since 1982. It also has not been challenged until this lawsuit. The Plaintiffs’ claims are barred by the doctrine of laches.
FOR A SEVENTH DEFENSE The Plaintiffs’ Complaint presents nonjusticiable, political questions. The relief sought by the Plaintiffs asks this Court only for relief “while the risk of COVID19 transmission in South Carolina remains”. Compl. Prayer for Relief ¶¶ A and B. The Plaintiffs ask this Court to make a judicial determination as to the length of the risk of COVID-19 transmission by serving as “super legislature” or a “super
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executive.” It is unclear from the Complaint whether the Plaintiffs are requesting this Court retain jurisdiction to determine when the risk of COVID-19 is sufficiently diminished to lift the injunction.
Further, the Complaint seeks preliminary and permanent injunction against the enforcement of S.C. Code §§ 7-15-320, 7-15-310, and 7-15-220, “at least while emergency orders concerning COVID-19 are in place and/or while public health officials continue to recommend social distancing practices due to the risk of community transmission of COVID-19.” Compl. Prayer for Relief ¶ C.1 and 2. It is unclear from the Complaint whether the Plaintiffs are requesting this Court retain jurisdiction to determine when the public health officials cease recommending socialdistancing practices to lift the injunction.
The determination as to the length of COVID-19 and its effects of the public health is a non-justiciable, political question.
FOR AN EIGHTH DEFENSE Andino, through monies from the federal government, is taking aggressive measures to ensure the safety of voters, poll workers and election, officials alike. These measures include, but are not limited to:  Holding weekly conference calls with county directors to educate them
on Covid-19 and our activities;  Developing a Covid-19 specific training for counties and poll workers;  Ordering personal protective equipment for poll managers and county
election officials, including, but not limited to, masks, glover, face shields, hand sanitizers;  Ordering sneeze guards for polling places and county offices;
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 Ordering signs for polling places to stress wearing masks and social distancing;
 Ordering tape so poll managers can mark six-foot distances, including providing string for easy measuring;
 Providing safety guidelines (based on CDC guidelines) in press releases and social media messaging that will be released closer to Election Day;
 Included safety guidelines (based on the CDC guidelines) in training for poll managers, clerks and polling place technician; and
 Encouraging voters in high-risk groups (based on the CDC guidelines) to vote absentee by mail or early.
o Requesting ballot early; o If voting absentee in person, voting early; o Asking counties to open absentee precincts May 1 or 4 (earlier
than normal) to allow voters to avoid crowds;
o Asking counties to relocate absentee precinct if office does not permit social distancing due to size.
WHEREFORE, the Election Defendants respectfully request that the Court
deny the Plaintiffs’ requested relief and award the Commission and Andino any
relief the Court deems just.
Respectfully Submitted,
s/ Mary Elizabeth Crum Mary Elizabeth Crum Fed. ID No. 372 Wm. Grayson Lambert Fed. ID No. 11761 BURR & FORMAN LLP Post Office Box 11390 Columbia, SC 29211 (803) 799-9800
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Dated: May 11, 2020 Columbia, SC

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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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

Mary T. Thomas, et al.,

No.: 3:20-cv-01552-JMC

Plaintiffs,

v. Marci Andino, et al.,
Defendants.

State Election Commission 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 COVID-19 is serious. So is the rule of law. The urgency of the moment is no reason to cast aside South Carolina statutes by misapplying well-established legal principles about the extraordinary nature of injunctive relief. The Plaintiffs ask this Court to upend South Carolina’s rules of absentee voting after that process is already underway because, they claim, the rules are too burdensome in light of COVID-19. First, the Plaintiffs ask the Court to enjoin the application of S.C. Code § 7-15-320, which provides which voters are qualified to vote by absentee ballot (“Qualification Requirement”), so that every voter in South Carolina may vote by absentee ballot if she so desires. Second, they demand the Court enjoin application of the requirement in S.C. Code §§ 7-15-220 and 7-15-420 that a witness attest to an absentee voter’s oath that she has complied with the laws governing absentee voting (“Witness Requirement”).

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The Plaintiffs’ request for this drastic relief suffers from multiple flaws. In the first place, they ignore the United State Supreme Court’s level of scrutiny for absentee voting, never mentioning McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969). In that case, the Supreme Court refused to apply the heightened scrutiny to a challenge to absentee-voting rules that the Plaintiffs ask this Court to apply.
In the second, the crux of their argument about how in-person voting and having to see other people to witness an absentee ballot is unsafe—Governor McMaster’s “home or work” order—no longer carries much (if any) weight. The Governor lifted that order on May 4, more than a month before the June 9 primary. See Office of the Governor, Exec. Order 2020-31 (Election Defs.’ Ex. 1).
In the third, the Plaintiffs overstate the burden of complying with the Qualification and Witness Requirements. A careful review of their declarations shows that most, if not all, of the individual Plaintiffs can cast valid absentee ballots while safely self-quarantining.
In the fourth, they discount South Carolina’s substantial interests. The State has an interest in protection of its carefully, legislatively drawn balance of making voting easier for people who might otherwise struggle with in-person voting while avoiding voter fraud. And the State and its citizens have an undeniable interest in election integrity. The Qualification and Witness Requirements promote these interests.
And in the fifth, the Plaintiffs miscalculate the equities and the public interest. Even without an injunction, they can all vote (all by absentee ballot).
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Speaking of voting, it is already underway for the primaries. Changing the rules now risks confusing voters. Plus, changing the rules now amounts to a judicial rewriting of a statute—taking the Court beyond its constitutional rule.
Background COVID-19 and South Carolina
Like the rest of the county, COVID-19 is affecting South Carolina. Governor McMaster issued his first executive order related to COVID-19 on March 11, suspending certain transportation regulations. See Office of the Governor, Exec. Order 2020-07. In reliance on the authority granted to him under the South Carolina Code of Laws and Article IV of the Constitution of South Carolina, two days later, he declared a state of emergency based on the public-health emergency posed by COVID-19. See Office of the Governor, Exec. Order 2020-08. (Additional declarations of emergency were made on March 28, see Office of the Governor, Exec. Order 2020-15, April 12, see Office of the Governor, Exec. Order 2020-23, and April 27, see Office of the Governor, Exec. Order 2020-29.) Two days after the first emergency was declared, the Governor closed public schools. See Office of the Governor, Exec. Order 2020-09. Over the next week, other executive orders followed, including ones that limited the size of gatherings, addressed the functioning of government, and instituted social distancing. See Office of the Governor, Exec. Order 2020-10; Office of the Governor, Exec. Order 2020-11; Office of the Governor, Exec. Order 2020-12. All nonessential businesses were closed effective April 6. See Office of the Governor, Exec. Order 2020-18.
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Also on April 6, Governor McMaster issued his “home or work” executive order. That order instructed South Carolinians to stay at home or limit their travel to work or obtaining essential services. See Office of the Governor, Exec. Order 2020-21. The “home or work” order was lifted on May 4. See Office of the Governor, Exec. Order 2020-31.
As of May 11, the South Carolina Department of Health and Environmental Control (“DHEC”) reported 7,653 COVID-19 cases and 331 COVID-19 deaths in South Carolina. See S.C. Dep’t of Health and Envtl. Control, SC Testing Data & Projections (COVID-19), https://www.scdhec.gov/infectious-diseases/viruses/ coronavirus-disease-2019-covid-19/sc-testing-data-projections-covid-19 (last visited May 11, 2020). The South Carolina Election Law
The General Assembly is charged with “provid[ing] for the administration of elections and for absentee voting.” S.C. Const. art. II, § 10. It has done so in the South Carolina Election Law. See S.C. Code § 7-1-10 et seq.
The General Assembly has given the Election Defendants the authority to implement and oversee elections in South Carolina. Id. § § 7-15-10(d). The Commission consists of five members, appointed by the Governor. Id. § 7-3-10(a). The Commission acts independently of any political campaign. Id. § 7-3-10(e). The Commission, in turn, elects an executive director, who “shall be the chief administrative officer for the State Election Commission.” Id. § 7-3-20(A). The executive director is responsible for myriad statutorily defined duties, including, but not limited to, supervising the conduct of the county boards of elections and voter
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registration (“County Boards”); maintaining a complete master list of qualified voters by county and precinct; and furnishing each County Board with a master list of all registered voters in the county at least ten days prior to each election. Id. § 73-20(B). She also serves as the chief state election official for implementing and coordinating the State’s responsibilities under the National Voter Registration Act of 1993 and for the Uniformed and Overseas Citizens Absentee Voting Act. Id. § 7-320(C).
Anyone who is a citizen of South Carolina and the United States is (subject to exceptions for mental incapacity, imprisonment, or a felony conviction) eligible to vote if he is at least eighteen years old, is not disabled from voting under the State constitution, and lives in the county and polling precinct where he offers to vote. Id. § 7-5-120. A person must register to vote. Id. § 7-5-110.
Registered voters can vote either in person on election day, id. § 7-13-710 et seq., or by absentee ballot, id. § 7-15-10 et seq. Any registered voter may vote in person. Id. § 7-13-710(A). But only certain voters qualify to vote by absentee ballot. Id. § 7-15-320. Under this statute, certain voters are qualified to vote by absentee ballot, as opposed to being exempt or excused from voting in person. Absentee Voting in South Carolina
Section 7-15-320 allows numerous voters to qualify to vote by absentee ballot: (A) Qualified electors in any of the following
categories must be permitted to vote by absentee ballot in all elections when they are absent from their county of residence on election day during the hours the polls are open, to an extent that it prevents them from voting in person:
(1) students, their spouses, and dependents residing with them;
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(2) persons serving with the American Red Cross or with the United Service Organizations (USO) who are attached to and serving with the Armed Forces of the United States, their spouses, and dependents residing with them;
(3) governmental employees, their spouses, and dependents residing with them;
(4) persons on vacation (who by virtue of vacation plans will be absent from their county of residence on election day); or
(5) overseas citizens.
(B) Qualified electors in any of the following categories must be permitted to vote by absentee ballot in all elections, whether or not they are absent from their county of residence on election day:
(1) physically disabled persons; (2) persons whose employment obligations require that they be at their place of employment during the hours that the polls are open and present written certification of that obligation to the county board of voter registration and elections; (3) 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; (4) persons attending sick or physically disabled persons; (5) persons admitted to hospitals as emergency patients on the day of an election or within a four-day period before the election; (6) persons with a death or funeral in the family within a three-day period before the election; (7) persons who will be serving as jurors in a state or federal court on election day; (8) persons sixty-five years of age or older; (9) persons confined to a jail or pretrial facility pending disposition of arrest or trial; or (10) members of the Armed Forces and Merchant Marines of the United States, their spouses, and dependents residing with them.
Id. § 7-15-320.
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A voter seeking to vote by absentee ballot must submit an absentee ballot application request to the County Board. Id. § 7-15-330. When submitting this application, a voter must swear that he is a qualified elector, entitled to vote in that election, and will not vote again in that election. Id. § 7-15-340. Violating that oath is a criminal offense. Id. The County Board then provides the voter with an absentee ballot, along with instructions, a return-addressed envelope, and any additional necessary information. Id. § 7-15-370.
On the absentee ballot return-addressed envelope, the voter must make this oath:
I hereby swear (or affirm) that I am duly qualified to vote at this election according to the Constitution of the State of South Carolina, that I have not voted during this election, that the ballot or ballots contained in this envelope is my ballot and that I have received no assistance in voting my ballot that I would not have been entitled to receive had I voted in person at my voting precinct.” Id. § 7-15-380. This oath must be “witnessed by someone designated by the voter.” Id. The statute does not limit who this witness may be. If the ballot return-address envelope is not witnessed or there is no witness address, the ballot cannot be counted. Absentee ballots are then returned to the County Board, which keeps a record of the returned absentee ballots and stores them in a locked box in its office. Id. § 7-15-385. Votes are then counted on election day. Id. § 7-15-420. An absentee ballot that is not properly signed and witnessed may not be counted. Id.
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South Carolina’s 2020 elections Statewide Democratic and Republican primaries are scheduled for June 9,
with runoffs slated for June 23 (if necessary). Absentee voting is currently well underway. County Boards have already received significantly more absentee ballot applications from voters than in previous years for statewide primaries. As of May 7, County Boards had already received over 75,900 requests for absentee ballots for the June 9 primaries. (By comparison, approximately 60,000 total absentee ballots were issued to voters in the 2018 statewide primary.) Over 34,400 voter absentee applications have been returned. More than 21,300 ballots have been issued to voters and more than 2,950 ballots have been returned to the County Boards. See Decl. of Marci Andino ¶ 4 (Election Defs.’ Ex. 2).
Legal Standard When plaintiffs seek a preliminary injunction, they must satisfy each of four elements: “(1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm, (3) the balance of hardships tips in their favor, and (4) the injunction is in the public interest.” Metro. Reg’l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591, 595 (4th Cir. 2013). A preliminary injunction is “an extraordinary remedy,” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008), and even more extraordinary when the injunction sought is a mandatory one (which changes the status quo), see Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980) (the power to issue a mandatory preliminary injunction “should be exercised sparingly”).
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Argument I. The Plaintiffs are not likely to succeed on the merits.
“[V]oting is of the most fundamental significance under our constitutional structure.” Burdick v. Takushi, 504 U.S. 428, 433 (1992). No one disputes that. But “the right to vote in any manner” is not “absolute.” Id. States may regulate elections. See, e.g., U.S. Const. art. I, § 4. Indeed, such regulation is necessary to ensure that elections are fair and orderly. Burdick, 504 U.S. at 433.
A. Heightened scrutiny does not apply to the Plaintiffs’ claims. Analyzing election regulations is not a one-size-fits-all task. Rather, a court typically “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Id. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). In other words, “the rigorousness of [the judicial] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Id. When a restriction is “severe,” it must be “narrowly drawn to advance a state interest of compelling importance.” Id. On the other hand, when it is a “reasonable, nondiscriminatory” restriction, “the State’s important regulatory interests are generally sufficient to justify” it. Id. The Plaintiffs insist that the Qualification and Witness Requirements warrant heightened scrutiny. But they do so without acknowledging that the United
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State Supreme Court has refused to examine absentee-voting provisions with such an exacting eye when the plaintiffs had other options for exercising their right to voe.1 In McDonald v. Board of Election Commissioners of Chicago, the Court reviewed a challenge by unsentenced inmates in Cook County, who, although qualified voters, could not go to their polling places because they were incarcerated. Yet they could not obtain absentee ballots because they did not fall into one of the four categories of voters eligible to vote by absentee ballot under Illinois law. The Supreme Court expressly rejected the inmates’ invitation to apply heightened scrutiny for two reasons. First, the state’s “absentee provisions are not drawn on the basis of wealth or race.” 394 U.S. at 807. Second, the state’s absentee rules did not “impact [the inmates’] ability to exercise the fundamental right to vote,” but rather only their “right to receive absentee ballots.” Id. These same things are true of the Qualification and Witness Requirements: Neither is based on wealth or race, as all South Carolina voters must comply with them, and both Requirements relate to the right to receive (or submit) an absentee ballot. Although McDonald predates Anderson and Burdick, the Supreme Court in Burdick cited McDonald approvingly in discussing the standard of review, so it is still good law that binds this Court to apply a lower level of scrutiny to the Qualification Requirement and Witness Requirement. See Burdick, 504 U.S. at 434.
1 Nor do the cases the Plaintiffs cite on the level of scrutiny consider McDonald, see Mem., ECF No. 7-1 at 27–28, though that is presumably because, unlike this case, those cases did involve absentee voting (making those cases of little value here).
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One important part of McDonald also bears mentioning: “[T]here [was] nothing in the record to show that appellants are in fact absolutely prohibited from voting by the State.” McDonald, 394 U.S. at 809 n.7. The same is true here. The Plaintiffs can still exercise their right to vote, making O’Brien v. Skinner, 414 U.S. 524 (1974), (on which the Plaintiffs rely, see Mem., ECF No. 7-1 at 40) irrelevant. In that case, New York inmates could not vote in any manner. That is not the situation here.
B. A cornerstone of the Plaintiffs’ argument has been removed. At least seven times in the memorandum, the Plaintiffs invoke Governor McMaster’s “home or work” order to argue that forcing people to choose to vote or risk their health is unreasonable when the State’s chief executive has instructed South Carolinians to stay at home unless they are going to work, visiting family, or obtaining essential services. This executive order, they say, demonstrates the gravity of the situation. But Governor McMaster lifted that order as of May 4. See Office of the Governor, Exec. Order 2020-31. This means that although South Carolinians should still abide by social-distancing protocols, the Governor has determined is now safe for them to resume certain other activities. The Plaintiffs have therefore lost the lead argument on both of the provisions they challenge. See Mem., ECF No. 7-1 at 29, 36. C. The Plaintiffs are not likely to succeed on the Qualification
Requirement. As an initial matter, one thing needs to be clear: The Constitution does not require a state to allow anyone to vote by absentee ballot. See Griffin v. Roupas, 385
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F.3d 1128, 1131 (7th Cir. 2004). States are free to choose what, if any, absentee voting to allow. See id.
One additional preliminary matter: The Plaintiffs challenge section 7-15-320 generally. See Mem., ECF No. 7-1 at 47 (asking the Court to enjoin section 7-15-320 so that “any eligible voter, regardless of age or physical condition” to vote by absentee ballot in the June 9 primary). Their arguments focus solely on the supposed burden on voters because of COVID-19. See Mem. 29–32. Thus, the Election Defendants likewise focus only on that issue.
1. The Plaintiffs have overstated any burden. It is worth noting at the outset the many voters already covered by the plain language of the statute. Among the people at heightened risk with COVID-19 include those who are 65 years of age and older, live in a nursing home or long-term care facility, are immunocompromised, or who have conditions like asthma, severe obesity, chronic lung disease, diabetes, serious heart conditions, kidney disease requiring dialysis, and liver disease. See Ctrs. for Disease Control & Prevention, Groups at Higher Risk for Severe Illness (Apr. 17, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-athigher-risk.html. Assuming that someone living in a long-term care facility is either over 65 or has some serious health condition (a safe assumption), all of these people can already vote by absentee ballot. See S.C. Code §§ 7-15-320(B)(1) (“physically disabled persons”); 7-15-320(B)(8) (“persons sixty-five years of age or older”). Thus, South Carolina’s absentee-voting rules already protect the vast majority of those most at risk due to COVID-19, meaning that the Plaintiffs need no relief from this
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Court to protect the “two distinct groups [that] are at particularly severe risk.” Mem., ECF No. 7-1 at 31.
Turn now to the individual Plaintiffs who address the Qualification Requirement specifically. Jeremy Rutledge alleges that, despite having systemic scleroderma, a chronic autoimmune disorder that affects his skin and organs, he does not consider himself physically disabled. See Decl. of Jeremy Rutledge ¶¶ 5–6, ECF No. 7-20. His belief does not matter. The law says what it says. The plain language of the statute controls, and his chronic illnesses mean Rutledge is qualified to vote by absentee ballot. Neither the Election Defendants nor South Carolina courts have ever strictly read “cannot” in section 7-15-310(4) to require a voter literally be unable to appear in person to qualify as “physically disabled.”
The same is true of Trena M. Walker. Her emphysema and immunocompromised condition qualifies her to vote by absentee ballot. See Decl. of Trena M. Walker ¶ 7, ECF No. 7-21. Her belief that she is not physically disabled is also irrelevant.
As for Mary Thomas, the Plaintiffs claim she has “no reason to vote absentee” other than self-quarantining, Mem., ECF No. 7-1 at 31, but she qualifies to vote by absentee ballot because she is over sixty-five years old, see S.C. Code § 7-15320(B)(8); Decl. of Mary T. Thomas ¶ 8, ECF No. 7-18. The Qualification Requirement therefore does not impact her.
In addition to these Plaintiffs for whom the Qualification Requirement is no burden at all, that requirement is a not an unreasonable burden for others. Nea Richard, for instance, wants to be a poll worker (which allows her to vote by
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absentee ballot, see S.C. Code § 7-15-320(B)(3)) and says more in-person voting will be a danger to her health and take more time than usual. See Decl. of Nea Richard ¶¶ 6, 9, 10, ECF No. 7-19. Unless a court were to mandate that the State hold the primary and general election exclusively by mail, people will have to serve as poll workers, and voters will have the right to vote in person. Some delays because of the extra precautions are inevitable, but they constitute no reason to rewrite the statute.
Some evidence the Plaintiffs offer on the Qualification Requirement is inadmissible. For instance, the only way Brenda Murphy could know about the voter described in Paragraph 12 of her Declaration is not willing to vote in person is if that voter told Murphy so. See Decl. of Brenda C. Murphy ¶ 12, ECF No. 7-17. Yet, that is hearsay that the Court cannot consider. See Fed. R. Evid. 802.
Finally, on the suggestion that in-person voting is per se unsafe, that is false. The Election Defendants have been and will continue to be providing special COVID-19 training to poll managers on social distancing and sanitation, so that check-in stations are properly spaced, voters leave six feet between themselves in line, voting equipment is cleaned between voters. The Election Defendants have also ordered personal protective equipment (like masks and gloves), cleaning supplies, sneeze guards for check-in stations, and cotton swabs for voters to use instead of fingers. Decl. of Marci Andino ¶ 3. Voting may take longer because of these precautions, but it can take place safely, employing the social distancing guidelines recommended by the CDC and DHEC. See Ctrs. for Disease Control &
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Prevention, How to Protect Yourself and Others, (Apr. 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
Ultimately, “even assuming that the burden [of the Qualification Requirement] may not be justified as to a few voters, that conclusion is by no means sufficient to establish [the Plaintiffs’] right to the relief they seek in this litigation.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 199–200 (2008) (internal footnote omitted). The Supreme Court has refused to allow election-case plaintiffs to strike down provisions that—like the Qualification Requirement—burden at most a few voters. That is particularly so in a case like this, when the Qualification Requirement does not severely burden any individual Plaintiff.
2. The State has a compelling interest. The Plaintiffs insist the State does not have “a discernable interest in compelling citizens to vote in person in the midst of a dangerous pandemic.” Mem., ECF No. 7-1 at 33. That is a strawman.2 The correct question is whether the State has an interest in enforcing the Election Law that is on the books. Of course the State does. See United States v. Dickson, 40 U.S. 141, 162 (1841) (Story, J.) (“ours is a government of laws, and not of men”). South Carolina law generally requires in-person voting. See S.C. Code § 7-13710 et seq. Certain voters are qualified to vote by absentee ballot if they chose to do so. 2 Note that neither the Election Defendants nor even the Governor could give every South Carolina voter the option to vote by mail-in absentee ballot but are merely refusing to do so. See S.C. Const. art. I, § 7 (“The power to suspend the laws shall be exercised only by the General Assembly or by its authority in particular cases expressly provided for by it.”).
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See id. § 7-15-320. These voters are not exempt or excused from voting in-person, but rather they can be qualified to vote by absentee ballot, if they would rather vote that way than in person.
Like many policy choices, absentee voting has benefits and drawbacks. On one side of the proverbial ledger, it makes voting easier for certain individuals who might find going to their polling place challenging. See McDonald, 394 U.S. at 807 (noting that absentee-voting rules “are designed to make voting more available to some groups who cannot easily get to the polls”). On the other side, it heightens the risk of voting fraud.3 See Griffin, 385 F.3d at 1130–31 (collecting sources on voting fraud and absentee voting). To balance these competing interests, South Carolina has determined to give some voters—but not all—the right to qualify to vote by absentee ballot.
The Plaintiffs implicitly admit that not all voters qualify under state law to vote by absentee ballot, claiming that the Defendants rejected an interpretation of state law to allow everyone to qualify. See Mem., ECF No. 7-1 at 33–34. They have rejected the Plaintiffs’ interpretation for good reason: it is not a plausible one because it does not comport with the plain meaning of the statutory definition of “physically disabled persons.”
3 Though they do not raise election integrity here, the Plaintiffs do so in the context of the Witness Requirement, and they challenge voter fraud as a legitimate basis for the State’s interest. Presumably, they would take the same view here. In any event, there is conflicting scholarship on this subject, and it is for legislatures, not courts, to weigh that evidence and enact appropriate legislation.
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i. The Plaintiffs’ interpretation is inconsistent with the language of the statute.
The starting point for interpreting what a “physically disabled person” under section 7-15-310(4) must be the General Assembly’s intent. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (calling this intent the “cardinal rule of statutory construction”). And to determine legislative intent, this Court looks first to the words that the General Assembly used. Smith v. Tiffany, 419 S.C. 548, 555, 799 S.E.2d 479, 483 (2017) (“It is axiomatic that statutory interpretation begins (and often ends) with the text of the statute in question.”). Those words must be read in context such that all parts of the statute are given effect and work harmoniously together. CFRE, LLC v. Greenville Cty. Assessor, 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011).
The Election Law defines a “physically disabled person” as someone “who, because of injury or illness, cannot be present in person at his voting place on election day.” S.C. Code § 7-15-310(4). The Plaintiffs are correct that COVID-19 is an illness. See Mem., ECF No. 7-1 at 34.
But it does not follow that every South Carolina voter is statutorily defined as “physically disabled” because COVID-19 is an illness. For one, that conclusion belies the common use of the words in section 7-15-310(4). See Olds v. City of Goose Creek, 424 S.C. 240, 249, 818 S.E.2d 5, 10 (2018) (“In construing a statute, its words must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute’s operation.”). A simple example shows how. If someone says, “I am not going because of the flu,” the listener would understand that that person has the flu. In other words, he is sick. On the other
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hand, to convey that this person did not want to go somewhere because of fear of the flu, that person would say, “I am not going because I don’t want to catch the flu.”
For another, their argument wrongly reads “because of . . . illness” in isolation. See Senate by & through Leatherman v. McMaster, 425 S.C. 315, 322, 821 S.E.2d 908, 912 (2018) (“We . . . should not concentrate on isolated phrases within the statute.”). In addition to a “physically disabled person” being qualified to vote by absentee ballot, a voter “attending sick or physically disabled persons” may also vote by absentee ballot. S.C. Code § 7-15-320(B)(4). These are two distinct qualifications for being able to vote absentee. The only way to harmonize these provisions and to give meaning to both is to interpret a “physically disabled person” as a person with an illness and to interpret a person “attending” the physically disabled person as someone giving care to a person with an illness. After all a person with only the fear of contracting an illness does not need a caregiver. Plus, if the Plaintiffs’ view of “physically disabled” were correct, the sick person’s illness would already qualify the care giver to vote by absentee ballot, so section 7-15320(B)(4) would be superfluous. See Senate by & through Leatherman, 425 S.C. at 322, 821 S.E.2d at 912 (“we must read the statute so that no word, clause, sentence, provision or part shall be rendered surplusage, or superfluous” (internal quotation mark omitted)).
To be sure, section 7-15-310(4) must “be liberally construed in order to effectuate” its purpose. S.C. Code § 7-15-20. That is why, for example, the SEC has never strictly read “cannot” in section 7-15-310(4) to require a voter to be literally unable to appear in person to qualify as “physically disabled.” Nevertheless,
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liberally construing the statute is not a license to ignore the words themselves or the context in which they appear. See Gregory v. S.C. Democratic Exec. Comm., 247 S.E.2d 439, 444 (S.C. 1978) (although “our absentee voting statutes should be given a liberal construction, we cannot extend statutes to accommodate errors if such interpretation would be contrary to clear mandatory language by the Legislature”). The words here require a voter to have an illness to qualify to vote by absentee ballot, not simply have the fear of contracting an illness.
ii. The Plaintiffs’ interpretation does not align with the history of the statute.
If the language of the statutes leaves any doubt, the history of these provisions removes it. See In re Hosp. Pricing Litig., King v. AnMed Health, 377 S.C. 48, 54, 659 S.E.2d 131, 134 (2008) (“The history of the period in which the statute was passed may be considered in interpreting the statute.”).
The General Assembly established in 1972 the right to vote by absentee ballot if a voter was “physically unable to present himself” at the polls. 1972 S.C. Acts No. 1574, § 2 (“Any qualified elector who will be physically unable to present himself at his precinct on election day shall be permitted to vote by absentee ballot.”). When five Richland County voters sought to use this provision to vote by absentee ballot when they would be out of town on election day, the Attorney General sought a declaration from this Court on whether this statute “extends the right of absentee voting only to those qualified electors who are unable to present themselves at their voting precinct by reason of illness, injury or other physical infirmity.” State ex rel. McLeod v. Ellisor, 259 S.C. 364, 368, 192 S.E.2d 188, 188–89 (1972) (per curiam).
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In examining the language of Act 1574, this Court recognized that the “ordinary signification of the words ‘physically unable’ is bodily incapacity or physical infirmity.” Id. at 368–69, 192 S.E.2d at 189. The Court looked to the dictionary for definitions for “unable” and “physically” and concluded that “[t]o interpret these words to mean something other than inability by reason of illness, injury or other bodily infirmity is to place a strained and unnatural construction on them in violation of the South Carolina rule that the words are to be taken in their ordinary and literal meaning.” Id. at 369, 192 S.E.2d at 189. The Court bolstered its conclusion by comparing the language of Act 1574 with other provisions on absentee voting, as interpreting Act 1574 to mean any voter who was absent on election day regardless of illness or injury would implicitly repeal the other absentee provisions s (something, of course, the law disfavors). See id. at 369–70, 192 S.E.2d at 189–90.
Less than three years later, the General Assembly amended the provisions for absentee voting. In Act 301 of 1975, the General Assembly defined a “physically disabled person” as “a person who, because of injury or illness, cannot be present in person at his voting place on Election Day.” 1975 S.C. Acts No. 301, § 1 (codified at S.C. Code § 23-441(4) (1962)). The General Assembly allowed these physically disabled people to vote by absentee ballot, whether or not they would be absent from their county of residence on election day. Id. (codified at S.C. Code § 23-442(5) (1962)). This provisions have not substantively changed since 1975. See 2015 S.C. Acts No. 79, § 4; 2014 S.C. Acts No. 289, § 6;4 2000 S.C. Acts No. 392, § 10; 1997 S.C.
4 This act restructured the subsections of 7-15-320 and moved “physically disabled persons” to its current location in section 7-15-320(B)(1).
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Acts No. 25, § 1; 1996 S.C. Acts No. 434, § 19; 1994 S.C. Acts No. 365, § 3; 1989 S.C. Acts No. 193, § 2; 1984 S.C. Acts No. 266, § 7; 1982 S.C. Acts No. 280, § 1.5
When Act 301 is considered in light of Ellisor, it is apparent that the General Assembly was codifying the South Carolina Supreme Court’s holding. See State v. McKnight, 352 S.C. 635, 648, 576 S.E.2d 168, 175 (2003) (“There is a presumption that the legislature has knowledge of previous legislation as well as judicial decisions construing that legislation when later statutes are enacted on related subjects.”). The General Assembly used the same words (“injury” and “illness”) to define “physically disabled person” that the South Carolina Supreme Court used in analyzing Act 1574. And the General Assembly gave the same people (those unable to vote in person because of injury or illness) the right to vote by absentee ballot that had it under the Court’s interpretation of Act 1574.
D. The Plaintiffs are not likely to succeed on the Witness Requirement. 1. The Plaintiffs again have overstated any burden.
The Plaintiffs portray the Witness Requirement as a grave threat to their health. Having to have their absentee ballots witnessed, they insist, gives them an “impossible choice[]” of voting or their health. Mem., ECF No. 7-1 at 39.
Before getting to any specifics, a general observation about the witness requirement is necessary: Anyone can be a witness for an absentee ballot—the statute imposes no limitations. See S.C. Code §§ 7-15-220; 7-15-380(A). Thus, South Carolina’s witness requirement is far less burdensome than other witness
5 This act moved these provisions to their current code sections of 7-15-310 and 7-15-320.
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requirements, such as Oklahoma’s, which requires an absentee ballot be notarized and was just struck down by that state’s supreme court. See Okla. Stat. tit. 26, § 14108(A); League of Women Voters v. Ziriax, --- P.3d ---, 2020 WL 2111348 (Okla. May 4, 2020).
In fact, South Carolina’s requirement is less stringent than it used to be. As originally enacted, South Carolina (like Oklahoma) required the oath of a voter casting an absentee ballot had to be notarized. See 1953 S.C. Acts No. 48 (codified at S.C. Code 23-449.5 (1962)). The General Assembly has removed the notarization requirement.
Given the broad availability of potential witnesses for a South Carolina absentee ballot, the Plaintiffs have overstated the burden of getting a witness to sign their absentee ballots. For example, Mary Thomas says she has “cut off all unnecessary in-person contact with others.” Decl. of Mary T. Thomas ¶ 6, ECF No. 7-18 (emphasis added). She has some in-person contact (none of whom she claims is ineligible to be a witness), and that person could witness her absentee ballot when seeing Thomas for another reason.
Similarly, Rutledge lives with his wife. See Decl. of Jeremy Rutledge ¶ 8, ECF No. 7-20. His wife can witness his ballot. And although Dr. Williams has (or had) COVID-19, making it “dangerous” to interact with her husband, Mem., ECF No. 7-1 at 38, her husband could use his own pen and watch from a different room to witness her ballot. As for Walker, the Plaintiffs point to no law prohibiting an eleven year old from being a witness, and the SEC has never issued any guidance saying he could not be. See Decl. of Trena M. Walker ¶ 2, ECF No. 7-21.
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As with the Qualification Requirement, some of the evidence the Plaintiffs offer on the Witness Requirement is inadmissible. For example, Dr. Williams, for instance claims that she would have witnessed “many” absentee ballots for voters “who have no one else to” witness their ballots, but she offers nothing to corroborate that any of these nameless people have no other witness options, nothing about who told her this, or why no one else from the Family Unit can perform these duties. See Decl. of Brenda C. Williams, M.D. ¶ 8; Fed. R. Evid. 602; Fed. R. Evid. 802.
More generally, a neighbor, friend, or delivery driver (if a voter is perfectly self-quarantining, someone still has to be delivering food) could witness an absentee ballot through a door. This requirement has existed since the 1950s and in its current form since the 1980s, see 1982 S.C. Acts No. 280, § 1; 1953 S.C. Acts No. 48, and it is clearly marked on absentee ballots, see Decl. of Marci Andino ¶ 7. Even if having an absentee ballot witnessed takes a little more effort because of COVID-19 (which will be the case for only a limited number of voters), the witness requirement can still be satisfied with reasonable efforts. See AnMed Health v. S.C. Dep’t of Employment & Workforce, 404 S.C. 224, 229, 743 S.E.2d 854, 857 (Ct. App. 2013) (“What is ‘reasonable’ will vary according to the circumstances of each case . . . .”); see also Burdick, 504 U.S. at 441 (upholding “reasonable” burdens). Ultimately, the Witness Requirement “is a generally applicable, nondiscriminatory voting regulation, and [Supreme Court] precedents refute the view that individual impacts are relevant to determining the severity of the burden it imposes.” Crawford, 553 U.S. at 205 (Scalia, J., concurring).
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The Plaintiffs try to bolster their burden argument with statistics of how the Witness Requirement impacts African-Americans differently than other groups. See Mem., ECF No. 7-1 at 37–39. They cite, however, no case law holding that such statistics are relevant to the analysis of the severity of a burden. Indeed, Crawford—a case also dealt with “a neutral, nondiscriminatory regulation of voting procedure”—rejects this idea. Crawford, 553 U.S. at 203 (controlling opinion).
2. The State again has a compelling interest. “A State indisputably has a compelling interest in preserving the integrity of its election process. Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (citation omitted). The Witness Requirement furthers this goal. It provides “assurance of the authenticity of the absentee vote.” Gregory, 247 S.E.2d at 444. Not so, say the Plaintiffs. They insist that the witness requirement provides, at best, minimal benefits in protecting the integrity of an election. Overseas voters, they point out, do not have a witness requirement, and Congress removed the federal requirement.6 See Mem., ECF No. 7-1 at 40–41.
6 On the elimination of this requirement by Congress, the Plaintiffs point only to a committee report to explain congressional thinking. Courts have said time and again such reports shed little light on the thinking of members, who are, after all, elected by the people and have the authority to pass legislation. See, e.g., Digital Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 783 n.* (2018) (Thomas, J., concurring in part and concurring in the judgment) (quoting an exchange on the Senate floor observing that staff, not members, drafted a committee report).
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These arguments wrongly ask the Court to evaluate legislative decisions. Of course, “[i]t is not the function of a court to determine whether the public policy that finds expression in legislation . . . is ill or well conceived.” Williams v. Mayor & City Council of Baltimore, 289 U.S. 36, 42 (1933).
Eleven states in addition to South Carolina also require a witness signature. See National Conf. of State Legislatures, Verification of Absentee Ballots, https://www.ncsl.org/research/elections-and-campaigns/verification-of-absenteeballots.aspx (last visited May 4, 2020). The legislatures of these states have made a policy determination that a witness signature helps protect the integrity of an election. That is a reasonable conclusion, particularly given the requirement of witness signatures on other legal documents. See, e.g., S.C. Code §§ 30-7-20 (liens on real property); 47-9-370 (branding of livestock).
Look at how South Carolina’s witness signature requirement works. A voter casting an absentee ballot must swear that she is qualified to vote in the election, has not double voted, and received no improper assistance. See S.C. Code § 7-15380(A). That signature must be witnessed by someone who signs the returnaddressed envelope and puts his address. See id.
This witness requirement serves multiple purposes. In the first place, it can deter fraud. Even if someone intent on committing fraud might be willing to forge the witness signature requirement, the requirement may deter others. In the second, in the case of a challenged ballot, it allows election officials to investigate whether the ballot is valid by contacting the witness. (The Plaintiffs’ insinuation
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that a witness cannot be identified because he does not have to print his name is therefore false.)
None of the cases the Plaintiffs cite helps their cause because none involves a witness requirement on an absentee ballot. In Libertarian Party of Virginia v. Judd, 718 F.3d 308 (4th Cir. 2013), the court addressed the witness requirement for a candidate’s petition to get on the ballot, and the witness under that statute had to be the candidate or a Virginia resident—restrictions that do not apply to South Carolina’s absentee ballots. The Ohio statute in Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612 (6th Cir. 2016), concerned absentee ballots and identifying voters, not protecting the integrity of an election, as Ohio did not raise that as a defense at trial.7 And One Wisconsin Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896 (W.D. Wis. 2016), dealt with the length of time in which in-person early voting was allowed.
3. The Witness Requirement is valid under the Voting Rights Act.
The Plaintiffs’ last attack on the Witness Requirement is based on the Voting Rights Act. See Mem., ECF No. 7-1 at 42–44. Under federal law, no citizen may be denied the right to vote “because of his failure to comply with any test or device,” including being required to “prove his qualifications by the voucher of registered voters or members of any other class.” 52 U.S.C. §§ 10501(a), (b)(4).
7 Given that Ohio did not raise this defense at trial, see 837 F.3d at 633 (discussing what evidence was offered at trial) it is unclear why the Sixth Circuit made voter fraud the central focus of the State’s interest. Even on appeal, the State did not focus on voter fraud as its interest. See Br. of Husted and State of Ohio 28– 33, Northeast Ohio Coalition for the Homeless v. Husted, No. 16-3603 (6th Cir. July 1, 2016).
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Before getting to any analysis, it is worth noting what is missing from the Plaintiffs’ argument: any case holding that a witness requirement violates this statute. Thus, the Plaintiffs ask this Court to break new legal ground.
In so asking, the Plaintiffs ignore the plain language of § 10501. A “test or device” includes a requirement that a voter “prove his qualifications by the voucher of registered voters or members of any other class.” 52 U.S.C. § 10501(b)(4). South Carolina law does not require that the witness be another registered voter or the member of any particular class. See S.C. Code § 7-15-380. Therefore, it is not an illegal “test or device.”
Moreover, the Plaintiffs’ reading of § 10501 would undermine election integrity or force states to abandon absentee voting (or at least restrict it significantly). Absentee voting raises particular challenges that in-person voting does not. To address these challenges, states have adopted various generally applicable provisions to avoid potential fraud in absentee voting. Protecting against that fraud is valid state interest. And it is one that has nothing to do with the purpose of § 10501, which was to prevent states from using things like literacy tests, good moral character tests, or vouchers from other votes to disenfranchise voters. See Ely v. Klahr, 403 U.S. 108, 118 & n.2 (1971) (discussing the ban on “tests and devices”); cf. Ne. Ohio Coal. for the Homeless, 837 F.3d at 629 (“The addressand-birth-date requirements simply do not fall within the meaning of ‘test or device,’ as used in the statute.”).
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II. The Plaintiffs do not face an irreparable harm without an injunction. The Plaintiffs’ argument on irreparable harm is simple: Without an
injunction, because of COVID-19, their right to be vote will be lost. See Mem., ECF No. 7-1 at 44–45. Not so, for at least three reasons.
First, the Plaintiffs can vote. With the steps the Election Defendants are taking and by following guidance from the CDC and DHEC about social distancing and hand washing, people can safely vote in person. Framing the choice as either voting or death misstates the situation (particularly in light the “home or work” order being lifted).
Second, the Plaintiffs do not face any severe burden under the absenteevoting rules. Thomas, Rutledge, Williams, Richard, and Walker are all qualified to vote by absentee ballot. Getting a signature on those absentee ballots is not as challenging as they portray it.
Third, the Plaintiffs claim, without any evidentiary support, members of the Family Unit will suffer without an injunction. See Decl. of Brenda C. Williams, M.D. ¶¶ 3–4, ECF No. 7-22. These unsupported assertions carry little weight, especially in light of the overstatements of the burdens that the individual Plaintiffs face. As for the Family Unit as an entity, that it has to divert resources now to COVID-19 is no reason to issue an injunction. See Decl. of Brenda C. Williams, M.D. ¶ 5, ECF No. 7-22. Many other organizations have also diverted resources because of COVID-19. III. The equities and the public interest counsel against an injunction.
Taking these factors together as the Plaintiffs did, at least four considerations counsel against an injunction.
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The first is practical. The Plaintiffs can exercise their right to vote. As explained already, see supra Parts I.C.1. and I.D.1, the Plaintiffs have overstated any burden that exists.
The second is logistical. Absentee voting is underway. Voters have already obtained absentee ballots that require a witness signature. Decl. of Marci Andino ¶ 4. Absentee ballots have already been returned to the County Boards. Id. Changing the rules in the middle of the election threatens to confuse voters. As the Supreme Court has cautioned, courts must be wary of changes to procedures “just weeks before an election.” Purcell, 549 U.S. at 4. Those changes, “especially conflicting orders” (which is possible here because there is a case in the South Carolina Supreme Court about section 7-15-310 and another case in federal court), can “result in voter confusion and consequent incentive to remain away from the polls.” Id. at 4–5.
The third is precedential. Plaintiffs should be encouraged to act diligently n bringing claims. Laches is one way the law promotes that diligence. Here, Governor McMaster declared the first state of emergency in mid-March, yet the Complaint was not filed until April 22, and then the motion for the preliminary injunction, with its forty-page memorandum and twenty-two additional ECF attachments, was not filed until April 28. Under South Carolina Election Law, voters can request an absentee ballot any time in the calendar year of an election. See S.C. Code § 7-15330. Put another way, the Plaintiffs took more than a month after the public-health emergency was declared to claim the injunction was necessary, and then demanded that the Defendants respond in less than a week and the Court rule as quickly as
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possible—hardly a reasonable position. When timing is so tight, plaintiffs should be expected to act more quickly in asserting their claims. Failing to do so, as these Plaintiffs have, puts courts and election agencies and officials in an untenable position. That is why courts have refused to grant relief when plaintiffs delay, even in election cases. See, e.g., Simkins v. Gressette, 631 F.2d 287, 296 (4th Cir. 1980) (holding that the plaintiffs’ delay in bringing a suit until the eve of an election as a sufficient basis to deny their claims); Smith v. S.C. Election Comm’n, 874 F. Supp. 2d 483, 498 (D.S.C. 2012) (three-judge court) (holding that a delay of forty days in filing a complaint was sufficient for laches to apply). This is particularly true when, as here, statutes have been in effect for decades before they are challenged.
The fourth is constitutional. The role of courts in our constitutional republic is to interpret the law. See Marbury v. Madison, 5 U.S. 137, 177 (1803). It is not to rewrite the law. See Puerto Rico v. Franklin California Tax-Free Tr., 136 S. Ct. 1938, 1949 (2016). The language of the Qualification Requirement and Witness Requirement is plain, and the Court is bound to apply those provisions as the General Assembly adopted them. See id. at 1946 (“The plain text of the [statute] begins and ends our analysis.”); Hodges, 341 S.C. at 85, 533 S.E.2d at 581 (calling legislative intent the “cardinal rule of statutory construction” and the words of the statute as the best evidence of that intent); see also S.C. Const. art. II, § 10 (giving the General Assembly the responsibility to “provide for the administration of elections and for absentee voting”). As a three-judge panel once said in a challenge to election law, “[t]he public has an interest in ensuring that the State’s general election is conducted pursuant to state law.” Smith v. S.C. State Election Comm’n,
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901 F. Supp. 2d 639, 649 (D.S.C. 2012) (three-judge court). At its essence, the Plaintiffs’ request is for the Court to rewrite the South Carolina Election Law because of the seriousness of COVID-19. To do so would violate the Constitution and fall into the trap of which Justice Holmes warned in Northern Securities Co. v. United States: “Great cases, like hard cases, make bad law” because legal principles give way to the urgency of the moment. 193 U.S. 197, 364 (1904) (Holmes, J., dissenting).
Nothing the Plaintiffs say on this point overcomes these considerations. For one, much of their argument here assumes they are right on the merits. See Mem., ECF No. 7-1 at 45–46. As discussed already, they are not. For another they point to the public interest in protecting public health. See Mem., ECF No. 7-1 at 46. But that argument is based on the Governor’s “home or work” order, which has been lifted, and the CDC social distancing guidance, which the Election Defendants are working diligently to implement on Election Day. And for a third, the Plaintiffs say that absentee voting is protected in other ways. But they do not mention that the other lawsuit pending in this Court regarding the 2020 elections seeks to undo multiple of these protections for absentee voting on which the Plaintiffs rely here. See Compl., Middleton v. Andino, No. 3:20-cv-1730-JMC (D.S.C. May 1, 2020), ECF No. 1.
Conclusion The motion for a preliminary injunction should be denied.
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Respectfully Submitted,
s/ Wm. Grayson Lambert M. Elizabeth Crum Fed. ID No. 372 Wm. Grayson Lambert Fed. ID No. 11761 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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The United States District Court District of South Carolina Columbia Division No. 3:20-cv-01552-JMC Mary T. Thomas, et al. v. Marci Andino, et al.
EXHIBIT 1
EXECUTIVE ORDER 2020-31

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EXECUTIVE ORDER NO.

2020-31

WHEREAS, the State of South Carolina has taken, and must continue to take, all necessary and appropriate actions in confronting the evolving public health threat presented by the 2019 Novel Coronavirus (“COVID-19”), while also simultaneously addressing and mitigating the significant economic and other impacts and burdens on individuals, families, and businesses and facilitating economic recovery and revitalization in a safe, strategic, and incremental manner; and

WHEREAS, in proactively preparing for and promptly responding to the threat posed by COVID-19, the undersigned issued Executive Order No. 2020-08 on March 13, 2020, declaring a State of Emergency based on a determination that COVID-19 represented an imminent public health emergency for the State of South Carolina; and

WHEREAS, in addition to declaring an initial State of Emergency on March 13, 2020, the undersigned has issued various Executive Orders initiating and directing further extraordinary measures to address the significant public health, economic, and other impacts associated with COVID-19, certain provisions of which have been extended by subsequent and distinct emergency declarations set forth in Executive Order Nos. 2020-15, 2020-23, and 2020-29; and

WHEREAS, on March 16, 2020, based on updated information and recommendations from the Centers for Disease Control and Prevention (“CDC”), the President of the United States and the White House Coronavirus Task Force issued new guidance—titled, “The President’s Coronavirus Guidelines for America: 15 Days to Slow the Spread of Coronavirus (COVID-19)”— to help protect Americans during the global COVID-19 outbreak; and

WHEREAS, the President’s Coronavirus Guidelines for America recommend, inter alia, that the American people “[w]ork or engage in schooling from home whenever possible”; “[a]void social gatherings in groups of more than 10 people”; “[a]void eating or drinking at bars, restaurants, and food courts—use drive-thru, pickup, or delivery options”; and “[a]void discretionary travel, shopping trips, and social visits”; and

WHEREAS, on March 17, 2020, based on updated information and recommendations from the CDC, the President of the United States, and the White House Coronavirus Task Force,

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-1 Page 3 of 7
Executive Order No. 2020-31 Page 2 May 3, 2020
the undersigned issued Executive Order No. 2020-10, directing additional emergency measures in response to the threat posed by COVID-19, to include temporarily prohibiting restaurants from providing certain food services for on-premises consumption and prohibiting events at government facilities that would convene fifty (50) or more people in a single room, area, or other confined indoor or outdoor space; and
WHEREAS, on March 21, 2020, the undersigned issued Executive Order No. 2020-12, initiating additional actions to provide regulatory relief to facilitate effective “social distancing” practices and to mitigate the significant economic impacts associated with COVID-19 on individuals and businesses throughout the State, particularly restaurants and other food-service establishments; and
WHEREAS, on March 29, 2020, the President of the United States extended and expanded the provisions of his Coronavirus Guidelines for America until April 30, 2020, based on the ongoing nature and evolving scope of the global COVID-19 pandemic; and
WHEREAS, on April 6, 2020, the undersigned issued Executive Order No. 2020-21, directing, inter alia, that effective Tuesday, April 7, 2020, at 5:00 p.m., any and all residents and visitors of the State of South Carolina are required to limit social interaction, practice “social distancing” in accordance with CDC guidance, and take every possible precaution to avoid potential exposure to, and to slow the spread of, COVID-19, and shall limit their movements outside of their Residence, except for purposes of engaging in Essential Business, Essential Activities, or Critical Infrastructure Operations, as such terms are further defined therein; and
WHEREAS, on April 16, 2020, the President of the United States issued new Guidelines on Opening Up America Again, which contemplate individual States reopening in phases using a deliberate, data-driven approach tailored to address the situation in each State; and
WHEREAS, on April 20, 2020, based on the latest data from the South Carolina Department of Health and Environmental Control (“DHEC”), the undersigned issued Executive Order No. 2020-28, amending, inter alia, certain provisions of Executive Order Nos. 2020-18 and 2020-21, as extended by Executive Order No. 2020-23, to initiate specific modifications to prior “non-essential” business closures so as to begin the process of safely, strategically, and incrementally reopening businesses and facilitating economic recovery and revitalization; and
WHEREAS, on April 27, 2020, the undersigned issued Executive Order No. 2020-29, declaring an additional, distinct State of Emergency—based on recent developments, new facts, changing conditions, and the previously unforeseen occurrence of a combination of extraordinary circumstances, to include the continued spread of COVID-19 and the significant economic consequences for individuals and businesses in this State—and implementing additional extraordinary measures to address the same, while also extending provisions of certain of the aforementioned and other Orders for the duration of the State of Emergency, unless otherwise modified, amended, or rescinded; and
WHEREAS, the COVID-19 pandemic represents an evolving public health threat, which requires that the State of South Carolina continue to take all necessary and appropriate actions in proactively preparing for and promptly responding to the ongoing emergency, while also

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-1 Page 4 of 7
Executive Order No. 2020-31 Page 3 May 3, 2020
attempting to mitigate the significant economic and other impacts and burdens on individuals, families, and businesses and providing appropriate flexibility and relief to facilitate the same; and
WHEREAS, section 1-3-430 of the South Carolina Code of Laws, as amended, provides that when a state of emergency has been declared, the undersigned “may further, cope with such threats and danger, order and direct any person or group of persons to do any act which would in his opinion prevent or minimize danger to life, limb or property, or prevent a breach of the peace; and he may order any person or group of persons to refrain from doing any act or thing which would, in his opinion, endanger life, limb or property, or cause, or tend to cause, a breach of the peace, or endanger the peace and good order of the State or any section or community thereof, and he shall have full power by use of all appropriate available means to enforce such order or proclamation”; and
WHEREAS, in accordance with section 25-1-440 of the South Carolina Code of Laws, as amended, when an emergency has been declared, the undersigned is “responsible for the safety, security, and welfare of the State and is empowered with [certain] additional authority to adequately discharge this responsibility,” to include issuing, amending, and rescinding “emergency proclamations and regulations,” which shall “have the force and effect of law as long as the emergency exists”; and
WHEREAS, the undersigned is further authorized, pursuant to section 25-1-440 of the South Carolina Code of Laws, to “direct and compel evacuation of all or part of the populace from any stricken or threatened area if this action is considered necessary for the preservation of life or other emergency mitigation, response, or recovery; to prescribe routes, modes of transportation, and destination in connection with evacuation; and to control ingress and egress at an emergency area, the movement of persons within the area, and the occupancy of premises therein”; and
WHEREAS, in accordance with section 16-7-10(A) of the South Carolina Code of Laws, as amended, “[i]n any area designated by the Governor in his proclamation that a state of emergency exists, and during the duration of the proclamation, it is unlawful for a person to: violate a provision in the proclamation including, but not limited to, any curfew set forth by the proclamation; congregate, unless authorized or in their homes, in groups of three or more and to refuse to disperse upon order of a law enforcement officer; or wilfully fail or refuse to comply with any lawful order or direction of any law enforcement officer”; and
WHEREAS, it is axiomatic that “[t]he health, welfare, and safety of the lives and property of the people are beyond question matters of public concern, and reasonable regulations and laws designed to preserve and protect the same are clearly contained in the police power inherent in the sovereign,” 1980 S.C. Op. Att’y Gen. 142 (Sept. 5, 1980); and
WHEREAS, the State of South Carolina must remain flexible to account for the evolving nature and scope of the public health emergency posed by COVID-19, while also simultaneously continuing the process of safely, strategically, and incrementally reopening businesses and facilitating economic recovery and revitalization; and
WHEREAS, for the aforementioned and other reasons, and based on the latest data from DHEC and the CDC, the undersigned has determined that it is necessary and appropriate to revisit

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-1 Page 5 of 7
Executive Order No. 2020-31 Page 4 May 3, 2020
and modify the terms and provisions of Executive Order Nos. 2020-10 and 2020-21, as extended by Executive Order No. 2020-29, as part of the ongoing process of facilitating economic recovery and revitalization in a safe, strategic, and incremental manner, while also further encouraging effective “social distancing” practices and implementing additional proactive measures to provide for and ensure the health, safety, security, and welfare of the people of this State.
NOW, THEREFORE, by virtue of the authority vested in me as Governor of the State of South Carolina and pursuant to the Constitution and Laws of this State and the powers conferred upon me therein, I hereby order and direct as follows:
Section 1. Modification of Home or Work Order
A. I hereby modify and amend the provisions of Section 1(B) of Executive Order No. 2020-21, as extended by Section 1(H) of Executive Order No. 2020-29—which required any and all residents and visitors of the State of South Carolina to limit social interaction, practice “social distancing” in accordance with CDC guidance, and take every possible precaution to avoid potential exposure to, and to slow the spread of, COVID-19, and further required individuals to limit their movements outside of their Residence, except for purposes of engaging in Essential Business, Essential Activities, or Critical Infrastructure Operations, as such terms are further defined therein—by deleting Section 1(B) in its entirety and substituting the following language, effective Monday, May 4, 2020, at 12:01 a.m.:
B. I hereby urge any and all residents and visitors of the State of South Carolina to limit social interaction, practice “social distancing” in accordance with CDC guidance, and take every possible precaution to avoid potential exposure to, and to slow the spread of, COVID-19, and further encourage residents and visitors of the State of South Carolina to limit their movements outside of their home, place of residence, or current place of abode (collectively, “Residence”), except as specified by this Order, for purposes of engaging in Essential Business, Essential Activities, or Critical Infrastructure Operations, as set forth below and as such terms are further defined herein.
All remaining provisions of Executive Order No. 2020-21, as amended by Executive Order No. 2020-28 and extended by Executive Order No. 20202-29, shall remain in effect for the duration of the State of Emergency unless and until otherwise modified, amended, or rescinded by subsequent Order.
B. Except as expressly provided herein, this Section shall not be construed to modify, amend, or otherwise alter the provisions of any prior or future Orders issued by the undersigned in connection with the State of Emergency and does not repeal, by implication or otherwise, the terms and provisions of, inter alia, Executive Order No. 2020-18, as amended by Executive Order No. 2020-28 and extended by Executive Order No. 2020-29. The aforementioned Orders shall remain in effect for the duration of the State of Emergency unless and until otherwise modified, amended, or rescinded by subsequent Order.
C. Notwithstanding the foregoing, individuals are still subject to the provisions of prior and future Orders issued by the undersigned in connection with the State of Emergency, to

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-1 Page 6 of 7
Executive Order No. 2020-31 Page 5 May 3, 2020
include Executive Order No. 2020-13, as extended by Executive Order No. 2020-29, which expressly authorizes any and all law enforcement officers of the State, or any political subdivision thereof, to prohibit or disperse any congregation or gathering of people, unless authorized or in their homes, in groups of three (3) or more people, if any such congregation or gathering is deemed to pose, or could pose, a threat to public health.
Section 2. Authorization of Outdoor Dining Services
A. I hereby modify and amend the provisions of Section 4 of Executive Order No. 2020-10, as extended by Section 1(H) of Executive Order No. 2020-29—which directed Restaurants, as defined therein, to suspend services for, and not to permit, on-premises or dine-in consumption—so as to authorize Restaurants to provide outdoor customer dining services, effective Monday, May 4, 2020, at 12:01 a.m., in addition to previously authorized services for off-premises consumption.
B. Restaurants that elect to provide outdoor customer dining services, as authorized herein, should consider and incorporate industry guidelines regarding outdoor seating, such as those prepared and published by the South Carolina Restaurant and Lodging Association, in addition to undertaking and implementing all reasonable steps to comply with any applicable sanitation guidelines promulgated by the CDC, DHEC, or any other state or federal public health officials:
C. I hereby authorize DHEC to provide or issue any necessary and appropriate additional or supplemental guidance, rules, regulations, or restrictions regarding the application of this Section or to otherwise provide clarification regarding the same, through appropriate means, without the need for further Orders.
D. Except as expressly provided herein, this Section shall not be construed to modify, amend, or otherwise alter the provisions of any prior or future Orders issued by the undersigned in connection with the State of Emergency and does not repeal, by implication or otherwise, the terms and provisions of, inter alia, Executive Order No. 2020-12, as extended by Executive Order No. 2020-29, or the remaining terms and provisions of Executive Order No. 2020-10, as extended by Executive Order No. 2020-29. The aforementioned Orders shall remain in effect for the duration of the State of Emergency unless and until otherwise modified, amended, or rescinded by subsequent Order.
Section 3. General Provisions
A. This Order is not intended to create, and does not create, any individual right, privilege, or benefit, whether substantive or procedural, enforceable at law or in equity by any party against the State of South Carolina, its agencies, departments, political subdivisions, or other entities, or any officers, employees, or agents thereof, or any other person.
B. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this Order is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this Order, as the undersigned would have issued this Order, and each and every section, subsection, paragraph, subparagraph,

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-1 Page 7 of 7
Executive Order No. 2020-31 Page 6 May 3, 2020
sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
C. If or to the extent that any political subdivision of this State seeks to adopt or enforce a local ordinance, rule, regulation, or other restriction that conflicts with this Order, this Order shall supersede and preempt any such local ordinance, rule, regulation, or other restriction.
D. This Order is effective immediately. Further proclamations, orders, and directives deemed necessary to ensure the fullest possible protection of life and property during this State of Emergency shall be issued orally by the undersigned and thereafter reduced to writing and published for dissemination within the succeeding 24-hour period.
GIVEN UNDER MY HAND AND THE GREAT SEAL OF THE STATE OF SOUTH CAROLINA, THIS 3rd DAY OF MAY, 2020.
HENRY MCMASTER Governor

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-2 Page 1 of 7
The United States District Court District of South Carolina Columbia Division No. 3:20-cv-01552-JMC Mary T. Thomas, et al. v. Marci Andino, et al.
EXHIBIT 2
DECLARATION OF MARCI ANDINO

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3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-3 Page 1 of 2
The United States District Court District of South Carolina Columbia Division No. 3:20-cv-01552-JMC Mary T. Thomas, et al. v. Marci Andino, et al.
DECLARATION OF MARCI ANDINO EXHIBIT A

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3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 1 of 19
The United States District Court District of South Carolina Columbia Division No. 3:20-cv-01552-JMC Mary T. Thomas, et al. v. Marci Andino, et al.
DECLARATION OF MARCI ANDINO EXHIBIT B

RP0012
Race ALL

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 2 of 19
Absentee Statistics By Request / Ballot Issued Method By Race 06/09/2020 21113 Statewide Primary

County
01-ABBEVILLE 02-AIKEN 03-ALLENDALE 04-ANDERSON 05-BAMBERG 06-BARNWELL 07-BEAUFORT 08-BERKELEY 09-CALHOUN 10-CHARLESTON 11-CHEROKEE 12-CHESTER 13-CHESTERFIELD 14-CLARENDON 15-COLLETON 16-DARLINGTON 17-DILLON 18-DORCHESTER 19-EDGEFIELD 20-FAIRFIELD 21-FLORENCE 22-GEORGETOWN 23-GREENVILLE 24-GREENWOOD 25-HAMPTON 26-HORRY 27-JASPER 28-KERSHAW 29-LANCASTER 30-LAURENS 31-LEE 32-LEXINGTON 33-MCCORMICK 34-MARION 35-MARLBORO 36-NEWBERRY 37-OCONEE 38-ORANGEBURG 39-PICKENS 40-RICHLAND

Total
123 1,861
34 1,449
379 338 4,755 4,582 108 15,196 157 222 114 816 861 1,125 906 2,959 396 445 1,744 1,974 5,003 797 476 5,370 811 567 1,567 463
70 3,432
176 1,582 1,189
303 1,701 2,506
948 8,129

Mail
3 336
0 2 154 8 23 110 1 1,535 2 1 1 193 10 7 5 50 19 1 36 352 119 5 6 207 70 2 89 11 2 94 0 9 355 7 25 1,310 9 425

Applications Requested

Phone In Person

Email

Fax

UOCAVA

55

10

6

0

0

358

75

56

2

33

26

1

0

0

0

443

30

81

10

36

88

73

9

0

0

210

59

9

0

2

1,020

233

218

15

88

1,616

191

113

1

78

43

14

5

1

1

3,262

44

708

1

325

55

17

19

0

1

141

30

3

0

4

44

14

6

0

4

303

182

8

0

2

497

156

33

0

3

704

147

28

2

1

481

395

0

0

1

751

72

159

0

43

223

33

18

0

2

235

103

8

0

1

558

430

79

1

0

626

145

12

0

16

833

123

191

0

110

400

111

50

0

16

180

233

12

0

1

2,017

155

26

0

52

249

53

21

0

8

197

33

42

0

22

986

138

52

0

22

214

78

10

0

0

29

4

3

0

7

978

208

99

0

102

37

24

15

0

0

1,332

185

3

0

2

415

243

11

144

0

102

26

11

2

7

768

78

166

0

29

735

175

22

4

23

260

15

12

0

23

2,535

378

196

4

230

Internet
49 1,001
7 847
55 49 3,158 2,473 43 9,321 63 43 45 128 162 236 24 1,884 101 97 640 820 3,627 213 44 2,913 410 271 280 150 25 1,951 100 51 21 148 635 237 629 4,361

Other Carrier
0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Total
9 495
0 391 229 172
70 1,642
48 7,342
79 30 60 102 435 681 656 895 248 206 798 691 942 457 370 1,150 447 236 779 230 29 604 21 153 242 25 758 1,451 32 3,249

Ballots Issued

Online In Person

By Mail By eMail

0

1

0

8

0

8

482

5

0

0

0

0

0

0

358

33

0

60

169

0

0

29

135

8

0

28

29

13

0

57

1,582

3

0

1

45

2

0

43

7,017

282

0

12

64

3

0

15

11

4

0

11

47

2

0

99

0

3

0

119

314

2

0

110

559

12

0

110

545

0

0

53

839

3

0

7

234

7

0

64

141

1

0

316

448

34

0

91

598

0

0

58

789

95

0

7

436

14

0

20

349

1

0

101

1,028

21

0

20

426

1

0

6

205

24

0

122

634

23

0

59

162

8

0

2

21

6

0

97

477

30

0

17

0

4

0

145

1

7

0

234

7

0

0

17

4

4

0

50

673

35

0

83

1,350

18

0

0

8

24

0

79

2,986

183

By Fax Unknown

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

2

0

0

0

0

0

0

1

0

0

1

0

0

0

0

0

1

0

0

0

0

0

1

05/11/2020

Page 1 Of 18

RP0012

41-SALUDA 42-SPARTANBURG 43-SUMTER 44-UNION 45-WILLIAMSBURG 46-YORK

94 2,224 2,277
71 570 3,763

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 3 of 19

Absentee Statistics By Request / Ballot Issued Method By Race

06/09/2020 21113 Statewide Primary

1

14

6

13

0

3

57

0

49

0

6

40

3

0

93

781

24

141

0

26

1,024

135

485

0

24

435

26

0

707

639

379

67

13

40

419

13 1,233

0

46

1,142

45

0

1

21

10

7

0

9

23

0

29

0

6

16

7

0

3

282

118

8

1

0

158

0

275

0

113

151

11

0

47

1,115

152

291

3

78

2,077

0 1,822

0

32

1,790

0

0

Total

84,633

6,446

26,858

5,403

3,047

204

1,451

41,070

154 30,347

0

2,578

26,747

1,015

0

7

05/11/2020

Page 2 Of 18

RP0012
Race Black/AA

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 4 of 19
Absentee Statistics By Request / Ballot Issued Method By Race 06/09/2020 21113 Statewide Primary

County
01-ABBEVILLE 02-AIKEN 03-ALLENDALE 04-ANDERSON 05-BAMBERG 06-BARNWELL 07-BEAUFORT 08-BERKELEY 09-CALHOUN 10-CHARLESTON 11-CHEROKEE 12-CHESTER 13-CHESTERFIELD 14-CLARENDON 15-COLLETON 16-DARLINGTON 17-DILLON 18-DORCHESTER 19-EDGEFIELD 20-FAIRFIELD 21-FLORENCE 22-GEORGETOWN 23-GREENVILLE 24-GREENWOOD 25-HAMPTON 26-HORRY 27-JASPER 28-KERSHAW 29-LANCASTER 30-LAURENS 31-LEE 32-LEXINGTON 33-MCCORMICK 34-MARION 35-MARLBORO 36-NEWBERRY 37-OCONEE 38-ORANGEBURG 39-PICKENS 40-RICHLAND

Total
18 192
29 112 266 221 576 834
52 2,535
23 126
29 619 377 736 694 535 181 225 602 451 639 160 349 347 268 149 226 169
38 284
32 1,265
789 26 52
2,184 30
3,550

Mail
0 3 0 0 137 5 3 5 1 657 0 1 1 187 5 2 5 34 9 1 26 134 0 2 5 5 67 2 81 5 2 3 0 8 277 0 2 1,284 0 173

Applications Requested

Phone In Person

Email

Fax

UOCAVA

11

3

3

60

22

0

25

1

0

48

3

2

49

50

2

164

35

3

247

139

4

412

74

4

26

9

2

959

25

53

10

3

1

86

22

2

11

5

0

204

164

0

257

91

2

533

70

2

349

333

0

164

28

6

132

18

1

114

66

0

187

185

14

184

60

0

290

42

3

78

46

0

127

198

4

213

21

0

125

36

2

70

14

0

109

18

4

105

27

4

17

3

3

86

20

0

16

9

1

1,093

145

1

306

184

3

8

2

0

25

4

8

590

164

9

5

0

0

1,506

276

44

0

0

0

4

0

0

2

1

0

0

0

1

5

12

0

17

0

1

0

31

0

0

0

3

0

1

0

2

0

1

1

0

0

0

0

6

0

1

0

0

0

0

0

2

0

8

0

5

0

1

0

3

0

5

0

4

0

3

0

0

0

3

0

14

0

0

0

1

8

0

2

0

0

2

4

14

0

1

2

62

Internet
1 103
3 56 28 13 166 322 13 810
9 12 11 62 21 128
7 297
20 44 190 68 296 29 14 105 33 59 11 28 10 161
6 17 11 14 11 119 24 1,487

Other Carrier
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Total
1 80
0 54 185 119
4 256
22 1,471
16 16 11 88 220 489 546 154 128 101 283 206 194 114 295 146 120 73 144 94 16
5 6 111 180 1 18 1,382 1 1,474

Ballots Issued Online In Person By Mail By eMail

0

0

0

1

0

0

80

0

0

0

0

0

0

0

53

1

0

43

142

0

0

7

107

5

0

1

2

1

0

7

249

0

0

1

19

2

0

24

1,421

26

0

2

13

1

0

10

4

2

0

3

8

0

0

86

0

2

0

66

153

1

0

40

447

2

0

82

463

0

0

16

138

0

0

3

121

4

0

36

65

0

0

119

154

10

0

42

164

0

0

17

171

6

0

0

109

5

0

12

282

1

0

11

132

3

0

13

107

0

0

3

62

7

0

12

130

2

0

22

69

2

0

1

11

4

0

3

2

0

0

6

0

0

0

108

0

3

0

175

5

0

0

1

0

0

0

2

12

4

0

78

1,294

10

0

0

0

1

0

52

1,366

55

By Fax Unknown

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

1

0

0

1

0

0

0

0

0

0

0

0

0

0

1

05/11/2020

Page 3 Of 18

RP0012

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 5 of 19

Absentee Statistics By Request / Ballot Issued Method By Race

06/09/2020 21113 Statewide Primary

41-SALUDA

16

0

3

1

1

0

0

11

0

11

0

1

10

0

0

42-SPARTANBURG

489

55

280

11

2

0

1

88

52

131

0

11

119

1

0

43-SUMTER

1,721

620

482

318

15

8

13

252

13 1,018

0

29

973

16

0

44-UNION

17

0

6

3

0

0

2

6

0

9

0

3

3

3

0

45-WILLIAMSBURG

506

3

253

108

4

1

0

137

0

244

0

102

135

7

0

46-YORK

460

3

184

26

16

0

5

226

0

222

0

1

221

0

0

Total

23,199

3,813

10,209

3,082

225

33

230

5,539

68 10,459

0

1,251

9,016

188

0

4

05/11/2020

Page 4 Of 18

RP0012
Race White

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 6 of 19
Absentee Statistics By Request / Ballot Issued Method By Race 06/09/2020 21113 Statewide Primary

County
01-ABBEVILLE 02-AIKEN 03-ALLENDALE 04-ANDERSON 05-BAMBERG 06-BARNWELL 07-BEAUFORT 08-BERKELEY 09-CALHOUN 10-CHARLESTON 11-CHEROKEE 12-CHESTER 13-CHESTERFIELD 14-CLARENDON 15-COLLETON 16-DARLINGTON 17-DILLON 18-DORCHESTER 19-EDGEFIELD 20-FAIRFIELD 21-FLORENCE 22-GEORGETOWN 23-GREENVILLE 24-GREENWOOD 25-HAMPTON 26-HORRY 27-JASPER 28-KERSHAW 29-LANCASTER 30-LAURENS 31-LEE 32-LEXINGTON 33-MCCORMICK 34-MARION 35-MARLBORO 36-NEWBERRY 37-OCONEE 38-ORANGEBURG 39-PICKENS 40-RICHLAND

Total
104 1,636
5 1,304
113 115 4,098 3,620
54 12,394
131 95 83
195 478 382 201 2,352 212 219 1,105 1,510 4,196 630 124 4,930 536 409 1,321 287
31 3,049
142 305 354 270 1,639 309 895 4,339

Mail
3 330
0 1 17 3 20 97 0 867 2 0 0 6 5 5 0 16 10 0 8 217 119 3 1 196 3 0 8 6 0 90 0 1 62 7 23 24 9 249

Applications Requested

Phone In Person

Email

Fax

UOCAVA

44

7

3

0

0

293

53

55

2

24

1

0

0

0

0

392

23

79

8

32

39

23

7

0

0

45

24

6

0

1

758

93

212

10

68

1,190

113

106

1

51

16

5

3

1

0

2,279

19

644

1

272

44

14

18

0

1

54

8

1

0

1

33

9

6

0

3

97

18

8

0

0

239

65

31

0

1

167

77

26

1

1

125

58

0

0

1

579

43

147

0

34

90

15

17

0

1

121

36

8

0

1

364

241

61

1

0

442

85

12

0

12

537

79

186

0

95

321

64

50

0

11

53

33

8

0

0

1,781

133

26

0

43

124

16

18

0

3

122

19

42

0

17

863

119

47

0

17

106

50

6

0

0

12

1

0

0

3

886

184

96

0

75

21

15

14

0

0

233

38

1

0

1

100

53

8

121

0

94

22

11

0

4

743

74

155

0

25

142

11

13

0

4

253

15

11

0

19

995

95

145

2

124

Internet
47 879
4 769
27 35 2,937 2,062 29 8,312 52 31 32 66 137 105 17 1,533 79 53 430 742 3,180 179 29 2,751 372 209 267 119 15 1,718 92 31 10 132 619 115 588 2,729

Other Carrier
0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Total
8 406
0 327
44 52 65 1,349 25 5,770 62 14 48 14 213 191 102 728 120 105 504 485 730 341 72 979 323 155 628 134 12 587 15 38 55 20 734 61 27 1,674

Ballots Issued Online In Person By Mail By eMail

0

1

0

7

0

8

394

4

0

0

0

0

0

0

297

30

0

17

27

0

0

22

27

3

0

27

26

12

0

49

1,297

3

0

0

25

0

0

19

5,511

240

0

10

50

2

0

5

7

2

0

8

38

2

0

13

0

1

0

53

160

0

0

70

111

10

0

26

76

0

0

36

689

3

0

4

113

3

0

28

76

1

0

195

290

19

0

49

434

0

0

41

604

85

0

7

325

9

0

8

64

0

0

89

874

16

0

6

316

1

0

3

136

16

0

109

500

19

0

36

92

6

0

1

9

2

0

92

466

29

0

11

0

4

0

34

1

3

0

52

2

0

0

15

3

2

0

48

658

28

0

5

52

4

0

0

7

20

0

27

1,547

100

By Fax Unknown

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

05/11/2020

Page 5 Of 18

RP0012

41-SALUDA 42-SPARTANBURG 43-SUMTER 44-UNION 45-WILLIAMSBURG 46-YORK

77 1,677
533 54 64
3,171

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 7 of 19

Absentee Statistics By Request / Ballot Issued Method By Race

06/09/2020 21113 Statewide Primary

1

11

5

12

0

2

46

0

37

0

5

30

2

0

37

496

13

137

0

22

892

80

345

0

13

310

22

0

81

152

61

52

5

23

159

0

203

0

17

161

25

0

1

15

7

7

0

7

17

0

20

0

3

13

4

0

0

29

10

4

0

0

21

0

31

0

11

16

4

0

42

918

123

272

3

66

1,747

0 1,549

0

30

1,519

0

0

Total

59,748

2,570

16,419

2,269

2,771

156

1,065

34,415

83 19,402

0

1,303

17,353

743

0

3

05/11/2020

Page 6 Of 18

RP0012
Race Asian

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 8 of 19
Absentee Statistics By Request / Ballot Issued Method By Race 06/09/2020 21113 Statewide Primary

County
01-ABBEVILLE 02-AIKEN 03-ALLENDALE 04-ANDERSON 05-BAMBERG 06-BARNWELL 07-BEAUFORT 08-BERKELEY 09-CALHOUN 10-CHARLESTON 11-CHEROKEE 12-CHESTER 13-CHESTERFIELD 14-CLARENDON 15-COLLETON 16-DARLINGTON 17-DILLON 18-DORCHESTER 19-EDGEFIELD 20-FAIRFIELD 21-FLORENCE 22-GEORGETOWN 23-GREENVILLE 24-GREENWOOD 25-HAMPTON 26-HORRY 27-JASPER 28-KERSHAW 29-LANCASTER 30-LAURENS 31-LEE 32-LEXINGTON 33-MCCORMICK 34-MARION 35-MARLBORO 36-NEWBERRY 37-OCONEE 38-ORANGEBURG 39-PICKENS 40-RICHLAND

Total
0 9 0 14 0 0 15 38 0 90 0 1 1 0 2 2 1 24 1 0 9 2 61 3 0 27 3 2 8 1 0 31 1 2 3 0 2 1 12 70

Mail
0 1 0 0 0 0 0 2 0 7 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 1 0 0 0 0 1

Applications Requested

Phone In Person

Email

Fax

UOCAVA

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

1

2

0

0

1

0

0

0

0

0

0

0

0

0

0

4

0

0

0

1

3

1

2

0

1

0

0

0

0

0

11

0

1

0

3

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

1

0

0

0

0

8

1

0

0

1

1

0

0

0

0

0

0

0

0

0

2

0

3

0

0

0

0

0

0

0

0

0

1

0

1

1

0

0

0

0

0

0

0

0

0

8

0

0

0

1

0

0

1

0

0

1

0

0

0

0

7

0

0

0

0

1

0

0

0

0

0

0

0

0

0

3

0

1

0

2

0

0

0

0

0

0

0

0

0

0

1

1

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

1

2

0

0

0

0

10

3

3

0

5

Internet
0 7 0 10 0 0 10 29 0 68 0 0 1 0 2 1 0 14 0 0 4 2 59 2 0 17 2 1 1 0 0 25 1 2 0 0 1 0 10 48

Other Carrier
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Total
0 2 0 3 0 0 0 11 0 38 0 0 0 0 0 0 1 6 0 0 6 0 3 1 0 6 2 1 2 0 0 4 0 0 1 0 1 1 1 25

Ballots Issued Online In Person By Mail

0

0

0

0

0

2

0

0

0

0

0

2

0

0

0

0

0

0

0

0

0

0

1

10

0

0

0

0

0

36

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

1

5

0

0

0

0

0

0

0

0

3

0

0

0

0

0

2

0

0

1

0

0

0

0

0

6

0

0

2

0

0

1

0

0

2

0

0

0

0

0

0

0

0

4

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

21

By eMail
0 0 0 1 0 0 0 0 0 2 0 0 0 0 0 0 0 0 0 0 3 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 4

By Fax
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

05/11/2020

Page 7 Of 18

RP0012

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 9 of 19

Absentee Statistics By Request / Ballot Issued Method By Race

06/09/2020 21113 Statewide Primary

41-SALUDA

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

42-SPARTANBURG

24

0

0

0

2

0

1

19

2

5

0

0

4

1

0

43-SUMTER

8

2

3

0

0

0

0

3

0

4

0

0

4

0

0

44-UNION

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

45-WILLIAMSBURG

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

46-YORK

51

0

3

0

0

0

3

45

0

17

0

0

17

0

0

Total

519

15

73

8

14

0

23

384

2

141

0

3

123

15

0

05/11/2020

Page 8 Of 18

RP0012
Race Hispanic

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 10 of 19
Absentee Statistics By Request / Ballot Issued Method By Race 06/09/2020 21113 Statewide Primary

County
01-ABBEVILLE 02-AIKEN 03-ALLENDALE 04-ANDERSON 05-BAMBERG 06-BARNWELL 07-BEAUFORT 08-BERKELEY 09-CALHOUN 10-CHARLESTON 11-CHEROKEE 12-CHESTER 13-CHESTERFIELD 14-CLARENDON 15-COLLETON 16-DARLINGTON 17-DILLON 18-DORCHESTER 19-EDGEFIELD 20-FAIRFIELD 21-FLORENCE 22-GEORGETOWN 23-GREENVILLE 24-GREENWOOD 25-HAMPTON 26-HORRY 27-JASPER 28-KERSHAW 29-LANCASTER 30-LAURENS 31-LEE 32-LEXINGTON 33-MCCORMICK 34-MARION 35-MARLBORO 36-NEWBERRY 37-OCONEE 38-ORANGEBURG 39-PICKENS 40-RICHLAND

Total
1 10
0 6 0 1 27 36 1 71 2 0 0 0 2 1 1 25 1 0 16 5 54 1 0 28 2 3 5 2 0 33 1 6 1 2 2 2 4 66

Mail
0 2 0 0 0 0 0 1 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 1

Applications Requested

Phone In Person

Email

Fax

UOCAVA

0

0

0

0

0

2

0

0

0

1

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

3

0

1

0

2

3

1

0

0

2

0

0

0

0

0

2

0

5

0

6

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

1

0

0

0

0

1

0

0

0

0

0

0

5

0

0

0

0

0

0

0

0

0

0

0

0

3

1

0

0

0

0

0

0

0

0

4

0

1

0

1

0

0

0

0

0

0

0

0

0

0

4

1

0

0

1

0

0

0

0

0

1

0

0

0

0

2

0

1

0

1

0

0

0

0

0

0

0

0

0

0

2

2

1

0

2

0

0

0

0

0

4

2

0

0

0

1

0

0

0

0

0

1

0

0

0

0

0

1

0

0

1

0

0

0

0

0

0

1

0

1

8

0

3

0

10

Internet
1 5 0 5 0 1 21 29 1 57 1 0 0 0 1 0 0 20 1 0 12 5 48 1 0 21 2 2 1 2 0 26 1 0 0 1 1 1 2 44

Other Carrier
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Total
0 3 0 1 0 0 0 4 0 17 1 0 0 0 1 1 1 3 0 0 2 0 8 0 0 8 0 3 1 0 0 5 0 3 0 1 1 2 1 22

Ballots Issued Online In Person By Mail

0

0

0

0

0

3

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

4

0

0

0

0

0

11

0

0

1

0

0

0

0

0

0

0

0

0

0

0

1

0

0

1

0

0

1

0

0

3

0

0

0

0

0

0

0

1

1

0

0

0

0

0

7

0

0

0

0

0

0

0

1

7

0

0

0

0

0

3

0

0

0

0

0

0

0

0

0

0

2

3

0

0

0

0

3

0

0

0

0

0

1

0

0

0

1

0

0

2

0

0

0

0

0

16

By eMail
0 0 0 0 0 0 0 0 0 6 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 1 6

By Fax
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

05/11/2020

Page 9 Of 18

RP0012

41-SALUDA

0

42-SPARTANBURG

15

43-SUMTER

4

44-UNION

0

45-WILLIAMSBURG

0

46-YORK

39

Total

476

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 11 of 19

Absentee Statistics By Request / Ballot Issued Method By Race

06/09/2020 21113 Statewide Primary

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

0

0

0

1

11

1

2

0

0

1

1

0

0

0

0

0

0

0

4

0

1

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

2

2

1

0

1

32

0

17

0

1

16

0

0

7

49

10

20

0

29

360

1

109

0

9

84

16

0

05/11/2020

Page 10 Of 18

RP0012
Race Native American

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 12 of 19
Absentee Statistics By Request / Ballot Issued Method By Race 06/09/2020 21113 Statewide Primary

County
01-ABBEVILLE 02-AIKEN 03-ALLENDALE 04-ANDERSON 05-BAMBERG 06-BARNWELL 07-BEAUFORT 08-BERKELEY 09-CALHOUN 10-CHARLESTON 11-CHEROKEE 12-CHESTER 13-CHESTERFIELD 14-CLARENDON 15-COLLETON 16-DARLINGTON 17-DILLON 18-DORCHESTER 19-EDGEFIELD 20-FAIRFIELD 21-FLORENCE 22-GEORGETOWN 23-GREENVILLE 24-GREENWOOD 25-HAMPTON 26-HORRY 27-JASPER 28-KERSHAW 29-LANCASTER 30-LAURENS 31-LEE 32-LEXINGTON 33-MCCORMICK 34-MARION 35-MARLBORO 36-NEWBERRY 37-OCONEE 38-ORANGEBURG 39-PICKENS 40-RICHLAND

Total
0 1 0 4 0 1 3 12 0 8 0 0 0 2 0 1 8 3 0 0 3 1 4 1 1 10 0 2 1 2 0 6 0 1 34 1 0 2 1 8

Mail
0 0 0 1 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 2 0 0 0 0 0 1 0 0 9 0 0 0 0 0

Applications Requested

Phone In Person

Email

Fax

UOCAVA

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

1

2

1

0

0

0

0

0

0

0

0

3

0

2

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

0

0

0

0

0

0

0

0

0

1

0

0

0

0

5

3

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

1

1

0

0

0

0

0

0

0

0

1

0

0

0

1

0

1

0

0

0

0

1

0

0

0

4

0

0

0

0

0

0

0

0

0

2

0

0

0

0

1

0

0

0

0

1

1

0

0

0

0

0

0

0

0

1

1

0

0

0

0

0

0

0

0

0

0

1

0

0

5

5

0

15

0

0

1

0

0

0

0

0

0

0

0

2

0

0

0

0

0

0

0

0

0

2

1

0

0

0

Internet
0 1 0 3 0 0 2 8 0 3 0 0 0 0 0 0 0 2 0 0 1 0 2 0 0 4 0 0 0 0 0 3 0 0 0 0 0 0 1 5

Other Carrier
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Total
0 0 0 1 0 1 1 3 0 1 0 0 0 0 0 0 5 1 0 0 0 0 1 1 1 3 0 2 0 1 0 0 0 1 4 0 0 0 0 4

Ballots Issued Online In Person By Mail

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

1

0

0

1

0

0

3

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

3

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

1

0

0

1

0

0

3

0

0

0

0

0

2

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

4

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

4

By eMail
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0

By Fax
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

05/11/2020

Page 11 Of 18

RP0012

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 13 of 19

Absentee Statistics By Request / Ballot Issued Method By Race

06/09/2020 21113 Statewide Primary

41-SALUDA

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

42-SPARTANBURG

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

43-SUMTER

2

1

0

0

0

0

0

1

0

1

0

0

1

0

0

44-UNION

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

45-WILLIAMSBURG

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

46-YORK

10

0

2

1

0

0

0

7

0

3

0

0

3

0

0

Total

133

16

36

17

4

15

2

43

0

35

0

7

27

1

0

05/11/2020

Page 12 Of 18

RP0012
Race Multiple

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 14 of 19
Absentee Statistics By Request / Ballot Issued Method By Race 06/09/2020 21113 Statewide Primary

County
01-ABBEVILLE 02-AIKEN 03-ALLENDALE 04-ANDERSON 05-BAMBERG 06-BARNWELL 07-BEAUFORT 08-BERKELEY 09-CALHOUN 10-CHARLESTON 11-CHEROKEE 12-CHESTER 13-CHESTERFIELD 14-CLARENDON 15-COLLETON 16-DARLINGTON 17-DILLON 18-DORCHESTER 19-EDGEFIELD 20-FAIRFIELD 21-FLORENCE 22-GEORGETOWN 23-GREENVILLE 24-GREENWOOD 25-HAMPTON 26-HORRY 27-JASPER 28-KERSHAW 29-LANCASTER 30-LAURENS 31-LEE 32-LEXINGTON 33-MCCORMICK 34-MARION 35-MARLBORO 36-NEWBERRY 37-OCONEE 38-ORANGEBURG 39-PICKENS 40-RICHLAND

Total
0 5 0 3 0 0 6 9 0 24 1 0 0 0 0 2 0 4 1 0 5 2 22 1 0 12 0 0 3 0 0 11 0 2 5 0 1 1 4 19

Mail
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 5 0 0 0 0 0

Applications Requested

Phone In Person

Email

Fax

UOCAVA

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

2

1

0

0

1

0

0

0

0

0

1

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

2

1

0

0

0

0

0

0

0

1

1

0

0

0

0

0

0

0

0

0

0

0

0

0

3

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

2

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

1

0

0

0

0

0

1

0

0

0

3

Internet
0 5 0 2 0 0 5 5 0 22 1 0 0 0 0 1 0 4 1 0 1 2 20 1 0 8 0 0 0 0 0 8 0 1 0 0 0 0 4 15

Other Carrier
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Total
0 1 0 1 0 0 0 3 0 12 0 0 0 0 0 0 0 0 0 0 3 0 2 0 0 3 0 0 2 0 0 0 0 0 2 0 0 1 0 5

Ballots Issued Online In Person By Mail

0

0

0

0

0

1

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

3

0

0

0

0

0

12

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

2

0

0

0

0

0

0

0

0

2

0

0

0

0

0

0

0

1

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

By eMail
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 1 0 3

By Fax
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

05/11/2020

Page 13 Of 18

RP0012

41-SALUDA

0

42-SPARTANBURG

4

43-SUMTER

1

44-UNION

0

45-WILLIAMSBURG

0

46-YORK

11

Total

159

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 15 of 19

Absentee Statistics By Request / Ballot Issued Method By Race

06/09/2020 21113 Statewide Primary

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

4

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

1

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

0

1

0

0

8

0

3

0

0

3

0

0

7

16

7

4

0

7

118

0

39

0

4

28

7

0

05/11/2020

Page 14 Of 18

RP0012
Race Other

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 16 of 19
Absentee Statistics By Request / Ballot Issued Method By Race 06/09/2020 21113 Statewide Primary

County
01-ABBEVILLE 02-AIKEN 03-ALLENDALE 04-ANDERSON 05-BAMBERG 06-BARNWELL 07-BEAUFORT 08-BERKELEY 09-CALHOUN 10-CHARLESTON 11-CHEROKEE 12-CHESTER 13-CHESTERFIELD 14-CLARENDON 15-COLLETON 16-DARLINGTON 17-DILLON 18-DORCHESTER 19-EDGEFIELD 20-FAIRFIELD 21-FLORENCE 22-GEORGETOWN 23-GREENVILLE 24-GREENWOOD 25-HAMPTON 26-HORRY 27-JASPER 28-KERSHAW 29-LANCASTER 30-LAURENS 31-LEE 32-LEXINGTON 33-MCCORMICK 34-MARION 35-MARLBORO 36-NEWBERRY 37-OCONEE 38-ORANGEBURG 39-PICKENS 40-RICHLAND

Total
0 4 0 4 0 0 24 24 1 50 0 0 1 0 1 1 1 11 0 1 2 1 18 1 1 10 1 1 2 2 0 12 0 1 2 1 3 4 0 48

Mail
0 0 0 0 0 0 0 3 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 1 0 0 1 0 1

Applications Requested

Phone In Person

Email

Fax

UOCAVA

0

0

0

0

0

2

0

0

0

1

0

0

0

0

0

1

0

0

0

1

0

0

0

0

0

0

0

0

0

0

6

1

1

0

1

4

0

0

0

2

1

0

0

0

0

6

0

0

0

3

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

1

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

1

0

0

0

0

0

0

0

0

0

0

3

0

0

0

0

0

1

0

0

0

1

0

0

0

0

2

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

1

0

2

0

0

0

0

0

1

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

1

0

0

0

0

0

14

3

1

0

5

Internet
0 1 0 2 0 0 15 15 0 39 0 0 1 0 1 1 0 10 0 0 2 1 16 1 1 6 0 0 0 1 0 9 0 0 0 1 2 2 0 24

Other Carrier
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Total
0 2 0 2 0 0 0 10 1 20 0 0 1 0 0 0 1 2 0 0 0 0 1 0 1 1 1 1 1 1 0 2 0 0 0 0 2 2 0 24

Ballots Issued Online In Person By Mail

0

0

0

0

0

1

0

0

0

0

0

2

0

0

0

0

0

0

0

0

0

0

0

10

0

0

1

0

0

17

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

1

0

0

2

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

1

0

0

1

0

1

0

0

0

1

0

0

1

0

0

1

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

0

0

1

0

0

0

0

0

19

By eMail
0 1 0 0 0 0 0 0 0 3 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 1 0 5

By Fax
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

05/11/2020

Page 15 Of 18

RP0012

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 17 of 19

Absentee Statistics By Request / Ballot Issued Method By Race

06/09/2020 21113 Statewide Primary

41-SALUDA

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

42-SPARTANBURG

11

1

1

0

0

0

0

9

0

0

0

0

0

0

0

43-SUMTER

5

1

2

0

0

0

2

0

0

2

0

0

0

2

0

44-UNION

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

45-WILLIAMSBURG

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

46-YORK

15

1

3

0

1

0

1

9

0

7

0

0

7

0

0

Total

264

12

49

8

5

0

21

169

0

85

0

1

71

13

0

05/11/2020

Page 16 Of 18

RP0012
Race Unknown

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 18 of 19
Absentee Statistics By Request / Ballot Issued Method By Race 06/09/2020 21113 Statewide Primary

County
01-ABBEVILLE 02-AIKEN 03-ALLENDALE 04-ANDERSON 05-BAMBERG 06-BARNWELL 07-BEAUFORT 08-BERKELEY 09-CALHOUN 10-CHARLESTON 11-CHEROKEE 12-CHESTER 13-CHESTERFIELD 14-CLARENDON 15-COLLETON 16-DARLINGTON 17-DILLON 18-DORCHESTER 19-EDGEFIELD 20-FAIRFIELD 21-FLORENCE 22-GEORGETOWN 23-GREENVILLE 24-GREENWOOD 25-HAMPTON 26-HORRY 27-JASPER 28-KERSHAW 29-LANCASTER 30-LAURENS 31-LEE 32-LEXINGTON 33-MCCORMICK 34-MARION 35-MARLBORO 36-NEWBERRY 37-OCONEE 38-ORANGEBURG 39-PICKENS 40-RICHLAND

Total
0 4 0 2 0 0 6 9 0 24 0 0 0 0 1 0 0 5 0 0 2 2 9 0 1 6 1 1 1 0 1 6 0 0 1 3 2 3 2 31

Mail
0 0 0 0 0 0 0 1 0 1 0 0 0 0 0 0 0 0 0 0 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0

Applications Requested

Phone In Person

Email

Fax

UOCAVA

0

0

0

0

0

1

0

1

0

2

0

0

0

0

0

0

1

0

0

1

0

0

0

0

0

0

0

0

0

0

1

0

0

0

3

0

0

1

0

4

0

0

0

0

0

1

0

2

0

10

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

2

0

0

0

0

3

0

0

0

0

0

0

1

0

0

0

1

0

0

0

4

0

0

0

0

0

0

0

0

0

1

0

0

0

0

1

0

0

0

0

0

0

0

0

0

1

0

0

0

0

5

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

3

0

0

0

0

1

0

0

0

0

2

0

0

0

0

2

1

0

0

0

21

Internet
0 0 0 0 0 0 2 3 0 10 0 0 0 0 0 0 0 4 0 0 0 0 6 0 0 1 1 0 0 0 0 1 0 0 0 0 1 0 0 9

Other Carrier
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

Total
0 1 0 2 0 0 0 6 0 13 0 0 0 0 1 0 0 1 0 0 0 0 3 0 1 4 1 1 1 0 1 1 0 0 0 3 2 2 2 21

Ballots Issued Online In Person By Mail

0

0

0

0

0

1

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

6

0

0

0

0

0

8

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

1

0

0

3

0

0

1

0

0

0

0

0

0

0

0

0

0

0

1

0

0

1

0

0

0

0

0

0

0

0

0

0

0

1

0

0

0

0

0

1

0

0

1

0

0

11

By eMail
0 0 0 1 0 0 0 0 0 5 0 0 0 0 1 0 0 0 0 0 0 0 2 0 0 1 0 1 1 0 0 0 0 0 0 2 2 1 1 10

By Fax
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

05/11/2020

Page 17 Of 18

RP0012
41-SALUDA 42-SPARTANBURG 43-SUMTER 44-UNION 45-WILLIAMSBURG 46-YORK

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-4 Page 19 of 19

Absentee Statistics By Request / Ballot Issued Method By Race

06/09/2020 21113 Statewide Primary

1

0

0

0

0

0

1

0

0

1

0

0

0

1

0

4

0

2

0

0

0

1

1

0

2

0

0

1

1

0

3

1

0

0

0

0

2

0

0

3

0

0

1

2

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

0

6

0

1

0

0

0

2

3

0

4

0

0

4

0

0

Total

137

6

9

2

4

0

74

42

0

77

0

0

45

32

0

05/11/2020

Page 18 Of 18

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-5 Page 1 of 2
The United States District Court District of South Carolina Columbia Division No. 3:20-cv-01552-JMC Mary T. Thomas, et al. v. Marci Andino, et al.
DECLARATION OF MARCI ANDINO EXHIBIT C

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-5 Page 2 of 2

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-6 Page 1 of 3
The United States District Court District of South Carolina Columbia Division No. 3:20-cv-01552-JMC Mary T. Thomas, et al. v. Marci Andino, et al.
DECLARATION OF MARCI ANDINO EXHIBIT D

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-6 Page 2 of 3

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-6 Page 3 of 3

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-7 Page 1 of 3
The United States District Court District of South Carolina Columbia Division No. 3:20-cv-01552-JMC Mary T. Thomas, et al. v. Marci Andino, et al.
DECLARATION OF MARCI ANDINO EXHIBIT E

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-7 Page 2 of 3

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-7 Page 3 of 3

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-8 Page 1 of 2
The United States District Court District of South Carolina Columbia Division No. 3:20-cv-01552-JMC Mary T. Thomas, et al. v. Marci Andino, et al.
DECLARATION OF MARCI ANDINO EXHIBIT F

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 46-8 Page 2 of 2

 
 3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 47 Page 1 of 14

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

MARY THOMAS, et al.,
Plaintiffs, v.
MARCI ANDINO, et al.,
Defendants.

Civil Action No. 3:20-cv-1552 (JMC)

STATEMENT OF INTEREST OF THE UNITED STATES CONCERNING SECTION 201 OF THE VOTING RIGHTS ACT
The United States respectfully submits this Statement of Interest pursuant to 28 U.S.C. § 517, which authorizes the Attorney General “to attend to the interests of the United States in a suit pending in a court of the United States.” This case presents important questions regarding Section 201 of the Voting Rights Act, 52 U.S.C. § 10501 (“Section 201”). Congress has accorded the Attorney General broad authority to enforce the Voting Rights Act on behalf of the United States. See 52 U.S.C. § 10504. Accordingly, the United States has a substantial interest in ensuring the proper interpretation and uniform enforcement of Section 201. The United States submits this Statement of Interest for the limited purpose of addressing Plaintiffs’ Section 201 claim.
Plaintiffs’ constitutional claims in their preliminary injunction papers are premised on the factual circumstances related to the COVID-19 pandemic. By contrast, Plaintiffs’ claim under Section 201 is not moored to these same circumstances. Rather, Plaintiffs essentially argue that South Carolina’s long-standing absentee witness requirement has been void ab initio on the supposed grounds that it constitutes a “test or device” prohibited by Section 201. Hence,

3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 47 Page 2 of 14
Plaintiffs argue that this requirement must be enjoined permanently, with no possibility of remediation or cure. Plaintiffs’ claim appears to implicate absentee witness requirements on the books in at least ten other states.
Plaintiffs’ Section 201 claim cannot form the basis for preliminary injunctive relief for two independent reasons. Initially, this Court as constituted cannot address Plaintiffs’ Section 201 claim, which the Voting Rights Act provides may only be heard by a three-judge court. And even if this Court as constituted were able to consider the merits of Plaintiffs’ Section 201 claim (and it cannot), Plaintiffs’ Section 201 claim fails as a matter of law. The United States does not express a view on any other claim in this case.
PROCEDURAL BACKGROUND South Carolina requires all absentee voters to swear or affirm that they are duly qualified to vote, that they have not voted before returning the ballot, that the ballot is theirs, and that they have not received unlawful assistance in voting. S.C. Code Ann. §§ 7-15-220, -380. A copy of the oath must be signed by the absentee ballot applicant, witnessed, and returned with the ballot. See id. §§ 7-15-220 to -230, -380 to -385; see also id. §§ 7-15-220(B), -380(B) (“Qualified voters under the Uniformed and Overseas Citizens Absentee Voters Act are exempt from witness requirements.”). The witness must also sign and provide an address. See id. §§ 7-15-220, -380. The ballot may not be counted unless the oath is properly signed and witnessed. Id. § 7-15-420; see also id. § 7-15-230. On April 15, Plaintiffs sued South Carolina officials alleging, among other claims, that the witness requirement to the State’s absentee voter oath violates Section 201. Compl. ¶¶ 4-6, 122-128 (ECF No. 1). Among other relief, Plaintiffs seek a declaration that the witness requirement violates Section 201 and an injunction prohibiting enforcement. Compl. ¶¶ B, C-2.
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On April 28, Plaintiffs moved for a preliminary injunction. Mot. for Prelim. Inj. (ECF No. 7). As relevant here, Plaintiffs argue that the witness requirement violates Section 201 because, in their view, it requires an absentee voter to “prove his qualifications by the voucher of registered voters or members of any other class” within the meaning of the Voting Rights Act. Pls.’ Br. 35-37 (ECF No. 7-1) (quoting 52 U.S.C. § 10501(b)(4)).
STATUTORY BACKGROUND Section 201 of the Voting Rights Act, 52 U.S.C. § 10501 (formerly codified at 42 U.S.C. § 1973aa), establishes that “[n]o 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.” 52 U.S.C. § 10501(a). The term “test or device” encompasses 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. Id. § 10501(b) (emphasis added). Section 14(c)(1) of the Voting Rights Act defines the terms “vote” and “voting” to include “all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, . . . casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast.” Id. § 10310(c)(1). An action to enforce Section 201 “shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall be to the Supreme Court.” Id. § 10504. Section 201’s nationwide ban on tests and devices is an extension of the earlier ban limited to jurisdictions subject to preclearance and other special provisions of the Voting Rights Act. As originally enacted, the Voting Rights Act applied special provisions to jurisdictions that
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had maintained a “test or device” on November 1, 1964, and had either less than fifty percent voter registration on that date or less than fifty percent turnout in the 1964 presidential election. Voting Rights Act of 1965, Pub. L. No. 89-110, § 4(b), 79 Stat. 437, 438 (1965) (current version at 52 U.S.C. § 10303(b)). The 1965 definition of “test or device” mirrors the definition in Section 201. Compare Voting Rights Act of 1965 § 4(c), 79 Stat. at 438-39 (current version at 52 U.S.C. § 10303(c)), with 52 U.S.C. 10501(b). Section 4(a) of the Voting Rights Act of 1965 suspended tests and devices in jurisdictions subject to the special provisions for an initial period of five years (that was later extended). See 79 Stat. at 438 (current version at 52 U.S.C. § 10303(a)). In 1970, Congress enacted Section 201, which at first extended the ban on tests or devices nationwide until 1975. See Voting Rights Act Amendments of 1970, Pub. L. No. 91285, § 6, 84 Stat. 314, 315 (1970); see also Oregon v. Mitchell, 400 U.S. 112, 131-34 (1970). In 1975, Congress made Section 201 permanent nationwide. See Voting Rights Act Amendments of 1975, Pub. L. No. 94-73, § 102, 89 Stat. 400, 400 (1975).
The 1965 prohibition on voucher requirements, which also appears today in the provision of Section 201 invoked by Plaintiffs, addressed procedures under which “registered voters must vouch for new applicants in areas where practically no Negroes are registered and where whites cannot be found to vouch for Negroes.” S. Rep. No. 89-162, pt. 3, at 16 (1965), as reprinted in 1965 U.S.C.C.A.N. 2508, 2553; see also H.R. Rep. No. 89-439, at 15 (1965), as reprinted in 1965 U.S.C.C.A.N. 2437, 2446.1 Before passage of the Voting Rights Act of 1965, the United
1 See also S. Rep. No. 89-162, at 12, as reprinted in 1965 U.S.C.C.A.N. at 2449-50 (“The voucher requirement has similarly been used to effect discrimination. Registrars have required Negroes, but not whites, to produce supporting witnesses to vouch for them. Registrars have required Negroes to produce whites to vouch for them, and registrars have helped whites, but not Negroes, in obtaining supporting witnesses.”); H.R. Rep. No. 89-439, at 21, as reprinted in 1965
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States had successfully challenged such requirements in protracted litigation. See, e.g., United States v. Logue, 344 F.2d 290, 291-93 (5th Cir. 1965) (per curiam) (enjoining requirement that applicants put forward a registered voter to “affirm that he is acquainted with the applicant, knows that the applicant is a bona fide resident of the county, and is aware of no reason why the applicant would be disqualified from registering”); United States v. Ward, 349 F.2d 795, 799802 (5th Cir. 1965) (enjoining requirement that two registered voters establish the identity of an applicant); United States v. Manning, 205 F. Supp. 172, 173-74 (W.D. La. 1962) (same). And Congress noted these cases when it prohibited voucher requirements. See S. Rep. No. 89-162, pt. 3, at 46 app’x G, as reprinted in 1965 U.S.C.CA.N. at 2549-50; Hearings on H.R. 6400 before the House Subcommittee No. 5 of the Committee on the Judiciary, 89th Cong., 1st Sess., at 33-34 tbls. B-2(a), B-3(a) (1965) (materials provided by the Department of Justice); see also Davis v. Gallinghouse, 246 F. Supp. 208, 217 (E.D. La. 1965) (“Congress undoubtedly meant this ban on ‘vouching’ to hit at the requirement in some states that identity be proven by the voucher of two registered voters, which, where all or a large majority of the registered voters are white, minimizes the possibility of a Negro registering.”). Section 201 simply expanded this voucher-requirement ban so that it applied nationwide.
Section 201 serves an important role in prohibiting the covered practices within its scope, namely, those that parallel the historical, racially discriminatory voting practices described above. And courts consistently have rejected claims that would extend the ban on tests and devices, including voucher requirements, beyond the statute’s proper focus. Soon after the Voting Rights Act’s passage, a district court declined to stretch the prohibition to reach
U.S.C.C.A.N. at 2452 (finding that practices such as voucher requirements kept many black voters “from ever reaching the poll tax stage”).
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documentary proof of residency requirements, under the theory that “voucher of . . . members of any other class,” 52 U.S.C. § 10303(c)(4), might include “the class of people who issue driver’s licenses, library cards, rent receipts, postmarked envelopes, etc.” Davis, 246 F. Supp. at 217. More recently, a district court concluded that an allowance for voters who do not have identification at the polls to vote if “positively identified by two election officials,” Ala. Code § 17-9-30(f), is not a prohibited voucher requirement because it is not a “requirement” at all; rather, it is a fail-safe to extend the franchise to those lacking requisite identification, Greater Birmingham Ministries v. Alabama, 161 F. Supp. 3d 1104, 1115-16 (N.D. Ala. 2016). See also Greater Birmingham Ministries v. Merrill, 284 F. Supp. 3d 1253, 1281-83 (N.D. Ala. 2017), appeal pending, No. 18-10151 (11th Cir. argued July 28, 2018); cf. Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 629 (6th Cir. 2016) (holding that a “requirement that absentee and provisional voters accurately complete address and birthdate fields . . . bears no similarity to” the tests and devices prohibited by Section 201).
ARGUMENT I. THIS COURT AS CONSTITUTED MAY NOT ADDRESS PLAINTIFFS’
SECTION 201 CLAIM. As explained above, Section 201 claims “shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28.” 52 U.S.C. § 10504. In turn, 28 U.S.C. § 2284(a) mandates that “[a] district court of three judges shall be convened when otherwise required by Act of Congress.” Section 2284 also provides that a “single judge shall not … hear and determine any application for a preliminary or permanent injunction … or enter judgment on the merits.” 28 U.S.C. § 2284(b)(3). The Supreme Court’s interpretation of Section 2284 is clear. See Shapiro v. McManus, 136 S.Ct. 450, 454 (2015) (“[T]he district judge was required to refer the case to a three-judge court, for § 2284(a) admits of no exception, and
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‘the mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion.’” (internal citations omitted). Therefore, this Court as constituted may not address Plaintiffs’ Section 201 claim.2 II. THE WITNESS REQUIREMENT DOES NOT VIOLATE SECTION 201.
South Carolina’s witness requirement for the absentee voter oath does not violate the first three provisions of Section 201 in that it is not a literacy test, it is not an educational requirement, and it is not a moral character requirement. Nor, contrary to Plaintiffs’ position, is it a voucher requirement prohibited by Section 201’s fourth and final provision.
To begin with, Plaintiffs’ argument is not supported by Section 201’s plain text. As relevant here, Section 201 prohibits any requirement that a voter “prove his qualifications by the voucher of registered voters or members of any other class.” This provision is inapplicable here in two respects. First, the witness requirement does not—and is not intended to—“prove [a voter’s] qualifications.” It merely mandates that an individual confirm that she observed the voter’s signing of the oath. See Gregory v. S.C. Democratic Exec. Comm., 247 S.E.2d 439, 444 (S.C. 1978) (noting that the witnessing requirement helps assure “the authenticity of the absentee vote”). The witness need not attest to the voter’s qualifications or to the fact that the voter has not voted before returning the ballot, is casting her own ballot, or has not received unlawful assistance in voting. See S.C. Code Ann. §§ 7-15-220, -380; see also id. § 7-5-120 (listing voter qualifications). Simply put, a witness “does not attest to the validity of the statements made in the document itself.” Butler v. Encyclopedia Britannica, Inc., 41 F.3d 285, 293-94 (7th Cir.
2 Plaintiffs must affirmatively request a three-judge court to pursue their Section 201 claim. See Shapiro, 136 S. Ct. at 454 (“[T]he current § 2284(b)(1) triggers the district judge’s duty” to commence the process for appointment of a three-judge court “‘[u]pon the filing of a request for three judges.’” (quoting 28 U.S.C. § 2284(b)(1)) (second alteration in original)).
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1994).3 In these respects, the witness requirement fundamentally differs from a voucher requirement, which mandates that a voter must proffer an individual who can independently establish the voter’s identity or qualifications. See, e.g., Ward, 349 F.2d at 799 (noting that registrar told black voters “that they would need two electors to identify them” and would not accept “any other form of identification”). Because the witness requirement is not a test or device whereby the absentee voter must “prove his qualifications” to register or vote via another’s voucher, it is not prohibited by Section 201.
The witness requirement also falls outside Section 201’s scope because it does not force a voter to obtain “the voucher of registered voters or members of any other class.” 52 U.S.C. § 10501(b)(4). Section 201 targeted the practice of conditioning African-American registration or voting on the acquiescence of white registered voters or another group that could withhold the franchise. See, e.g., Ward, 349 F.2d at 799 (noting that registrar imposing voucher requirement “did not expect that any white persons would identify these Negroes”). South Carolina voters, however, may choose any individual as their witness. Unlike the prohibited forms of “vouching” that lead to Section 201’s enactment, South Carolina’s witness requirement does not limit the pool of potential witnesses to registered voters or any other relevant class. See S.C. Code Ann. §§ 7-15-220, -380; see also, e.g., S.C. Election Comm’n, Absentee Voting, at https://www.scvotes.org/absentee-voting (last visited May 11, 2020) (“The voter must make his/her mark and have the mark witnessed by someone chosen by the voter.”) (emphasis added).
3 The evidentiary hearsay rule illustrates the difference between witnessing and vouching. Witness testimony that recounts an out-of-court statement is not hearsay so long as it is not offered for the truth of the matter asserted, i.e., does not purport to vouch for the third-party declarant. See Fed. R. Evid. 801(c); Anderson v. United States, 417 U.S. 211, 220-21 (1974). Similarly, a prosecutor may not vouch for a witness’s credibility when recounting earlier testimony by asserting that the witness testified truthfully. See, e.g., United States v. Young, 470 U.S. 1, 18-19 (1985).
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Thus, Section 201’s plain text does not prohibit a flexible, straightforward witness requirement such as South Carolina’s.
Subsequent federal legislation further confirms that Section 201 does not address absentee ballot witness requirements. In 2010, Congress enacted the Military and Overseas Voter Empowerment (MOVE) Act, which in part prohibits States from rejecting absentee ballots cast by members of the uniformed services, their family members, and U.S. citizens residing outside the country because those ballots did not meet state notarization mandates. See 52 U.S.C. § 20302(i)(1). But if Section 201 already prohibited witness requirements nationwide, that MOVE Act mandate would have been entirely unnecessary. Congress can be presumed not to enact redundant legislation. See, e.g., Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We assume that Congress is aware of existing law when it passes legislation.”); see also, e.g., Corely v. United States, 556 U.S. 303, 314 (2009) (“[A] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” (internal quotation marks and citation omitted)).
Plaintiffs err in suggesting that the Department of Justice has employed the Voting Rights Act broadly to block “witness requirements in the absentee voting or voter registration process.” Compl. ¶ 123. At least eleven states currently require the signature of a notary or witness with a returned absentee ballot. See Ala. Code § 17-11-7; Alaska Stat. § 15.20.203(b)(2); La. Stat. Ann. § 18:1306(E)(2); Miss. Code Ann. § 23-15-627; Mo. Rev. Stat. § 115.283; N.C. Gen. Stat. § 163-321(a)(5); Okla. Stat. tit. 26, § 14-108; R.I. Gen. Laws § 17-2023(c); S.C. Code §§ 7-15-220, -380; Va. Code Ann. § 24.2-706; Wis. Stat. § 6.87(4)(b). See generally National Conference of State Legislatures, Verification of Absentee Ballots, at https://www.ncsl.org/research/elections-and-campaigns/verification-of-absentee-ballots.aspx
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(Jan. 21, 2020). Yet, based on a diligent search, the United States is unaware of any challenge brought by the Attorney General—or a private plaintiff for that matter—to any such requirements as a prohibited test or device under Section 201 of the Voting Rights Act (or the time-limited and geographically-limited ban on tests and devices in Section 4(a) of the Voting Rights Act) before this lawsuit was filed.4
Although Plaintiffs note that the Attorney General interposed an objection under Section 5 of the Voting Rights Act, 52 U.S.C. § 10304, to Florida legislation that would have imposed a witness requirement on absentee ballots, Compl. ¶ 123 n.83, that objection does not support their claim. The objection letter stated that, although Florida had met its burden of establishing lack of discriminatory purpose, it had not met its burden of establishing lack of retrogressive effect under Section 5, as to the measure at issue there—a more restrictive absentee witness requirement than the one at issue here.5 And, as the Florida objection letter makes clear, the objection was not interposed based on any conclusion that the witness requirement was a prohibited test or device within the meaning of Section 4(a) or 201 of the Voting Rights Act. See Let. from Bill Lann Lee to Robert A. Butterworth (Aug. 14, 1998), available at https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/FL-1030.pdf.6
4 Subsequent to the filing of this case, private plaintiffs filed a lawsuit alleging that Alabama’s absentee ballot witness requirement violates Section 201. See People First of Ala. v. Merrill, No. 2:20-cv-619 (N.D. Ala. filed May 1, 2020). 5 The Florida absentee witness requirement would have required the absentee voter to provide the signature of a witness who is a registered voter in Florida, the signing of an oath promising that the witness has not witnessed more than five absentee ballots, the voter identification number of the witness, and the county where the witness is registered (or in lieu thereof, notarization of the absentee voter’s signature). See id. 6 Similarly, none of the other Section 5 preclearance objections and cases on which Plaintiffs rely concern voucher requirements. See Let. from Jerris Leonard to MacDonald Gallion (Mar. 13,
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In fact, South Carolina submitted various amendments to its statutes relating to the
witness requirement for absentee voting to the Attorney General for review under Section 5 of
the Voting Rights Act during the time the State was covered by the preclearance requirement,
and the Attorney General interposed no objection to those amendments.7 Indeed, the
Department has found no record that it interposed an objection under Section 5 to any South
Carolina statutes imposing the absentee witness requirement, or that the Department otherwise
sought to block the absentee witness requirement in South Carolina as a test or device. See
generally U.S. Dep’t of Justice, Voting Determination Letters for South Carolina, at
https://www.justice.gov/crt/voting-determination-letters-south-carolina (cataloging objections).8
1970), available at https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/AL1100.pdf (objecting to a literacy requirement for absentee voters); Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1344 (11th Cir. 2014) (addressing voter registration list maintenance); Lodge v. Buxton, 639 F.2d 1358, 1363 (5th Cir. Unit B 1981) (noting in challenge to at-large elections that “[c]ases involving literacy tests or poll taxes, or property ownership requirements are, by comparison, easy to decide” because the “most obvious purpose for the creation or maintenance of such systems is clearly discrimination”), aff’d sub nom. Rogers v. Lodge, 458 U.S. 613, 625 (1982).
7 Exhibit 1 contains Section 5 preclearance letters related to various amendments to S.C. Code Ann. §§ 7-15-220, -380, -385 -420. See Let. from Gerald W. Jones to Treva G. Ashworth (Jan. 30, 1978) (Act 479/R508 of 1976); Let. from Gerald W. Jones to C. Havird Jones, Jr. (May 4, 1982) (Act 280/R283 of 1982); Let. from Gerald W. Jones to C. Havird Jones, Jr (Apr. 17, 1984) (Act 266/R272 of 1984); Let. from Gerald W. Jones to C. Havird Jones, Jr. (Aug. 3, 1987) (Act 59/R94 of 1987); Let. from Barry H. Weinberg to C. Havird Jones, Jr. (Jun. 20, 1990) (Act 357/R393 of 1990); Let. from Steven H. Rosenbaum to C. Havird Jones, Jr. (June 15, 1992) (Act 253/R260 of 1992); Let. from Elizabeth Johnson to C. Havird Jones, Jr. (May 21, 1996) (Act 227/R226 of 1996); Let. from Elizabeth Johnson to. C. Havird Jones, Jr. (Aug. 19, 1996) (Act 416/R453 of 1996); Let. From John Tanner to T. Parkin Hunter (Jun. 8, 2006) (Act 284/R309 of 2006); Let. from T. Christian Herren, Jr. to T. Parkin Hunter (Aug. 22, 2011) (Act 43/R58 of 2011).
8 South Carolina was among the states first covered by the special provisions of the Voting Rights Act in 1965, based on determinations by the Attorney General and Director of the Census. See Determination of the Attorney General Pursuant to Section 4(b)(1) of the Voting Rights Act of 1965, 30 Fed. Reg. 9897 (Aug. 6, 1965); Determination of the Director of the Census Pursuant
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CONCLUSION The United States expresses no view on the constitutional claims Plaintiffs seek to advance here in support of their motion for a preliminary injunction based on factual circumstances related to COVID-19. However, Plaintiffs’ claim under Section 201 of the Voting Rights Act does not depend on conditions related to COVID-19, and instead argues that South Carolina’s long-standing absentee witness requirement statutes were void ab initio and must be enjoined permanently, with no possibility of remediation or cure. By implication, Plaintiffs’ Section 201 argument, if accepted, would appear to bar absentee witness requirements on the books in at least ten other states. This Court currently cannot consider Plaintiffs’ Section 201 claim because it is not constituted as a three-judge court. And, in any event, Plaintiffs’ Section 201 claim against South Carolina’s absentee witness requirement fails as a matter of law.
to Section 4(b)(2) of the Voting Rights Act of 1965, 30 Fed. Reg. 9897 (Aug. 6, 1965). As of November 1, 1964, South Carolina maintained a literacy test for voter registration, subject to limited exemptions inequitably applied. See 23 S.C. Code § 62(4) (Supp. 1964); see also S. Rep. 89-162, pt. 3, at 4-5, 43 n.28, as reprinted in 1965 U.S.C.C.A.N. at 2542-43; H.R. Rep. 89-439, at 12, as reprinted in 1965 U.S.C.C.A.N. at 2443. South Carolina ceased to be covered by these special provisions of the Voting Rights Act when the Supreme Court concluded that the coverage formula in Section 4 of the Act was unconstitutional. See Shelby Cty. v. Holder, 570 U.S. 529 (2013).
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Date: May 11, 2020
PETER M. MCCOY, JR. United States Attorney District of South Carolina
/s/ Barbara M. Bowens BARBARA M. BOWENS (#4004) Assistant United States Attorney 1441 Main Street, Suite 500 Columbia, S.C. 29201 (803) 929-9300 barbara.bowens@usdoj.gov

Respectfully submitted,
ERIC S. DREIBAND Assistant Attorney General Civil Rights Division
ELLIOTT M. DAVIS Special Counsel
/s/ T. Christian Herren, Jr. T. CHRISTIAN HERREN, JR. RICHARD A. DELLHEIM Attorneys, Voting Section Civil Rights Division United States Department of Justice Four Constitution Square 150 M Street NE Washington, D.C. 20002

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CERTIFICATE OF SERVICE I hereby certify that on May 11, 2020, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of this filing to counsel of record.
/s/ Barbara M. Bowens BARBARA M. BOWENS United States Attorney’s Office
for the District of South Carolina 1441 Main Street, Suite 500 Columbia, SC (803) 929-3000 barbara.bowens@usdoj.gov

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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.,

)

)

Plaintiff(s),

)

)

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 )

)

Defendant(s).

)

)

Case No.: 3:20-cv-01552-JMC

ANSWER

The intervenor–defendant, the South Carolina Republican Party (Republican Party), denies

each and every allegation in the Plaintiffs’ Complaint not hereinafter specifically admitted,

qualified, or explained, and further alleges in response thereto as follows:

FOR A FIRST DEFENSE

1. Responding to the allegations of Paragraph 1, the allegations consists of legal

conclusions and generalizations rather than allegations of fact. To the extent Paragraph 1 contains

factual allegations to which a response is required, the Republican Party craves reference to the

publications referenced in Paragraph 1.

2. The Republican Party denies the allegations contained in Paragraph 2.

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3. Responding to the allegations of Paragraph 3, the allegations consists of legal conclusions and generalizations rather than allegations of fact. The Republican Party craves reference to the statute referenced in Paragraph 3. To the extent Paragraph 3 contains factual allegations to which a response is required, the allegations are denied.
4. Responding to the allegations of Paragraph 4, the allegations consists of legal conclusions and generalizations rather than allegations of fact. The Republican Party craves reference to the statute referenced in Paragraph 4. To the extent Paragraph 3 contains factual allegations to which a response is required, the allegations are denied.
5. The Republican Party denies the allegations contained in Paragraph 5. The Republican Party craves reference to the publication referenced in Paragraph 5. To the extent the allegations are inconsistent with the publication, the allegations are denied.
6. Responding to the allegations of Paragraph 6, the allegations consists of legal conclusions and generalizations rather than allegations of fact. The Republican Party craves reference to section 2 of the Voting Rights Act. To the extent the allegations are inconsistent with section 2 of the Voting Rights Act, the allegations are denied.
7. Responding to the allegations of Paragraph 7, the allegations of Paragraph 7 consists of legal conclusions and generalizations rather than allegations of fact. To the extent Paragraph 7 contains factual allegations to which a response is required, the allegations are denied.
8. Responding to the allegations of Paragraph 8, the allegations of Paragraph 8 consists of legal conclusions and generalizations. To the extent Paragraph 8 contains factual allegations to which a response is required, the allegations are denied. The Republican Party craves reference to the statute referenced in Paragraph 8. To the extent the allegations are inconsistent with the statute, the allegations are denied.
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9. Responding to the allegations of Paragraph 9, the allegations of Paragraph 9 consists of legal conclusions and generalizations. The Republican Party admits the clause “election integrity is a critical interest.” To the extent the remainder of Paragraph 9 contains factual allegations to which a response is required, the allegations are denied.
10. Responding to the allegations of Paragraph 10, allegations consist of conclusions and generalizations to which no response is required. The Republican Party asserts the request for relief should be denied.
11. The Republican Party lacks knowledge or information sufficient to form a belief as to the truth of the allegations and therefore denies the factual allegations contained in Paragraph 11.
12. The Republican Party lacks knowledge or information sufficient to form a belief as to the truth of the allegations and therefore denies the factual allegations contained in Paragraph 12.
13. The Republican Party lacks knowledge or information sufficient to form a belief as to the truth of the allegations and therefore denies the factual allegations contained in Paragraph 13.
14. The Republican Party lacks knowledge or information sufficient to form a belief as to the truth of the allegations and therefore denies the factual allegations contained in Paragraph 14.
15. The Republican Party lacks knowledge or information sufficient to form a belief as to the truth of the allegations and therefore denies the factual allegations contained in Paragraph 15.
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16. The Republican Party, upon information and belief admits the Plaintiff Family Unit, Inc. is an entity incorporated in South Carolina, but lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraphs 16 and 17 and therefore denies the factual allegations.
17. The Republican Party admits the allegations contained in Paragraphs 18, 19, and 20.
18. The allegations contained in Paragraphs 21, 22, 23, and 24 consist of legal conclusions and generalizations and do not require a response from the Republican Party. To the extent a response is required, the Republican Party denies the allegations.
19. The allegations contained in Paragraphs 25, 26, 27, 28, 29, 30, 31, 32 and 33 are generalizations and do not warrant a response. The Republican Party craves reference to the publications referenced in Paragraphs 25, 26, 27, 28, 29, 30, 31, 32, and 33. To the extent the allegations are inconsistent with the publications, the allegations are denied.
20. The allegations contained in Paragraphs 34 and 35 are conclusions and generalizations and do not require a response from the Republican Party. To the extent a response is required, the allegations are denied.
21. The allegations contained in Paragraphs 36, 37, 38 and 39 are generalizations and do not warrant a response. The Republican Party craves reference to the publications referenced in Paragraphs 36, 37, 38, and 39. To the extent the allegations are inconsistent with the publications, the allegations are denied.
22. The Republican Party craves reference to Governor McMaster’s Executive Orders referenced in Paragraphs 40. To the extent the allegations are inconsistent with Governor McMaster’s Executive Orders, the allegations are denied.
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23. The Republican Party craves reference to Governor McMaster’s Executive Order No. 2020-08 referenced in Paragraph 41. The Republican Party also admits and craves reference to President Trump’s National Emergency proclamation. To the extent the allegations are inconsistent with President Trump’s proclamation or Governor McMaster’s Executive Orders, the allegations are denied.
24. The Republican Party craves reference to Governor McMaster’s Executive Orders No. 2020-08 referenced in Paragraphs 42 and 43. To the extent the allegations are inconsistent with Governor McMaster’s Executive Orders, the allegations are denied.
25. The Republican Party craves reference to President Trump’s Major Disaster Declaration for South Carolina referenced in Paragraph 44. To the extent the allegations are inconsistent with President Trumps declaration, the allegations are denied.
26. The Republican Party craves reference to Governor McMaster’s Executive Order Nos. 2020-15, 2020-17, 2020-21 referenced in Paragraphs 45, 46, 47, 48, and 49. To the extent the allegations are inconsistent with Governor McMaster’s Executive Order, the allegations are denied.
27. The Republican Party craves reference to the order of this Court referenced in Paragraph 50. To the extent the allegations are inconsistent with the orders, the allegations are denied.
28. The Republican Party craves reference to Governor McMaster’s April 16, 2020 letter to the South Carolina General Assembly referenced in Paragraph 51. To the extent the allegations are inconsistent with the letter, the allegations are denied.
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29. The Republican Party craves reference to Governor McMaster’s Executive Order No. 2020-28 referenced in Paragraph 52. To the extent the allegations are inconsistent with Governor McMaster’s Executive Order, the allegations are denied.
30. The Republican Party craves reference to the publications referenced in Paragraphs 53, 54, 55, and 56. To the extent the allegations are inconsistent with the publications, the allegations are denied.
31. The Republican Party admits the allegations contained in Paragraph 57. 32. The Republican Party craves reference to Executive Director Marci Andino’s March 30, 2020 letter referenced in Paragraphs 58, 59, 60 and 61. To the extent the allegations are inconsistent with the Executive Director Andino’s letter, the allegations are denied. 33. The Republican Party craves reference to the specific statutes referenced in Paragraphs 62, 63, 64, and 65. To the extent the allegations are inconsistent with the statutes, the allegations are denied. 34. The Republican Party admits the allegations contained in Paragraph 66. 35. The Republican Party craves reference to the specific statues referenced in Paragraph 67, 68, 69, and 70. To the extent the allegations are inconsistent with the statutes, the allegations are denied. 36. The Republican Party denies the allegations contained in Paragraph 71. 37. The Republican Party craves reference to the publication referenced in Paragraph 72. To the extent the allegations are inconsistent with the publication, the allegations are denied. 38. The Republican Party craves reference to the Center of Disease Control and Prevention publication referenced in Paragraph 73. To the extent the allegations are inconsistent with the publication, the allegations are denied.
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39. Responding to the allegations contained in Paragraph 74, the allegations are generalizations to which no response is required. To the extent a response is required, the allegations are denied.
40. The Republican Party craves reference to the statute referenced in Paragraph 75. To the extent the allegations are inconsistent with the statute, the allegations are denied.
41. The Republican Party craves reference to Executive Director Andino’s Letter referenced in Paragraph 76. To the extent the allegations are inconsistent with the statute, the allegations are denied.
42. The Republican Party denies the allegations contained in Paragraphs 77, 78, 79, 80 and 81.
43. Responding to the allegations of Paragraphs 82, 83, 84, and 85, the allegations are conclusions of law that have no relevance to the legal issues regarding South Carolina laws. As such the Republican Party neither admits or denies. To the extent these allegations are deemed to be allegations of fact, the allegations are denied.
44. The Republican Party craves reference to the statute referenced in Paragraph 86. To the extent the allegations are inconsistent with the statute, the allegations are denied.
45. Responding to the allegations of Paragraph 87, the allegations are conclusions and generalizations, to which no response is required. To the extent a response is required, the allegations are denied.
46. Responding to the allegations of Paragraph 87, the allegations are conclusions and generalizations, to which no response is required. To the extent a response is required, the allegations are denied.
47. The Republican Party denies the allegations contained in Paragraph 89.
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48. The Republican Party craves reference to the publication referenced in Paragraph 90. To the extent the allegations are inconsistent with the publication, the allegations are denied.
49. The Republican Party craves reference to the Census Bureau publication referenced in Paragraphs 91 and 92. To the extent the allegations are inconsistent with the publication, the allegations are denied.
50. The Republican Party craves reference to the Center of Disease Control and Prevention publication referenced in Paragraph 93. To the extent the allegations are inconsistent with the publication, the allegations are denied.
51. The Republican Party craves reference to the publication referenced in Paragraph 94. To the extent the allegations are inconsistent with the publication, the allegations are denied.
52. The Republican Party denies the allegations in Paragraph 95. 53. The Republican Party denies the allegations contained in Paragraph 96. 54. The Republican Party craves reference to the letter referenced in Paragraph 97. To the extent the allegations are inconsistent with the letter, the allegations are denied. 55. The Republican Party denies the allegations contained in Paragraph 98. 56. Responding to the allegations contained in Paragraph 99, the allegations are conclusion and generalization to which no response is required. To the extent a response is required, the allegations are denied. 57. Responding to the allegations contained in Paragraph 100, the allegations are legal conclusions to which no response is required. 58. The Republican Party craves references to the statutes referenced in Paragraph 101, 102, 103, 104, 105 and 106. To the extent the allegations are inconsistent with the statutes, the allegations are denied.
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59. The Republican Party denies the allegations in Paragraph 107. 60. The Republican Party craves reference to Executive Director Andino’s letter referenced in Paragraph 108. To the extent the allegations are inconsistent with the publication, the allegations are denied. 61. The Republican Party realleges and reincorporates by reference all prior responses to the Paragraphs of this Complaint. 62. The Republican Party admits duly qualified South Carolina electors have a fundamental right to vote under the First and Fourteenth Amendments of the U.S. Constitution. The remaining allegations in Paragraph 110 consist of legal conclusions to which no response is required. 63. The Republican Party denies the allegations contained in Paragraphs 111 and 112. 64. The Republican Party realleges and reincorporates by reference all previous responses to the Paragraphs of this Complaint. 65. The Republican Party craves reference to section 2 of Voting Rights Act as referenced in Paragraph 114. To the extent the allegations are inconsistent, the allegations are denied. 66. Responding to the allegations contained in Paragraph 115, the allegations are conclusions of law to which no response is required. The Republican Party craves reference to the League of Women Voters of North Carolina v. North Carolina,769 F.3d 224, 238–39 (4th Cir. 2014). To the extent the allegations are inconsistent, the allegations are denied. 67. The Republican Party denies the allegations contained in Paragraphs 116 and 117.
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68. Responding to the allegations contained in Paragraphs 118 and 119, the allegations are conclusions of law to which no response is required. To the extent a response is required, the allegations are denied.
69. The Republican Party denies the allegations contained in Paragraph 120. 70. The Republican Party realleges and reincorporates by reference all previous responses to the Paragraphs of this Complaint. 71. The Republican Party craves reference to section 201 of the Voting Rights Act as referenced in Paragraph 122. To the extent the allegations are inconsistent, the allegations are denied. 72. The Republican Party craves reference to United States v. Board of Commissioner of Sheffield, 435 U.S. 110, 120-21 (1978), as referenced in Paragraph 123. To the extent the allegations are inconsistent, the allegations are denied. 73. The Republican Party craves reference to Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193, 198 (2009), and Reno v. Bossier Parish School Board, 528 U.S. 320, 338 n. 6 (2002), as referenced in Paragraph 124. To the extent the allegations are inconsistent, the allegations are denied. 74. The Republican Party denies the allegations contained in Paragraph 125. 75. The Republican Party admits the allegations contained in Paragraph 126 and craves reference to Gregory v. S.C. Democratic Executive Committee, 271 S.C. 364, 247 S.E.2d 439 (1978). 76. The Republican Party denies the allegations contained in Paragraphs 127 and 128. 77. The Republican Party denies the allegations contained in the Prayer for Relief.
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FOR A SECOND DEFENSE 78. The Plaintiffs’ Complaint fails to allege facts sufficient to state any claims upon which relief may be granted and, therefore, should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).
FOR A THIRD DEFENSE 79. The Plaintiffs are not entitled to an injunction of any kind because they are not likely to succeed on the merits, they cannot demonstrate irreparable harm, the balance of the equities does not tip in their favor, and an injunction would not be in the public interest.
FOR A FOURTH DEFENSE 80. The Plaintiffs’ claim for injunctive relief fails because they seek relief that violates the separation of powers, federalism, and comity doctrines.
FOR A FIFTH DEFENSE 81. The Plaintiffs’ claims are barred by the doctrines of waiver, laches, estoppel, and unclean hands.
FOR A SIXTH DEFENSE 82. On May 1, 2020, Governor McMaster announced, effective May 4, 2020, he was lifting the Home or Work Order. Executive Order No. 2020-31 was issued May 3, 2020. There is currently no mandatory Home or Work Order in effect in South Carolina. Executive Order No. 2020-31 “is not intended to create, and does not create, any individual right, privilege, or benefit, whether substantive or procedural, enforceable at law or in equity by any party against the State of South Carolina, its agencies, departments, political subdivision, or other entities, or any officers, employees or agents thereof, or any other person.” S.C. Governor, Executive Order 2020-31, § 3(A) (May 3, 2020).
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FOR A SEVENTH DEFENSE 83. The Plaintiffs’ Complaint presents nonjusticiable, political questions. The reliefs sought by the Plaintiffs ask this Court only for relief “while the risk of COVID-10 transmission in South Carolina remains.” Compl. Prayer for Relief ⁋⁋ A and B. It is not clear whether the Plaintiffs are requesting this Court to retain jurisdiction to determine when the risk of COVID-19 is sufficiently diminished to lift the injunction. The determination as to the length of COVID-19 and its effects of the public health is a non-justiciable, political question.
FOR AN EIGHTH DEENSE 84. The Plaintiffs’ claim under Section 201 of the Voting Rights Act is not properly before the Court because raising such a claim requires a request and the subsequent convening of a three-judge court.
FOR A NINTH DEFENSE 85. The Republican Party expressly reserves the right to assert any and all additional affirmative defenses at such time and to such extent as warranted by discovery and the factual developments in this case. WHEREFORE, the intervenor–defendant, the Republican Party, prays that the Plaintiffs’ Complaint be dismissed, with costs, and for such other and further relief as the Court may deem just and proper.
(Signature Page Follows)
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Columbia, South Carolina May 11, 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-01552-JMC Date Filed 05/11/20 Entry Number 50 Page 1 of 19

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 Carolan )

State Election Commission, and

)

HENRY D. MCMASTER in his official )

capacity as Governor of South Carolina )

)

Defendants.

)

)

Case No.: 3:20-cv-01552-JMC
INTERVENOR–DEFENDANT SOUTH CAROLINA REPUBLICAN PARTY’S
RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Federal Rule of Civil Procedure 65 and Local Civil Rule 7.06, DSC, the intervenor–defendant, the South Carolina Republican Party (the Republican Party), submits this response in opposition to the motion for preliminary injunction filed by the plaintiffs, Mary T. Thomas, Nea Richard, Jeremy Rutledge, Trena Walker, Dr. Brenda Williams, and The Family Unit, Inc. For the reasons that follow, the Court should deny the plaintiffs’ motion for preliminary injunction. The plaintiffs have not made a clear showing of each element to justify the Court granting such extraordinary relief and fundamentally changing the landscape governing absentee voting in South Carolina on the eve of an election.

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BACKGROUND As the U.S. Supreme Court has recognized, “[i]t is clear that preservation of the integrity of the electoral process is a legitimate and valid state goal.” Rosario v. Rockefeller, 410 U.S. 752, 761 (1973). “Moreover, as 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). This action nevertheless stems from the plaintiffs’ desire to erase certain statutory criteria and expand South Carolina’s absentee voting privileges on the eve of the June 9, 2020 primary election. At the outset, everyone agrees COVID-19 is serious. Thousands of South Carolinians have contracted the virus, and over three hundred have died. And it has created a number of challenges for individuals, businesses, and every level and branch of government. Social distancing, face masks, gloves, and hand sanitizer have become the new norm. No doubt, these are challenging times. What is more, everyone agrees that the upcoming June primary must be conducted in a safe manner—consistent with CDC guidelines—to protect poll workers and voters. To that end, the State Election Commission recently issued a press release detailing the measures it was implementing at polling locations to ensure the safety of all involved. Press Release, S.C. State Election Comm’n, 2020 Statewide Primaries FAQs (Apr. 20, 2020), https:// www.scvotes.org/sites/default/files/2020-06-09%20(Primary%20FAQs).pdf. The State Election Commission, for example, said it was providing “special training on sanitizing surfaces and applying social distancing concepts”; equipping poll workers “with masks, face shields and gloves”; providing “sanitizing wipes” to “regularly clean common surfaces throughout the day”; directing poll workers to space “[c]heck-in stations and voting equipment . . . to keep voters and managers at least six feet apart”; providing hand sanitizer for voters and managers; and giving
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voters “a cotton swab for making selections on the touchscreen.” Id. This week, the General Assembly is set to take up a proposal to appropriate “up to $15 million [to the State Election Commission] to help protect the health of South Carolina voters, poll workers and local election employees.” Maayan Schechter, Emergency Orders for Covid-19 Awaiting Votes, SC Lawmakers to Return to Work in May, THE STATE (Apr. 30, 2020), https://www.thestate.com/news/politicsgovernment/article242396931.html#storylink=hpdigest_politics.
Voters who choose not to vote in person, however, are eligible to vote absentee if they meet any of a host of exceptions under South Carolina law. See S.C. Code Ann. § 7-15-320. To be clear, the SCGOP is an ardent proponent of absentee voting. In the SCGOP’s view, the General Assembly—as a matter of public policy—has struck the appropriate balance by giving options to voters who are unable to make it to the polls to, instead, cast their votes via absentee ballot, all while ensuring the integrity of our state’s elections and not opening the door to voter fraud. See S.C. Code Ann. §§ 7-15-330 & -340.
The South Carolina Constitution, of course, provides that “[t]he General Assembly shall provide for the nomination of candidates, regulate the time, place and manner of elections, provide for the administration of elections and for absentee voting, insure secrecy of voting, establish procedures for contested elections, and enact other provisions necessary to the fulfillment and integrity of the election process.” S.C. CONST. art. II, § 10. Pursuant to this delegation of authority, the General Assembly has developed a comprehensive scheme for voters to vote by absentee ballot in South Carolina. See S.C. Code Ann. § 7-15-10, et. seq. Under the law, persons who do not vote in person have eighteen potential categories from which to choose to vote by absentee ballot. See S.C. Code Ann. §§ 7-15-310 & -320. Although Petitioners suggest it is too burdensome to meet these requirements, the statute actually covers a huge swath of voters and is worth a read:
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(A) Qualified electors in any of the following categories must be permitted to vote by absentee ballot in all elections when they are absent from their county of residence on election day during the hours the polls are open, to an extent that it prevents them from voting in person:
(1) students, their spouses, and dependents residing with them;
(2) persons serving with the American Red Cross or with the United Service Organizations (USO) who are attached to and serving with the Armed Forces of the United States, their spouses, and dependents residing with them;
(3) governmental employees, their spouses, and dependents residing with them;
(4) persons on vacation (who by virtue of vacation plans will be absent from their county of residence on election day); or
(5) overseas citizens.
(B) Qualified electors in any of the following categories must be permitted to vote by absentee ballot in all elections, whether or not they are absent from their county of residence on election day:
(1) physically disabled persons;
(2) persons whose employment obligations require that they be at their place of employment during the hours that the polls are open and present written certification of that obligation to the county board of voter registration and elections;
(3) 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;
(4) persons attending sick or physically disabled persons;
(5) persons admitted to hospitals as emergency patients on the day of an election or within a four-day period before the election;
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(6) persons with a death or funeral in the family within a three-day period before the election; (7) persons who will be serving as jurors in a state or federal court on election day; (8) persons sixty-five years of age or older; (9) persons confined to a jail or pretrial facility pending disposition of arrest or trial; or (10) members of the Armed Forces and Merchant Marines of the United States, their spouses, and dependents residing with them. Id. If a voter falls into one of these categories, that person then submits an application to the county election and voter registration office. See S.C. Code Ann. § 7-15-210. Upon receipt, the county election and voter registration office returns the ballot to the applicant. The applicant votes and inserts the completed ballot in the envelope provided by the county election and voter registration office. Additionally, the applicant must sign an oath affirming he or she is “duly qualified to vote.” S.C. Code Ann. § 7-15-220. The applicant’s signature on the oath must be accompanied by a witness’s signature. Id. Once the applicant mails the ballot to the county election and voter registration office, that office reviews the application and ballot to ensure all the requirements are met. See S.C. Code Ann. § 7-15-230. The law does not allow an absentee ballot to be counted if the ballot is not signed and witnessed and returned prior to closing of the poll. Id. The General Assembly crafted this statute to ensure registered voters had ample opportunities to vote via absentee ballot. In doing so, the General Assembly sought to preserve the integrity of elections by developing a scheme that ensured the reliability of our voting system and protected it from fraud. Here, notwithstanding the wide availability of absentee voting detailed above, the plaintiffs are trying to seize on the current global pandemic to change the law through
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the courts. At bottom, the plaintiffs want the Court to excise any absentee voter requirements and rewrite the law to say the election may be conducted, in full, via mail-in absentee ballot. They also want the Court to strike the witness requirement from the statute as if it imposes some impossible burden on voters. Respectfully, the plaintiffs are overplaying their hand. The Republican Party certainly agrees the current situation has created new challenges that the State Election Commission must address to safely administer the upcoming election for South Carolina’s voters and poll workers in the era of COVID-19. But the constitution and the rule of law cannot fall by the wayside in times of emergency. What inevitably follows is bad law.
In their complaint and motion for preliminary injunction, the plaintiffs ask this Court to enjoin the defendants from enforcing South Carolina law that establishes categories of “persons qualified to vote by absentee ballot” (the excuse requirement) and requires a witness signature on the absentee ballot (the witness requirement). While the plaintiffs use the COVID-19 pandemic as justification to challenge these laws, this is merely a means to an end because they have been on the books for decades. Because their requested relief is so drastic, the plaintiffs bear a heavy burden of demonstrating the facts and law clearly support their position. After all, if successful, this will wreak havoc on the administration of the upcoming June primary that is already underway.
The plaintiffs cannot make a clear showing as to each element required for a mandatory preliminary injunction to issue. Accordingly, the Court should decline their invitation to invoke such a drastic remedy, particularly where, as here, the plaintiffs slept on their rights for so long before trying to use COVID-19 as a vehicle to change our state’s election laws.
STANDARD “A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’” Billups v. City of Charleston, 194 F.
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Supp. 3d 452, 459 (D.S.C. 2016) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). A preliminary injunction involves “the exercise of very far-reaching power” and should “be granted only sparingly and in limited circumstances.” Microstrategy, Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001).
The party seeking a preliminary injunction must establish all four of the following elements: (1) it “is likely to succeed on the merits”; (2) it “is likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities tips in its favors”; and (4) an “injunction is in the public interest.” The Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346-47 (4th Cir. 2009). “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 Fuente v. S.C. Dem. Party, CA No. 3:16-cv-00322-CMC, 2016 WL 741317, at *2 (D.S.C. Feb. 25, 2016).
“Preliminary injunctions may be categorized as either prohibitory or mandatory.” Billups, 194 F. Supp. 2d at 460. “Prohibitory preliminary injunctions aim to maintain the status quo and prevent irreparable harm while a lawsuit remains pending.” Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). “Mandatory preliminary injunctions do not preserve the status quo and normally should be granted only in those circumstances where the exigencies of the situation demand such relief.” Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980). “A mandatory injunction, especially at the preliminary stage of proceedings, should not be granted except in rare instances in which the facts and law are clearly in favor of the moving party.” Gantt v. Clemson Agr. Coll. of S.C., 208 F. Supp. 416, 418 (W.D.S.C. 1962). “Mandatory preliminary injunctive relief in any circumstance is disfavored[] and warranted only in the most extraordinary circumstances.” De La Fuente v. S.C. Democratic Party, 164 F. Supp. 3d 794, 798 (D.S.C. 2016).
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The Fourth Circuit “has defined the status quo as the ‘last uncontested status between the parties which preceded the controversy.’” Pashby, 709 F.3d at 320 (quoting Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 378 (4th Cir. 2012)). Because the General Assembly unambiguously has the authority to regulate absentee voting, and has appropriately exercised that authority by codifying absentee requirements into law, the status quo is enforcing the law that has been on the books for years. Because the plaintiffs ask the Court to prevent the defendants from enforcing that law, they are seeking a mandatory preliminary injunction. A request for a mandatory preliminary injunction is met with even greater scrutiny from the Court. See id. (asserting that “ʻapplication of th[e] exacting standard of review [for preliminary injunctions] is even more searching when’ the relief requested ‘is mandatory rather than prohibitory in nature’” (alterations in original) (quoting Perry v. Judd, 471 F. App’x 219, 223–24 (4th Cir. 2012))).
ARGUMENT Having set forth the lens through which the Court must analyze the case, the plaintiffs failed to shoulder their heavy burden of demonstrating entitlement to one of the most drastic forms of relief known under the law. The Court should therefore deny their motion for a mandatory preliminary injunction because the plaintiffs cannot make a clear showing that (1) they are likely to succeed on the merits, (2) they will suffer irreparable harm in the absence of a preliminary injunction, (3) the balance of the equities tips in favor of the plaintiffs, or (4) a preliminary injunction is in the public interest. I. The plaintiffs are not likely to succeed on the merits. Under the South Carolina Constitution, the General Assembly is vested with the sole authority to regulate absentee voting. See S.C. CONST. art. II, § 10 (“The General Assembly shall provide for the nomination of candidates, regulate the time, place and manner of elections, provide
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for the administration of elections and for absentee voting, insure secrecy of voting, establish procedures for contested elections, and enact other provisions necessary to the fulfillment and integrity of the election process.” (emphasis added)).
And the Supreme Court of South Carolina has clarified that absentee voting is a “privilege,” not a right. State ex rel. McLeod v. Ellisor, 259 S.C. 364, 370, 192 S.E.2d 188, 190 (1972); see also O’Brien v. Skinner, 414 U.S. 524, 530 (1974) (referring to it as “absentee voting privileges”); Am. Party of Texas v. White, 415 U.S. 767, 795 (1974) (same); McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 809 (1969) (same). After all, “the General Assembly intended to extend the absentee voting privilege only to those who are absent from the polls on election day by reason of physical infirmity.” Ellisor, 259 S.C. at 370, 192 S.E.2d at 190. The preferred method is still in-person voting.
Against this backdrop, the plaintiffs are complaining about the regulation of a privilege, not the right to vote itself. The Court therefore does not employ strict scrutiny to adjudge the constitutionality of the statutes in question. The U.S. Supreme Court has held that “a careful examination on [its] part is especially warranted where lines are drawn on the basis of wealth or race, two factors which would independently render a classification highly suspect and thereby demand a more exacting judicial scrutiny.” McDonald, 394 U.S. at 807. As in McDonald, “[s]uch an exacting approach is not necessary here” because (1) “the distinctions made by [South Carolina]’s absentee provisions are not drawn on the basis of wealth or race,” and (2) “there is nothing in the record to indicate that the [South Carolina] statutory scheme has an impact on appellants ability to exercise the fundamental right to vote. Id.
To be sure, “the right to vote” is not “at stake here.” Id. Instead, the plaintiffs’ argument rests on some “claimed right to receive absentee ballots.” Id. And “[d]espite [the plaintiffs’] claim
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to the contrary, the absentee statutes, which are designed to make voting more available to some
groups who cannot easily get to the polls, do not themselves deny [them] the exercise of the
franchise.” Id. at 807–08.
Though the wide leeway allowed the States by the Fourteenth Amendment to enact legislation that appears to affect similarly situated people differently, and the presumption of statutory validity that adheres thereto, admit of no settled formula, some basic guidelines have been firmly fixed. The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them.
Id. at 808–09. In other words, the excuse requirement and witness requirement must only survive
rational basis review. See id. at 809. And they do.
A. Neither the excuse requirement nor the witness requirement violates one’s fundamental right to vote under the First and Fourteenth Amendments.
“Although these rights of voters are fundamental, not all restrictions imposed by the States
on candidates’ eligibility for the ballot impose constitutionally-suspect burdens on voters’ rights
to associate or to choose among candidates.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).
As the U.S. Supreme Court has recognized,
States have enacted comprehensive and sometimes complex election codes. Each provision of these schemes, 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. Nevertheless, the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.
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Id. In White, the Court upheld that state’s use of a notary signature requirement, finding the parties made “little or no effort to demonstrate its impracticability or that it is unusually burdensome.” 415 U.S. at 787. So too here. Respectfully, the plaintiffs failed to allege a cognizable burden. Even if the plaintiffs are fully quarantined and have not left the house, they have to eat. The plaintiffs must have either gone to the grocery store themselves or had somebody bring them food. Either situation gives them a quick ability to find a witness. After all, the witness requirement is not as rigid as they let on. Further, the State has a recognized legitimate interest in enforcing the witness requirement to prevent voter fraud by having some accountability mechanisms in place.
As for the excuse requirement, the plaintiffs fare no better. It is worth noting that most of them already qualify to vote absentee under the statute as written. “[C]ourts are bound to give effect to the expressed intent of the [General Assembly].” Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (quoting NORMAN J. SINGER, SUTHERLAND STATUTORY INTERPRETATION § 46.03 at 94 (5th ed. 1992)). “If a statute’s language is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for employing rules of statutory interpretation and the court has no right to look for or impose another meaning.” Miller v. Doe, 312 S.C. 444, 447, 441 S.E.2d 319, 321 (1994).
To adopt the plaintiffs’ interpretation would render the numerous other criteria surplusage and let the exception swallow the rule. Cf. Senate ex rel. Leatherman v. McMaster, 425 S.C. 315, 322, 821 S.E.2d 908, 912 (2018) (recognizing the Court “must read the statute so that no word, clause, sentence, provision or part shall be rendered surplusage, or superfluous” (quoting CFRE, LLC v. Greenville Cty. Assessor, 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011))). If the Court strikes down the excuse requirement, it will eliminate all other criteria of statute. But the excuse requirement does not place a burden on the plaintiffs’ right to vote. Instead, it outlines
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qualifications to vote absentee. South Carolina law still provides for numerous other ways for voters to exercise the franchise. Thus, the plaintiffs’ alleged dilemma is a red herring.
Notwithstanding their lofty rhetoric, the eighteen criteria outlined in the statute allow numerous persons to vote absentee and does not place any meaningful burden on right to vote. The State has a compelling interest in enforcing the excuse requirement as a valid exercise of the General Assembly’s plenary authority to regulate absentee voting procedures under the South Carolina Constitution. See S.C. CONST. art. II, § 10. And the Court should not take the bait from the plaintiffs to adopt their proposed policy preferences. To do so would violate principles of federalism, comity, and separation of powers.
Prior to an election, a plaintiff mounting an attack on the constitutionality of an absentee ballot statute that “would invalidate the statute in all its applications” shoulders “a heavy burden of persuasion.” Crawford v. Marion Cty Election Bd., 553 U.S. 181, 200 (2008) (plurality opinion). The plaintiffs wholly failed to meet that burden here. Because the plaintiffs failed to make a clear showing they are likely to succeed on the merits of their claim under the First and Fourteenth Amendments to the U.S. Constitution, the Court should deny their drastic request for a mandatory preliminary injunction.
B. The witness requirement does not violate Section 201 of the Voting Rights Act. The plaintiffs’ challenge to the witness requirement under Section 201 of the Voting Rights Act of 1965 likewise fails as a matter of law. A review of the text and procedural requirements is instructive. Section 201 provides as follows:
(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. (b) As used in this section, the term “test or device” means any requirement that a person as a prerequisite for voting or registration
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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(a)–(b). Here, the plaintiff’s claim fails right out the gate because they failed to affirmatively request a three-judge court, which is the only court capable of addressing their Section 201 claim. See 52 U.S.C. § 10504 (providing that Section 201 claims “shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28”); see also 28 U.S.C. § 2284(b)(3) (stating that a “single judge shall not . . . hear and determine any application for a preliminary or permanent injunction . . . or enter judgment on the merits”). Even on the merits, however, the plaintiffs’ argument is manifestly without merit. A review of their claim reveals it is not even tethered to the plight of COVID-19. What is more, these requirements have been on the books for decades and do not amount to a “test or device” as those terms are defined in Section 201. And the General Assembly’s purpose in enacting the requirements is hardly new or subject to dispute. As the Supreme Court of South Carolina recognized over forty years ago, the “purpose” of the signature requirement is to ensure “the authenticity of the absentee vote.” Gregory v. S.C. Democratic Exec. Comm., 271 S.C. 364, 375, 247 S.E.2d 439, 444 (1978). The plaintiffs admit as much in their motion. But they still try to push forward on a racial discrimination claim. Not even COVID-19 can carry them across the finish line. The law was designed to prevent voter fraud—irrespective of political party or race or gender or any other classification—and reading anything else into the witness requirement flies in the face of any reasonable interpretation of the statute or its legislative history. Contrary to the
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plaintiffs’ assertions, the witness requirement is not a test. Nor does it force voter to obtain “the voucher of registered voters or members of any other class.” 52 U.S.C. § 10501(b)(4).
Because the plaintiffs failed on both procedural and substantive grounds to allege a cognizable Section 201 claim, they are not likely to succeed on the merits and, therefore, are not entitled to a mandatory preliminary injunction under this theory. II. The plaintiffs cannot make a clear showing of irreparable harm.
“Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the courts’] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a ‘clear showing’ that the plaintiff is entitled to relief.” Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (quoting Winter, 555 U.S. at 22). “Moreover, the required ‘irreparable harm’ must be ‘neither remote nor speculative, but actual and imminent.’” Direx Isreal, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991) (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)).
The plaintiffs’ claim of irreparable harm allegedly caused by the excuse requirement and witness requirement is not only speculative, but it is also completely within their control to avoid. As described earlier, the plaintiffs have a plethora of ways to vote. The plaintiffs simply state they are being denied the right to vote because they (1) allegedly cannot meet one of the eighteen categories to vote absentee; and (2) even if they do possess the qualifications, the plaintiffs allegedly still cannot vote absentee because they cannot obtain a witness’s signature. In support of their claims, the plaintiffs contend social distancing and self-quarantining prevent them from meeting the requirements of state law. Respectfully, that much does not follow. If that is not enough, the plaintiffs want the Court to retain jurisdiction to enforce the injunction until a vaccine is discovered or a cure is found—whenever that may be. To date, nobody has any idea when this
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will occur. But we do know until that occurs, the plaintiffs will obtain the necessities of life. They will receive food either because someone brings it to them (a potential witness) or because they have ventured out into the world (again other potential witnesses). Either way, the plaintiffs will have access to vote via absentee ballot if they so desire.
As further support of their irreparable harm argument, the plaintiffs also point to the election recently held in Wisconsin. At the outset, Wisconsin experienced a huge voter turnout. And the plaintiffs’ conclusory claims that a number of people contracted COVID-19 because they voted in the primary are speculative at best. It would be pure guesswork or conjecture for anyone to argue that individuals were exposed to and contracted COVID-19 while standing in line at a precinct to vote. Those voters could have been exposed in any number of ways. In other words, the plaintiffs’ reliance upon the Wisconsin primary to somehow create a false dichotomy under which voters are faced with the impossible choice of staying at home or contracting COVID-19 at the polls is overstated.
Additionally, although COVID-19 is relevant to the irreparable harm factor as a general matter, the plaintiffs’ constitutional challenge to the “excuse requirement” has nothing to do with the pandemic. Nor does the witness requirement. While the pandemic is a huge problem for our society today—and will continue to present challenges into the near future, including during this election season—that does not justify rewriting South Carolina’s longstanding election laws to suit the plaintiffs’ policy preferences. The plaintiffs simply want the criteria thrown out. Regardless, even if the plaintiffs can demonstrate the requisite irreparable harm, a preliminary injunction “has never been regarded as strictly a matter of right, even though irreparable injury may otherwise result to the plaintiff.” Gantt v. Clemson Agr. Coll. of S.C., 208 F. Supp. 416, 417 (W.D.S.C.
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1962). The plaintiffs still must demonstrate the remaining elements necessary to obtain a preliminary injunction. As demonstrated above and below, they cannot. III. The balance of the equities and public interest favor upholding the law.
Last, the plaintiffs cannot make a clear showing that the balance of the equities tips in their favor and a permanent injunction would be in the public interest. See Z-Man Fishing Prods., Inc., 790 F. Supp. 2d at 425 (quoting Winter, 555 U.S. at 20).
Principles of federalism and separation of powers certainly counsel against this Court changing the law on the eve of an election. “[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, 567 U.S. 1301, ____, 133 S. Ct. 1, 3 (2012) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)). Mindful of “the appropriate respect” the Court “owe[s] to States as sovereigns,” Justice Thomas once observed that “[t]he equities and public interest likewise generally weigh in favor of enforcing duly enacted state laws” for purposes of the injunction inquiry. Strange v. Searcy, 135 S. Ct. 940, 940 (2015) (mem.) (Thomas, J., dissenting).
Indeed, as one court has observed, “the government’s interest is in large part presumed to be the public’s interest.” United States v. Rural Elec. Convenience Coop. Co., 922 F.2d 429, 440 (7th Cir. 1991). This rings particularly true here given that the South Carolina Constitution has given the General Assembly the authority to regulate the conduct of absentee voting during elections, see S.C. CONST. art. II, § 10, and the General Assembly has, in turn, given the State Election Commission the authority to administer elections.
The State Election Commission is working tirelessly to ensure it administers an orderly political party primary election in June. It is taking steps to protect voters and poll workers during
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in-person voting. Also, the State Election Commission is assisting county election and voter registration offices to prepare for an increased number of absentee ballots. Enjoining the absentee ballot process already in place would cause great confusion with the public. That is why the Supreme Court “has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020).
Here, the plaintiffs flouted this sound guidance and lollygagged around in bringing their claims. COVID-19 has spread throughout the country since at least March. Yet the plaintiffs waited until the end of April to bring a lawsuit and then waited almost another week to file the motion for preliminary injunction. Interestingly, Governor McMaster has since lifted the state of emergency and, therefore, their reliance on his prior executive orders is misplaced. Under these circumstances, though, granting the injunction and upsetting the status quo is not in the public interest. The plaintiffs manufactured this emergency and the equitable doctrine of laches should bar their claims, particularly given that the laws under challenge have been in effect for decades.
In sum, the plaintiffs failed to clearly demonstrate the equities tip in their favor or that the public interest would be better served by changing the rules of the game this close to an election. The Court should therefore deny their motion for a mandatory preliminary injunction. IV. If the Court awards this drastic relief, then it should require a commensurate bond.
Although the plaintiffs skip right over this issue, ignoring the bond requirement in Federal Rule of Civil Procedure 65(c) will not make it go away.
It is well-settled that “[t]he court may issue a preliminary injunction . . . 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.” Fed. R. Civ. P. 65(c) (emphasis added).
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As the Fourth Circuit has observed, “[t]his rule is mandatory and unambiguous.” Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421 (4th Cir. 1999). And although a “district court has discretion to set the bond amount,” the court “is not free to disregard the bond requirement altogether.” Id. Indeed, “[i]n view of the clear language of Rule 65(c), failure to require a bond upon issuing injunctive relief is reversible error.” Id.
As another court in this district has observed, “[i]n fixing the amount of an injunction bond, the district court should be guided by the purpose underlying Rule 65(c), which is to provide a mechanism for reimbursing an enjoined party for harm it suffers as a result of an improvidently issued injunction or restraining order, and “[t]he amount of the bond, then, ordinarily depends on the gravity of the potential harm to the enjoined party.” Pulliam v. Clark, No. 4:11-cv-03047RBH, 2012 WL 1835758, at *3 n.3 (D.S.C. May 21, 2012) (quoting 11A CHARLES ALLEN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3954, at 292 (2d ed. 1995)).
The plaintiffs should post an injunction bond commensurate to put the State of South Carolina on equal footing should an adverse ruling get reversed on appeal. Indeed, having to open up absentee voting to millions of voters—as opposed to the roughly 60,000 absentee voters who from the last election—will require the State Election Commission to spend much more on this facet of the election than that for which it previously planned. But the Republican Party will leave it to the Court’s discretion as to an appropriate amount if the Court reaches this prong. As noted above, however, the plaintiffs are not entitled to a mandatory preliminary injunction.
CONCLUSION Based upon the foregoing, the Court should deny plaintiffs’ motion for preliminary injunction because they failed to make a clear showing of each element required for the Court to
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impose such a drastic form of relief at the eleventh hour before South Carolina’s June primary. 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

Columbia, South Carolina May 11, 2020

Counsel for Intervenor–Defendant South Carolina Republican Party

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 3:20-cv-01552-JMC Date Filed 05/11/20 Entry Number 51 Page 1 of 38

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.,

Civil Action No.: 3:20-cv-01552-JMC

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; CLIFFORD J. EDLER and SCOTT MOSELEY, in their official capacities as members of the South Carolina Election Commission; and HENRY D. McMASTER, in his official capacity as Governor of South Carolina,

GOVERNOR MCMASTER’S ANSWER TO PLAINTIFFS’
COMPLAINT

Defendants.

COMES NOW Defendant Henry D. McMaster, in his official capacity as Governor of South Carolina (“Governor McMaster”), by and through the undersigned counsel, and answers and otherwise responds to the Complaint for Injunctive and Declaratory Relief (ECF No. 1) (“Complaint”) filed by Plaintiffs Mary T. Thomas, Nea Richard, Jeremy Rutledge, Trena Walker, Dr. Brenda Williams, and The Family Unit, Inc. (collectively, “Plaintiffs”). Governor McMaster’s responses are made without waiving, and expressly reserving, all rights Governor McMaster has to file dispositive motions addressed to some or all of the claims asserted in the Complaint. Except as expressly and specifically admitted, qualified, or explained herein below, Governor McMaster denies each and every allegation in the Complaint. With respect to the numbered paragraphs of the Complaint, Governor McMaster responds as follows:

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FOR A FIRST DEFENSE INTRODUCTION
1. Paragraph 1 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 1 relies on information from the South Carolina Department of Health and Environmental Control (“DHEC”) and the State Election Commission (“SEC”), as cited in footnotes 1 and 2, respectively, Governor McMaster craves reference to the cited websites and denies any allegations or characterizations inconsistent therewith. To the extent Paragraph 1 alludes to and relies on Governor McMaster’s “home or work” Order, Governor McMaster craves reference to the terms and provisions of Section 1 of Executive Order No. 2020-21, as extended by Executive Order No. 2020-29 and most recently modified and amended by Executive Order No. 2020-31, and denies any allegations or characterizations inconsistent therewith. To the extent that Paragraph 1 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 1 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
2. Paragraph 2 of the Complaint consists of legal conclusions and arguments, to which no response is required. To the extent a response is necessary, Governor McMaster denies the allegations of Paragraph 2.
3. Paragraph 3 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent that Paragraph 3 contains factual allegations
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directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 3 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 3 relies on section 7-15-320 of the South Carolina Code of Laws or any other statutory provision, Governor McMaster craves reference to the cited statutory provision and denies any allegations or characterizations inconsistent therewith.
4. Paragraph 4 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 4 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 4 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 4 relies on section 7-15-220 of the South Carolina Code of Laws, Sections 3(b) and 201 of the Voting Rights Act, or any other statutory provision, Governor McMaster craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith.
5. Paragraph 5 of the Complaint consists of legal conclusions, arguments, and unwarranted inferences, to which no response is required. To the extent a response is necessary, Governor McMaster denies the allegations of Paragraph 5. To the extent Paragraph 5 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 5 relies on information from the U.S. Census Bureau, Governor McMaster craves reference to the
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website cited in footnote 3 and denies any allegations or characterizations inconsistent therewith. 6. Paragraph 6 of the Complaint consists of legal conclusions, arguments,
unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 6 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 6 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 6 relies on Section 2 of the Voting Rights Act or any other statutory provision, Governor McMaster craves reference to the cited statutory provision and denies any allegations or characterizations inconsistent therewith.
7. Paragraph 7 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 7 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 7 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
8. Paragraph 8 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 8 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 8 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a
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belief as to the truth of the allegations. To the extent Paragraph 8 relies on section 7-15-310 of the South Carolina Code of Laws or any other statutory provision, Governor McMaster craves reference to the cited statutory provision and denies any allegations or characterizations inconsistent therewith. To the extent Paragraph 8 relies on actions by other States and proposes changing the laws of the State of South Carolina, Governor McMaster avers that such matters should be addressed to the South Carolina General Assembly and craves reference to the laws of this State.
9. Responding to Paragraph 9 of the Complaint, Governor McMaster admits that “election integrity is a critical interest.” The remainder of Paragraph 9 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 9 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 9 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
10. Paragraph 10 of the Complaint consists of legal conclusions and arguments, to which no response is required, and request for relief, which Governor McMaster asserts should be denied. To the extent a response is necessary, Governor McMaster denies the allegations of Paragraph 10.
PARTIES 11. Responding to Paragraph 11 of the Complaint, Governor McMaster admits, upon information and belief, that Plaintiff Nea Richard is a registered voter. Governor McMaster is without knowledge or information sufficient to form a belief as to the truth of the remaining
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allegations in Paragraph 11 and therefore denies the same and demands strict proof thereof. 12. Responding to Paragraph 12 of the Complaint, Governor McMaster admits, upon
information and belief, that Plaintiff Reverend Jeremy Rutledge is a registered voter. Governor McMaster is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 12 and therefore denies the same and demands strict proof thereof.
13. Responding to Paragraph 13 of the Complaint, Governor McMaster admits, upon information and belief, that Plaintiff Mary Thomas is a registered voter. Governor McMaster is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 13 and therefore denies the same and demands strict proof thereof.
14. Responding to Paragraph 14 of the Complaint, Governor McMaster admits, upon information and belief, that Plaintiff Trena Walker is a registered voter. Governor McMaster is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 14 and therefore denies the same and demands strict proof thereof.
15. Responding to Paragraph 15 of the Complaint, Governor McMaster admits, upon information and belief, that Plaintiff Dr. Brenda Williams is a registered voter. Governor McMaster is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 15 and therefore denies the same and demands strict proof thereof.
16. Responding to Paragraph 16 of the Complaint, Governor McMaster admits, upon information and belief, that Plaintiff The Family Unit, Inc. is an entity incorporated in the State of South Carolina. Governor McMaster is without knowledge or information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 16 and therefore denies the same
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and demands strict proof thereof. 17. Responding to Paragraph 17 of the Complaint, Governor McMaster is without
knowledge or information sufficient to form a belief as to the truth of the allegations and therefore denies the same and demands strict proof thereof.
18. Responding to Paragraph 18 of the Complaint, Governor McMaster admits that Defendant Marci Andino is the Executive Director of the SEC and that she has been named as a Defendant in her official capacity. As to the remaining allegations in Paragraph 18, Governor McMaster craves reference to the cited statutory provision(s) and denies any allegations or characterizations inconsistent therewith.
19. Responding to Paragraph 19 of the Complaint, Governor McMaster admits that Defendant John Wells is the Chair of the SEC and that he has been named as a Defendant in his official capacity. Governor McMaster admits that Defendants Clifford J. Edler and Scott Moseley are members of the SEC and that they have been named as Defendants in their official capacities. As to the remaining allegations in Paragraph 19, Governor McMaster craves reference to the cited statutory provision, as well as the website referenced in footnote 7, and denies any allegations or characterizations inconsistent therewith. Further responding to Paragraph 19 of the Complaint, Governor McMaster avers that he has recently appointed JoAnn Day and Linda McCall to serve as members of the SEC.
20. Responding to Paragraph 20 of the Complaint, Governor McMaster admits that he is the Governor of the State of South Carolina and that he has been named as a Defendant in his official capacity. As to the remaining allegations in Paragraph 20, Governor McMaster craves reference to the cited constitutional and statutory provisions and denies any allegations or characterizations inconsistent therewith.
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JURISDICTION AND VENUE 21. Paragraph 21 of the Complaint is a statement of Plaintiffs’ legal contentions and contains conclusions of law to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith. 22. Paragraph 22 of the Complaint is a statement of Plaintiffs’ legal contentions and contains conclusions of law to which no response is required. To the extent a response is necessary, Governor McMaster does not presently challenge personal jurisdiction but denies that that “[t]he violations complained of” concern any conduct of Governor McMaster. 23. Paragraph 23 of the Complaint is a statement of Plaintiffs’ legal contentions and contains conclusions of law to which no response is required. To the extent a response is necessary, Governor McMaster denies that declaratory relief is appropriate and craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith. 24. Paragraph 24 of the Complaint is a statement of Plaintiffs’ legal contentions and contains conclusions of law to which no response is required. To the extent a response is necessary, Governor McMaster does not contest that venue is proper in this District and craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith.
STATEMENT OF FACTS 25. Paragraph 25 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 25 contains factual allegations
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directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 25 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 25 relies on information from the Centers for Disease Control and Prevention (“CDC”), as cited in footnote 8, Governor McMaster craves reference to the cited website and denies any allegations or characterizations inconsistent therewith.
26. Paragraph 26 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 26 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 26 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
27. Paragraph 27 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 27 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 27 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 27 relies on information from the CDC, as cited in footnote 12, Governor McMaster craves reference to the cited website and denies any allegations or characterizations inconsistent therewith.
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28. Paragraph 28 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 28 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 28 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
29. Paragraph 29 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 29 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 29 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 29 relies on information from the CDC, as cited in footnotes 14 and 15, Governor McMaster craves reference to the cited website and denies any allegations or characterizations inconsistent therewith.
30. Paragraph 30 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 30 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 30 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
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31. Paragraph 31 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. Although Paragraph 31 does not reference specific CDC guidance, Governor McMaster admits that the CDC has issued various forms of guidance in connection with COVID-19 and craves reference to the same and denies any allegations or characterizations inconsistent therewith. Further responding to Paragraph 31, to the extent Paragraph 31 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 31 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
32. Paragraph 32 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 32 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 32 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 32 relies on information from the CDC, as cited in footnote 21, Governor McMaster craves reference to the cited website and denies any allegations or characterizations inconsistent therewith.
33. Paragraph 33 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 33 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster
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denies the allegations. To the extent Paragraph 33 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 33 relies on information from the CDC, as referenced in footnote 22, Governor McMaster craves reference to the cited website and denies any allegations or characterizations inconsistent therewith.
34. Paragraph 34 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 34 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 34 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
35. Paragraph 35 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 35 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 35 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
36. Paragraph 36 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 36 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster
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denies the allegations. To the extent Paragraph 36 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 36 relies on information from DHEC, as cited in footnotes 28, 29, and 30, Governor McMaster craves reference to the cited information and denies any allegations or characterizations inconsistent therewith.
37. Paragraph 37 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 37 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 37 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
38. Paragraph 38 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 38 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 38 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 38 relies on information from DHEC, as cited in footnote 33, Governor McMaster craves reference to the cited information and denies any allegations or characterizations inconsistent therewith.
39. Paragraph 39 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable
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issues, rather than allegations of fact. To the extent Paragraph 39 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 39 relies on information from DHEC, as referenced in footnote 33, Governor McMaster craves reference to the cited information and denies any allegations or characterizations inconsistent therewith.
40. Paragraph 40 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent a response is necessary, Governor McMaster admits that he has issued “various executive orders” in connection with COVID-19 but denies the remaining allegations of Paragraph 40 to the extent Plaintiffs rely upon Executive Order No. 202007, as cited in footnote 35. To the extent Paragraph 40 relies on Governor McMaster’s Executive Orders and attempts to summarize, characterize, or paraphrase the same, Governor McMaster craves reference to the terms and provisions of those Executive Orders cited by Plaintiffs, as well as those subsequently issued, and denies any allegations or characterizations inconsistent therewith. Further responding to Paragraph 40, Governor McMaster refers to and incorporates by reference the terms and provisions of Executive Order No. 2020-31.
41. Responding to Paragraph 41 of the Complaint, Governor McMaster admits that he issued Executive Order No. 2020-08 and craves reference to the terms and provisions thereof and denies any allegations or characterizations inconsistent therewith. Further responding to Paragraph 41, Governor McMaster admits that the President of the United States proclaimed a National Emergency and craves reference to the terms and provisions thereof, as cited in footnote 37, and denies any allegations or characterizations inconsistent therewith.
42. Responding to Paragraph 42 of the Complaint, Governor McMaster admits that he
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issued Executive Order No. 2020-09 on March 15, 2020, and craves reference to the terms and provisions thereof and denies any allegations or characterizations inconsistent therewith.
43. Responding to Paragraph 43 of the Complaint, Governor McMaster admits that he issued Executive Order No. 2020-09 on March 15, 2020, and craves reference to the terms and provisions thereof and denies any allegations or characterizations inconsistent therewith.
44. Responding to Paragraph 44 of the Complaint, Governor McMaster admits that on March 27, 2020, the President of the United States approved a major disaster declaration for the State of South Carolina and craves reference to the terms and provisions of the declaration, as cited in footnote 41, and denies any allegations or characterizations inconsistent therewith.
45. Responding to Paragraph 45 of the Complaint, Governor McMaster admits that he issued Executive Order No. 2020-15 on March 28, 2020, and craves reference to the terms and provisions thereof and denies any allegations or characterizations inconsistent therewith.
46. Responding to Paragraph 46 of the Complaint, Governor McMaster admits that he issued Executive Order No. 2020-17 on March 31, 2020, and Executive Order No. 2020-18 on April 3, 2020, and craves reference to the terms and provisions thereof and denies any allegations or characterizations inconsistent therewith. Further responding to Paragraph 46, Governor McMaster avers that Executive Order No. 2020-18 superseded, rescinded, and replaced Executive Order No. 2020-17, and he craves reference to the terms and provisions of the cited Executive Orders, as well as those Executive Orders subsequently issued, and denies any allegations or characterizations inconsistent therewith.
47. Responding to Paragraph 47 of the Complaint, Governor McMaster admits that he issued Executive Order No. 2020-21 on April 6, 2020, and craves reference to the terms and provisions thereof and denies any allegations or characterizations inconsistent therewith. Further
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responding to Paragraph 47, Governor McMaster refers to and incorporates by reference the terms and provisions of Executive Order No. 2020-31.
48. Paragraph 48 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent a response is necessary, Governor McMaster refers to the terms and provisions of Executive Order No. 2020-21, as modified and amended, and the websites cited in footnotes 46 and 47 and denies any allegations or characterizations inconsistent therewith.
49. Paragraph 49 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent a response is necessary, Governor McMaster refers to the terms and provisions of Executive Order No. 2020-21, as modified and amended, and denies any allegations or characterizations inconsistent therewith.
50. Paragraph 50 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent a response is necessary, Governor McMaster refers to the terms and provisions of the Court’s Orders, as cited in footnotes 49 and 50, and denies any allegations or characterizations inconsistent therewith.
51. Responding to Paragraph 51 of the Complaint, Governor McMaster admits that he sent a letter to the leadership of the General Assembly on April 16, 2020, and craves reference to the same, as attached to Plaintiffs’ Complaint as Exhibit 1, and denies any allegations or characterizations inconsistent therewith.
52. Responding to Paragraph 52 of the Complaint, Governor McMaster admits that he
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issued Executive Order No. 2020-28 on April 20, 2020, and craves reference to the terms and provisions thereof and denies any allegations or characterizations inconsistent therewith. Further responding to Paragraph 52, Governor McMaster craves reference to the terms and provisions of those Executive Orders not cited or subsequently issued, to include Executive Order No. 2020-31, and denies any allegations or characterizations inconsistent therewith.
53. Paragraph 53 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 53 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 53 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 53 relies on certain information from the CDC, as cited in footnote 54, respectively, Governor McMaster craves reference to the cited website and denies any allegations or characterizations inconsistent therewith.
54. Paragraph 54 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 54 contains factual allegations against Governor McMaster to which a response is necessary, the allegations are denied. To the extent Paragraph 54 contains factual allegations about another person or entity, Governor McMaster is without knowledge or information sufficient to form a belief as to the truth of the allegations.
55. Paragraph 55 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable
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issues, rather than allegations of fact. To the extent Paragraph 55 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 55 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 55 relies on certain information from DHEC and the CDC, as cited in footnotes 57 and 58, respectively, Governor McMaster craves reference to the cited websites and denies any allegations or characterizations inconsistent therewith.
56. Paragraph 56 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 56 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 56 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 56 relies on certain information from DHEC, as cited in footnote 61, Governor McMaster craves reference to the cited information and denies any allegations or characterizations inconsistent therewith.
57. Responding to Paragraph 57 of the Complaint, Governor McMaster admits that elections are scheduled to be held in South Carolina before the end of the calendar year. To the extent Paragraph 57 relies on information from SCvotes.org, as cited in footnote 65, Governor McMaster craves reference to the cited website and denies any allegations or characterizations inconsistent therewith.
58. Responding to Paragraph 58 of the Complaint, Governor McMaster admits that
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Director Andino wrote a letter dated March 30, 2020, a copy of which is attached to the Complaint as Exhibit 2 (“Andino Letter”). To the extent Paragraph 58 relies on the Andino Letter, Governor McMaster craves reference to the Andino Letter and denies any allegations or characterizations inconsistent therewith.
59. Responding to Paragraph 59 of the Complaint, which relies on the Andino Letter, Governor McMaster craves reference to the Andino Letter and denies any allegations or characterizations inconsistent therewith.
60. Responding to Paragraph 60 of the Complaint, which relies on the Andino Letter, Governor McMaster craves reference to the Andino Letter and denies any allegations or characterizations inconsistent therewith.
61. Responding to Paragraph 61 of the Complaint, which appears to reference the Andino Letter, Governor McMaster craves reference to the Andino Letter and denies any allegations or characterizations inconsistent therewith. Further responding to Paragraph 61, Governor McMaster avers that, pursuant to the South Carolina Constitution, the General Assembly has the sole authority to “adopt[]” or “implement[]” the options referred to in the Andino Letter.
62. Paragraph 62 of the Complaint contains Plaintiffs’ summary of certain statutory provisions to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith.
63. Paragraph 63 of the Complaint contains Plaintiffs’ summary of certain statutory provisions to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith.
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64. Paragraph 64 of the Complaint contains Plaintiffs’ summary of certain statutory provisions to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith.
65. Paragraph 65 of the Complaint contains Plaintiffs’ summary of certain statutory provisions to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith.
66. Paragraph 66 of the Complaint appears to contain Plaintiffs’ summary of certain statutory provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the applicable statutory provisions and denies any allegations or characterizations inconsistent therewith.
67. Paragraph 67 of the Complaint contains Plaintiffs’ summary of certain statutory provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the applicable statutory provisions and denies any allegations or characterizations inconsistent therewith.
68. Paragraph 68 of the Complaint contains Plaintiffs’ summary of certain statutory provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the applicable statutory provisions and denies any allegations or characterizations inconsistent therewith.
69. Paragraph 69 of the Complaint contains Plaintiffs’ summary of certain statutory provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the cited statutory provisions and
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denies any allegations or characterizations inconsistent therewith. 70. Paragraph 70 of the Complaint contains Plaintiffs’ summary of certain statutory
provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith.
71. Paragraph 71 of the Complaint appears to contain Plaintiffs’ summary of certain statutory provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the applicable statutory provisions and denies any allegations or characterizations inconsistent therewith.
72. Paragraph 72 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 72 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 72 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
73. Paragraph 73 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 73 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 73 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 73 relies on the CDC guidelines
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cited in footnote 21, Governor McMaster craves reference to the cited website and denies any allegations or characterizations inconsistent therewith.
74. Paragraph 74 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 74 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 74 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
75. Paragraph 75 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 75 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 75 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 75 relies on the cited statutory provision, Governor McMaster craves reference to the same and denies any allegations or characterizations inconsistent therewith.
76. Paragraph 76 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 76 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 76 contains factual allegations about another party,
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person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 76 relies on the Andino Letter, Governor McMaster craves reference to the Andino Letter and denies any allegations or characterizations inconsistent therewith. Further responding to Paragraph 76, Governor McMaster denies that there is a “mandatory” order in effect “currently instruct[ing] all South Carolinians to remain at ‘home or work’” and refers to the terms and provisions of Section 1 of Executive Order No. 2020-31.
77. Paragraph 77 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 77 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 77 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
78. Paragraph 78 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 78 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 78 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
79. Paragraph 79 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable
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issues, rather than allegations of fact. To the extent Paragraph 79 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 79 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
80. Paragraph 80 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 80 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 80 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
81. Paragraph 81 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 81 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 81 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
82. Paragraph 82 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about the interpretation of unspecified laws in other States. To the extent Paragraph 82 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies
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the allegations. To the extent Paragraph 82 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
83. Paragraph 83 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about the interpretation and application of West Virginia law, which have no relevance to the issues raised in Plaintiffs’ Complaint. To the extent Paragraph 83 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 83 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
84. Paragraph 84 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about the interpretation and application of Alabama and Arkansas law, which have no relevance to the issues raised in Plaintiffs’ Complaint. To the extent Paragraph 84 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 84 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
85. Paragraph 85 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about the interpretation and application of Virginia, Delaware, Massachusetts, and New Hampshire law, which have no relevance to the issues raised in Plaintiffs’ Complaint. To the extent Paragraph 85 contains factual
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allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 85 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
86. Paragraph 86 of the Complaint contains Plaintiffs’ summary of certain statutory provisions to which no response is required. To the extent a response is required, Governor McMaster craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith.
87. Paragraph 87 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 87 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 87 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. Further responding to Paragraph 87, Governor McMaster denies the allegation contained in the second sentence and refers to the terms and provisions of Section 1 of Executive Order No. 2020-31.
88. Paragraph 88 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 88 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 88 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a
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belief as to the truth of the allegations. 89. Paragraph 89 of the Complaint consists of legal conclusions, arguments,
unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 89 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 89 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
90. Responding to Paragraph 90 of the Complaint, Governor McMaster craves reference the website cited in footnote 73 and denies any allegations or characterizations inconsistent therewith.
91. Paragraph 91 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 91 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 91 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 91 relies on data from the U.S. Census Bureau, Governor McMaster craves reference to the website cited in footnotes 76 and 77 and denies any allegations or characterizations inconsistent therewith.
92. Paragraph 92 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 92 contains factual allegations
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directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 92 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 92 relies on data from the U.S. Census Bureau, Governor McMaster craves reference to the website cited in footnotes 78 and 79 and denies any allegations or characterizations inconsistent therewith.
93. Paragraph 93 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 93 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 93 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 93 relies on data from the CDC, Governor McMaster craves reference to the website cited in footnote 80 and denies any allegations or characterizations inconsistent therewith.
94. Paragraph 94 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 94 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 94 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
95. Paragraph 95 of the Complaint consists of legal conclusions, arguments,
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unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 95 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 95 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
96. Paragraph 96 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 96 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 96 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
97. Paragraph 97 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. Governor McMaster admits that “[p]rotecting election integrity and preventing improper use of absentee ballots certainly are valid governmental interests” and further avers that they are essential governmental interests. To the extent Paragraph 97 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the remaining allegations. To the extent Paragraph 97 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 97 relies on the Andino Letter, Governor McMaster craves reference to the Andino
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Letter and denies any allegations or characterizations inconsistent therewith. 98. Paragraph 98 of the Complaint consists of legal conclusions, arguments,
unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent a response is necessary, Governor McMaster denies the allegations contained in Paragraph 98.
99. Paragraph 99 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent Paragraph 99 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 99 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
100. Paragraph 100 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact.
101. Paragraph 101 of the Complaint appears to contain Plaintiffs’ summary of certain statutory provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the applicable statutory provisions and denies any allegations or characterizations inconsistent therewith.
102. Paragraph 102 of the Complaint appears to contain Plaintiffs’ summary of certain statutory provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the applicable statutory provisions and denies any allegations or characterizations inconsistent therewith.
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103. Paragraph 103 of the Complaint appears to contain Plaintiffs’ summary of certain statutory provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the applicable statutory provisions and denies any allegations or characterizations inconsistent therewith.
104. Paragraph 104 of the Complaint appears to contain Plaintiffs’ summary of certain statutory provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the applicable statutory provisions and denies any allegations or characterizations inconsistent therewith.
105. Paragraph 105 of the Complaint appears to contain Plaintiffs’ summary of certain statutory provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the applicable statutory provisions and denies any allegations or characterizations inconsistent therewith.
106. Paragraph 106 of the Complaint appears to contain Plaintiffs’ summary of certain statutory provisions or voting processes and procedures to which no response is required. To the extent a response is necessary, Governor McMaster craves reference to the applicable statutory provisions and denies any allegations or characterizations inconsistent therewith.
107. Paragraph 107 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable issues, rather than allegations of fact. To the extent a response is necessary, Governor McMaster craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith.
108. Paragraph 108 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations about complex, nonjusticiable
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issues, rather than allegations of fact. To the extent Paragraph 108 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 108 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations. To the extent Paragraph 108 relies on the Andino Letter, Governor McMaster craves reference to the Andino Letter and denies any allegations or characterizations inconsistent therewith.
CLAIM FOR RELIEF COUNT ONE
(Violation of the Fundamental Right to Vote 42 U.S.C. § 1983, First and Fourteenth Amendments to the U.S. Constitution) 109. Responding to Paragraph 109 of the Complaint, Governor McMaster repeats, realleges, and incorporates by reference all prior responses to the preceding Paragraphs of the Complaint as if fully set forth herein verbatim. 110. Responding to Paragraph 110 of the Complaint, Governor McMaster admits that duly qualified South Carolina electors have a fundamental right to vote under the First and Fourteenth Amendments to the United States Constitution. The remainder of Paragraph 100 of the Complaint consists of legal conclusions, to which no response is required. 111. Paragraph 111 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations, rather than allegations of fact. To the extent Paragraph 111 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 111 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the
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allegations. 112. Paragraph 112 of the Complaint consists of legal conclusions, to which no response
is required. To the extent a response is necessary, Governor McMaster denies the allegations of Paragraph 112.
COUNT TWO (Violations of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301) 113. Responding to Paragraph 113 of the Complaint, Governor McMaster repeats, realleges, and incorporates by reference all prior responses to the preceding Paragraphs of the Complaint as if fully set forth herein verbatim. 114. Paragraph 114 of the Complaint contains excerpts of certain provisions of Section 2 of the Voting Rights Act. To the extent a response is necessary, Governor McMaster craves reference to the cited statutory provisions and denies any allegations or characterizations inconsistent therewith. 115. Paragraph 115 of the Complaint contains quotations from League of Women Voters of North Carolina v. North Carolina, 769 F.3d 224, 238–40 (4th Cir. 2014). To the extent a response is necessary, Governor McMaster craves reference to the cited case and denies any allegations or characterizations inconsistent therewith. 116. Paragraph 116 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, and generalizations, to which no response is required. To the extent a response is necessary, Governor McMaster denies the allegations of Paragraph 116. 117. Paragraph 117 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, and generalizations, to which no response is required. To the extent a response is necessary, Governor McMaster denies the allegations of Paragraph 117. 118. Paragraph 118 of the Complaint consists of legal conclusions, arguments,
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unwarranted inferences, editorial comments, and generalizations, rather than allegations of fact. To the extent Paragraph 118 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 118 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
119. Paragraph 119 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations, rather than allegations of fact. To the extent tat Paragraph 119 contains factual allegations directed at or against Governor McMaster to which a response is necessary, Governor McMaster denies the allegations. To the extent Paragraph 119 contains factual allegations about another party, person, or entity, Governor McMaster is without sufficient knowledge or information to form a belief as to the truth of the allegations.
120. Paragraph 120 of the Complaint consists of legal conclusions, to which no response is required. To the extent a response is necessary, Governor McMaster denies the allegations of Paragraph 120.
COUNT THREE (Violations of Sections 3 and 201 of the Voting Rights Act, 52 U.S.C. §§ 10302, 10501)
121. Responding to Paragraph 121 of the Complaint, Governor McMaster repeats, realleges, and incorporates by reference all prior responses to the preceding Paragraphs of the Complaint as if fully set forth herein verbatim.
122. Paragraph 122 of the Complaint contains excerpts of certain provisions of Section 201 of the Voting Rights Act. To the extent a response is necessary, Governor McMaster craves reference to the cited statutory provisions and denies any allegations or characterizations
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inconsistent therewith. 123. Paragraph 123 of the Complaint contains quotations from United States v. Board of
Commissioner of Sheffield, 435 U.S. 110, 120–21 (1978). To the extent a response is necessary, Governor McMaster craves reference to the cited case and denies any allegations or characterizations inconsistent therewith. To the extent Paragraph 123 relies on a 1998 letter from the Acting Assistant Attorney General, as cited in footnote 83, Governor McMaster craves reference to the letter and denies any allegations or characterizations inconsistent therewith.
124. Paragraph 124 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, editorial comments, and generalizations, rather than allegations of fact. Paragraph 124 of the Complaint also contains quotations from Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193, 198 (2009), and Reno v. Bossier Parish School Board, 528 U.S. 320, 338 n.6 (2002). To the extent a response is necessary, Governor McMaster craves reference to the cited cases and denies any allegations or characterizations inconsistent therewith.
125. Paragraph 125 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, and generalizations, to which no response is required. To the extent a response is necessary, Governor McMaster denies the allegations of Paragraph 125.
126. Governor McMaster admits the allegations of Paragraph 126 and craves reference to the South Carolina Supreme Court’s opinion in Gregory v. S.C. Democratic Executive Committee, 271 S.C. 364, 247 S.E.2d 439 (1978).
127. Paragraph 127 of the Complaint consists of legal conclusions, arguments, unwarranted inferences, and generalizations, to which no response is required. To the extent a response is necessary, Governor McMaster denies the allegations of Paragraph 127.
128. Paragraph 128 of the Complaint consists of legal conclusions, to which no response
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is required. To the extent a response is necessary, Governor McMaster denies the allegations of Paragraph 128.
FOR A SECOND DEFENSE Plaintiffs’ Complaint should be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.
FOR A THIRD DEFENSE Plaintiffs are not entitled to injunctive relief of any kind because they are not likely to succeed on the merits, they cannot demonstrate irreparable harm, the balance of the equities does not tip in their favor, and an injunction would not be in the public interest.
FOR A FOURTH DEFENSE Plaintiffs’ claim for injunctive relief fails because they raise nonjusticiable political questions and seek relief that violates the doctrines of separation of powers, federalism, and comity.
FOR A FIFTH DEFENSE Plaintiffs’ claims are barred or limited because they knew, should have known, or had reason to know the facts and circumstances on which their claims are based, and Plaintiffs’ lack of diligence prejudices Defendants. See Smith v. S.C. Election Comm’n, 874 F. Supp. 2d 483, 498 (D.S.C. 2012) (three-judge panel). Accordingly, Plaintiffs’ claims are barred, limited, or otherwise subject to defenses based on the doctrines of laches, waiver, acquiescence, estoppel, and other similar concepts and their requests for relief are inequitable and so barred or limited by corresponding equitable doctrines.
FOR A SIXTH DEFENSE Plaintiffs’ claims are barred to the extent they are premised on Section 1 of Executive Order
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No. 2020-21, which has since been modified and amended by Executive Order No. 2020-31, such that the “Home or Work Order” is no longer mandatory. The cited Executive Orders also expressly provide that they are “not intended to create, and do[] not create, any individual right, privilege, or benefit, whether substantive or procedural, enforceable at law or in equity by any party against the State of South Carolina, its agencies, departments, political subdivision, or other entities, or any officers, employees or agents thereof, or any other person.” E.g., Executive Order No. 2020-31, § 3(A).
FOR A SEVENTH DEFENSE Plaintiffs’ claim under Section 201 of the Voting Rights Act is not properly before the Court because raising such a claim requires an affirmative request and the subsequent convening of a three-judge court.
FOR AN EIGHTH DEFENSE Plaintiffs lack standing to bring the instant action and the claims asserted are either not yet ripe or are now moot and may be barred by the doctrine of sovereign immunity.
FOR A NINTH DEFENSE Governor McMaster expressly adopts and incorporates by reference any and all applicable defenses asserted by other Defendants that are not otherwise specifically set forth herein.
FOR A TENTH DEFENSE Governor McMaster expressly reserves the right to amend his Answer and assert any further affirmative defenses at such time and to the extent warranted before, during, or after discovery or based on his investigation of the case or other relevant factual developments, and he hereby gives notice of his intend to do so at the appropriate time.
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WHEREFORE, having fully answered and otherwise responded to Plaintiffs’ Complaint, Governor McMaster respectfully requests that the Court dismiss Plaintiffs’ Complaint or otherwise deny the relief sought therein, enter judgment in Defendants’ favor on all counts, and award Governor McMaster and the remaining Defendants any relief that the Court deems equitable, just, and proper.

May 11, 2020 Columbia, South Carolina

Respectfully submitted,
/s/Thomas A. Limehouse, Jr. Thomas A. Limehouse, Jr. (Fed. Bar No. 12148) Chief Legal Counsel OFFICE OF THE GOVERNOR South Carolina State House 1100 Gervais Street Columbia, South Carolina 29201 (803) 734-6023 tlimehouse@governor.sc.gov
Counsel for Defendant Henry D. McMaster, in his official capacity as Governor of South Carolina

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

MARY T. THOMAS, et al.,
Plaintiffs, v.
MARCI ANDINO, et al.,
Defendants.

Case No.: 3:20-cv-01552-JMC

REPLY BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

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Last night, the General Assembly approved a bill that would permit all eligible voters in South Carolina to vote absentee in the June primary. See S.C. General Assembly, 123rd Session, 2019-2020, R138, S635. Today, Governor McMaster signed it into law.1 Implicitly accepting the thrust of Plaintiffs’ argument that the COVID-19 presents an unprecedented danger to voters, the Governor underscored that the law will allow “[e]very eligible SC voter . . . to stay safe while exercising the precious right of voting.”2
Still, the Witness Requirement remains in full effect. And Defendants’ and Intervenor South Carolina Republican Party’s (“SCRP”) arguments do not undercut the core premise of Plaintiffs’ claim challenging it: in the ongoing pandemic, while public health officials have warned South Carolinians to protect themselves and prevent the spread of a deadly illness, the Witness Requirement severely burdens voters’ rights. They simply assert that if the Witness Requirement can withstand challenge in normal times, it is forever immune from challenge under any circumstances. That premise has no basis in law: the relevant constitutional standard is “flexible,” and demands a context-specific approach that weighs specific circumstances and voters’ current burdens. Burdick v. Takushi, 504 U.S. 428, 434 (1992). The Witness Requirement cannot withstand that test. Indeed, last week, a court ruled against the objections of defendant-intervenors and entered a consent order enjoining Virginia’s near-identical statute. See League of Women Voters of Va. v. Va. State Bd. of Elec., No. 20-cv-00024,2020 WL 2158249 (W.D. Va. May 5, 2020) (“LWVV”).
1 See @HenryMcMaster, Twitter (May 13, 2020, 3:14 PM), https://twitter.com/henrymcmaster/status/1260649728447885315. Given this development, Plaintiffs conditionally withdraw their motion with respect to the excuse requirement for voting absentee. Because the Excuse Requirement remains in place for subsequent elections, Plaintiffs reserve the right to renew their request for relief for subsequent elections consistent with their Complaint. See ECF No. 1 at 47–48. 2 @HenryMcMaster, Twitter ((May 13, 2020, 3:14 PM), https://twitter.com/henrymcmaster/status/1260649728447885315.
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Defendants and Intervenors also leave critical expert testimony and facts undisputed. They do not dispute that COVID-19 will continue to afflict South Carolina through June,3 Reingold Decl. ¶¶ 12, 13; that the illness can cause severe harm to or be transmitted by anyone, id. ¶¶ 7, 8; or that “[r]equiring individuals to have someone they are not otherwise being exposed to come into close enough proximity to witness their ballot would place them at increased risk of infection,” id. ¶ 18. At bottom, they do not come close to showing why Plaintiffs ought to suffer the irreparable harm of risking illness or disenfranchisement to advance an abstract interest in election integrity—particularly, when they admit the Witness Requirement “offers no benefit to election officials.” ECF 7-4 at 3. The Court should grant Plaintiffs’ motion. I. Defendants mischaracterize current and continuing guidance on mitigating the
harm of COVID-19. Defendants minimize what public officials—including the Governor—urge all South Carolinians to do to mitigate harm to themselves and others. Specifically, they claim that “Plaintiffs have lost the[ir] lead argument” in light of the Governor’s superseding order lifting his previous “home or work” Order. ECF No. 46 (“Defs.’ Opp.”) at 2. But that mischaracterizes the nature of the continuing public health emergency. While the Governor’s “home or work” directive has been relaxed in that it is not mandatory—that is, residents no longer break the law by being outside—the Governor issued a renewed statewide disaster declaration just yesterday. See S.C. Exec. Order No. 2020-35, at 9–10. And the Governor’s May 3 order cited by Defendants, continues to “urge[] any and all residents . . . to limit social interaction, practice “social distancing” in accordance with CDC guidance, and take every possible precaution to
3 See Chase Laudenslager, DHEC releases graphics showing new trends, updated projections for COVID-19 in SC, CountOnNews2 (May 4, 2020) (showing DHEC graphics describing “containment strategy” of “[a]fter June 16, 2020 [possibly] relaxing social distancing . . . with containment strategies that include testing, contact tracing, isolation, and limiting gathering size”).
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avoid potential exposure to, and slow the spread of, COVID-19.” S.C. Exec Order. No. 2020-31, at 4 (emphasis added). Most recently, on May 11, Governor McMaster noted that the State has “‘an opportunity to set an example [but] only . . . if South Carolinians continue to follow the advice and recommendations of our public health experts.’”4
Those “recommendations of [] public health experts” speak loudly and clearly: the DHEC urges people to continue to follow “social distancing” guidance, including “staying at home as much as possible,” and “staying at least 6 feet away from other people.”5 The CDC warns that households with one or more individuals at “high risk” of severe illness from COVID-19 should follow serious measures like “limiting errands” so that any family member leaves home “only when absolutely necessary.”6 And it continues to “encourage[] voters to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations.”7 Plaintiffs’ expert agrees with this medical consensus. See Reingold Decl. ¶¶ 10, 17, 18.
In this context, the State cannot force residents to decide between protecting their health or risking infection by coming in close contact with someone outside their household. “The Constitution does not permit a state to force such a choice on its electorate.” LWVV, 2020 WL 2158249, at *8. Indeed, the inherent conflict between in-person voting and social distancing rules is plainly the reason that the General Assembly acted on the Excuse Requirement.
4 Joseph Bustos & Bristow Merchant, SC salons, gyms, pools can reopen, McMaster says. Here’s when, The State (May 11, 2020) (quoting Governor McMaster), https://www.thestate.com/news/coronavirus/article242651811.html. 5 DHEC, FAQs (COVID-19) (emphasis added), https://www.scdhec.gov/infectious-diseases/viruses/coronavirusdisease-2019-covid-19/frequently-asked-questions-covid-19. 6 CDC, Households Living in Close Quarters, https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/livingin-close-quarters.html. 7 CDC, Recommendations for Election Polling Locations, https://www.cdc.gov/coronavirus/2019ncov/community/election-polling-locations.html.
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II. Defendants and Intervenor are wrong on the relevant standard and do not rebut Plaintiffs’ demonstration of significant harm. A. Courts evaluate the burden on voters in light of present circumstances. Defendants and Intervenors erroneously assume that the Court’s analysis is the same in a
“COVID-less world” as now. Not so. The Anderson-Burdick approach is necessarily contextspecific, “[t]he results of th[e] evaluation” are never “automatic.” Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). Here, strict or at least heightened scrutiny is warranted.
In reviewing right to vote claims, courts assess burdens imposed by a challenged voter restriction within the context of current circumstances—regardless of whether those are unusual, abnormal, or exigent. Defendants and Intervenor do not engage with this principle. Nor do they address the decisions of several courts that have already struck down various election administration laws and procedures in the current pandemic. See, e.g., Esshaki v. Whitmer, No. 20-1336, 2020 WL 2185553, at *1 (6th Cir. May 5, 2020) (enforcement of ballot access provisions during the COVID-19 pandemic without some reasonable accommodation for candidates violates Constitution); Garbett v. Herbert, No. 20-cv-00245, 2020 WL 2064101, at *12 (D. Utah Apr. 29, 2020) (“On balance, considering the current pandemic and the totality of the State’s emergency measures to combat it, Utah’s ballot access framework as applied this year imposed a severe burden on [Republican candidate] Garbett’s First Amendment rights.”); Libertarian Party of Ill. v. Pritzker, No. 20-cv-2112, 2020 WL 1951687, at *4 (N.D. Ill. Apr. 23, 2020) (finding that the “combined effect of . . . Illinois’ stay-at-home order and the usual in person signature requirements [posed] a nearly insurmountable hurdle”).8
8 Ballot-access laws implicate “the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30-31 (1968).
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League of Women Voters of Virginia, decided last week, is the most instructive case, because it involved a constitutional challenge to Virginia’s analogue “witness signature requirement.” 2020 WL 2158249, at *1. There, the court entered its judgment on posture of a motion to approve a consent decree between the parties, over the opposition of the intervenor the Republican Party of Virginia. In determining that the agreement was “fair, adequate, and reasonable,” the court found that plaintiffs demonstrated that a “probable violation of federal law.” Id. at *6. Applying Anderson-Burdick and Fourth Circuit law, the court concluded that, because: “these are not ordinary times. . . . all Americans, have been instructed to maintain a minimum of six feet from those outside their household—the burden [posed] is substantial for a substantial and discrete class of [the] electorate.” Id. at *8 (emphasis added). So here. The burdens that the Witness Requirement forces on Plaintiffs “in our current era of social distancing” are nothing less than “substantial” or severe. Id. at *3. And, under AndersonBurdick, it also “matters” that these burdens bear more heavily on certain groups, like African Americans and low-income people. See Ga. Coal. for People’s Agenda, Inc. v. Kemp, 347 F. Supp. 3d 1251, 1263 (N.D. Ga. 2018); see also Jones v. Governor of Fla., 950 F.3d 795, 821 (11th Cir. 2020); Mich. State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 664 (6th Cir. 2016); League of Women Voters of Fla., Inc., v. Detzner, 314 F. Supp. 3d 1205, 1216 (N.D. Fla. 2018). The Witness Requirement must therefore be “narrowly drawn to advance a[n] interest of compelling importance.” Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
These are not novel principles. When confronted with natural disasters or emergencies in the past, courts have not hesitated to enjoin elections laws that, in the emergency, would unconstitutionally burden individuals’ right to vote. For example, a district court enjoined Florida’s voter registration deadline because Hurricane Matthew “foreclosed the only methods of
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registering to vote” during the final week of Florida’s voter registration window, such that maintaining Florida’s statutory registration deadline would “completely disenfranchise[] thousands of voters,” amounting “to a severe burden on the right to vote.” Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257 (N.D. Fla. 2016); see also Ga. Coal. for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345–46 (S.D. Ga. 2016) (granting preliminary injunction to extend county’s statutory voter registration deadline after a hurricane). Another court extended Virginia’s statutory voter registration deadline after state voter registration website crashed on the final day of registration. 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) (granting preliminary injunction extending statutory voter registration deadline after state voter registration website crashed on the final day of registration). And a Pennsylvania appellate court upheld a decision postponing an election entirely in light of significant flooding because, absent relief, “some voters, by reason of the elements, would have incurred the discrimination of disenfranchisement.” In re Gen. Election-1985, 531 A.2d 836, 839 (Pa. Commw. Ct. 1987).
These cases confirm that Anderson-Burdick framework is a “flexible standard,” requiring courts to apply a context-specific approach. Burdick, 504 U.S. at 434. The scrutiny applied “will wax and wane with the severity of the burden imposed on the right to vote in any given case; heavier burdens will require closer scrutiny, lighter burdens will be approved more easily.” Fish v. Schwab, No. 18-3133, 2020 WL 2050644, at *12 (10th Cir. Apr. 29, 2020).
Neither Defendants, Intervenor, nor amici Attorney General cite a single case suggesting that a challenged voting regulation is always subject to the same degree of scrutiny regardless of the circumstances. They misplace their reliance on McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969), which bears no resemblance to the facts at
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hand and in any event “predates Anderson and Burdick,” as Defendants acknowledge. Defs.’ Opp. 10. Here, Plaintiffs do not challenge the “right to receive (or submit) an absentee ballot.” Id. Nor do they merely “complain[] about the regulation of a privilege.” ECF No. 50 (“SCRP Opp.”) at 9. Rather, they have established that, in the context of the pandemic, they will lose the right to vote altogether due to the witness requirement. This is because, as Plaintiffs’ expert’s unrebutted testimony has established, “individuals without another person able to witness in their household” are at “increased risk of exposure to and/or transmission of COVID-19” by having someone witness their ballot. ECF No. 7-11 ¶ 18. Moreover, given the COVID-19 crisis, Plaintiffs are “disabled from voting” because they cannot safely “go to the polls” or obtain a witness due to the need to follow social distancing rules. See O’Brien v. Skinner, 414 U.S. 524, 525 (1974) (distinguishing MacDonald and requiring absentee ballots for voters in jail).
For that reason, Defendants’ “general observation,” Defs.’ Opp. 21–22, that the Witness Requirement has become less burdensome over the years misses the mark. Plaintiffs do not challenge the Witness Requirement in the 1950s or the 1980s. See id. at 23. They reasonably do not feel safe voting in person in this primary.9 This concern carries particular weight for older voters and those who have preexisting conditions that put them at higher risk for serious COVID-19 complications like Plaintiffs Thomas and Walker and many of the Family Unit’s members. See ECF No. 7-18 ¶¶ 6–9; ECF No. 7-21 ¶¶ 2, 11; ECF No. 7-22 ¶ 3. As Dr. Reingold explains, “geriatric patients” and “those with immunologic conditions and with other preexisting conditions,” like Plaintiffs, “are at the greatest risk of severe cases, long-term impairment, and death.” ECF No. 7-11 ¶ 7.
9 Nor is it assured that in-person voting will be accessible—let alone safe—in upcoming elections as in past years, as even Defendant Andino expected a “deficit in the number of managers needed to staff polling places” and “a number of facilities [to] decline to continue being used as a polling place.” ECF No. 7-4, at 2.
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B. Defendants and Intervenor fail to rebut Plaintiffs’ showing of irreparable harm to Plaintiffs and South Carolina voters.
Ignoring Plaintiffs’ unrebutted testimony that they face real health risks from complying with the witness requirement, and statistical evidence showing that many other South Carolinians similarly live alone, see generally ECF No. 7-12; ECF No. 7-1, at 29–32, Defendants simply assert that Plaintiffs have the “ability” to quickly “find a witness” outside their home—because, after all, “they have to eat.” SCRP Opp. 11. And further, that only a “limited number of voters,” id. at 23, will be burdened by the witness requirement. Neither contention is availing.
First, Defendants propose that “a neighbor, friend, or delivery driver . . . could witness an absentee ballot through a door.” Defs.’ Opp. 23. They ignore scientific testimony from Dr. Reingold, that any such in-person contact with someone outside one’s household—no matter how limited—carries grave risks. Second, even if a voter can find a witness who will assist them in this way, “transmission of the virus can occur via environmental surfaces, [so] there is also risk of spread of the virus at any location where multiple individuals touch surfaces,” like the witness affidavit. ECF No. 7-11 ¶ 11. Defendants argument also ignores that many voters do not live near another neighbor or know someone willing to come close enough be a witness or may have other accessibility issues. Ultimately, “[n]otwithstanding the proffered steps which could be taken to mitigate the risks to health in having somebody witness one’s absentee ballot, many would be dissuaded from exercising their vote both on account of the remaining health risks and required steps to mitigate them . . . .” 2020 WL 2158249, at *8.
C. Defendants and Intervenor ignore evidence that the Witness Requirement does not advance an interest in election integrity.
Whatever level of scrutiny the Court applies on a voting restriction, when weighing attendant burdens against the government’s interests courts must consider “the precise interests put forward by the State,” and consider “the extent to which those interests make it necessary to
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burden the plaintiff’s rights.” Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 108–09 (2d Cir. 2008) (internal citations and quotation marks omitted); see also Ne. Ohio Coal. for the Homeless v. Husted, 837 F.3d 612, 632 (6th Cir. 2016) (“none of the precise interests put forward by Ohio,” including a general interest in “[c]ombating voter fraud perpetrated by mail,” was sufficient to overcome burden of ballot rejection due to technical errors). Defendants fail to explain how lifting the Requirement in this crisis would harm voter integrity.
Instead, the evidence in the record shows the opposite. Defendant Andino admitted that because of the unverifiable witness signature and address, “the witness signature offers no benefit” to Defendants. ECF No. 7-4, at 3. Her declaration asserts that her letter sought to provide “useful, relevant information.” ECF No. 46-2 ¶ 10. It does. Here, it makes it clear that during the pandemic the Witness Requirement is “‘both too restrictive’” by denying thousands of voters the opportunity to vote safely, and “‘not restrictive enough to effectively prevent voter fraud.’” LWVV, 2020 WL 2158249, at *8 (quoting N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 235 (4th Cir. 2016).
The Witness Requirement’s failure to protect against fraud becomes even clearer after Defendants’ admission that “anyone can be a witness for an absentee ballot—the statute imposes no limitations.” Defs.’ Opp. 21 (emphasis added). While Defendants suggest that homebound voters obtain a signature from a “delivery driver,” id. at 23, they do not explain how any antifraud interest is served by forcing voters to obtain a signature from a person they do not know, and who cannot even attest to the voter’s identity. Indeed, Defendants even assert that someone like Plaintiff Walker could have legally incompetent young children witness their absentee ballot. Id. at 22; see S.C. Code Ann. § 63-7-20(3)(d)(5) (“‘Child’ means a person under the age of eighteen.”). Such a broad rule hardly promotes election integrity.
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Nor do Defendants or Intervenor identify any instances of absentee ballot fraud in South Carolina (or any that would have been prevented by the Witness Requirement specifically), let alone anything that could outweigh the overwhelming likelihood that the Requirement will disenfranchise thousands of voters. This is significant, because while a state’s “interest in counting only the voters of eligible voters is legitimate in the abstract,” the interest will not suffice absent “evidence that such an interest made it necessary to burden voters’ rights.” Fish, 2020 WL 2050644, at *18 (affirming injunction against Kansas’s documentary proof of citizenship requirement for voter registration). In any event, the fact that South Carolina is in the clear minority of states with a similar witness requirement certainly belies Defendants’ abstract fraud concerns.10 See LWVV., 2020 WL 2158249, at *9 n.13 (noting fact that “a significant majority of the states have chosen other means to combat voter fraud”).
D. The Voting Rights Act does not—as Defendants and DOJ suggest—permit literacy tests so long as they are only applied to absentee voters.
Defendants and the Department of Justice (“DOJ”) assert that (1) Section 201 requires a three-judge court and (2) the Section 201 claim fails on the merits. That is inconsistent with the Voting Rights Act’s (“VRA”) text and would subvert the intent of Congress.
Three-judge courts are required only for actions brought by the “Attorney General” under Section 201, 202 or 203. 52 U.S.C. § 10504 (entitled “civil actions by the Attorney General”). The VRA says nothing about private plaintiff suits. Because the VRA “does not ‘expressly require’ a three-judge court when private parties bring claims,” courts have denied requests from private plaintiffs to convene a three-judge court. Nick v. Bethel, No. 3:07-cv-00098, 2007 WL
10 See, e.g., Nat’l Conf. of State Legis., Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options (Apr. 24, 2020) (“More than two-thirds of the states have ‘no-excuse absentee’ voting, which means any voter can request a mail ballot without providing an excuse . . . .”), https://www.ncsl.org/research/elections-andcampaigns/absentee-and-early-voting.aspx.
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9718147, at *5 (D. Alaska July 31, 2007); cf. Thomas v. Bryant, 919 F.3d 298, 304 (5th Cir. 2019) (rejecting similar attempts to place VRA claims before a three-judge court); Chestnut v. Merrill, 356 F.Supp.3d 1351 (N.D. Ala. 2019) (same). Single judge courts regularly entertain private claims under these sections. See, e.g., Greater Birmingham Ministries v. Merrill, 250 F. Supp. 3d 1238, 1244 (N.D. Ala. 2017) (Section 201); In re Cty. of Monterey Initiative Matter, 427 F. Supp. 2d 958, 959 (N.D. Cal. 2006) (addressing a Section 203 claim, which protects language minorities from English-only elections, a form of literacy test).
On the merits, Defendants and DOJ dispute that the Witness Requirement is a voucher test and assert that it is not a “requirement” for voting within the meaning of Section 201, because it does not apply to every person who votes either in-person or absentee. First, per Defendants, the purpose of the Witness Requirement is for the witness to “assur[e] . . . the authenticity of the voter,” that is, to vouch for the identity of the voter. ECF No. 46, at 24. Proof of identity is a voting qualification in this state. See, e.g., S.C. Code Ann. § 7-13-710.
Second, under Defendants’ and DOJ’s reasoning, South Carolina could require absentee voters to pass a literacy test so long as they have the “choice” of voting in person (without a literacy test). That is not, and cannot be, the law. Section 201, like all of the VRA, must “be interpreted in a manner that provides the broadest possible scope in combating racial discrimination.” Chisom v. Roemer, 501 U.S. 380, 403 (1991) (citation omitted). Section 201 bars “any requirement that a person . . . [satisfy a] voucher” test. 52 U.S.C. § 10501(b)(4) (emphasis added). Here, the Witness Requirement is a “requirement” under any ordinary understanding of the word: absentee voters who fail to comply will have their ballots rejected. S.C. Code Ann. § 7-15-420. Indeed, despite its position here, DOJ previously found that a
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literacy test was invalid even though it applied only to certain absentee voters. See Letter from U.S. Assist. Atty. Gen. Jerris Leonard to Ala. Atty. Gen. MacDonald Gallion (Mar. 13, 1970).11
Defendants’ and DOJ’s new interpretation is also inconsistent with controlling case law and congressional intent. The U.S. Supreme Court has applied the ban on tests or devices to enjoin a law that gave voters a choice between complying with a literacy test or a then-valid property qualification.12 South Carolina v. Katzenbach, 383 U.S. 301, 319 (1966). Katzenbach therefore makes clear that a “test or device” cannot be required for any voter, even if the voter has a “choice” to use a different way of voting that lacked such a requirement. Indeed, Congress knew that tests or devices often were used as “failsafe” alternatives to other requirements. S. Rep. 89-162, 1965 U.S.C.C.A.N. 2508, 2542–43.13 Far from making those tests more palatable, Congress clearly intended to ban any test or device. Id.; see also Katzenbach, 383 U.S. at 310–11. Similarly, in United States v. Clement, the Fifth Circuit reversed and held that “requiring any applicant” to “comply with any . . . test or device” violates the VRA. 358 F.2d 89, 92–93 (5th Cir. 1966); see also S. Rep. 89-162, 1965 U.S.C.C.A.N. 2508, 2549 (citing Clement as an example of a prohibited test). Regardless, here, some voters cannot vote in person in the pandemic and have no choice but to vote absentee subject to the Witness Requirement.
The amicus S.C. Attorney General cites Howlette v. City of Richmond, 485 F.Supp. 17, 22 (E.D.Va.) aff’d 580 F.2d 704 (4th Cir.1978). But, Howlette, unlike this case, addressed the requirements for referendum petitions. Id. at 26–27. The court there simply recognized that Section 201 only applies to “prerequisites to voting,” not referendum petitions. And, Defendants
11 https://www.justice.gov/sites/default/files/crt/legacy/2014/05/30/AL-1100.pdf. 12 Property requirements are not per se unconstitutional. Ball v. James, 451 U.S. 355, 371 (1981). The first property requirements were not enjoined until after the VRA. Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621 (1969). 13 The Supreme Court has long looked to congressional reports as the “authoritative source” for interpreting the VRA. See Thornburg v. Gingles, 478 US 30, 43 n.7 (1987).
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fail to recognize that literacy tests, like the Witness Requirement here, were also justified as necessary to prevent fraud. See Veasey v. Abbott, 830 F.3d 216, 237 (5th Cir. 2016) (en banc).
Finally, Defendants and the DOJ argue that because the South Carolina absentee voting laws were previously precleared under Section 5 of the VRA, they could not contain a barred test. But preclearance had “limited meaning” and did “not represent approval of the voting change.” Reno v. Bossier Par. Sch. Bd., 528 U.S. 320, 335 (2000) (“Bossier II”). The DOJ had to preclear any voting law that was not retrogressive, even if it violated VRA another provision. Reno v. Bossier Par. Sch. Bd., 520 U.S. 471, 474 (1997) (“Bossier I”). And even a precleared law could still be “attacked through the normal means.” Bossier II, 528 U.S. at 335; see 52 U.S.C. § 10304(a). Further, the Witness Requirement predates the VRA. ECF No. 46 at 22. The DOJ would never have had the chance to object to it. See Bossier I, 520 U.S. at 478, 484 (pre-1965 laws not subject to Section 5 and had to be attacked via other sections of the VRA). III. Plaintiffs’ claims are timely and Purcell Does Not Pose an Obstacle to Relief.
While Defendants do not long dwell on Purcell v. Gonzalez, 549 U.S. 1 (2006), the Attorney General, as amicus, leans on Purcell to oppose the relief sought. ECF No. 53 at 3–4.
The crux of the Supreme Court’s determination in Purcell was that the Ninth Circuit had failed “to give deference to the discretion of the District Court” in the lower court’s denial of the injunction sought. 549 U.S. at 5. The Supreme Court upheld the district court’s denial or relief based upon the need to avoid “voter confusion and consequent incentive to remain away from the polls.” Id. at 4–5. That is not a concern here. Plaintiffs do not seek to impose additional requirements on voters, or changes to the mechanics of the election that could push voters away; the requested relief simply requires the state to count certain ballots that would otherwise be discarded (i.e., those lacking a witness signature). It is difficult to see how such an order would incentivize voters “to remain away from the polls.” Id.
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Defendants’ suggestion that it is too close to Election Day to make changes to absentee vote-counting procedures without significant disruptions is belied by its actions. Just yesterday, the General Assembly appropriately responded to the unprecedented COVID-19 emergency, by passing legislation that would expand absentee voting for the June primary to every eligible voter. See S.C. Gen. Assembly, 123rd Session, 2019-2020, S635. This is a welcome change that will affect virtually every voter and elections administrator throughout the State. Thus, while Defendants assert that “logistical” considerations counsel against relief given that “[a]bsentee voting is underway,” Defs.’ Opp. 29, the State remains quite capable of making significant changes to its absentee voting process at this time. It is difficult to see how a much more modest change requiring the State to count absentee ballots lacking a witness would be disruptive.
Indeed, the Supreme Court’s granting an injunction extending the receipt deadline for absentee ballots, issued with absentee voting already underway and just five days before Wisconsin’s presidential primary last month, belies the notion that Purcell is an inexorable command against relief. Republican Nat’l Comm. v. Democratic Nat’l Comm.,140 S. Ct. 1205, 1207–08 (2020). There, the Supreme Court did not stay at least some of the relief ordered by the district court, which extended the deadline for mailed absentee ballots to be received by election officials. Id. That relief was granted just five days prior to Election Day. The Court suggested that this relief was permissible because “[t]hat extension was designed to ensure that the voters of Wisconsin can cast their ballots and have their votes count.” Id. The relief Plaintiffs seek here is not meaningfully different: just as the COVID-19 pandemic prevented many absentee voters in Wisconsin from complying with the Election Day deadline for receipt of their absentee ballots and needed relief from that requirement to ensure that their ballots would be counted,
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here, it will prevent many voters in South Carolina from complying with the witness requirement, necessitating relief lest their ballots go uncounted.14
As Defendants note, “voters can request an absentee ballot any time in the calendar year of an election.” Defs.’ Opp. 29. If the fact that voters may already request absentee ballots were a bar to relief in election law cases, Plaintiffs would essentially be foreclosed from seeking relief unless they did so in the calendar year preceding an election. There is no authority for such a broad proposition. And because Plaintiffs’ chief claim is based largely on the COVID-19 pandemic, they cannot be faulted for not filing the case in 2019, before the COVID-19 had even reached the United States. While the Governor’s first disaster order was issued in March, the full magnitude of the emergency—including its effects on voting and elections—took some time to recognize, and the disaster itself has caused significant disruptions for everyone. Plaintiffs moved as quickly as possible under the circumstances, and initially proposed a schedule (which Defendants opposed), that would have facilitated more timely resolution of the pending motion.15
It simply is no great burden on the state to count absentee ballots that do not have a witness signature and address. Defendant Andino has admitted such a change would not burden election officials. See ECF No. 7-4 at 3. And doing so would not confuse voters in a manner that would create an “incentive to remain away from the polls,” which is the sine qua non for Purcell to preclude relief. 549 U.S. at 4–5.
14 While the Supreme Court in RNC disapproved of other relief (extending the postmark deadline for absentee ballots), it did so based on the “narrow, technical question” of whether the district court could, in essence, extend voting for six additional days beyond Election Day. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1206–07 (2020). And a “critical point” in the Supreme Court’s decision was that the Plaintiffs had never requested such relief in their motion for a preliminary injunction. Id. at 1206. Also, the Supreme Court made clear that it “cannot be stressed enough” that it expressed no opinion as to “whether other reforms or modifications in election procedures in light of COVID–19 are appropriate.” Id. at 1208 (emphasis added). 15 The above-stated facts, the fact that Defendants discussed lifting the Challenged Requirements as recently as April 13—i.e., little more than a week before Plaintiffs filed the Complaint, see ECF No. 46-8—and Plaintiffs’ substantial private interests all weigh heavily against Defendants’ laches argument. Defs.’ Opp. 29–30.
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CONCLUSION

For the foregoing reasons, the Court should grant Plaintiffs’ preliminary injunction motion.

Dated: May 13, 2020

Respectfully submitted,

Adriel I. Cepeda Derieux* Dale E. Ho* Sophia Lin Lakin* Theresa J. Lee* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2500 acepedaderieux@aclu.org dho@aclu.org
Deuel Ross* NAACP Legal Defense &
Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 Tel.: (212) 965-2200 dross@naacpldf.org

/s/ Susan K. Dunn Susan K. Dunn (Fed. Bar #647) American Civil Liberties Union of South Carolina Charleston, SC 29413-0998 Tel.: (843) 282-7953 Fax: (843) 720-1428 sdunn@aclusc.org
Attorneys for Plaintiffs

* Pro Hac Vice

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CERTIFICATE OF SERVICE I certify that on May 13, 2020, I served a copy of the foregoing Reply Brief in Support of Plaintiffs’ Motion for a Preliminary Injunction via filing with the Court’s CM/ECF system, which sent copies of this document to Counsel of Record.
/s/ Susan K. Dunn Susan K. Dunn (Fed. Bar #647) American Civil Liberties Union of South Carolina Charleston, SC 29413-0998 Tel.: (843) 282-7953 Fax: (843) 720-1428 sdunn@aclusc.org
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 3:20-cv-01552-JMC Date Filed 05/25/20 Entry Number 65 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

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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
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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.
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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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 3:20-cv-01552-JMC Date Filed 05/12/20 Entry Number 53 Page 1 of 14

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

MARY T. THOMAS, et al.,

)

)

Plaintiffs,

)

)

-vs-

)

)

MARCI ANDINO, et al.,

)

)

Defendants.

)

___________________________________ )

Case No. 3:20-cv-01552-JMC
AMICUS MEMORANDUM OF ATTORNEY GENERAL ALAN WILSON

Attorney General Alan Wilson submits the following memorandum as Amicus Curiae. We note for the Court’s benefit that we have also submitted a memorandum in the case pending in the Original Jurisdiction of the South Carolina Supreme Court, Bailey et al. v. South Carolina Election Commission and Andino, Appellate Case No. 2020-00642. That case involved interpretation of § 7-15-310 et seq. relative to absentee voting in the wake of the current pandemic.
The public health emergency, which currently grips South Carolina, is unquestionably unprecedented in this State’s history. The upcoming primary and general elections also loom large in the wake of a worldwide pandemic. But the present crisis – as extraordinary as it is – should not be used as justification for setting aside South Carolina’s longstanding and facially neutral absentee voting statutes. In other words, COVID-19 should not be the instrument for an attempt in this lawsuit to address this State’s social ills.
Even in a pandemic, neither the United States Constitution, nor the Voting Rights Act (VRA), are violated by enforcement of an even-handed absentee statute which has remained on the books for decades, and has gone virtually unchallenged during that time. Indeed, from the

3:20-cv-01552-JMC Date Filed 05/12/20 Entry Number 53 Page 2 of 14
1970s onward, the statutes were amended on numerous occasions. The absentee statutes presumably passed muster each time by being precleared by the Attorney General of the United States pursuant to his § 5 VRA responsibilities.
Plaintiffs note that while there have been numerous § 5 objections to various South Carolina provisions, Complaint at 43-44, they point to no statute which they attack in this lawsuit. Nor could they, inasmuch as the provisions they complain of have gone into effect under the Voting Rights Act over the years. NAACP v. Hampton County Electric Comm., 470 U.S. 166 (1985) [statutory provision objected to by the Attorney General pursuant to § 5 of the VRA cannot be put into effect]. In other words, South Carolina’s absentee ballot law is designed to expand voting, not deny or abridge it.
In this case, Plaintiffs throw in the proverbial “kitchen sink” in an effort to enjoin enforcement of an absentee ballot statute which has long existed. See S.C. Code Ann. § 7-15-310 et seq. Plaintiffs contend that the so-called “Excuse Requirement” [§ 7-15-320] and “Witness Requirement” [§ 7-15-220 and -420] are, in the context of the pandemic, an infringement upon the fundamental right to vote under the 1st and 14th Amendments; that the “Excuse Requirement” and “Witness Requirement” violate § 2 of the VRA, by burdening the right to vote, and by inflicting an adverse and disparate impact upon the right of African-Americans to vote; and that the “Witness Requirement” – requiring a witness before an absentee ballot may be mailed - constitutes an illegal “test or device” under § 201 of the VRA. None of these constitutional or statutory claims are valid and should be rejected.
Attorney General Wilson is, of course, not a party to this action, but an amicus only. The parties will address the various elements to impose a preliminary injunction. See Real Truth
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About Obama, Inc. v. Fed. Elect. Comm., 575 F.3d 342, 346 (4th Cir. 2009), cert. granted and vacated on other grounds, 559 U.S. 1089 (2010) [plaintiff must show a likelihood of success on the merits; that plaintiff is likely to suffer irreparable harm in the absence of preliminary injunctive relief; that the balance of equities tips in plaintiffs’ favor; and that an injunction is in the public interest.]. However, failure to show a likelihood of success on the merits is dispositive in denying the injunction. Because we believe Plaintiffs here cannot show the likelihood of success on the merits, a preliminary injunction should be denied. S.C. Elec. and Gas Co. v. Randall, 333 F.Supp3d 552, 576 (D.S.C. 2018) [“Therefore, because SCE&G cannot show a likelihood of success on the merits, this Court need not address the other necessary elements for preliminary injunctive relief.”].
We also note here that the primaries are less than a month away, a matter of weeks before voters are scheduled to vote. The United States Supreme Court only recently addressed such a situation where a federal court is asked to interfere in an election which is imminent. In Repub. Nat. Comm. V. Dem. Nat. Comm., - U.S. - , 140 S.Ct. 1205, 1207 (2020), the Court stated that “[t]his Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of the election.” (citing Purcell v. Gonzalez, 549 U.S. 1 (2006); Frank v. Walker, 574 U.S. 929 (2014) and Veasey v. Perry, 574 U.S. ___, 135 S.Ct. 9 (2014)).
In Purcell, the Supreme Court vacated the injunction barring use of the Arizona voter identification statute. The Arizona statute had been precleared by the Attorney General under § 5 of the VRA. At the time the Court of Appeals issued its order, there were “just weeks before an election . . . “ 549 U.S. at 4. The Supreme Court observed that
“A State indisputably has a compelling interest in preserving the integrity of its election process.” Eu v. San Francisco County Democratic Central Comm., 489
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U.S. 214, 231, 109 S.Ct. 1013, 1031 L.Ed.2d 271 (1989). Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. “[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Countering the State's compelling interest in preventing voter fraud is the plaintiffs' strong interest in exercising the “fundamental political right” to vote. Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (internal quotation marks omitted). Although the likely effects of Proposition 200 (voter ID) are much debated, the possibility that qualified voters might be turned away from the polls would caution any district judge to give careful consideration to the plaintiffs' challenges.
Id. However, as Purcell states, “[g]iven the imminence of the election and the inadequate time to
resolve the factual disputes, our action today shall of necessity allow the election to proceed
without an injunction suspending the voter identification rules.” Id. at 5-6 (emphasis added).
Purcell involved in-person voting while Repub. Natl. Comm. concerned absentee ballots
as a result of the coronavirus. As demonstrated below, there is far less a reason to attach a
“fundamental right to vote” with respect to absentee voting because absentee voting is a privilege
bestowed by the Legislature, not a right protected by the Federal Constitution. Regardless, there
is no reason to enjoin operation of South Carolina’s absentee voting provisions so near to the
upcoming election. Purcell and Repub. Natl. Comm. should control.
We turn now to Plaintiffs’ contentions in this case. With respect to the constitutional
arguments, the courts have been quite clear that an absentee ballot statute employed by the State
generally does not contravene the Federal Constitution or impair or infringe upon the right to
vote. In McDonald v. Bd. of Elec. Comm’rs, 394 U.S. 802 (1969), the Supreme Court upheld
Illinois’ absentee ballot statute against an attack grounded in the Fourteenth Amendment. There,
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unsentenced inmates, awaiting trial, challenged the statute, contending that the absentee law did
not allow them to vote by absentee ballot, depriving them of the fundamental right to vote. Chief
Justice Warren, writing for the Court, concluded that, while the right to vote is indeed
“fundamental,” such “an exacting approach is not necessary here . . . .” This was because
[f]irst, the distinctions made by Illinois' absentee provisions are not drawn on the basis of wealth or race. Secondly, there is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants' ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. Despite appellants' claim to the contrary, the absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise; nor, indeed, does Illinois' Election Code so operate as a whole, for the State's statutes specifically disenfranchise only those who have been convicted and sentenced, and not those similarly situated to appellants. Ill.Rev.Stat., c. 46, s 3—5 (1967). Faced as we are with a constitutional question, we cannot lightly assume, with nothing in the record to support such an assumption, that Illinois has in fact precluded appellants from voting. We are then left with the more traditional standards for evaluating appellants' equal protection claims [rational basis].
394 U.S. at 807-08 (footnotes omitted). The Court went on to conclude as follows:
[s]ince there is nothing to show that a judicially incapacitated, pretrial detainee is absolutely prohibited from exercising the franchise, it seems quite reasonable for Illinois' Legislature to treat differently the physically handicapped, who must, after all, present affidavits from their physicians attesting to an absolute inability to appear personally at the polls in order to qualify for an absentee ballot. Illinois could, of course, make voting easier for all concerned by extending absentee voting privileges to those in appellants' class. Its failure to do so, however, hardly seems arbitrary, particularly in view of the many other classes of Illinois citizens not covered by the absentee provisions, for whom voting may be extremely difficult, if not practically impossible.
Id. at 809-10 (emphasis added). Thus, the Supreme Court concluded that the Illinois absentee
statute did not deprive persons who could not vote absentee of the right to vote. This was so
despite the fact that like the prisoners in McDonald or here, like the voters in the pandemic, those
ineligible to vote absentee found voting to be “extremely difficult, if not practically impossible.”
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Thus, in this case, Plaintiffs’ attack upon South Carolina’s absentee voting statute is entirely misplaced. COVID-19 cannot render an otherwise perfectly constitutional statute unconstitutional. There is a clear distinction between the fundamental right to vote and the statutory privilege to vote absentee.
Other courts, relying upon McDonald, are in accord. For example, in Griffin v. Roupas, 385 F.3d 1128 (7th Cir. 2019), the Seventh Circuit, per Judge Posner, held that the federal Constitution does not confer a blanket right upon all registered voters to vote by absentee ballot. According to Judge Posner,
at bottom the plaintiffs are arguing that the Constitution requires all states to allow unlimited absentee voting, and the argument ignores a host of serious objections to judicially legislating so radical a reform in the name of the Constitution. Voting fraud is a serious problem in U.S. elections generally and one with a particularly gamey history in Illinois . . . and it is facilitated by absentee voting. [Citing authorities] . . . . These and other problems created by absentee voting . . . may be outweighed by the harm to voters who being unable to vote in person will lose their vote if they can't vote by absentee ballot. But the striking of the balance between discouraging fraud and other abuses and encouraging turnout is quintessentially a legislative judgment with which we judges should not interfere unless strongly convinced that the legislative judgment is grossly awry. 385 F.3d at 1130-1131. The Supreme Court decision in Crawford v. Marion County Election Board, 553 U.S. 181 (2008) is particularly instructive here. There, the Court upheld Indiana’s photo-ID law. The concurring opinion in Crawford of Justices Scalia, Thomas and Alito sets forth the appropriate analysis of the Court in post-McDonald line of cases: Here, the South Carolina statutes, designed to allow easier voting, but while at the same time, guarding against vote fraud, have
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withstood the test of time. A pandemic cannot rewrite those statutes. As was stated in Crawford
v. Marion Co. Election Bd., 533 U.S. 185, 209 (2008),
[t]o evaluate a law respecting the right to vote—whether it governs voter qualifications, candidate selection, or the voting process—we use the approach set out in Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). This calls for application of a deferential “important regulatory interests” standard for nonsevere, nondiscriminatory restrictions, reserving strict scrutiny for laws that severely restrict the right to vote. Id., at 433–434, 112 S.Ct. 2059 (internal quotation marks omitted). The lead opinion resists the import of Burdick by characterizing it as simply adopting “the balancing approach” of Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (majority opinion of STEVENS, J.). See ante, at 1617; see also ante, at 1617, n. 8. Although Burdick liberally quoted Anderson, Burdick forged Anderson's amorphous “flexible standard” into something resembling an administrable rule. See Burdick, supra, at 434, 112 S.Ct. 2059. Since Burdick, we have repeatedly reaffirmed the primacy of its two-track approach. See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997); Clingman v. Beaver, 544 U.S. 581, 586–587, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005). “[S]trict scrutiny is appropriate only if the burden is severe.” Id., at 592, 125 S.Ct. 2029. Thus, the first step is to decide whether a challenged law severely burdens the right to vote. Ordinary and widespread burdens, such as those requiring “nominal effort” of everyone, are not severe. See id. at 591, 593–597, 125 S.Ct. 2029. Burdens are severe if they go beyond the merely inconvenient. See Storer v. Brown, 415 U.S. 724, 728–729, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (characterizing the law in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), as “severe” because it was “so burdensome” as to be “‘virtually impossible’” to satisfy).
Of course, we have to identify a burden before we can weigh it. The Indiana law affects different voters differently, ante, at 1642 – 1643, but what petitioners view as the law's several light and heavy burdens are no more than the different impacts of the single burden that the law uniformly imposes on all voters. To vote in person in Indiana, everyone must have and present a photo identification that can be obtained for free. The State draws no classifications, let alone discriminatory ones, except to establish optional absentee and provisional balloting for certain poor, elderly, and institutionalized voters and for religious objectors. Nor are voters who already have photo identifications exempted from the burden, since those voters must maintain the accuracy of the information displayed on the identifications, renew them before they expire, and replace them if they are lost.
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The Indiana photo-identification law is a generally applicable, nondiscriminatory voting regulation, and our precedents refute the view that individual impacts are relevant to determining the severity of the burden it imposes. In the course of concluding that the Hawaii laws at issue in Burdick “impose[d] only a limited burden on voters' rights to make free choices and to associate politically through the vote,” 504 U.S., at 439, 112 S.Ct. 2059, we considered the laws and their reasonably foreseeable effect on voters generally. See id., at 436–437, 112 S.Ct. 2059. We did not discuss whether the laws had a severe effect on Mr. Burdick's own right to vote, given his particular circumstances. That was essentially the approach of the Burdick dissenters, who would have applied strict scrutiny to the laws because of their effect on “some voters.” See id., at 446, 112 S.Ct. 2059 (opinion of KENNEDY, J.,); see also id., at 448, 112 S.Ct. 2059 (“The majority's analysis ignores the inevitable and significant burden a write-in ban imposes upon some individual voters ...” (emphasis added)). Subsequent cases have followed Burdick's generalized review of nondiscriminatory election laws. See, e.g., Timmons, supra, at 361–362, 117 S.Ct. 1364; Clingman, 544 U.S., at 590–591 (plurality opinion; id. at 592–593, 125 S.Ct. 2029 (opinion of the Court). Indeed, Clingman's holding that burdens are not severe if they are ordinary and widespread would be rendered meaningless if a single plaintiff could claim a severe burden.
Not all of our decisions predating Burdick addressed whether a challenged voting regulation severely burdened the right to vote, but when we began to grapple with the magnitude of burdens, we did so categorically and did not consider the peculiar circumstances of individual voters or candidates. See, e.g., Jenness v. Fortson, 403 U.S. 431, 438–441, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). Thus, in Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973), we did not link the State's interest in inhibiting party raiding with the petitioners' own circumstances. See id., at 760–762, 93 S.Ct. 1245. And in Storer v. Brown, supra, we observed that the severity of the burden of a regulation should be measured according to its “nature, extent, and likely impact.” Id., at 738, 94 S.Ct. 1274 (emphasis added). We therefore instructed the District Court to decide on remand whether “a reasonably diligent independent candidate [could] be expected to satisfy the signature requirements, or will it be only rarely that the unaffiliated candidate will succeed in getting on the ballot?” Id., at 742, 94 S.Ct. 1274 (emphasis added). Notably, we did not suggest that the District Court should consider whether one of the petitioners would actually find it more difficult than a reasonably diligent candidate to obtain the required signatures. What mattered was the general assessment of the burden.
Insofar as our election-regulation cases rest upon the requirements of the Fourteenth Amendment, see Anderson, 460 U.S., at 786, n. 7, 103 S.Ct. 1564, weighing the burden of a nondiscriminatory voting law upon each voter and concomitantly requiring exceptions for vulnerable voters would effectively turn
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back decades of equal-protection jurisprudence. A voter complaining about such a law's effect on him has no valid equal-protection claim because, without proof of discriminatory intent, a generally applicable law with disparate impact is not unconstitutional. See, e.g., Washington v. Davis, 426 U.S. 229, 248, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). The Fourteenth Amendment does not regard neutral laws as invidious ones, even when their burdens purportedly fall disproportionately on a protected class. A fortiori it does not do so when, as here, the classes complaining of disparate impact are not even protected. See Harris v. McRae, 448 U.S. 297, 323, and n. 26, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) (poverty); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 442, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (disability); Gregory v. Ashcroft, 501 U.S. 452, 473, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (age); cf. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 878–879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (First Amendment does not require exceptions for religious objectors to neutral rules of general applicability).
Even if I thought that stare decisis did not foreclose adopting an individualfocused approach, I would reject it as an original matter. This is an area where the dos and don'ts need to be known in advance of the election, and voter-by-voter examination of the burdens of voting regulations would prove especially disruptive. A case-by-case approach naturally encourages constant litigation. Very few new election regulations improve everyone's lot, so the potential allegations of severe burden are endless. A State reducing the number of polling places would be open to the complaint it has violated the rights of disabled voters who live near the closed stations. Indeed, it may even be the case that some laws already on the books are especially burdensome for some voters, and one can predict lawsuits demanding that a State adopt voting over the Internet or expand absentee balloting.
That sort of detailed judicial supervision of the election process would flout the Constitution's express commitment of the task to the States. See Art. I, § 4. It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to **1627 vote, or is intended to disadvantage a particular class. Judicial review of their handiwork must apply an objective, uniform standard that will enable them to determine, ex ante, whether the burden they impose is too severe. . . . The universally applicable requirements of Indiana's voter-identification law are eminently reasonable. The burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not “even represent a significant increase over the usual burdens of voting.” Ante, at 1621. And the State's interests, ante, at 1613 – 1620, are sufficient to sustain that minimal burden. That should end the matter. That the State accommodates some voters by
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permitting (not requiring) the casting of absentee or provisional ballots, is an indulgence—not a constitutional imperative that falls short of what is required.
553 U.S. at 207-209 (Scalia, Thomas and Alito, JJ, concurring).
Thus, the burden imposed by South Carolina’s absentee law – particularly the “Excuse
Requirement” and the “Witness Requirement” provisions, is neither severe nor significant.
Accordingly, these provisions do not violate the fundamental right to vote.
For these same reasons, Plaintiffs’ Voting Rights Act’s claims are likewise without merit.
The Fourth Circuit has concluded that Virginia’s Voter ID statute does not violate the Voting
Rights Act. In Lee v. Va. State Bd. of Elections, 843 F.3d 592 (4th Cir. 2016), the Court rejected
a § 2 VRA claim against Virginia’s Voter ID law. The plaintiff contended that the ID statute
“unduly burdens the right to vote, imposes a discriminatory burden on African Americans and
Latinos, and was enacted with the intent to discriminate against minorities, young voters and
Democrats.” 843 F.3d at 594. Judge Niemeyer, writing for the Court, noted that
the statutory requirements for proving a § 2 violation are: (1) the identification of a qualification, prerequisite, standard, practice, or procedure (“a structure or practice”), (2) which results in a denial or abridgement of the right to vote (3) on account of race or color or because the person is a member of a language minority group (“the protected class”) (4) such that, in the totality of circumstances, the political process is not equally open to the protected class (5) in that its members have less opportunity than others to participate in the process and elect representatives of their choice.
Id. at 599. In rejecting plaintiffs’ arguments, the Fourth Circuit explained:
The plaintiffs argue that, for some groups of minority voters, this opportunity is disproportionately burdened because a lower percentage of minorities have qualifying photo IDs and the process of obtaining photo IDs requires those voters to spend time traveling to and from a registrar's office. The Supreme Court has held, however, that this minor inconvenience of going to the registrar's office to obtain an ID does not impose a substantial burden. As recognized in Crawford, 553 U.S. at 198, 128 S.Ct. 1610, “the inconvenience of making a trip to [a government office], gathering the required documents, and posing for a
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photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.” 553 U.S. at 198, 128 S.Ct. 1610 (Stevens, J., announcing the judgment of the Court); see also id. at 209, 128 S.Ct. 1610 (Scalia, J., concurring in the judgment) (“The burden of acquiring, possessing, and showing a free photo identification is simply not severe,” and “the State's interests are sufficient to sustain that minimal burden”).
Nonetheless, the plaintiffs press their argument further, asserting categorically that as long as there is disparity in the rates at which different groups possess acceptable identification, § 2 is violated. To make this assertion, however, the plaintiffs have to make an unjustified leap from *601 the disparate inconveniences that voters face when voting to the denial or abridgement of the right to vote. Every decision that a State makes in regulating its elections will, inevitably, result in somewhat more inconvenience for some voters than for others. For example, every polling place will, by necessity, be located closer to some voters than to others. To interpret § 2 as prohibiting any regulation that imposes a disparate inconvenience would mean that every polling place would need to be precisely located such that no group had to spend more time traveling to vote than did any other. Similarly, motor-voter registration would be found to be invalid as members of the protected class were less likely to possess a driver's license. Yet, courts have also correctly rejected that hypothetical. See Frank v. Walker, 768 F.3d 744, 754 (7th Cir. 2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 1551, 191 L.Ed.2d 638 (2015).
843 F.3d at 600-01. Such is the case here with respect to South Carolina’s “Excuse
Requirement” and “Witness Requirement.” As McDonald held, the fact that some voters may be
able to take advantage of the absentee ballot privilege, and others may not, does not infringe
upon the right to vote so long as the classifications are themselves not based upon race or wealth.
Section 7-15-320 makes no such classification.
Likewise, the “Witness Requirement” is valid. As the Fourth Circuit pointed out in Lee,
and Justice Scalia emphasized in Crawford, certain requirements in any election process –
particularly absentee voting – will impose certain insubstantial burdens, thereby requiring a
reasonable effort to meet those requirements. Judge Neimeyer emphasized that “disparate
inconveniences” do not translate into an abridgement or denial of the right to vote. And as Judge
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Posner stated in Roupas, preventing voter fraud, particularly in absentee ballots, is an important state interest, as voter fraud is “facilitated by absentee voting.” 385 F.3d at 1130-31. The “Witness Requirement” is designed to guard against voter fraud. Crawford, 533 U.S. at 191 (importance of protection of election integrity). Following the Court’s reasoning in Lee, we do not think either the “Excuse Requirement” or the “Witness Requirement” infringes upon the right to vote under the Federal Constitution or § 2 of the Voting Rights Act.
Most certainly, the “Witness Requirement” is not a prohibited “test or device” or a “litmus test” under § 301 of the VRA. In Howlette v. City of Richmond, 485 F.Supp.17 (E.D. Va. 1978), affd. 580 F.2d 704 (4th Cir. 1978), the Court concluded that the requirement of the Richmond city charter that each signature on a petition for obtaining a referendum on issuance of general obligation bonds must be individually notarized was not a “test or device” of the kind proscribed by the Voting Rights Act. Citing South Carolina v. Katzenbach, 383 U.S. 301, 312-13 (1966), as well as Congressional proceedings relating to passage of the VRA, the Court concluded:
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. 485 F.Supp at 24. Lastly, we note that the Attorney General of the United States did not preclude Act No. 301 of 1975 [original act creating the present absentee statute] or any of its many subsequent amendments from going into effect by objecting under § 5 of the Voting Rights Act. While
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Plaintiffs base their claims here upon § 2, as opposed to § 5, the differences between the two sections of the VRA is negligible. As was stated in Armstrong v. Allain, 893 F.Supp. 1320, 1323 n.2 (S.D. Miss. 1994), in Chisom v. Roemer, 501 U.S. 380, 387 (1991), the Supreme Court recognized that
. . . “section 5 and section 2, virtually companion sections, operate in tandem to prohibit discriminatory practices in voting, whether those practices originate in the past, present, or future”) (quoting Chisom v. Edwards, 839 F.2d 1056, 1064 (1988)). In Chisom, the Court, further noting that “Section 5 uses language similar to that of § 2 in defining prohibited practices,” id., 501 U.S. at 401–02, 111 S.Ct. at 2367, implied that the coverage of the two sections is coextensive since there could otherwise be the “anomalous result” of coverage of a voting practice under § 5 without coverage of that same practice under § 2, id. Clearly, these absentee ballot statutes were submitted to the Attorney General for preclearance. See e.g. Op. S.C. Atty. Gen., 1975 WL 29339 (December 29, 1975) (in a letter to the Civil Rights Division of the Department of Justice, South Carolina Attorney General demonstrated that Act No. 301 of 1975 did not require a “literacy test.”). Clearly also these absentee enactments were precleared because they became effective. NAACP v. Hampton Co., supra. We would suggest that the United States Attorney General’s construction of the Act is entitled to considerable deference in this matter. Moreover, “an unbroken [and unchallenged] practice . . . is not something to be lightly cast aside.” Walz v. Tax Comm’n, 397 U.S. 664, 678 (1970). These statutes have long been on the books without evidence of challenge.
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CONCLUSION

Accordingly, based upon all of these factors, Plaintiffs have not demonstrated a

likelihood of success on the merits. Thus, the preliminary injunction should be denied and the

case dismissed.

Respectfully submitted,

ALAN WILSON Attorney General Federal ID No.10457

ROBERT D. COOK Solicitor General Federal ID No. 285 Email: bcook@scag.gov

/s/ J. Emory Smith, Jr. J. EMORY SMITH, JR. Deputy Solicitor General Federal ID No. 3908 Email: esmith@scag.gov

HARLEY KIRKLAND Assistant Attorney General Federal ID No. 12397

May 12, 2020

Office of the Attorney General Post Office Box 11549 Columbia, South Carolina 29211 Phone: (803) 734-3680 Fax: (803) 734-3677 Counsel for the Attorney General

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

MARY T. THOMAS, NEA RICHARD, JEREMY RUTLEDGE, TRENA WALKER, THE FAMILY UNIT, INC., and the SOUTH CAROLINA STATE CONFERENCE OF THE NAACP,

Case No.: 3:20-cv-01552-JMC

Plaintiffs, v.

FIRST AMENDED 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; JOANNE DAY, CLIFFORD J. EDLER, LINDA McCALL, and SCOTT MOSELEY, in their official capacities as members of the South Carolina Election Commission; and HENRY D. McMASTER, in his official capacity as Governor of South Carolina,

Defendants.

INTRODUCTION 1. On March 15, 2020, when State health officials reported just 28 confirmed cases of COVID-19 in South Carolina,1 the Election Commission affirmed its mission “to ensure every eligible citizen has the opportunity to . . . participate in fair and impartial elections, and have the assurance that their votes will count.”2 These are laudable goals, crucial to safeguarding the

1 See Press Release, DHEC Announces Additional Nine Cases of 2019 Novel Coronavirus in South Carolina, scdhec.gov (Mar. 15, 2020), https://www.scdhec.gov/news-releases/dhec-announces-additionalnine-cases-2019-novel-coronavirus-south-carolina.
2 See Coronavirus (COVID-19) Updates, Securing South Carolina Elections, SCvotes.org (Mar. 15, 2020), https://www.scvotes.org/securing-south-carolina-elections.

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fundamental right to vote of all South Carolina electors. But months into a deadly pandemic that now afflicts thousands of South Carolinians, which prompted Governor McMaster to first order all residents to remain at “home or work” and then to order observance of rigorous social distancing measures and school closures under a continued series of State of Emergency orders, it is now clear that two requirements of the election laws will deprive thousands of the chance to participate in scheduled South Carolina elections by forcing upon voters like the individual Plaintiffs the dilemma of risking their community’s and their own health to vote or not voting at all.
2. Plaintiffs bring this action to prevent the needless deprivation of their fundamental right to vote.
3. First, Plaintiffs challenge 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. A voter who does not qualify under any of the listed categories has to vote in person on Election Day, or not at all. On May 12, 2020, the South Carolina General Assembly passed, and on May 13, 2020, Governor McMaster signed into law, S.C. Act 133, permitting all qualified voters to vote by absentee ballot for the June 9 and June 23, 2020 primaries. The new law expired on July 1, 2020, and as such it will not be in effect for remaining 2020 election dates.
4. Since the start of this action, Defendants have represented to this Court that the Excuse Requirement affords an excuse to vote absentee to eligible voters who “live in a nursing home or long-term facility, are immunocompromised, or who have conditions like asthma, severe obesity, chronic lung disease, diabetes, serious heart conditions, kidney diseases requiring dialysis, and liver disease.” Dkt. No. 46, at 12. That is a welcome clarification, which will offer
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helpful guidance to thousands of South Carolinians. But none of the listed absentee “excuses” apply to thousands of voters, including members of organizational Plaintiffs the Family Unit and the South Carolina State Conference of the NAACP, who do not have one of these conditions and would surely vote in person at their polling site but for the ongoing COVID-19 pandemic. The Excuse Requirement will therefore force South Carolina voters to make an untenable decision between risking their health and the health of their families or giving up their right to vote. Plaintiffs seek relief enjoining the Excuse Requirement insofar as it unreasonably burdens their fundamental right to vote while following South Carolina’s directive to practice recommended physical distancing to protect their and their community’s health from community transmission of the novel coronavirus. Additionally, the Excuse Requirement violates Title II of the Americans with Disabilities Act.
5. Second, Plaintiffs challenge the constitutionality of South Carolina’s witness signature requirement on absentee ballots, codified at S.C. Code Ann. § 7-15-220 (the “Witness Requirement,” and collectively with the Excuse Requirement, the “Challenged Requirements”). State law requires all mail-in ballots be signed by a third-party witness in addition to the voter, otherwise an absentee ballot goes uncounted. In the current environment, this poses an unreasonable obstacle to many South Carolina voters, like Plaintiff Mary Thomas, who lives alone and cannot risk contact with third parties while the threat of contagion continues—whether to vote in person or to obtain a witness signature. The Witness Requirement also violates Title II of the Americans with Disabilities Act and Section 2 of the Voting Rights Act.
6. The Witness Requirement threatens to disenfranchise thousands of voters like Ms. Thomas: almost 30% of the State’s residents (about 560,000) live by themselves, and well over 200,000 South Carolinians over 65 years of age—one of the groups most vulnerable to
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COVID-19—live alone.3 7. As a result, on May 25, 2020, the Court granted the Plaintiffs’ Motion for
Preliminary Injunction as to the Witness Requirement and enjoined Defendants, their respective agents, officers, employees, successors, and all persons acting in concert with each or any of them from enforcing the Witness Requirement on registered absentee voters in the June 2020 primaries and any resulting runoff elections only. The Court further ordered the Defendants to inform South Carolina voters about the elimination of the Witness Requirement for absentee voting during the June 2020 primaries by informing the public on all relevant websites and social media outlets. The Defendants complied with and implemented this order.
8. The Challenged Requirements’ impact will also fall more heavily on Black voters in South Carolina, who both live alone in larger percentages than the population as a whole and who are being afflicted by COVID-19 at stunningly disproportionate rates and currently comprise over 44% of the State’s virus-related deaths despite making up just 27% of its total population.4 South Carolina’s history of voting-related discrimination against Black people, as well as continued discrimination in areas such as education, employment, and healthcare, interacts with the Challenged Requirements to hinder their ability to participate effectively in the political process in violation of Section 2 of the Voting Rights Act.
9. COVID-19 is an unprecedented public health emergency. The current crisis
3 U.S. Census Bureau, 2010-2018 American Community Survey 1-Year Estimates: Selected Social Characteristics of the United States: South Carolina (2018), https://data.census.gov/cedsci/table?q=south%20carolina%20single%20person%20households&g=04000 00US45&hidePreview=false&tid=ACSDP1Y2018.DP02&vintage=2018&layer=VT_2018_040_00_PY_ D1&cid=DP02_0001E (last visited June 23, 2020). 4 DHEC S.C. Demographic Data (COVID-19), https://scdhec.gov/infectious-diseases/viruses/coronavirusdisease-2019-covid-19/sc-demographic-data-covid-19 (last updated July 7, 2020).
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remains acute and will continue to pose a significant public health risk in the fall.5 Indeed, models project that infections will rebound in the fall, even if the current outbreak subsides before then.6 In this context, the two challenged requirements will each, separately and jointly, unduly burden the right to vote of South Carolina voters voting in the remaining elections in the 2020 calendar year.
10. Neither of the requirements’ undeniable burdens on voters are justified. South Carolina already allows voters to vote absentee if they cannot vote in person “because of injury or illness.” S.C. Code Ann. § 7-15-310. But Defendants’ current interpretation of state law does not recognize that voters who choose to stay home to mitigate the spread of COVID-19 are all unable to vote in person because of an illness, whether or not they have knowingly contracted the disease. The State could remedy the unconstitutional disenfranchisement that the qualification requirement will cause by allowing voters to vote absentee for that reason in all remaining 2020 elections, as public officials in numerous states have already done during the current crisis. The State has acknowledged it can do so by removing restrictions to absentee ballot eligibility for the June 2020 primaries, but the public health concerns and safety risk posed by COVID-19 that prompted South Carolina to take this action require absentee voting restrictions be removed for all remaining 2020 elections.
11. And while election integrity is a critical interest, the witness signature rule does
5 See Inst. for Health Metrics & Evaluation, COVID-19 Projections: South Carolina, https://covid19.healthdata.org/united-states-of-america/south-carolina (last updated July 7, 2020). 6 See Dr. Fauci Anticipates Coronavirus Outbreak in the Fall, COUNTON2 NEWS (Mar. 31, 2020) (“Fauci said he anticipates coronavirus will be cyclical and return in the fall because of its degree of transmissibility.”), https://www.counton2.com/news/national-news/dr-fauci-anticipates-coronavirusoutbreak-in-the-fall/.
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very little if anything—nor is it properly tailored—to serve this interest in light of the many other provisions of South Carolina law that safeguard absentee voting and penalize those who abuse the process. Indeed, the fact that South Carolina is one of only 11 states that require an individual submitting an absentee ballot to have another adult witness and sign their ballot envelope further underscores the requirement’s lack of necessity. Regardless, whatever additional marginal benefit the witness rule may offer, such benefit is greatly outweighed by the risk of disenfranchisement.
12. Plaintiffs therefore ask that the Court enjoin South Carolina’s limitations on qualifications to vote by means of an absentee ballot and its absentee witness rule and declare them unconstitutional for the duration of the 2020 election calendar.
PARTIES 13. Plaintiff Mary Thomas is an 86-year-old retiree who lives alone at her residence in Charleston, South Carolina. She is a U.S. citizen, has never lost her right to vote by reason of a felony conviction or court order, and is a registered South Carolina voter. She is Black. Before retiring, Ms. Thomas worked as a licensed public nurse (LPN) and as a clinical pastoral chaplain. Ms. Thomas is at risk of severe complications from the novel coronavirus and COVID-19 because of her age and preexisting medical conditions, including hypertension and gout. She is partially blind. She has voted absentee in South Carolina for over twenty years, either by reason of being physically disabled or because she is over 65 years of age. Ms. Thomas has been quarantining herself since approximately mid-March and has cut off all in-person contact with others unless absolutely necessary—e.g., because of a health emergency. She intends to vote absentee again in this year’s elections, including the June primary and November general elections, in part, to avoid the documented risk that COVID-19 poses to her health and life. Ms.
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Thomas understands that a witness signature is needed to vote absentee in South Carolina in the November general election. However, because she lives alone and is currently adhering to a strict self-quarantine, she has no way to obtain a witness’s signature on her absentee ballot without gravely endangering her health.
14. Plaintiff Nea Richard is a 22-year-old Black student at Claflin University, a historically Black university in Orangeburg, South Carolina. She is a U.S. citizen, and is a lawfully registered voter in her hometown of Cross Hill, South Carolina. Though her school has transitioned to online instruction, Ms. Richard continues to reside in Orangeburg. While in school, Ms. Richard has travelled two hours to Cross Hill for each election so that she can vote in person and serve as a poll worker. She intends to vote in person and serve as a poll worker again in Cross Hill for the remaining 2020 elections. From Ms. Richard’s experience as a poll worker, she is familiar with the many forms of close contact that poll workers and voters are forced to make at polling sites, like sharing pens and touching voting machine screens. If the Challenged Requirements are not eliminated, Ms. Richard reasonably fears that the Challenged Requirements will significantly increase congestion at her precinct, make it nearly impossible to properly clean the precinct, and will needlessly contribute to the spread of COVID-19 and potentially her own infection. The elimination of the Challenged Requirements will protect Ms. Richard and other people in the precinct by meaningfully reducing the number of in-person voters and lowering the concomitant increased risk of transmission caused by excessive congestion due to the lack of alternatives to in-person voting for most voters.
15. Plaintiff Reverend Jeremy Rutledge is a 49-year-old senior pastor of the Circular Congregational Church, located in Charleston. He is white. He resides in Mt. Pleasant, South Carolina. He is a U.S. citizen, has never lost his right to vote by reason of a felony conviction or
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court order, and is a registered voter in South Carolina. Rutledge is at risk of severe complications from the novel coronavirus and COVID-19 because he lives with systemic scleroderma, a chronic, autoimmune disorder that affects the skin and internal organs. Rutledge’s condition has caused him to suffer from interstitial lung disease, which in the past has caused severe scarring (fibrosis) of his lungs. For years, Rutledge has treated his medical conditions with immunosuppressant medication. These drugs help Rutledge maintain a relatively healthy, active life by preventing his immune system from dangerously causing his lung tissue to thicken, but also make Rutledge particularly vulnerable to respiratory ailments like COVID-19 and pneumonia. As a result, Rutledge has strictly self-quarantined himself at home with his wife and son since at least mid-March and does not anticipate that he will feel safe outside his home until a vaccine or cure for the novel coronavirus and COVID-19 have been developed or found. As public officials ease social distancing restrictions before a vaccine or cure are available, Rutledge has arranged for his family to live elsewhere so that his wife and son return to work and school while he remains self-quarantined in their family home. Rutledge has routinely voted in person on Election Day until the COVID-19 pandemic and does not consider himself physically disabled. Under Defendants’ interpretation of the Excuse Requirement, he thus does not qualify to vote absentee. He must therefore either vote in person or forego his right to vote in South Carolina elections. In the event that his wife and son return to work and school and he remains self-quarantined by himself in their family home, Rutledge will have no way to obtain a witness’s signature on an absentee ballot without putting himself in grave danger of severe illness.
16. Plaintiff Trena Walker is a 53-year-old, single caregiver to three children under 12 who lives in the Mixson development in North Charleston, South Carolina. She is Black and a
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U.S. citizen. She is a lawfully registered South Carolina voter. She is presently unemployed; in the past, she has worked as a nursery teacher for preschoolers and as a teacher’s assistant for the Charleston County School District. Ms. Walker is legally blind. She does not live with any person considered legally competent to sign legal documents in South Carolina. Ms. Walker intends to vote in the June primary and November general elections. She usually votes in person, but she is fearful of doing so again in forthcoming elections because her medical history of breast cancer and emphysema put her at high risk of grave complications from COVID-19. For that reason, Ms. Walker has followed social distancing and quarantine recommendations to the best of her ability and does not leave her home except when necessary to purchase food for herself and her children. Ms. Walker also closely follows public health officials’ specific recommendations to Black people and is particularly reluctant to leave her home because of the disproportionately harmful effects that COVID-19 has already had on Black people. Ms. Walker expects she will not feel safe leaving her home until a vaccine against the virus is developed or a cure is identified. She is fearful that leaving her home will only become more dangerous as public officials ease social distancing restrictions before a vaccine or cure are available. Ms. Walker does not qualify to vote absentee under any of the state law “excuses” as interpreted by Andino and the SEC. If the Challenged Requirements were eliminated for the remainder of the 2020 elections, Ms. Walker would vote by absentee ballot to reduce the chances of contracting COVID-19.
17. Plaintiff the Family Unit, Inc. is a 501(c)(3) nonpartisan, charitable nonprofit organization with the mission of empowering and serving the needs of the low-income community of Sumter County, South Carolina. The Family Unit is led by Dr. Brenda C. Williams. The Family Unit’s constituents and members are mostly Black and/or low-income
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people with a high school education or less. As part of its mission, the Family Unit educates and registers voters, including people who are pretrial detainees; helps eligible voters to understand and perform absentee voting; restores abandoned homes and donates them to working-poor families to live in; helps people find employment; volunteers with elderly people; and advocates for improved school facilities for children in the Sumter County area. In recent years, the Family Unit’s members and constituents have had their absentee ballots rejected because of the Witness Requirement. The Family Unit’s members and constituents include people with disabilities, including, but not limited to people with medical conditions that make them more susceptible to death or serious illness from COVID-19 and people who have or have had COVID-19. The difficulties experienced by the Family Unit’s members and constituents in attempting to vote absentee under the Challenged Requirements have been magnified substantially by the State’s response to the COVID-19 pandemic.
18. As a direct result of the Challenged Requirements, the Family Unit has been forced to divert its extremely limited resources and time away from its core activities to new activities, like investigating, responding to, mitigating, and addressing the concerns of its members and constituents impacted or disenfranchised by the Challenged Requirements as interpreted by Andino and the SEC and Defendants’ inadequate efforts to protect voters from COVID-19 ahead of the 2020 elections. For example, after learning about the impact of the Challenged Requirements on its members and constituents, Dr. Williams began an investigation that included requesting information from county election officials, interviewing affected voters, and reviewing information about the impact of the Challenged Requirements. Based on data provided by election officials, every year, the ballots of hundreds of voters in each county are
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rejected because of the Witness Requirement. In absence of the Challenged Requirements, the Family Unit would not have had to engage in these activities.
19. Plaintiff South Carolina State Conference of the NAACP (“South Carolina NAACP”) is a nonpartisan, nonprofit organization composed of 35 branches and several thousand individual members throughout South Carolina. It has members who are citizens and registered voters, and who will be directly impacted by the Challenged Requirements that effectively require voters to expose themselves and others to the grave effects of COVID-19 or else forego their right to vote. For example, one member who has been practicing strict social distancing is over 80 years of age and has limited mobility. She lives only with her husband, who has been diagnosed with dementia and is therefore unable to witness an absentee ballot. Like many others in the state, the only way that she would be able to vote is by violating social distancing rules and breaking self-quarantine at grave risk to her health and safety. The South Carolina NAACP includes members who are unable to cast an absentee ballot because of the Excuse Requirement, but who have disabilities, including medical conditions that make them more susceptible to death or serious illness from contracting COVID-19, or who reasonably fear contracting COVID-19. Many other members of the South Carolina NAACP will also be impacted by the documented disproportionate harm that COVID-19 is causing Black people.
20. The fundamental mission of the South Carolina NAACP is the advancement and improvement of the political, educational, social, and economic status of minority groups; the elimination of racial prejudice; the publicizing of adverse effects of racial discrimination; and the initiation of lawful action to secure the elimination of racial bias. To further this mission, the South Carolina NAACP advocates to ensure that the interests of the Black community are represented in local, state, and national legislative bodies by representatives who share the
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community’s interests, and who will be accountable to the community. The South Carolina NAACP encourages and facilitates nonpartisan voter registration drives by its chapters to promote civic participation. The current health crisis has largely disrupted the organization’s efforts to meet and organize members and voters in person. Because of state and federal social distancing guidelines and the Challenged Requirements, the South Carolina NAACP has been forced to divert its resources from its usual get-out-the-vote efforts to instead engage in new activities, like press strategies and host virtual meetings to direct its members to demand that their elected officials take urgent action to address the Challenged Requirements, to protect the health and voting rights of their communities during the pandemic. If the Challenged Requirements remain in effect, the South Carolina NAACP will be required to provide additional rides to the polls or assistance to voters in obtaining a witness signature, and be required to answer additional questions regarding how to vote at all from members and constituents who desire to vote while attempting to comply with social distancing guidance.
21. Defendant Marci Andino is the Executive Director of the South Carolina Election Commission and is sued in her official capacity. The Executive Director is the Chief Administrative Officer for the State Election Commission and is required by law to supervise the County Boards of Voter Registration and Elections. S.C. Code Ann. § 7-3-20. In this role, she is tasked with ensuring that the County Boards comply with state and federal law in conducting elections and voter registration. Id. § 7-3-20(C).
22. Defendant John Wells is the Chair of the South Carolina Election Commission and is sued in his official capacity. Defendants JoAnne Day, Clifford J. Edler, Linda McCall, and Scott Moseley 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
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Commission. S.C. Code Ann. § 7-3-20(A). The mission of the South Carolina Election Commission 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.”7
23. Defendant Henry D. McMaster is the Governor of South Carolina. As Governor, the South Carolina Constitution vests in him the “supreme executive authority” of the State. S.C. Const. Art. IV, § 1. He has statutory power to proclaim an emergency in the State and may “cope with such threats and danger” as it presents pursuant to his authority to “order and direct any person or group of persons to do any act which in his opinion, endanger life, limb or property.” S.C. Code Ann. § 1-3-430. He has “full power by use of all appropriate available means to enforce such order or proclamation.” Id.
JURISDICTION AND VENUE 24. This action arises under the First and Fourteenth Amendments to the U.S. Constitution, the Americans with Disabilities Act, and the Voting Rights Act and is brought under 42 U.S.C. §§ 1983 and 1988 and 52 U.S.C. § 10301 to seek injunctive and declaratory relief for violations of constitutional rights under color of state law. This Court therefore has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. 25. This Court has personal jurisdiction over Defendants, who are sued in their official capacities as state officials. The violations complained of concern their conduct in such capacities. 26. Declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202. 27. Venue is proper under 28 U.S.C. § 1391(b)(2) because Defendants reside in this
7 See S.C. Election Comm’n, About the SEC, Mission Statement, https://www.scvotes.org/about-sec (last visited July 8, 2020).
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judicial district, and under 28 U.S.C. § 1391(b)(2) because a substantial part of the events that gave rise to Plaintiffs’ claims occurred there.
STATEMENT OF FACTS I. Transmission of COVID-19 and Public Health Guidelines
28. Our nation faces a public health emergency caused by the exponential spread of COVID-19, the respiratory disease caused by the novel coronavirus SARS-CoV-2. According to the CDC, the coronavirus spreads aggressively and asymptomatic people can spread it.8 All age groups have contracted the disease.9
29. The United States is the current epicenter of the global COVID-19 pandemic. As of early July, the United States led the world in the total number of COVID-19 cases, surpassing previous leaders China and Italy. The Centers for Disease Control and Prevention (CDC) presently estimates that between 140,000 and 160,000 people will have died from COVID-19 by August 1.10
30. The CDC estimates that approximately 20% of those who are infected by SARSCoV-2 require hospitalization.11 COVID-19 can severely damage lung tissue, cause a permanent loss of respiratory capacity, and also damage tissues in the kidney, heart, and liver. The surge of
8 Ctrs. for Disease Control & Prevention, How Coronavirus Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last updated June 16, 2020). 9 Robert Verity, PhD. et al., Estimates of the Severity of Coronavirus Disease 2019: A Model-Based Analysis, Lancet Infec Dis (March 30, 2020), 6. 10 Ctrs. for Disease Control & Prevention, Forecasts of Total Deaths, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/forecasting-us.html (last updated July 6, 2020). 11 Ctrs. for Disease Control & Prevention, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinicalguidance-management-patients.html (last updated June 30, 2020).
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COVID-19 cases causes mounting strains on healthcare systems, including critical shortages of doctors, nurses, hospital beds, medical equipment, and personal protective equipment (PPE).
31. People of all ages have contracted COVID-19 and died from it, but the illness poses special risks for the elderly and those with certain preexisting medical conditions. Preliminary reports based on WHO data show a 3.6% mortality rate for individuals between 6069 years old, an 8.0% mortality rate for those 70-79 years old, and a 14.8% mortality rate for those who are 80 years old or older.12 COVID-19 also poses greater risks for people with preexisting heart and respiratory conditions, individuals with compromised immune systems, and those with many other conditions.13
32. The effects of the pandemic on social life will last well into the fall of 2020, if not much longer. Even into the summer months, experts have indicated that COVID-19 “will face less immunity and thus transmit more readily even outside of the winter season,” and that season changes are “unlikely to stop transmission.”14 Further, even those who develop an immune response to the virus after an infection are not necessarily safe from reinfection, as we still do not yet have sufficient data about how long immunity to the virus will last.15 Dr. Anthony Fauci,
12 Id. 13 Ctrs. for Disease Control & Prevention, People of Any Age with Underlying Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-at-higher-risk.html (last updated June 25, 2020). 14 Marc Lipsitch, DPhil, Professor of Epidemiology and Director, Center for Communicable Disease Dynamics, Harvard T.H. Chan School of Public Health, Seasonality of SARS-CoV-2: Will COVID-19 go away on its own in warmer weather?, https://ccdd.hsph.harvard.edu/will-covid-19-go-away-on-its-ownin-warmer-weather/. 15 Apoorva Mandavilli and Katie Thomas, Will an Antibody Test Allow Us to Go Back to School or Work?, N.Y. TIMES (Apr. 10, 2020), https://www.nytimes.com/2020/04/10/health/coronavirus-antibodytest.html.
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head of the National Institute of Allergy and Infectious Diseases, has said that he “can’t
guarantee” in-person voting will be safe in November, because of a potential resurgence of COVID-19 in the fall.16
33. With no known effective treatment, and vaccines still months (or more) away,
public health officials have been left to urge the public to practice ‘social distancing,’ frequent (and thorough) hand washing, and avoidance of close contact with others.17
34. The majority of American voters still vote in person, at a polling place, on Election Day.18 To some—such as homeless, visually impaired, limited English proficient or
illiterate voters who need accessible voting machines and personal assistance—meaningful
opportunities to physically vote in person early or on Election Day are critical. For this reason, the CDC has issued specific guidelines concerning voting during the COVID-19 pandemic.19
Among other things, these guidelines stress that “[t]he more an individual interacts with others, and the longer that interaction, the higher the risk of COVID-19 spread.”20 Accordingly, the
CDC warns that “[e]lections with only in-person voting on a single day are higher risk for
16 Jason Silverstein, Fauci says he “can’t guarantee” in-person voting in November will be safe, CBS NEWS (Apr. 13, 2020), https://www.cbsnews.com/news/coronavirus-fauci-says-he-cant-guarantee-inperson-voting-in-november-will-be-safe/?ftag=CNM-00-10aac3a. 17 Johns Hopkins University, Coronavirus, Social Distancing and Self-Quarantine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-socialdistancing-and-self-quarantine (last visited June 23, 2020); Declaration of Dr. Jonathan Louis Golob at ¶ 8, ECF No. 5, Dawson v. Asher, 2:20-cv-00409-JLRMAT (W.D. Wash. Mar. 16, 2020). 18 See, e.g., Jordan Misra, Behind the 2018 U.S. Midterm Election Turnout, Census.gov (Apr. 23, 2019) (showing 60% of voters who cast ballot in 2018 did so “in person on Election Day”), https://www.census.gov/library/stories/2019/04/behind-2018-united-states-midterm-election-turnout.html. 19 Ctrs. for Disease Control & Prevention, Considerations for Election Polling Locations and Voters: Interim Guidance to Prevent Spread of Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/community/election-polling-locations.html (last updated June 22, 2020). 20 Ctrs. for Disease Control & Prevention, supra note 22.
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COVID-19 spread because there will be larger crowds and longer wait times.”21 35. The CDC election guidelines emphasize that “[l]ower risk election polling
settings” include those with: (i) “a wide variety of voting options;” (ii) “longer voting periods (more days and/or more hours);” and “any other feasible options for reducing the number of voters who congregate indoors in polling locations at the same time.”22
36. The CDC guidelines for conducting safe elections during the COVID-19 pandemic encourage election officials and poll workers to “promot[e] behaviors that reduce spread.”23 Among these, it recommends that voters should be reminded “upon arrival to leave space between themselves and others” and “to stay at least 6 feet apart.”24
37. These are essential recommendations given the relatively minimal risks of voting by mail during the pandemic versus voting in person. There is no evidence that SARS-CoV-2 can be spread through the mail, and the U.S. Postal Service has further changed their policies to “eliminate the requirement that customers sign our Mobile Delivery Devices for delivery” and now require the customer “to step back a safe distance or close the screen door/door so that they may leave the item in the mail receptacle or appropriate location by the customer door.”25
38. In contrast, the risks of interpersonal interaction while voting are already evident. During Florida’s April primary, two Broward County poll workers tested positive for COVID-
21 Id. 22 Id. 23 Id. 24 Id. 25 United States Postal Service. USPS Statement on Coronavirus (April 30, 2020), https://about.usps.com/newsroom/statements/usps-statement-on-coronavirus.htm (citing guidance from the CDC).
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19, one of whom was handling driver’s license as part of the identification verification process.26 And on April 13, Chicago officials reported that a poll worker for the city’s March 17 election died of COVID-19, prompting officials to send letters notifying voters, poll workers, field investigators, and cartage companies who were present at the same polling site.27
39. Elections held on April 7 in Wisconsin saw multi-hour waits and lines stretching blocks upon blocks in places like Milwaukee and Green Bay, in part, because officials faced a huge backlog of requests for absentee ballots and questions about voting absentee, including how to properly request an absentee ballot and how to return it in time to be considered. Election officials also dealt with a reduced number of poll workers due to age, fears of illness, or actual illness. Cities were forced to close polling locations, and these closures impacted voters unequally. The city of Madison had over 60 open polling sites, while in Milwaukee—a city more than twice Madison’s size, with a population of roughly 600,000—only 18,803 voters cast ballots in person, because all but five of the city’s 180 polling locations had closed.28
40. Under these circumstances, “the extent of the risk of holding [the] election ha[d] become increasingly clear” well before the day of the primary.29 Indeed, the likely consequences
26 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.sunsentinel.com/coronavirus/fl-ne-browardelections-poll-workers-coronavirus-20200326wmgy775dvjc5jis2oagxlpmule-story.html. 27 See Mary Ann Ahern, Poll Worker at Chi. Voting Site Dies of Coronavirus, Election Officials Say, NBC CHICAGO (Apr. 13, 2020), https://www.nbcchicago.com/news/local/chicago-politics/poll-worker-atchicago-voting-site-dies-of-coronavirus-election-officials-say/2255072/. 28 Jason Calvi, ‘2 Different Cities:’ Milwaukee Had 5 Polling Sites During COVID-19 Election, Madison Had 60+, Fox 6 Now (last updated Apr. 9, 2020), https://fox6now.com/2020/04/08/2-different-citiesmilwaukee-had-5-polling-sites-during-covid-19-election-madison-had-60/. 29 Democratic Nat’l Comm. v. Bostelmann, No. 20-cv-00249, 2020 WL 16383374, at *1 (W.D. Wis. Apr. 2, 2020).
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were readily apparent, including “a dramatic shortfall in the number of voters on election day as compared to recent primaries” and “a dramatic increase in the risk of cross-contamination of the coronavirus among in-person voters, poll workers, and, ultimately, the general population in the State.”30
41. By April 29, health officials in Wisconsin had identified at least 52 individuals who either voted in-person or worked at a polling location on election day and since tested positive for COVID-19.31 And an Economists’ study of the Wisconsin primary has found a “statistically and economically significant association between in-person voting and the spread of COVID-19 two to three weeks after the election.”32 II. COVID-19 in South Carolina
42. The COVID-19 pandemic has deeply affected the Palmetto State. As of July 9, 2020, the State had confirmed 50,548 cases.33 Over 890 South Carolinians have died from the disease.34
43. Models used by health officials predict that the State will continue to see growing
30 Id. 31 Scott Bauer, 52 Who Worked or Voted in Wisconsin Election Have COVID-19, ABC NEWS (Apr. 29, 2020), https://abcnews.go.com/Health/wireStory/52-worked-voted-wisconsin-election-covid-1970406317 (explaining that “[a]fter May 7, the state will stop asking people who test positive for the virus whether they were at the polls a month earlier”). 32 Chad D. Cotti et al., The Relationship Between In-Person Voting and COVID-19: Evidence from the Wisconsin Primary, at 1, National Bureau of Econ. Research (last revised June 2020), https://www.nber.org/papers/w27187.pdf; see also Alex Seitz-Wald, 7 Wisconsin Coronavirus Infections Linked to Election Day, Health Official Says, NBC NEWS (Apr. 21, 2020), https://www.nbcnews.com/politics/2020-election/7-wisconsin-virus-cases-linked-person-votingn1188606. 33 DHEC News Releases, S.C. Announces Latest COVID-19 Update (July 9, 2020), https://www.scdhec.gov/news-releases/south-carolina-announces-latest-covid-19-update-july-9-2020. 34 Id.
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numbers of infections and deaths through early October.35 These models project a sustained outbreak in South Carolina will continue well into the fall, if not longer.36
44. In response, the South Carolina Department of Health and Environmental Control (“DHEC”) has urged social distancing by “staying home as much as possible, staying at least
6 feet away from other people while in public, and avoiding gatherings with many people present.”37 According to DHEC, “[t]hese are the best ways to protect yourself and our communities from the spread of COVID-19.”38
45. To combat viral spread, Governor McMaster has also taken a series of
increasingly aggressive steps since early March, including by issuing various executive orders. Through these orders, most “non-essential” businesses and schools were subject to closure.39
46. On March 13, Governor McMaster issued Executive Order No. 2020-08, declaring a State of Emergency for South Carolina.40 On the same day, President Donald Trump proclaimed a National Emergency concerning COVID-19.41
47. On March 15, Governor McMaster issued Executive Order No. 2020-09, directing
35 See Inst. for Health Metrics & Evaluation, supra note 6. 36 Id. 37 DHEC, Protect Yourself & Those Around You (COVID-19), https://www.scdhec.gov/protect-yourselfthose-around-you-covid-19 (last visited July 7, 2020). 38 Id. 39 S.C. Exec. Order No. 2020-07 (Mar. 11, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0311%20FILED%20Executive%20Order%20No.%20202007%20-%20Suspending%20Transportation%20Regulations%20Due%20to%20NC%20Emergency%20% 20Coronavirus%20(002).pdf. 40 Id. 41 Proclamation No. 9994, 85 Fed. Reg. 15337 (2020), https://www.whitehouse.gov/presidentialactions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19outbreak/.
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the closure of all public schools in South Carolina beginning Monday, March 16 through Tuesday, March 31, 2020.42
48. Executive Order No. 2020-09 also postponed or rescheduled all elections scheduled to be held in the state on or before May 1, 2020.43 It delegated responsibility to the SEC to ensure that candidate filing period(s) continued and that individuals could continue to register to vote. Town, city, and county referendums and elections planned for March 19, March 24, March 31, April 7, April 14, and April 28 were all postponed accordingly.44
49. On March 27, President Trump approved a major disaster declaration for South Carolina, which made federal emergency aid available for recovery efforts due to the COVID-19 pandemic.45
50. On March 28, Governor McMaster issued Executive Order No. 2020-15, declaring a “new, separate, and distinct” state of emergency based on his determination that COVID-19 posed an “actual, ongoing and evolving public health threat” to the State of South
42 S.C. Exec. Order No. 2020-09 §2 (Mar. 15, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0315%20FILED%20Executive%20Order%20No.%20202009%20-%20Closing%20Schools%20Cancelling%20Elections%20Other%20Provisions%20Due%20to%2 0COVID-19.pdf. 43 S.C. Exec. Order No. 2020-09 §3 (Mar. 15, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0315%20FILED%20Executive%20Order%20No.%20202009%20-%20Closing%20Schools%20Cancelling%20Elections%20Other%20Provisions%20Due%20to%2 0COVID-19.pdf. 44 S.C. Election Comm’n, March & April Elections Postponed Due to Coronavirus (Mar. 15, 2020), https://www.scvotes.org/march-april-elections-postponed-due-coronavirus. 45 See FEMA, President Donald J. Trump Approves Major Disaster Declaration for South Carolina (Mar. 27, 2020), https://www.fema.gov/news-release/2020/03/27/president-donald-j-trump-approvesmajor-disaster-declaration-south-carolina.
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Carolina.46
51. On March 31, Governor McMaster issued Executive Order No. 2020-17, directing
“non-essential” businesses to close to non-employees and the public. That order was followed
by Executive Order No. 2020-18 on April 3, which expanded the definition of “non-essential” businesses that should be closed to non-employees and the public to include retail stores.47
52. On Monday, April 6, Governor McMaster issued Executive Order No. 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.”48 The order
instructed residents of the State to “limit social interaction, practice ‘social distancing’ . . . and
take every possible precaution to avoid potential exposure to” viral infection. It directed
individuals in South Carolina to “take reasonable steps to maintain six (6) feet of separation from any other person.”49 It ordered residents to limit movement outside the home except for the
46 S.C. Exec. Order No. 2020-15 (Mar. 28, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0328%20eFILED%20Executive%20Order%20No.%20202015%20-%20State%20of%20Emergency%20Due%20to%20COVID-19%20Pandemic.pdf. 47 S.C. Exec. Order No. 2020-18 §1(B) (Apr. 3, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0403%20eFILED%20Executive%20Order%20No.%20202018%20-%20Closure%20of%20Additional%20Non-Essential%20Businesses.pdf. 48 S.C. Exec. Order No. 2020-21 at 6 (Apr. 6, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0406%20eFILED%20Executive%20Order%20No.%20202021%20-%20Stay%20at%20Home%20or%20Work%20Order.pdf; see also Off. of Gov. McMaster, Governor McMaster Issues “Home or Work” Order, SC.Gov (Apr. 7, 2020), https://governor.sc.gov/news/2020-04/governor-mcmaster-issues-home-or-work-order. 49 S.C. Exec. Order No. 2020-21 (Apr. 6, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0406%20eFILED%20Executive%20Order%20No.%20202021%20-%20Stay%20at%20Home%20or%20Work%20Order.pdf.
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purposes of visiting essential businesses, engaging in essential activities, or conducting critical infrastructure operations.
53. In issuing the “Home or Work” order, Governor McMaster explained that he took the steps, in part, because “[t]oo many people are not complying with [our] requests for social distancing.”50 Additionally, he clarified that, while not named as such, his April 6 order was a “stay-at-home order.”51
54. The April 6 “Home or Work” order expressly exempted gatherings of government officials, employees, or personnel needed to perform “essential government functions,” but directed state and local governments to “utilize any available technology or reasonable procedures” to “accommodate public participation via virtual or other remote or alternate means” in those functions “to the extent possible.”52
55. This Court took similar steps in light of the pandemic, including closing the Clerk’s Office public counters until further notice.53 On April 14, this District Court continued “[a]ll civil and criminal jury selections, jury trials, and roster meetings scheduled to commence through July 5, 2020.”54
56. On April 16, Governor McMaster sent a letter to the leadership of the State’s General Assembly to inform them of his view that the legislature should avoid returning for
50 Joseph Bustos & Maayan Schechter, Gov. McMaster toughens SC coronavirus stance, ordering state to work or ‘stay home’, THE STATE (Apr. 6, 2020), https://www.thestate.com/news/coronavirus/article241807571.html. 51 Id. (“Asked on Monday why not call his new executive order a ‘stay-at-home’ mandate, the governor said: ‘This is a stay-at-home order. You call it what you like, but it says, ‘stay at home.’”). 52 Id. 53 In re: District Clerk’s Office Operations, Misc. No. 20-mc-00122, Doc. No. 1 (D.S.C. Mar. 31, 2020). 54 In re: Court Operations Response to COVID-19, Misc. No. 20-mc-00139, Doc. No. 1 (D.S.C. Apr. 14, 2020).
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session any time before May 14, which “could place the health and safety of [its] members at an
elevated risk for exposure to the virus.” A true and accurate copy of Governor McMaster’s letter
is attached hereto as Exhibit 1.
57. On April 20, Governor McMaster issued Executive Order No. 2020-28, which, in
relevant part, modified and amended his April 6 “Home or Work” order to ease restrictions on
public beach use and on certain retail businesses including furniture, clothing, jewelry, and
department stores.55 These and other listed businesses were authorized to re-open for business to
the public as of 5:00 p.m. on April 20, provided they strictly follow social distancing measures.56
58. On April 27, Governor McMaster issued Executive Order No. 2020-29, which
declared a new state of emergency for 15 days.57 On May 1, 2020 and May 3, 2020, Governor
McMaster issued additional executive orders altering restrictions on vacation rentals58 and
outdoor dining,59 respectively, while “urg[ing] any and all residents . . . [to] take every possible
55 S.C. Exec. Order No. 2020-28 (Apr. 20, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0420%20FILED%20Executive%20Order%20No.%20202028%20-%20Modification%20of%20Restrictions%20for%20Public%20Beaches%20%26%20Waters%20 %26%20Incremental%20Modification%20of%20Non-Essential%20Business%20Closures.pdf. 56 Gov. Henry McMaster (@henrymcmaster), TWITTER (Apr. 20, 2020, 5:15 PM), https://twitter.com/henrymcmaster/status/1252345270588698627. 57 S.C. Exec. Order No. 2020-29 (Apr. 27, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Budget/2020-0427%20eFILED%20Executive%20Order%20No.%20202029%20-%20State%20of%20Emergency%20Due%20to%20COVID19%20Pandemic%20Response%20%26%20Other%20Measures.pdf 58 See S.C. Exec. Order No. 2020-30 (May 1, 2020) https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0501%20eFILED%20Executive%20Order%20No.%202020-30%20-%20Rescinding%20SelfQuarantine%2C%20Lodging%2C%20%26%20Travel%20Restrictions%20for%20Individuals%20Enterin g%20S.C.%20from%20High-Risk%20Areas.pdf 59 S.C. Exec. Order No. 2020-31 (May 3, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0503%20eFILED%20Executive%20Order%20No.%202020-
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precaution to avoid potential exposure to, and to slow the spread of, COVID-19, and further encourage residents and visitors . . . to limit their movements outside of their home.”60
59. On May 8, 2020, Governor McMaster issued Executive Order No. 2020-33, which set the date for previously postponed elections as July 14, 2020.61
60. On May 12, 2020, Governor McMaster issued Executive Order No. 2020-35,
which required the closure of all public schools for the remainder of the 2019–20 school year,
completion of collegiate instruction through distance and virtual learning, and continued promotion of social distancing practices based on CDC guidance.62
61. On May 15, Governor McMaster issued Executive Order No. 2020-36, which authorized certain businesses “previously deemed ‘non-essential’” to re-open.63
62. On May 21, Governor McMaster issued Executive Order No. 2020-37, which
allows additional “non-essential” business to re-open. This Executive Order keeps in place
31%20-%20Modification%20of%20Home%20or%20Work%20Order%20%26%20Authorization%20of %20Outdoor%20Dining%20Services.pdf 60 Id. 61 S.C. Exec. Order No. 2020-33 (May 8, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0508%20FILED%20Executive%20Order%20No.%20202033%20-%20Rescheduling%20Elections%20Postponed%20by%20Executive%20Order%20Nos.%202020 -09%20%26%202020-29.pdf 62 S.C. Exec. Order No. 2020-35 (May 12, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0512%20eFILED%20Executive%20Order%20No.%20202035%20-%20State%20of%20Emergency%20to%20Facilitate%20COVID19%20Pandemic%20Response%2C%20Testing%2C%20%26%20Other%20Measures.pdf 63 S.C. Exec. Order No. 2020-36 (May 15, 2020), https://governor.sc.gov/sites/default/files/Documents/Executive-Orders/2020-0515%20FILED%20Executive%20Order%20No.%20202036%20-%20Additional%20Incremental%20Modification%20of%20NonEssential%20Business%20Closures.pdf
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recommended social distancing practices. 63. On May 27, Governor McMaster issued Executive Order No. 2020-38, which
declared a State of Emergency in South Carolina for 15 days and outlined emergency measures in accordance with the declaration of a State of Emergency.64
64. On June 11, Governor McMaster issued Executive Order No. 2020-40, which declared another State of Emergency for 15 days. The Order acknowledges the need for “additional proactive action and implement[ation] [of] further extraordinary measures to prepare for, respond to, and address the ongoing and evolving public health threat posed by the COVID19 pandemic,” due to the “different, additional, and intensifying” circumstances based on the state’s sharp uptick in cases. The Order implores “to the maximum extent possible” the continued use of social distancing practices.65
65. South Carolina is one of the states currently experiencing a rise in COVID-19 cases, as of mid-June. Following Governor McMaster’s termination of the state’s “Home or Work” (stay-at-home) order on May 4, South Carolina has seen sharp increases in COVID-19 cases and deaths, which are projected to continue into the fall.
66. On June 10, 2020, Dr. Linda Bell, the head doctor of the DHEC, indicated she is
64 S.C. Exec. Order No. 2020-38 (May 27, 2020), https://governor.sc.gov/sites/default/files/Documents/2020-0527%20eFILED%20Executive%20Order%20No.%20202038%20-%20State%20of%20Emergency%20to%20Facilitate%20Coordinated%20COVID19%20Pandemic%20Response.pdf 65S.C. Exec. Order No. 2020-40 (June 11, 2020), https://governor.sc.gov/sites/default/files/Documents/2020-0611%20eFILED%20Executive%20Order%20No.%202020-40%20-%20State%20of%20Emergency.pdf.
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now “more concerned about COVID-19 in South Carolina than I have ever been before.”66 67. On June 10, the day before his announcement of this new Executive Order,
Governor McMaster said during a press conference that “[t]his virus is with us. . . . It’s not going to disappear . . . the hot weather is not going to kill it . . . and it’s going to be here with us until a vaccine is created.”67 The Governor emphasized the importance of continued social distancing and increased mask wearing. Governor McMaster stated: “[t]he ultimate price in this lack of care is death.”68 During the same press conference, Dr. Linda Bell noted that the uptick in cases and the failure of many in the state to wear masks and observe social distancing mean that it “will take us that much longer” to improve conditions in the state.69
68. On June 26, Governor McMaster issued Executive Order No. 2020-42, which declared a new State of Emergency in South Carolina for 15 days.70
69. On June 30, DHEC warned that “[t]he number of new positive cases in a day are a the highest they’ve ever been, as is the number of people currently hospitalized due to COVID19 complications, which is currently more than 1,000.”71 It added: “A lack of social distancing and mask-wearing is contributing to the state’s escalating numbers.”

66'I Am More Concerned About COVID-19 in South Carolina than I Have Ever Been Before,' Expert Says, WLTX (June 10, 2020), https://www.wltx.com/article/news/local/south-carolina-coronavirus-casesspiking-worrying-experts/101-f6c215d2-67db-4420-a1b0-372132a3156f.

67 Id.

68 Id.

69 Id.

70

S.C.

Exec.

Order

No.

2020-42

(June

26,

2020),

https://governor.sc.gov/sites/default/files/Documents/2020-06-

26%20eFILED%20Executive%20Order%20No.%202020-42%20-%20State%20of%20Emergency.pdf.

71 DHEC, News Release, DHEC Recommends Residents Stay Safer at Home for Fourth of July (June 30. 2020), https://www.scdhec.gov/news-releases/dhec-recommends-residents-stay-safer-homefourth-july.

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70. On June 30, Dr. Linda Bell stated: “[i]n addition to the disheartening increases in young people transmitting the virus to their family and friends, new data indicate that asymptomatic people can spread the virus more easily than initially thought.”72 III. COVID-19’s Impact on Black South Carolinians in Light of Ongoing and Historical
Discrimination 71. Nationally, the COVID-19 pandemic has had a particularly devastating effect on Black communities. An analysis by the Associated Press—one of the first attempts to examine the racial disparities of COVID-19 cases and deaths nationwide—found that, in areas where the demographic data has been publicly shared by government officials, African Americans have made up 42% of people who have died from COVID-19, despite accounting for roughly only 21% of the total population in these areas.73 And a CDC report published April 8, 2020, which included data from 1,482 patients hospitalized across 14 states, found that Black patients made up 33% of those for whom race or ethnicity information was available, despite representing only 18% of the states’ populations. This “suggest[ed] that black populations might be disproportionately affected by COVID-19.”74
72 Daniella DeRobbio, DHEC: More and more individuals who test positive participated in group gatherings, ABC4NEWS (June 30, 2020) (quoting Dr. Linda Bell), https://abcnews4.com/news/coronavirus/dhec-more-and-more-individuals-who-test-positive-participatedin-group-gatherings. 73 Kat Stafford et al., Outcry over Racial Data Grows as Virus Slams Black Americans, ASSOCIATED PRESS (Apr. 8, 2020), https://apnews.com/71d952faad4a2a5d14441534f7230c7c?fbclid=IwAR1plunY_qfeA2KrSUPA1TuJobA wQh53a_Qlkf5dw0dWjz-iz85GA1FOt4. 74 CDC Morbidity and Mortality Weekly Report, Hospitalization Rates and Characteristics of Patients Hospitalized with Laboratory-Confirmed Coronavirus Disease 2019—COVID-NET, 14 States, March 130, 2020 (Apr. 8, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6915e3-H.pdf.
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72. Courtney Cogburn, an associate professor at the Columbia University School of
Social Work, noted that “[t]here are patterns at this intersection of race and socioeconomic status
that make it very clear this is just not a story about poverty.” That is, racial disparities in serious
illness and death due to COVID-19 are inextricably linked to a long history and ongoing patterns
of racial discrimination against Black people:
A history of systemic racism and inequity in access to health care and economic opportunity has made many African Americans far more vulnerable to the virus. Black adults suffer from higher rates of obesity, diabetes and asthma, which make them more susceptible, and also are more likely to be uninsured. They also often report that medical professionals take their ailments less seriously when they seek treatment.75 73. These trends were in view relatively early in South Carolina, which by early April
had already “reported a ratio of Black residents to white residents who ha[d] tested positive for the virus that well exceeds the general population ratio.”76 In South Carolina, there is well-
documented and alarming racially disparate patterns of serious illness and mortality due to
COVID-19. As of June 30, Black people in South Carolina represented 33% of reported COVID-19 cases and a staggering 45% of related deaths77 despite making up just 27% of the State’s population.78 Based on these numbers, Black South Carolinians have been twice as likely
to contract COVID-19 than white South Carolinians, and more than thrice as likely to die from it.
75 Kat Stafford et al., Outcry over racial data grows as virus slams black Americans, ASSOCIATED PRESS (Apr. 8, 2020), https://apnews.com/71d952faad4a2a5d14441534f7230c7c?fbclid=IwAR1plunY_qfeA2KrSUPA1TuJobAwQh53a_Qlkf5dw0dWjz-iz85GA1FOt4. 76 See John Eligon et al., Black Americans Face Alarming Rates of Coronavirus Infection in Some States, N.Y. TIMES (Apr. 7, 2020). 77 DHEC, SC Demographic Data (COVID-19), https://scdhec.gov/sc-demographic-data-covid-19 (last visited June 30, 2020). 78 U.S. Census Bureau, QuickFacts South Carolina, https://www.census.gov/quickfacts/SC (last visited June 23, 2020).
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74. South Carolina has long experienced patterns of racial discrimination in health
and socioeconomic life patterns that render Black South Carolinians at greater risk of severe
health complications from COVID-19. For example, because of longstanding racial biases in medical care,79 Black people with symptoms like cough and fever are less likely than other patients to be given one of the scarce COVID-19 tests.80 Persistent structural inequalities mean
that Black people have less access to healthcare, health insurance, or emergency medical help.
DHEC has recognized that Black people are “disproportionately affected by [lack] of access to care,”81 and that “[u]nderlying medical conditions such as diabetes, heart disease, hypertension,
obesity, and asthma might make it more likely that African Americans are admitted to the ICU or die from the disease.”82 Many of these underlying conditions, like asthma, result from the past
and present policies that both relegate Black people to particular neighborhoods and that
disproportionately allocate landfills, factories, and other environmental risks to these Black neighborhoods.83 Racial discrimination in South Carolina has also resulted in socioeconomic
79 See, e.g., Michael O. Schroeder, Racial Bias in Medicine Leads to Worse Care for Minorities, U.S. NEWS (Feb. 11, 2016), https://health.usnews.com/health-news/patient-advice/articles/2016-02-11/racialbias-in-medicine-leads-to-worse-care-for-minorities. 80 See Rubix Life Sciences, Health Data in the COVID-19 Crisis: How Racial Equity is Widening for Patients to Gain Access to Treatment (Mar. 20, 2020), https://rubixls.com/wpcontent/uploads/2020/04/COVID-19-Minority-Health-Access-7-1.pdf; see also Blake Farmer, The Coronavirus Doesn't Discriminate, But U.S. Health Care Showing Familiar Biases, NPR (Apr. 2, 2020), https://www.npr.org/sections/health-shots/2020/04/02/825730141/the-coronavirus-doesnt-discriminatebut-u-s-health-care-showing-familiar-biases. 81 SouthCarolinaETV, Governor's Update on Coronavirus (COVID-19) April 16, 2020, YOUTUBE (Apr. 16, 2020), https://www.youtube.com/watch?v=Vv64tAZI_dY. 82 Tonya Brown, More African Americans are dying from COVID-19 than other races in South Carolina, 15 NEWS (Apr. 9, 2020) (quoting DHEC statement), https://wpde.com/news/coronavirus/more-africanamericans-dying-from-covid-19-in-south-carolina. 83 See, e.g., Ihab Mikati et al., Disparities in Distribution of Particulate Matter Emission Sources by Race and Poverty Status, 108 Am J. Pub. Health 480 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5844406/; Diane Alexander & Janet Currie, Is it who you
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inequalities that disadvantage Black people, like higher rates of unemployment, disability, poverty, and inadequate health insurance than white people. These factors also make it more likely that Black voters in South Carolina are forced to work outside the home even during the current pandemic and are therefore more exposed to COVID-19. For example, in South Carolina, the ACS shows that 24.5% of Black people and just 15.2% of whites over age 16 work in “blue collar” service occupations. And 39.9% of white people versus only 23.1% of Black people in South Carolina hold management or professional occupations—i.e., “white collar” jobs that are much more likely to allow employees to continue to work safely at home. Dr. Jason Cummings, a sociology professor at the University of South Carolina, recently highlighted these concerns in noting: “[p]oor people, and people of color, are more likely to be exposed to other people. The idea of social distancing is really a privilege for those who have money and resources[.]”84 IV. The COVID-19 Crisis and 2020 Elections in South Carolina
75. Dozens of elections are still scheduled to take place in South Carolina before the end of the calendar year, including major statewide elections on November 3.85
76. On March 30, 2020, Defendant Marci Andino, acting in her capacity as Executive Director of the South Carolina Election Commission, wrote various elected officials, including Defendant Governor Henry McMaster. A true and accurate copy of Director Andino’s letter is
are or where you live? Residential segregation and racial gaps in childhood asthma, 55 J. Health Econ. 186 (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6112984/. 84 Fleming Smith et al., Long-term inequities put SC minorities at higher risk for coronavirus exposure and death, THE POST & COURIER (Apr. 15, 2020) (quoting Dr. Jason Cummings), https://www.postandcourier.com/health/covid19/long-term-inequities-put-sc-minorities-at-higher-risk-forcoronavirus-exposure-and-death/article_9d557788-799d-11ea-a89e-a7d97f6247a1.html. 85 See SCvotes, 2020 Election Calendar 1/1/2020 – 12/31/2020, https://www.scvotes.org/sites/default/files/2020-04-08%20Schedule%20of%20Elections.pdf.
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attached hereto as Exhibit 2 (hereinafter “SEC Letter”). The SEC Letter expressed the Commission’s “concern[] about the safe conduct of the June Primaries, November General Election and all other elections scheduled for 2020.” Ex. 2 at 1.
77. The SEC Letter stated the “main issue” in its view: “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.” Id. It added: “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 12.
78. The SEC Letter recommended various “changes to our election process” that the SEC explained it understood were advisable “[i]n order to safely and securely conduct elections during and following the coronavirus pandemic.” Id. at 2. At the top of the SEC Letter’s listed options was the suggestion that South Carolina should “[a]llow no excuse absentee voting.” Id. The SEC Letter described adopting “no-excuse absentee voting” as a “relatively simple change.” Id. at 4. The SEC Letter also recommended “[r]emov[ing] the witness requirement on ballot return envelopes.” Id.
79. On April 13, Defendant Andino also wrote the Hon. Alan M. Wilson, Attorney General of South Carolina, requesting an opinion from his office on how the SEC should interpret the definition of “physically disabled person,” contained in S.C. Code Ann. § 7-15310(4) for purposes of voter qualification to vote absentee. Dkt. No. 46-8.
80. Defendant Andino’s April 13 letter to the Attorney General emphasized SEC was “looking to current absentee voting laws to see how voters who are staying at home to reduce the spread of the virus may be able to take advantage of by mail absentee voting.” Id. It added that
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the provisions of South Carolina law allowing qualified electors who are “physically disabled” or attending to those persons “do not expressly address voters who may not be sick or confirmed as having COVID-19, but must still risk exposure by physically attending a polling place on election day.” Id. “Consistent with the mandate of [S.C. Code Ann.] § 7-15-20 that the [] laws ‘shall be liberally construed in order to effectuate their purposes,’” Defendant Andino asked for clarification on “whether voters staying home due to the pandemic qualify for absentee voting under this reason.” Id.
81. On April 6, 2020, the South Carolina Association of Registration and Election Officials, Inc. (SCARE) wrote a letter to Governor McMaster, President of the Senate Harvey Peeler, and Speaker of the House Jay Lucas (“SCARE Letter”). Dkt. No. 46-7. Defendant Andino received this letter from Katy D. Smith, SCARE President. Dkt. No. 46-2, at 11.
82. SCARE is an organization with active members comprised of county election or registration officials, full time clerks, and voting machine custodians.86 As Executive Director of SEC, Defendant Andino is the liaison to and works with SCARE. Dkt. No. 46-2, at 11.
83. The SCARE Letter shared SCARE’s “concerns regarding our upcoming elections.” In particular, it noted the need for “a plan in place that protects our voters, staff, facility owners, communities, and poll managers in the midst and following a pandemic.” Dkt. No. 46-7, at 1.
84. The SCARE Letter expressed SCARE’s support for the “voting by mail method” that Defendant Andino discussed in the SEC Letter of March 30, “understanding that some components of the other proposed options are viable solutions that may be incorporated to help
86 SCARE, What is Scare?, https://www.sccounties.org/sites/default/files/uploads/resources/AssociationGroups/SCARE/what_is_scare.pdf (last visited July 8, 2020).
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compose a complete workable plan and solution when conducting elections in this manner” Dkt. No. 46-7, at 1.
85. On May 12, the South Carolina General Assembly passed Senate Bill 635, allowing all qualified voters to vote by absentee ballot for the June 9 and June 23, 2020 primary and runoff elections.87 On May 13, Governor McMaster signed S.635 into law. The new law states in pertinent part, 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. 86. On May 25, 2020, the Court granted the Plaintiffs’ Motion for Preliminary Injunction as to the Witness Requirement and enjoined Defendants, their respective agents, officers, employees, successors, and all persons acting in concert with each or any of them from enforcing the Witness Requirement on registered absentee voters in the June 2020 primaries and any resulting runoff elections only. The Court further ordered the Defendants to inform South Carolina voters about the elimination of the Witness Requirement for absentee voting during the June 2020 primaries by informing the public on all relevant websites and social media outlets. The Defendants complied with and implemented this order 87. To date, Defendants have neither adopted nor implemented either recommendation of the SEC as to the November General Election. 88. With the proposed changes in effect for the June 9 primary, rates of absentee
87 S.J. Res. 635, 123rd Gen. Assemb. (S.C. 2020).
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voting for the June 9 primary far outpaced those of both the 2016 and 2018 primaries.88
89. However, even with this increase in absentee voting, shortages of election
officials and a decreased number of polling locations resulted in long lines and hours-long wait
times at in-person voting locations on June 9.89 For example, one elderly voter in Columbia
waited for three and a half hours in 90-degree heat in order to vote curbside before leaving
without voting, as she had made little progress toward the front of the line.90
90. Officials closed polling locations for the June 9 primary because of staffing
shortages related to COVID-19. For example, during the June 9 primary elections, Richland
County cut polling places in half, from 149 down to 70, citing staffing shortages as the reason.91
For the remaining precincts that were operational, poll worker shortages were widely reported
“because of fears of contracting coronavirus.”92 Indeed, the interim election director of Richland
88 Tim Scott, South Carolinians Voting-by-mail in Record Numbers Ahead of June Primary, ABC COLUMBIA (June 2, 2020), https://www.abccolumbia.com/2020/06/02/south-carolinians-voting-by-mailin-record-numbers-ahead-of-june-primary/ (noting that one week before the June 9 primary, 143,000 absentee ballots had been issued, compared to 60,000 absentee ballots that were issued for the June 2016 and 2018 primaries). 89 See Isabella Cueto, At 11 p.m., Some Richland Residents Waited to Vote as Confusion Mars Primary, THE STATE (June 9, 2020), https://www.thestate.com/news/politicsgovernment/election/article243409471.html#storylink=cpy (explaining that many voters who were used to 15 to 20 minute wait times at their polling places in past elections were made to wait more than 3 hours to vote). 90 Carrie Levine & Pratheek Rebala, ‘I Wanted My Vote To Be Counted’: In South Carolina, A Peek At Covid-19’s Impact On Elections, THE CENTER FOR PUBLIC INTEGRITY (June 22, 2020), https://publicintegrity.org/politics/elections/in-south-carolina-a-peek-at-covid-19s-impact-on-electionspolling-place/. 91 Bristow Marchant and Emily Bohatch, COVID-19 Concerns Lead Richland County to Cut Polling Places in Half for June Primary, THE STATE (May 26, 2020), https://www.thestate.com/article242997221.html. 92 Bristow Marchant, Richland County Is Losing Hundreds of June Primary Poll Workers to Coronavirus Fears, THE STATE (Apr. 29, 2020), https://www.thestate.com/news/politicsgovernment/election/article242381961.html; see also Greg Hadley, Voters Report Races Missing from
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County was unable to perform his duties for the June 23 runoff elections as he awaited his own COVID-19 test results.93 V. South Carolina’s Absentee Voting Process
91. South Carolina law sets out specific categories of qualified electors who may vote by mail ballot, known generally as “absentee voting.” S.C. Code Ann. § 7-15-320. Section 715-320 of the South Carolina Code lists 15 such categories. These include various categories of people absent from the jurisdiction in which they could vote in person on Election Day, including students, service members on active duty, overseas citizens, and people away from their county of residence on vacation. Id. § 7-15-320(A).
92. The election laws also set out several categories of qualified electors who may vote absentee “whether or not they are absent from their county of residence on election day.” Id. § 7-15-320(B). This list includes “physically disabled persons.” Id. Physically disabled persons are any “who, because of injury or illness, cannot be present in person at his voting place on election day.” Id. § 7-15-310.
93. Senate Bill 635, as signed into law on May 13, qualified all voters to vote by absentee ballot during the June primary and runoff elections. This provision, however, expires on July 1, 2020 and will not be in place for the remaining 2020 calendar year elections.
94. Individuals may request an absentee ballot in person, by visiting their county registration office, or by sending in a mail request, among other methods. S.C. Code Ann. § 715-330. A voter may request the application anytime during the calendar year in which the
Ballots at Richland Polls During S.C. Primary, THE STATE (June 9. 2020), https://www.thestate.com/news/politics-government/election/article243404346.html. 93 Noah Feit, Richland County’s Interim Election Director Misses Runoffs After COVID-19 Test, THE STATE (June 23, 2020), https://www.thestate.com/article243733457.html.
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election in which they intend to vote absentee is being held. When applying, individuals must sign the application including a “reason for request” of an absentee ballot, among other information. Id. § 7-15-340. Applicants must also affirm an oath stating: “I do swear or affirm that I am a qualified elector, that I am entitled to vote in this election, and that I will not vote again in this election. The information above is true in all respects, and I hereby apply for an absentee ballot for the reason indicated above.” Id.
95. Fraudulently applying for an absentee ballot is a misdemeanor subject to “not less than one hundred dollars nor more than five hundred dollars or imprison[ment] not more than one year, or both.” Id.; see also S.C. Code Ann. § 7-25-20.
96. When a registrar receives an absentee ballot application and verifies that the individual properly competed the application and that they are a registered voter in the jurisdiction, the registrar mails to the individual the following items:
a. One of each ballot to be used in the election; b. Printed instructions as to the marking, folding, and return of each ballot; c. An envelope marked “Ballot Herein” in which all completed ballots must be
placed; d. A return-addressed envelope for use to return the “Ballot Herein” envelope
and all ballots to the board of voter registration and elections, imprinted with an “oath of absentee ballot applicant.” The oath informs, among other things, that the applicant is qualified to vote in the election, has not already voted, and that the applicant received no assistance in voting that they would not have been entitled to receive had they voted in person. 97. Under S.C. Code Ann. § 7-15-220, an individual voting by absentee ballot must
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return their ballot in the envelope on which the oath is imprinted, which shall be “signed and witnessed.” Spaces for a third-party witness to sign the oath and provide their address are imprinted directly underneath blank lines to be filled in with the voter’s signature and date.
98. Once a voter receives their absentee ballot, the voter “must mark each ballot on which he wishes to vote,” place each in the single envelope marked “Ballot Herein,” and then place that envelope in the provided return-addressed envelope. S.C. Code Ann. § 7-15-385. The return-addressed envelope must then be sent to the board of voter registration and elections by mail, personal delivery, or by authorizing another person to return it as set forth in the law. Id.
99. The absentee ballot counting process is scheduled, by law, to begin at 9:00 a.m. on Election Day. See S.C. Code Ann. § 7-15-420. At that time, election managers must commence examining all return-addressed envelopes that have been received by the county board of voter registration and elections and make sure that each oath has been properly signed and witnessed, and that it includes the witness’s address.
100. A ballot determined not to be properly signed and witnessed by a third party, or one that does not include the witness’s signature and address, cannot be counted as a vote in the election. See S.C. Code Ann. § 7-15-420.
101. This Court’s Order and Opinion of May 25, 2020 enjoined Defendants from enforcing the Witness Requirement on registered absentee voters during the June 9 primaries. Dkt. No. 65, at 55. The Witness Requirement will be enforced as to all registered voters who vote absentee in other elections held in South Carolina in 2020, including the November 3 general election.
102. South Carolina law does not afford the voter notice or the opportunity to cure a ballot that is not counted because of a defective witness signature.
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VI. The Challenged Requirements Unduly and Unreasonably Burdens the Voting Rights of South Carolinians. A. The Excuse Requirement deprives many South Carolina voters, including Plaintiffs, of their fundamental right to vote. 103. Historically, most voters in South Carolina vote in person and on Election Day.94
For most voters, that means physically appearing at a designated polling place where they must not only be in close contact with other voters, observers, poll workers, but also repeatedly touch equipment and material such as voting machines, paper ballots, and shared writing instruments. At present, public health officials consider all of these activities as risking exposure to and/or transmission of COVID-19. They are therefore strongly disfavored and/or proscribed by various government orders.
104. Meaningful opportunities to vote in person are still necessary to many South Carolina voters, including those who lack access to reliable mail service or need the kinds of accommodations for persons with disabilities and personal assistance for people with limited literacy that are only available at in-person sites. To prevent viral spread at needed in-person sites, the CDC instructs that South Carolina encourage as many voters as possible “to use voting methods that minimize direct contact with other people and reduce crowd size at polling stations.”95
94 See, e.g., U.S. Election Assistance Comm’n, Election Administration and Voting Survey 2018 Comprehensive Report 30 (2018) (72,806 absentee ballots of over 1.7 million ballots cast in South Carolina in 2018 midterm elections; 217,857 voted “in-person early”), https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report.pdf; U.S. Election Assistance Comm’n, The Election Admin. and Voting Survey 2016 Comprehensive Report 24 (2016) (497,436 absentee ballots of over 2 million total ballots cast in South Carolina in 2016 election), https://www.eac.gov/sites/default/files/eac_assets/1/6/2016_EAVS_Comprehensive_Report.pdf. 95 Ctrs. for Disease Control & Prevention, supra note 23.
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105. Even if the ongoing COVID-19 outbreak subsides, members of vulnerable or “high-risk” populations who would otherwise vote in person on Election Day will reasonably opt and/or be required to continue practicing “social distancing” for the foreseeable future. Some like Plaintiff Rev. Rutledge who risk grave medical complications from COVID-19 will reasonably decide to self-quarantine until a vaccine for the illness is the developed or a cure is identified.
106. Because South Carolina is an “excuse required” absentee voting state, eligible voters must fall under one of several enumerated categories of persons who are “qualified” to vote by absentee ballot for the remainder of the 2020 calendar year elections. Relevant here, “physically disabled persons” and “persons sixty-five years of age or older” are qualified, and “must be permitted to vote by absentee ballot in all elections . . . .” S.C. Code Ann. § 7-15-320. Older South Carolinians at high risk of complications from COVID-19 are thus able to request an absentee ballot only if they are older than 65.
107. As Defendant Andino explained in the SEC Letter, none of the 18 categories that qualify a voter to vote absentee “include self-isolating due to a pandemic.” Ex. 2, at 2. Thus, at present, it is Defendants’ position that no provision of the South Carolina laws affords all eligible voters the opportunity to vote absentee by mail-in ballot.
108. Defendants have not afforded all eligible voters an opportunity to safely vote absentee in any elections held as of July 1, 2020—including the November 3, 2020 general election—despite the fact that COVID-19 will largely pose the same concerns in the fall as it did in June. By taking steps to permit all South Carolina voters to use absentee ballots to vote safely in the June primaries and runoffs, the State made clear that the pandemic necessitates such changes while the risk of community transmission of COVID-19 remains.
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109. As currently construed, the Excuse Requirement severely burdens the fundamental right of all eligible voters practicing self-quarantining and social distancing to participate in elections in South Carolina. In addition, it fails to clearly apprise voters with disabilities whether they are eligible to vote via absentee ballot.
110. The Excuse Requirement will therefore likely prevent tens of thousands of South Carolinians who might otherwise vote in scheduled elections from participating in those contests, as anyone not covered by an enumerated absentee “excuse” will have to choose between exposing themselves and others to the risk of illness from coronavirus and COVID-19 to vote in person or foregoing their right to vote.
111. The Excuse Requirement is also particularly burdensome for Black people in South Carolina. Black South Carolinians continue to bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process. It is precisely because of these patterns that Black people in South Carolina face particularly severe health risks from COVID-19 exposure arising from being forced to vote in-person rather than by mail. In these circumstances, the Excuse Requirement interacts with these conditions to deny Black people in South Carolina an equal opportunity to participate in the political process.
112. The Excuse Requirement is plainly unreasonable. Because South Carolina already affords an excuse to eligible voters who “because of injury or illness, cannot be present in person at [a] voting place on election day[,]” S.C. Code Ann. § 7-15-310, Defendants could reasonably interpret the statute to include people who are self-isolating to be eligible to vote absentee “because of injury or illness” under the Excuse Requirement.
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have interpreted their disability or illness basis for absentee eligibility in precisely this fashion during the ongoing crisis. Furthermore, as described in Dkt. No. 65, at 26, South Carolina amended state law to permit all voters to cast absentee ballots in the June elections. B. South Carolina’s Witness Requirement will deny large numbers of eligible voters the
right to vote yet provides only marginal benefits to the State. 114. As noted, election officials currently have no discretion on whether or not to count an unwitnessed absentee ballot—they must reject the ballot and are not required to give notice to the voter or opportunity to cure. S.C. Code Ann. § 7-15-420. 115. Yet in the current pandemic, individuals living alone have no safe means to have an individual witness and sign their ballot envelope while complying with the Governor’s repeated executive orders requiring adherence to social distancing measures. Even if people do leave their homes, the State directs them to maintain at least six feet of distance from others with whom they do not live. These orders also reflect the consensus of doctors and public health officials. 116. Older South Carolinians and those with certain preexisting medical conditions face even graver risks by interacting with another individual to obtain a witness signature. But because COVID-19 can afflict individuals of any age and those without preexisting conditions and can spread aggressively through asymptomatic people, any individual living alone faces a real risk of endangering themselves or others by seeking someone to witness their ballot. 117. Nor will the impact of enforcing the Witness Requirement in an environment in which COVID-19 is still being transmitted be light. Instead, it will likely prevent thousands of eligible South Carolinians from casting ballots.
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118. At present, South Carolina has over 3.3 million registered voters.96 Over 620,000 South Carolinians voted in the June 2018 Democratic and Republican primaries. And in the November 2016 general election, over 2.1 million South Carolinians cast ballots.
119. Yet according to 2018 American Community Survey (ACS) statistics from the Census Bureau, 29% of South Carolinians age 18 and older live alone.97 Assuming similar numbers in the 2020 November general election, over 550,000 South Carolinians will face the choice of either risking their health by voting in person or finding a witness for their absentee ballots, or not voting at all.98 Like Plaintiffs, many of them will be forced not to vote in order to protect their health and their community.
120. This burden on the right to vote will fall more heavily upon certain groups—older people, persons with disabilities, and Black people in South Carolina, among others. For instance, about 39.8% of all South Carolinians living alone are age 65 and older.99 24.7% of South Carolinians age 65 and older live alone, compared to approximately 11% of the general population.100 33.2% of South Carolinians 18 and older with a disability live alone and 33.8% of South Carolinians 65 and older with a disability live alone. Of all Black households, 33.2% are
96 South Carolina Voter Registration Demographics, https://www.scvotes.org/cgibin/scsec/96vr?countykey=ALL&D1=None (last visited June 23, 2020). 97 U.S. Census Bureau, supra note 3, https://data.census.gov/cedsci/table?q=south%20carolina%20single%20person%20households&g=04000 00US45&hidePreview=false&tid=ACSDP1Y2018.DP02&vintage=2018&layer=VT_2018_040_00_PY_ D1&cid=DP02_0001E. 98 Id. 99 Id. 100 U.S. Census Bureau, 2010-2018 American Community Survey 1-Year Estimates: ACS Demographic and Housing Estimates: South Carolina (2018), https://data.census.gov/cedsci/table?q=south%20carolina%20demographics&g=0400000US45&tid=ACS DP1Y2018.DP05 (last visited June 23, 2020).
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people who live alone. Of all white households, 28.2% are people who live alone. And 14.8% of all Black households in South Carolina are headed by women who live alone with their children under 18 (i.e., people who are not legally competent witnesses) versus just 3.9% of similar white households.
121. As noted above, older individuals already face higher rates of infection and death from COVID-19, further magnifying its impact. And the CDC has found that “some people with disabilities might be at a higher risk of infection or severe illness because of their underlying medical conditions.”101
122. Evidence has also revealed stark racial disparities in the impact of COVID-19 that will result in disparate burdens on minority voters. These figures mirror developing trends in other states, such as Maryland and North Carolina, which have both released data showing that Black people face higher rates of both infection and death from COVID-19 than the population as a whole.102
123. The Witness Requirement will therefore likely prevent tens of thousands of South Carolinians who might otherwise cast absentee ballots from doing so this year, with a disproportionate impact falling on older voters, voters with disabilities, and Black voters.
124. The Witness Requirement is particularly burdensome for Black voters in South Carolina, who are more likely to live alone and thus will be more likely to risk exposure to
101 Ctrs. for Disease Control & Prevention, People with Disabilities, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-disabilities.html (last updated Apr. 7, 2020). 102 N.C. Dep’t Health & Human Servs., COVID-19 North Carolina Dashboard, https://www.ncdhhs.gov/divisions/public-health/covid19/covid-19-nc-case-count#by-race/ethnicity (last updated Apr. 21, 2020); Fenit Nirappil et al., Record set for single-day covid-19 deaths in D.C., Maryland and Virginia at 53; black residents hit hardest, WASH. POST (Apr. 9, 2020), https://www.washingtonpost.com/local/covid-19-deaths-hit-new-high-in-dc-maryland-and-virginia-at-53Black-residents-hit-hardest/2020/04/09/cc85cd14-77b3-11ea-b6ff-597f170df8f8_story.html.
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COVID-19 in the course of obtaining a witness signature. Black people in South Carolina continue to bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process. It is precisely because of these patterns that Black people in South Carolina face particularly severe health risks from COVID-19 exposure. In these circumstances, the witness requirement interacts with these conditions to deny Black people in South Carolina an equal opportunity to participate in the political process.
125. Protecting election integrity and preventing improper use of absentee ballots certainly are valid governmental interests, but maintaining the Witness Requirement during the current pandemic fails to serve or protect those interests. As Defendant Andino wrote in the SEC Letter urging changes to the elections process in light of the ongoing pandemic: “the witness signature offers no benefit to election officials as they have no ability to verify the witness signature.” Ex. 2, at 3. In fact, South Carolina already exempts voters in the military or living abroad from the Witness Requirement. S.C. Code Ann. § 7-15-380(B).
126. And to the extent the Witness Requirement did serve these or any other governmental interests, it would be substantially outweighed by its massive burden on South Carolina voters, particularly as compared to other procedures that serve the same interests.
127. The Witness Requirement is not South Carolina’s sole method of policing the integrity of absentee ballots—far from it. Indeed, only 10 other states even contain a similar requirement, yet absentee balloting systems in the remaining 40 are not undermined by fraud.103
103 Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options, Nat’l Conf. of State Legislatures (Apr. 14, 2020), https://www.ncsl.org/research/elections-and-campaigns/absenteeand-early-voting.aspx (select tab titled “Processing, Verifying, and Counting Absentee Ballots” and scroll down to the chart “Verifying Authenticity of Absentee/Mailed Ballots.”)
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128. Meanwhile, South Carolina has several other vehicles to both confirm the legitimacy of the absentee ballot cast and disincentivize fraudulent use of absentee ballots.
129. For one, the board of voter registration and elections assigns each absentee ballot application a specific serial number, which is then memorialized in a “record book.” S.C. Code Ann. § 7-15-330. The record book is updated to reflect:
a. the applicant’s name, home address, and absentee mailing address (if different), the date on which the form is requested, and the date on which it is issued, id.;
b. the date on which the ballot(s), printed instructions, envelope marked “Ballot Herein,” return-addressed envelope are requested by written application and the date they are issued to the elector, S.C. Code Ann. § 7-15-370;
c. the date on which the return-addressed envelope and enclosed ballot(s) are received by the board, S.C. Code Ann. § 7-15-385.
130. Only return-addressed envelopes that are received and recorded in the record book by these procedures are securely stored “in a locked box within the office of the board of voter registration and elections.” S.C. Code Ann. § 7-15-385. By law, absentee ballots “remain in the custody of the county board of voter registration and elections until” they are transferred “for the purpose of tabulation and reporting . . . .” S.C. Code Ann. § 7-15-410.
131. Any elector or qualified watcher may challenge the absentee vote of any person whom they suspect is not a qualified voter. S.C. Code Ann. § 7-13-810. Id. § 7-13-830, and § 715-420.
132. Most directly, of course, voters themselves must attest under penalty of perjury their identity, residence, and that they will not double vote when they request their absentee
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ballot. S.C. Code Ann. § 7-15-340. They must so attest again when they sign their ballot envelope. Id. § 7-15-380.
133. Any person who fraudulently attests to the absentee ballot application by voting more than once in the same election is guilty of a misdemeanor and subject to a fine of up to $500 or imprisonment for up to a year. S.C. Code Ann. §§ 7-15-340, 7-25-20. They are separately guilty of the offense of “voting more than once at elections” and may be fined at the discretion of the court or imprisoned as long as three years. Id. § 7-25-110.
134. Other provisions of law establish similar penalties for “impersonating a voter.” Id. § 7-25-120. And for “swearing falsely at elections or taking oath in another’s name.” Id. § 725-150.
135. In light of these attestation and verification requirements and criminal penalties associated with misusing absentee ballots, the additional step of requiring a witness signature adds no meaningful protection against fraud. Indeed, while instances of fraud are exceedingly rare, an individual determined to break these laws and risk the penalties can just as easily forge the signature of another individual as they can falsely attest when they sign their own name. Indeed, the Witness Requirement has little if any practical utility for election integrity because South Carolina law does not require witnesses to identify themselves by printing their name or providing any other information. Indeed, the Witness Requirement has little if any practical utility for election integrity because South Carolina law does not require witnesses to identify themselves by legibly printing their name or providing any information other than a signature and an address. S.C. Code Ann. § 7-15-380.
136. As Defendant Andino explained: “Removing the requirement for a witness signature would remove a barrier many voters would likely encounter while in self-isolation.”
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Ex. 2, at 3. The burden on the voting rights of the many thousands of South Carolinians who will be prevented from either casting their ballots safely or having them counted by retaining the Witness Requirement far outweighs any upside of the requirement, if any.
CLAIMS FOR RELIEF COUNT ONE
Violation of the Fundamental Right to Vote 42 U.S.C. § 1983, First and Fourteenth Amendments to the U.S. Constitution 137. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the counts below as though fully set forth herein. 138. Eligible individuals have a fundamental right to vote under the First and Fourteenth Amendments of the U.S. Constitution. Under the First and Fourteenth Amendments, a court considering a challenge to a state election law must carefully balance the character and magnitude of the injury to the rights that the plaintiff seeks to vindicate against the justifications put forward 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). 139. In light of the COVID-19 pandemic, South Carolina’s Excuse Requirement, Witness Requirement, and their enforcement severely and unreasonably burden the fundamental right to vote of South Carolina voters. These requirements will likely prevent thousands of eligible voters from casting ballots that are then counted, with particularly heavy burdens on older South Carolinians, voters with disabilities, and African American voters. 140. Therefore, Defendants, acting under color of state law, have and will continue to deprive Plaintiffs of rights secured to them by the First and Fourteenth Amendments to the U.S. Constitution—namely, the fundamental right to vote—and protected by 42 U.S.C. § 1983 by enforcing the Challenged Requirements.
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COUNT TWO Violations of Section 2 of the Voting Rights Act, 52 U.S.C. § 10301 141. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the Count below as though fully set forth herein. 142. Section 2 of the Voting Rights Act provides in part that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State . . . in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color . . . .” 52 U.S.C. § 10301(a). 143. The “essence of a [Section] 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 black and white voters to elect their preferred representatives.” League of Women Voters of N.C. v. North Carolina (“LWV”), 769 F.3d 224, 238–39 (4th Cir. 2014) (internal quotation marks and citation omitted). “[A] Section 2 vote-denial claim consists of two elements: First, the challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Second, that burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class.” LWV, 769 F.3d at 240 (internal quotation marks and citations omitted). 144. As it has been interpreted by Defendants, the Excuse Requirement, if not enjoined, will materially burden the right to vote, and will have an adverse and disparate impact on Black voters in South Carolina. Black voters in South Carolina are more likely to work in jobs that expose them to COVID-19, less likely to have insurance or financial resources, and
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more likely to suffer from severe health complications and/or to die from COVID-19 than white voters. Black voters are therefore significantly more burdened by the effects of the Excuse Requirement.
145. Likewise, the Witness Requirement, if not enjoined, will materially burden the right to vote, and will have an adverse and disparate impact on Black voters in South Carolina. Black voters in South Carolina are more likely to work in jobs that expose them to COVID-19, less likely to have insurance or financial resources, more likely to live alone, and more likely to suffer from severe health complications and/or to die from COVID-19 than white voters. Black voters are therefore significantly more burdened by the effects of the Witness Requirement.
146. The disparate burden resulting from the Challenged Requirements is directly linked to social and historical conditions. South Carolina has a long history of voting-related discrimination, including the recent use of witness requirements, property qualifications, and photo ID laws. From 1965 to 2013, South Carolina was covered by the preclearance provisions of the Voting Rights Act. Since 2000, the U.S. Department of Justice has objected to eleven proposed voting changes in South Carolina due to those changes’ potentially racially discriminatory purpose or effect.
147. Black people in South Carolina continue to suffer from discrimination in other areas such as education, employment, and health, which hinders their ability to participate effectively in the political process. According to the ACS, in South Carolina, 11.6% of Black people and 8.3% of white people lack health insurance; 38.6% of Black people and 33.1% of white people over age 65 have a disability; 14.2% of Black people and 11.6% of white people age 18 to 64 have a disability; 16.1% of Black and only 8.7% of white people lack a high school degree; 8% of Black and 4.1% of white people over age 16 are unemployed; 21.1% of Black and
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6.4% of white households in general lived below the poverty line; 17% of Black people over 65 versus 7.1% of whites over 65 also live in poverty; 13.6% Black and only 3.5% of white households lack a vehicle; 84.7% of Black and 92% of white households have a computer or “smart phone”; even among those people with computers, 28.3% of Black and just 14.9% of white households lack broadband internet; 24.2% of Black and 6.5% of white households use SNAP/food stamps; and Black median family income ($42,910) is nearly half that of white families ($76,382). In particular, as discussed above at ¶¶ 71–74, these discriminatory patterns render Black voters more vulnerable to COVID-19, such that the Challenged Requirements are particularly burdensome for them as a group relative to other voters. In addition, voting is racially polarized in South Carolina and Black people do not hold elected office in portion to their population, resulting in state elected officials who are less responsive to the health, voting, and other concerns of Black voters amid the COVID-19 crisis.
148. Under the totality of the circumstances, the Challenged Requirements interact with these social and historical conditions to abridge and deny Black people in South Carolina the right to vote. As a result of the Challenged Requirements, Black people in South Carolina will have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
COUNT THREE Violation of
Title II of the Americans with Disabilities Act (42 U.S.C. §§ 12131, et seq.) 149. Plaintiffs reallege and reincorporate by reference all prior paragraphs of this Complaint and the paragraphs in the count below as though fully set forth herein. 161. Title II of the ADA requires that public entities refrain from discriminating against qualified individuals on the basis of disability. 42 U.S.C. § 12132. The regulations
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implementing Title II of the ADA require that public entities avoid unnecessary eligibility criteria or methods of administration that have the effect of screening out, excluding, or discriminating against people with disabilities. 28 C.F.R. § 35.130(b)(3),(8). Further, a public entity must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).
162. Plaintiffs Thomas, Rutledge, Walker, members of the Family Unit, and members of the South Carolina NAACP have disabilities within the meaning of the ADA, 42 U.S.C. § 12102, including serious health conditions that make them susceptible to severe complications from COVID-19. They are “qualified” for the programs, services, and activities being challenged herein in that they meet all essential eligibility requirements to vote in South Carolina. 42 U.S.C. § 12131(2).
163. Defendants are violating Title II of the ADA by imposing eligibility requirements that will “screen out or tend to screen out an individual with a disability” and cannot be shown to be necessary for the provision of the state’s absentee voting program. 28 C.F.R. § 35.130(b)(8). The Excuse Requirement, as construed in the South Carolina Code, will require some individuals with disabilities to expose themselves or others to COVID-19 in order to vote because it precludes some such individuals from casting absentee ballots via mail and generates confusion about eligibility requirements for voting by mail for some voters with disabilities. See S.C. Code Ann. §§ 7-15-320, 7-15-310. The Witness Requirement will require that many individuals with disabilities, who live alone and for whom COVID-19 poses grave health risks, or who have COVID-19, to engage in in-person interactions outside the home to vote. The Challenged
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Requirements will screen out many individuals with disabilities who are unwilling or unable to risk their life and health (or the life and health of others) in this way.
164. Defendants are also violating Title II of the ADA by administering an absentee voting system that does not take into consideration the extra burdens and risks created by the Challenged Requirements for people with disabilities. Because of their health statuses, Plaintiffs and Plaintiffs’ members with disabilities must severely limit in-person contact with others during the COVID-19 pandemic. The Challenged Requirements create additional—and unnecessary— burdens for them to exercise their right to vote. Such additional burdens risk “defeating or substantially impairing accomplishment of the objectives of the public entity’s program with respect to individuals with disabilities.” 28 C.F.R. § 35.130(b)(3)(ii). The goal of any election is to allow eligible voters to participate in the democratic process by casting their ballots and having their votes counted. The Excuse Requirement fails to clearly apprise voters with disabilities of whether they are qualified to vote via absentee ballot; a voter with a disability would have to determine that they are “physically disabled” within the meaning of the South Carolina Code and thus qualified to vote via absentee ballot. A voter is considered “physically disabled” for purposes of absentee voting if they are “a person who, because of injury or illness, cannot be present in person at his voting place on election day.” S.C. Code Ann. § 7-15-310. A voter who chooses the “physically disabled persons” excuse to cast an absentee ballot opens themselves up to criminal liability for false statements under oath or fraudulent voting. S. C. Code Ann. §§ 7-25-150, 7-25-20. Further, the Witness Requirement is a step in the absentee voting process that would require some voters with disabilities to risk their health in order to participate in the electoral process. Such risks are likely to deter some individuals with disabilities from voting, thus impairing—indeed defeating—the objectives of allowing all
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eligible voters to be able to cast their vote and participate in this democracy. 165. Defendants are further violating Title II of the ADA by their refusal to provide
reasonable modifications to policies, practices and procedures with respect to the Challenged Requirements for individuals with disabilities, such as Plaintiffs Thomas, Rutledge, Walker, the members of Plaintiffs Family Unit, and members of the South Carolina NAACP, whose health statuses severely limit their ability to leave home or have personal contacts with others amid the COVID-19 pandemic.
166. Suspending the Excuse Requirement—or clarifying through official guidance that all voters with disabilities that make them more susceptible to death or serious illness from COVID-19 infection are eligible to vote absentee—is necessary to ensure that all voters can vote safely in the 2020 general election. Although Defendants have taken the position in this litigation that a subset of voters with disabilities are eligible to cast absentee ballots using the “physically disabled persons” excuse, thus far, Defendants have yet to issue administrative rules, public guidance, or any other statement that formally and officially adopts this interpretation.
167. Eliminating the Witness Requirement is necessary for all voters whose disabilities put them at greater risk of complications or death from COVID-19 infection.
168. Unless the requested relief is granted, Plaintiffs and other individuals with disabilities will suffer irreparable harm. Unlike voters without disabilities, they will be exposing themselves to the increased risk of severe illness or death in order to exercise their right to vote.
169. The ADA authorizes injunctive relief as appropriate to remedy acts of discrimination against persons with disabilities. 42 U.S.C. § 12188(a)(1)-(2).
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RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully requests that this Court: A. Declare that South Carolina’s enforcement and interpretation of the Excuse Requirement (as stated in S.C. Code Ann. § 7-15-320 and § 7-15-310) while the risk of COVID19 transmission in South Carolina remains violates the fundamental right to vote under First and Fourteenth Amendments to the U.S. Constitution, the Voting Rights Act, and the ADA; B. Declare that South Carolina’s enforcement of the Witness Requirement (as stated in S.C. Code Ann. § 7-15-220) while the risk of COVID-19 transmission in South Carolina remains violates the fundamental right to vote under the First and Fourteenth Amendments to the U.S. Constitution, the Voting Rights Act, and the ADA. C. Issue a permanent injunction that orders relief including:
1. Prohibiting Defendants from enforcing the Excuse Requirement (as stated in S.C. Code Ann. § 7-15-320 and § 7-15-310) to prevent any eligible voter, regardless of age and physical condition, to request, receive, and have counted, an absentee ballot, at least while emergency orders concerning COVID-19 are in place and/or while public health officials continue to recommend social distancing practices due to risk of community transmission of COVID-19;
2. Prohibiting Defendants from enforcing the Witness Requirement (as stated in S.C. Code Ann. § 7-15-220) for all voters, at least while emergency orders concerning COVID-19 are in place and/or while public health officials continue to recommend social distancing practices due to risk of community transmission of COVID-19; 55

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3. Ordering Defendants to issue guidance instructing city and county election officials to count otherwise validly cast absentee ballots that are missing a witness signature for South Carolina’s general elections in 2020; and
4. Ordering Defendants to modify election materials, including absentee ballots, to reflect the elimination of the Excuse and Witness Requirements, and conduct a public information campaign informing South Carolina voters about the elimination of the Excuse and Witness Requirements, in coordination with city and county officials before and during the absentee balloting period, and ordering Defendants to issue guidance instructing city and county election officials to issue absentee ballots to all eligible voters and to count otherwise validly cast absentee ballots that are missing a witness signature;
D. Award Plaintiffs attorneys’ fees in this action; E. Award Plaintiffs their costs of suit; and F. Grant such other and further relief as this Court deems just and proper in the circumstances.
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Dated: July 10, 2020

Respectfully submitted,

Adriel I. Cepeda Derieux* Dale E. Ho* Sophia Lin Lakin* Theresa J. Lee* American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 Tel.: (212) 549-2500 acepedaderieux@aclu.org dho@aclu.org
Deuel Ross* NAACP Legal Defense &
Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 Tel.: (212) 965-2200 dross@naacpldf.org

/s/ Susan K. Dunn Susan K. Dunn (Fed. Bar #647) American Civil Liberties Union of South Carolina Charleston, SC 29413-0998 Tel.: (843) 282-7953 Fax: (843) 720-1428 sdunn@aclusc.org
Attorneys for Plaintiffs

*Motion for admission Pro Hac Vice forthcoming

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 3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

Mary T. Thomas, et al.,

No.: 3:20-cv-01552-JMC

Plaintiffs,

v. Marci Andino, et al.,
Defendants.

Election Defendants’ Motion for Summary Judgment

Defendants Marci Andino, John Wells, JoAnne Day, Clifford J. Edler, Linda McCall, and Scott Moseley, pursuant to Federal Rule of Civil Procedure 56, move for summary judgment on all six of the Plaintiffs’ claims.
The Plaintiffs challenge two provisions of South Carolina’s absentee voting laws: the Qualification Requirement and the Witness Requirement. First, they bring claims under the United States Constitution, Voting Rights Act (“VRA”), and Americans with Disabilities Act (“ADA”) seeking to enjoin the requirement that all South Carolinians must meet a statutory qualification to vote by absentee ballot. See S.C. Code § 7-15-320. Second, they bring those same three claims attempting to enjoin the requirement that a voter’s oath on an absentee mail ballot must be witnessed. See S.C. Code § 7-15-380.
The Plaintiffs do not even have standing to assert their challenges to the Qualification Requirement. On the merits, their challenges to both provisions lack merit.
This motion is supported by the attached memorandum and exhibits, pursuant to Local Civil Rule 7.04.

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108 Page 2 of 2
Respectfully Submitted, 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 Election Defendants
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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

Mary T. Thomas, et al.,

No.: 3:20-cv-01552-JMC

Plaintiffs,

v. Marci Andino, et al.,
Defendants.

Election Defendants’ Memorandum in Support of Motion for Summary Judgment

Defendants Marci Andino (“Andino” or “Executive Director”), John Wells, JoAnne Day, Clifford J. Edler, Linda McCall, and Scott Moseley (collectively, “Election Defendants”) submit this memorandum in support of their motion for summary judgment.
Introduction A most basic principle of American jurisprudence is, as Justice Story admonished almost two centuries ago, that “ours is a government of laws, and not of men.” United States v. Dickson, 40 U.S. 141, 162 (1841). We abide by this principle. Always. Even in a pandemic. See Tex. Democratic Party v. Abbott, 961 F.3d 389, 413 (5th Cir. 2020) (Ho, J., concurring) (“We do not suspend the Constitution during a pandemic.”). To do otherwise would be to let “hard cases[] make bad law.” N. Sec. Co. v. United States, 193 U.S. 197, 364 (1904) (Holmes, J., dissenting). Three important concepts follow from this principle. The first is separation of powers. It’s a principle at the heart of the U.S. Constitution, and it’s an explicit one in South Carolina’s Constitution. See S.C. Const. art. I, § 8 (“the legislative, executive, and judicial powers of the government shall be forever separate and

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distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other”). In this State, the General Assembly—not the executive branch nor the judicial branch—has responsibility for establishing election procedures. See id. art. II, § 10. Yet none of the Plaintiffs thought about seeking recourse by petitioning their legislators. See, e.g., Rutledge Dep. Tr. (Ex. 1) 55:16–25; Richard Dep. Tr. (Ex. 2) 46:12–25; NAACP Dep. Tr. (Ex. 3) 46:8–47:15. They should have. As the General Assembly demonstrated a mere three months ago, it knows how to change election procedures and can do so quickly, if it wishes. Instead of looking to the state legislature, the Plaintiffs ran to the federal judiciary. But courts cannot substitute their judgment for decisions committed to the legislature. See Perry v. Perez, 565 U.S. 388, 396 (2012) (applying this concept in a redistricting case); St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 51 (1936) (“The court does not sit as a board of revision to substitute its judgment for that of the Legislature or its agents as to matters within the province of either.”).
The second is the need for elections that people trust. As the Supreme Court succinctly put it, a “State indisputably has a compelling interest in preserving the integrity of its election process.” Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989). Integrity in elections (both actual integrity and the perception of it) preserves the rule of law because it ensures people trust the outcome and believe that the laws government adopts are legitimate. To promote election integrity, established rules must govern elections—rules by which everyone
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has agreed to play ahead of time. Cf. McNabb v. United States, 318 U.S. 332, 347 (1943) (“The history of liberty has largely been the history of observance of procedural safeguards.”). Courts should therefore be wary of changing election procedures, which can undermine confidence in elections and thus in respect for the rule of law.
The third is that courts decide only “Cases” and “Controversies.” U.S. Const. art. III, § 2. As one district judge in this State recently put it, “[f]ederal courts resolve cases and controversies, not crusades.” Timpson by & through Timpson v. McMaster, 437 F. Supp. 3d 469, 472 (D.S.C. 2020). A court therefore must resolve only the dispute between the parties before it. This requires courts to analyze claims element-by-element. A plaintiff can survive summary judgment only if she produces evidence to create a genuine dispute of material fact on every element of a claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In other words, a plaintiff cannot argue a case in generalities or hypotheticals. That plaintiff must instead offer evidence specific to her claims from which a factfinder could reasonably conclude she wins. Otherwise, the defendant is entitled to summary judgment.
Here, the element-by-element analysis shows the Plaintiffs cannot prevail on their claims. COVID-19 is, to be sure, serious. But myopically focusing on the seriousness of this disease is no reason to overhaul the election procedures the South Carolina General Assembly has adopted. The Election Defendants are taking COVID-19 seriously, following the CDC’s recommendations and doing everything
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possible to mitigate the risk of voters and poll workers contracting COVID-19 during the voting process. Taking all of the material facts into consideration and looking at them through the legal framework of each of the Plaintiffs’ claims, one conclusion becomes clear: Those claims fail.
Background The South Carolina Election Law
The General Assembly is charged with “provid[ing] for the administration of elections and for absentee voting.” S.C. Const. art. II, § 10. It has done so in the South Carolina Election Law. See S.C. Code § 7-1-10 et seq.
The General Assembly has given the State Election Commission the authority to implement this law and oversee elections in South Carolina. Id. § 7-1510(d). The Commission consists of five members, appointed by the Governor. Id. § 73-10(a). The Commission acts independently of any political campaign. Id. § 7-310(e). The Commission, in turn, elects an executive director, who “shall be the chief administrative officer for the State Election Commission.” Id. § 7-3-20(A).
The Executive Director is responsible for myriad statutorily defined duties, including, but not limited to, supervising the conduct of the county boards of elections and voter registration (“County Boards”); maintaining a complete master list of qualified voters by county and precinct; and furnishing each County Board with a master list of all registered voters in the county at least ten days prior to each election. Id. § 7-3-20(B). She also serves as the chief state election official for implementing and coordinating the State’s responsibilities under the National
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Voter Registration Act of 1993 and for the Uniformed and Overseas Citizens Absentee Voting Act. Id. § 7-3-20(C). Additional duties of the Executive Director are contained in S.C. Code §§ 7-3-25 and 7-3-30.
Anyone who is a citizen of South Carolina and the United States is (subject to exceptions for mental incapacity, imprisonment, or felony conviction) eligible to vote if she is at least eighteen years old, is not disabled from voting under the State Constitution, and lives in the county and polling precinct where she offers to vote. Id. § 7-5-120. A person must be registered to vote. Id. § 7-5-110.
Registered voters may vote either in person on election day, id. § 7-13-710 et seq., or by absentee ballot, id. § 7-15-10 et seq. Any registered voter may vote in person on election day. Id. § 7-13-710(A). The General Assembly has also provided that certain qualified voters may also vote by absentee ballot. Only certain voters qualify to vote by absentee ballot. Id. § 7-15-320. Absentee Voting in South Carolina
Section 7-15-320 allows numerous voters to qualify to vote by absentee ballot: (A) Qualified electors in any of the following categories must be
permitted to vote by absentee ballot in all elections when they are absent from their county of residence on election day during the hours the polls are open, to an extent that it prevents them from voting in person:
(1) students, their spouses, and dependents residing with them;
(2) persons serving with the American Red Cross or with the United Service Organizations (USO) who are attached to and serving with the Armed Forces of the United States, their spouses, and dependents residing with them;
(3) governmental employees, their spouses, and dependents residing with them;
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(4) persons on vacation (who by virtue of vacation plans will be absent from their county of residence on election day); or
(5) overseas citizens. (B) Qualified electors in any of the following categories must be permitted to vote by absentee ballot in all elections, whether or not they are absent from their county of residence on election day:
(1) physically disabled persons; (2) persons whose employment obligations require that they be at their place of employment during the hours that the polls are open and present written certification of that obligation to the county board of voter registration and elections; (3) 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; (4) persons attending sick or physically disabled persons; (5) persons admitted to hospitals as emergency patients on the day of an election or within a four-day period before the election; (6) persons with a death or funeral in the family within a three-day period before the election; (7) persons who will be serving as jurors in a state or federal court on election day; (8) persons sixty-five years of age or older; (9) persons confined to a jail or pretrial facility pending disposition of arrest or trial; or (10) members of the Armed Forces and Merchant Marines of the United States, their spouses, and dependents residing with them.
Id. § 7-15-320 (“Qualification Requirement”).
A voter seeking to vote by absentee ballot must submit an absentee ballot
application request to her County Board, which can be done by mail, email, fax, or
in person. Id. § 7-15-330. When submitting this application, a voter must swear that
she is a qualified elector, entitled to vote in that election, and will not vote again in
that election. Id. § 7-15-340. Violating that oath is a criminal offense. Id. The
County Board then provides the voter with an absentee ballot. This absentee ballot
may be cast in person or by mail. If a voter chooses by mail, the ballot is sent to her
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along with instructions, a return-addressed envelope, and any additional necessary information. Id. § 7-15-370.
On the absentee ballot return-addressed envelope, the voter must make this oath:
I hereby swear (or affirm) that I am duly qualified to vote at this election according to the Constitution of the State of South Carolina, that I have not voted during this election, that the ballot or ballots contained in this envelope is my ballot and that I have received no assistance in voting my ballot that I would not have been entitled to receive had I voted in person at my voting precinct. Id. § 7-15-380. This oath must be “witnessed by someone designated by the voter” (“Witness Requirement”). Id. The statute does not limit who this witness may be. If the ballot return-address envelope is not signed, not witnessed, or there is no witness address, the ballot cannot be counted. Id. § 7-15-420. Absentee ballots are then returned to the County Board, which keeps a record of the returned absentee ballots and stores them in a locked box in its office. Id. § 7-15-385. Absentee ballots may be returned by mail, in person, or by an authorized returnee. Id. On the Monday prior to the election on Tuesday, the County Boards can may begin the process of examining the return-addressed envelopes to make certain that each oath has been signed and each envelope contains a witness signature and address. See 2020 S.C. Act No. 133, § 1 (B). Absentee ballots are then counted on election day. Id. § 7-15-420. COVID-19 COVID-19 is a novel virus about which we are constantly learning more. At this point, the virus has been in the United States for about six months. We know
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far more about the virus now than we did when this lawsuit was filed in April and when the Court entered a preliminary injunction regarding the June 2020 primaries.
COVID-19 is a coronavirus that spreads readily and can cause an infected person to have no symptoms or to have serious conditions requiring hospitalization that can even lead to death. See Symptoms of Coronavirus, CDC, https://www.cdc. gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited July 26, 2020). It is transmitted primarily by person-to-person contact, through respiratory droplets produced when someone talks, sneezes, or coughs. See How to Protect Yourself & Others, CDC, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting -sick/prevention.html (last visited July 26, 2020). Thus, people are encouraged (and in some places required) to social distance, wear face masks, and practice good hygiene. See id.
As of August 10, 2020, DHEC reports that 100,431 people in this State have been infected with COVID-19 and 1,966 people have died from it. See SC Testing Data & Projections (COVID-19), SC DHEC, https://scdhec.gov/infectious-diseases/ viruses/coronavirus-disease-2019-covid-19/sc-testing-data-projections-covid-19 (last visited Aug. 10, 2020). South Carolina’s 2020 elections and the Plaintiffs’ lawsuit
The general election is scheduled for November 3. It includes races for President, the U.S. Senate, the U.S. House of Representatives, and the General Assembly, in addition to other local races.
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The Plaintiffs challenge two provisions of South Carolina’s absentee voting laws: the Qualification Requirement and the Witness Requirement. First, they bring claims under the United States Constitution, Voting Rights Act (“VRA”), and Americans with Disabilities Act (“ADA”) seeking to enjoin the requirement that all South Carolinians must meet a statutory qualification to vote by absentee ballot. Second, they bring those same three claims attempting to enjoin the requirement that a voter’s oath on an absentee mail ballot must be witnessed. The Plaintiffs’ challenges are all as-applied.
Legal Standard Summary judgment should be granted whenever “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To survive summary judgment, a plaintiff must set forth specific facts and cannot rely on allegations in the complaint. See News & Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010).
Argument I. Requiring voters to be qualified to vote by absentee ballot does not
violate the Constitution, the VRA, or the ADA. The Plaintiffs challenge the fact that a voter must be qualified to vote by absentee ballot on three grounds: (1) as an undue burden on the right to vote, (2) as a violation of section 2 of the VRA, and (3) as a violation of Title II the ADA. None has merit. But before even getting to why, the Plaintiffs have a threshold problem: None has standing to pursue these challenges to the Qualification Requirement.
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A. The Plaintiffs lack standing. It is axiomatic that “Article III standing is part and parcel of the constitutional mandate that the judicial power of the United States extend only to cases and controversies.” Baehr v. Creig Northrop Team, P.C., 953 F.3d 244, 252 (4th Cir. 2020) (internal quotation marks omitted); see also Raines v. Byrd, 521 U.S. 811, 818 (1997) (standing goes to subject-matter jurisdiction). The “irreducible minimum” of standing is that a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). On the first element, “a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at 1548. On the second element, there must be a “causal connection” between the injury and the defendant’s conduct. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). And on the third element, “a plaintiff must show that it is likely, as opposed to merely speculative that the injury will be redressed by a favorable decision.” Meyer v. McMaster, 394 F. Supp. 3d 550, 558 (D.S.C. 2019) (Childs, J.) (internal quotation marks omitted) (quoting Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 189 (4th Cir. 2018)). The Plaintiffs do not meet these elements. As for the three individual Plaintiffs, Mary Thomas has no injury because she can already vote by absentee
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ballot on account of her age and medical condition. Compare Thomas Dep. Tr. (Ex. 4) 15:10, with S.C. Code §§ 7-15-320(B)(1), (8). Jeremy Rutledge can already vote absentee because of his medical condition. Compare Rutledge Dep. Tr. 19:21–22, with S.C. Code § 7-15-320(B)(1). And Nea Richard testified that if she decides not to vote in person in November, she will “meet one of the criteria” for voting by absentee ballot. Richard Dep. Tr. 39:18–19. Because all three of these individuals can already vote by absentee ballot, they are not injured in any way by the Qualification Requirement, and no order from this Court could give them any sort of relief regarding absentee voting.
The same is true of the organizational Plaintiffs. Neither The Family Unit nor the NAACP identifies any member who wants to vote by absentee ballot but cannot on account of the Qualification Requirement. See generally Family Unit Dep. Tr. (Ex. 5); NAACP Dep. Tr. That means neither one has standing on account of their members. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (“An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” (emphasis added)).
The organizational Plaintiffs fare no better by alleging any injury in their own right. The NAACP, for example, testified it couldn’t follow its usual get-out-thevote plan because of the risks associated with giving people rides to their polling
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places or assist with witness signatures during the pandemic. See NAACP Dep. Tr. 28:9–34:15. And The Family Unit says it has had to divert resources from its usual activities toward educating voters. See Family Unit Dep. Tr. 51:17–54:12. These changes aren’t traceable to the Defendants here. Rather, they are traceable to COVID-19. Many organizations have had to shift resources, alter operations, or change strategies during this pandemic. Such changes do not mean that organizations have standing to sue. Even the Court has had to change its operations, but that does not mean people have been deprived of due process or other constitutional rights.
B. Section 7-15-320 does not violate the Constitution. Even if the Plaintiffs had standing, the result in this case would be the same: The Qualification Requirement remains in place (barring, of course, a change to it by the General Assembly). Their first claim is that this requirement imposes an undue burden on their right to vote. This claim fails.
1. McDonald controls this analysis, and rational basis applies.
When it comes to challenges to absentee-voting provisions, courts do not start on a blank slate. Instead, they must look to U.S. Supreme Court decisions that addressed attacks on absentee-voting provisions to determine the proper legal framework. These cases make clear that rational basis applies to this claim. See Tex. Democratic Party, 961 F.3d at 406.
In McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969), the Supreme Court reviewed a challenge by unsentenced inmates in Cook
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County, who, although qualified voters, could not go to their polling places because they were incarcerated. Yet they could not obtain absentee ballots because they did not fall into one of the four categories of voters eligible to vote by absentee ballot under Illinois law. The Supreme Court expressly rejected the inmates’ invitation to apply heightened scrutiny for two reasons. First, the state’s “absentee provisions are not drawn on the basis of wealth or race.” 394 U.S. at 807. Second, the state’s absentee rules did not “impact [the inmates’] ability to exercise the fundamental right to vote,” but rather only their “right to receive absentee ballots.” Id. These same things are true of section 7-15-320. It is not based on wealth or race, and it applies only to the qualification to receive an absentee ballot, not the right to vote.
At the preliminary injunction stage, this Court held that McDonald did not apply. See Order 33–34 n.20, ECF No. 37. For multiple reasons, that conclusion does not control here. See, e.g., Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir. 2004) (“Courts make factual findings in determining whether a preliminary injunction should issue, but those findings do not bind the jury adjudging the merits, and the jury’s findings on the merits govern the judgment to be entered in the case.”).
For one, that conclusion was based on the Court’s finding at the preliminary injunction stage that in-person voting was an “untenable and illusory choice.” Id. Now, with more time having passed to shed light on the status of COVID-19, its effects on people, how it spreads, the ability to mitigate risk of spread, the lack of evidence of COVID-19 outbreaks resulting from in-person primary voting, and a
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fuller factual record, it is clear that in-person voting is not such a stark choice. Inperson voting took place in the June primary, and the Plaintiffs have not identified a single case of COVID-19 attributed to the primary. See Thomas Dep. Tr. 17:2–5; Rutledge Dep. Tr. 40:11–19; Richard Dep. Tr. 22:2–9; Family Unit Dep. Tr. 59:24– 60:5; Cotti Dep. Tr. (Ex. 6) 29:19–30:5; 39:19–40:3; 41:11–17; Reingold Dep. Tr. (Ex. 7) 44:13–21. Nor is the Commission aware of reports of such issues. See Whitmire Dep. Tr. (Ex. 8) 126:22–25, 129:12–17. Or its expert. See Salgado Dep. Tr. (Ex. 13) 66:21–67:2. This is despite the long lines and wait times that were reported at some polling places (the longest of these wait times were problems that have “plagued” Richland County “for years”). See Whitmire Dep. Tr. 79:20–81:20, 86:23–87:11.
For another, this Court pointed to O’Brien v. Skinner, 414 U.S. 524 (1974), to limit the scope of McDonald. See Order 33–34 n.20, ECF No. 37. The Court relied on O’Brien’s language of “trivial inconvenience” to describe the McDonald plaintiffs’ burden of voting by a method other than absentee. That interpretation of McDonald, however, comes from Justice Marshall’s concurring opinion. See O’Brien, 414 U.S. at 532 (Marshall, J., concurring). That is not the basis on which the majority based its decision. Rather, the majority (in an opinion by Chief Justice Burger) compared the situation in O’Brien to Goosby v. Osser, 409 U.S. 512, 530 (1973), another inmate-voting case, which involved an “absolute bar” to inmates voting unless they had access to absentee ballots, O’Brien, 414 U.S. at 530 (majority opinion). Moreover, that bar was one imposed “by the State,” not by a naturally
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occurring event (even a pandemic). Tex. Democratic Party, 961 F.3d at 404 (quoting McDonald, 394 U.S. at 808 n.7).
To be sure, McDonald is good law. Although it predates Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992), the Supreme Court in Burdick cited McDonald approvingly in discussing the standard of review, see id. at 434. The Supreme Court’s later reliance on McDonald means that it is still binding. Plus (and as the Fifth Circuit noted), the Supreme Court “abrogates its cases with a bang, not a whimper, and it has never revisited McDonald.” Tex. Democratic Party, 961 F.3d at 405. Under McDonald, rational basis applies to this claim.
Under rational basis review, a law “comes to [court] bearing a strong presumption of validity.” F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993). Thus, plaintiffs “attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it,” and “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” Id. at 315.
Not allowing everyone to vote by absentee ballot easily clears this low bar. The most obvious reason is that absentee-voting fraud “is real.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 195 (2008); see also Griffin v. Roupas, 385 F.3d 1128, 1131 (7th Cir. 2004) (“absentee voting is to voting in person as a take-home exam is to a proctored one”). Such fraud has happened in South Carolina on a number of occasions. A state senator and others were convicted of federal crimes for
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absentee-voting fraud. See United States v. Carmichael, 685 F.2d 903 (4th Cir. 1982). More recently, a mayor was convicted of wrongly obtaining absentee ballots and casting votes in other people’s names. See South Carolina v. Campbell, No. 2007-GS-47-01 (S.C. Gen. Sess. Feb. 29, 2008) (Ex. 9).1
The State also has an interest in favoring in-person voting to promote and preserve democratic values. See infra Part I.A.2.b.
These interests more than suffice for section 7-15-320 to survive rational basis review.
2. Section 7-15-320 passes muster under Anderson/Burdick. Even if McDonald does not apply, the Qualification Requirement is still constitutional because it does not impose an undue burden on the right to vote. Analyzing election regulations is not a one-size-fits-all task. Courts “must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate,’” on the one hand, “against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff’s rights,’” on the other. Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). Put differently, “the rigorousness of [the judicial] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Id. When a restriction is “severe,” it must be 1 The Court may of course take judicial notice of records in other courts. See United States v. Townsend, 886 F.3d 441, 444 (4th Cir. 2018).
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“narrowly drawn to advance a state interest of compelling importance.” Id. On the other hand, when it is a “reasonable, nondiscriminatory” restriction, “the State’s important regulatory interests are generally sufficient to justify” it. Id.
Given the burden here is not severe but instead is a “reasonable, nondiscriminatory” restriction, this lower level applies. Still, even if the burdens could be construed as severe, this requirement is constitutional.
i. The burden on voters is minimal. For some Plaintiffs, there is no burden at all here. Mary Thomas is already qualified to vote by absentee ballot based on her age and her physical condition. Compare Thomas Dep. Tr. 15:10, with S.C. Code §§ 7-15-320(B)(1), (8). Jeremy Rutledge says he doesn’t think he is physically disabled, see Rutledge Dep. Tr. 49:13–16, but the Election Defendants do because he is high risk for COVID-19, see Commission’s Return to Motion to Dismiss 6, Bailey v. S.C Election Comm’n, No. 2020-000642 (S.C. May 8, 2020) (Ex. 10); Andino Dep. Tr. (Ex. 11) 46:10–48:12. The Attorney General of South Carolina has offered a similar interpretation of section 7-15-320 and its application in the context of COVID-19. See Amicus Br. of Att’y Gen. 6–7, Bailey v. S.C Election Comm’n, No. 2020-000642 (S.C. May 7, 2020) (Ex. 12) (offering a similar interpretation of section 7-15320(B)(1) and who is “physically disabled”). Nea Richard expressed no concern about being able to meet one of the requirements in section 7-15-320 to vote absentee, if she decides not to vote in person in November. See Richard Dep. Tr. 39:10–17. Everything else she had to say
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about the Qualification Requirement is hearsay, things she heard other people say about COVID-19. See, e.g., Richard Dep. Tr. 25:13–26:15, 35:21–36:23. Of course, none of that is admissible. See Fed. R. Civ. P. 56(c); Fed. R. Evid. 802.
The Family Unit, Inc. does not identify a single member or another person who it claims to help who is unable to vote by absentee ballot. The Family Unit’s 30(b)(6) designee discussed how the organization encourages people to “vote early” (something South Carolina doesn’t actually have—the State has only in-person absentee voting) and how people “fear” COVID-19, but none of that actually means that anyone is not qualified to vote by absentee ballot. Family Unit Dep. Tr. 36:3, 15–18.
Likewise, the NAACP pointed to members who are over sixty-five, are college students, and have health conditions. See NAACP Dep. Tr. 34:20–24, 60:23–61:2, 64:5–66:1. But these people can already vote by absentee ballot. See S.C. Code §§ 715-320(A)(1), (B)(1), (B)(8). In other words, the NAACP identified no member who is not already qualified to vote by absentee ballot.
Looking at this question more generally than the Plaintiffs (though there really is no need for that—these Plaintiffs haven’t brought claims on behalf of hypothetical voters, only on behalf of themselves and their members), the Plaintiffs throughout this litigation have tried to frame the issue as “vote absentee (by mail without a witness) or contract COVID-19.” That presents a false dichotomy. Voting in person does not mean a person will necessarily contract COVID-19. The CDC has outlined specific guidelines for in-person voting. See Considerations for Election
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Polling Locations & Voters, CDC, https://www.cdc.gov/coronavirus/2019-ncov/ community/election-polling-locations.html (last visited July 28, 2020).2
The Commission is implementing these recommendations, including providing personal protective equipment (such as masks and gloves) for poll workers, sneeze guards, hand sanitizer, Q-tips so people don’t have to touch surfaces, alcohol wipes, disinfecting spray, signs promoting facemasks and social distancing, string and tape to mark six-foot spaces, as well as training poll workers.3 See Andino Dep. Tr. 142:17–143:17, 149:11–150:11; Whitmire Dep. Tr. 111:24–112:20, 128:23–129:11. With these recommendations in place, Dr. Cassandra Salgado—the division director for infectious disease at the Medical University of South Carolina who has been studying and treating COVID-19— explains that the risk of contracting COVID-19 while voting in person will be “low.” Salgado Expert Report (Ex. 14) 7. The Plaintiffs’ expert, Dr. Arthur Reingold, agreed that following these guidelines mitigated that risk. See Reingold Dep. Tr. 51:25–52:4. Of course the risk cannot be zero. See Salgado Dep. Tr. 55:14–56:19. Nothing in life is zero risk. But with such steps to mitigate the risk, “in-person voting is not foreclosed.” Fisher v. Hargett, __ S.W.3d __, 2020 WL 4515279, at *16 (Tenn. Aug. 5, 2020) (the burden of in-person voting is not severe).
2 These CDC Guidelines were updated June 22, 2020. The Election Defendants followed the CDC Guidelines in effect during the June Primaries.
3 Many of these procedures are similar to what businesses—like grocery stores—are doing, with masks, plastic shields in front of cashiers, and arrows on the floor directing traffic. These procedures make being around other people safe enough that even the Plaintiffs’ own epidemiologist goes grocery shopping at a place that uses these procedures. See Reingold Dep. Tr. 21:12–23:3.
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In addition, the Election Defendants are also educating the public about voting options and safe in-person voting. See Whitmire Dep. Tr. 114:7–24. They are also actively recruiting poll workers. See Whitmire Dep. Tr. 118:17–119:25.
Nor can the Plaintiffs rely on recent increases in the number of cases to support their claims. One issue is that the jump in cases from early to mid July no longer exists, and the daily number of reported cases isn’t as high as it was. See SC Testing Data & Projections (COVID-19), SC DHEC, https://scdhec.gov/infectiousdiseases/viruses/coronavirus-disease-2019-covid-19/sc-testing-data-projectionscovid-19 (last visited Aug. 10, 2020). Another issue is that their own expert admitted that no one can predict what COVID-19 will look like in November, and everyone is “having to make educated guesses about what the future has in store.” Reingold Dep. Tr. 30:12–13; see also Salgado Dep. Tr. 58:18–24.
On this subject of in-person voting, it’s worth noting again that not a single Plaintiff could identify someone who contracted COVID-19 by voting in the June 9 primary. See Thomas Dep. Tr. 17:2–5; Rutledge Dep. Tr. 40:11–19; Richard Dep. Tr. 22:2–9; Family Unit Dep. Tr. 59:24–60:5. In fact, the NAACP said some of its members voted in person in the primary, yet it never testified that any of them contracted COVID-19. See NAACP Dep. Tr. 54:9–21.
All of this makes voting in South Carolina a far cry from the Wisconsin primary that the Plaintiffs’ expert Chad Cotti studied. He did not know what safety procedures (if any) Wisconsin used, nor was he familiar with South Carolina’s safety procedures. See Cotti Dep. Tr. 29:7–30:5; 39:19–40:3; 41:11–17. And Dr.
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Reingold, despite saying there were outbreaks of COVID-19 at polling places, admitted that he knew of none in South Carolina. See Reingold Dep. Tr. 67:7–13. Ultimately, the Plaintiffs’ inability to produce any evidence showing any cases of COVID-19 from the June primary is telling.
ii. The State’s interests are compelling. The State has at least two interests in in-person voting. The first interest is promoting democracy and securing our shared commitment to civic engagement. From an early age, “majority wins” is ingrained in us. Children play tag instead of basketball at recess because that’s what more children voted to do. Teenagers get pizza instead of cheeseburgers for dinner because a majority chose pizza. And on United 93 on September 11, passengers—facing almost certain death on a hijacked airplane—attempted to retake the plane because that’s what a majority voted to do. See Passengers Voted to Attack Hijackers, CNN (Sept. 13, 2001 5:19 PM), https://www.cnn.com/2001/US/09/12/ plane.phone.call/. But we cannot take this democratic principle for granted. As Justice O’Connor has observed, “[t]he practice of democracy is not passed down through the gene pool. It must be taught and learned anew by each generation of citizens.” Our Founder, ICIVICS (quoting Justice O’Connor), https://www.icivics.org/about (last visited July 22, 2020). One way to teach democratic values is by voting. To vote somehow is better than not to vote at all. Yet all forms of voting are not the same when it comes to instilling a collective sense of civic engagement and reinforcing our shared social mores. It’s one thing to put an envelope in the mail.
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It’s another to vote in-person. Those experiences are different. One is generally solitary (and without the Witness Requirement, potentially completely so). The other is communal. Going to a polling place, waiting with fellow citizens, casting a ballot, and then collectively watching the results while agreeing to abide by those results binds us together in a uniquely American way. Cf. Alexis de Tocqueville, I Democracy in America 407–08 (Francis Bowen ed., Henry Reeve trans. 1864) (1835) (describing Americans’ ability to discuss issues related to their country and rights intelligently). The State therefore has a compelling interest in promoting in-person voting. Cf. Fisher, 2020 WL 4515279, at *18 (courts must respect a legislature’s policy choice for in-person voting).
The second is election security. See Libertarian Party of Va. v. Judd, 718 F.3d 308, 317 (4th Cir. 2013). Once again, absentee-voting fraud “is real.” Crawford, 553 U.S. at 195. Although it may not be rampant in South Carolina, it has occurred. See, e.g., Carmichael, 685 F.2d at 906; South Carolina v. Campbell, No. 2007-GS-47-01 (S.C. Gen. Sess. Feb. 29, 2008); Whitmire Dep. Tr. 35:8–14 (absentee-voting fraud around 2000 in McCormick). And it’s happened in other states too, including, for instance, in North Carolina in a congressional race just two years ago.4
Related is “protecting public confidence” in elections. Crawford, 553 U.S. at 197. Public confidence is what ensures that voters respect the outcome of an election
4 The General Assembly gave all voters the choice of voting by absentee ballot for the June primaries under the temporary state-of-emergency exception. That was a decision that belonged to the General Assembly. See S.C. Const. art. II, § 10. Just as any decision about the general election belongs to the General Assembly as well.
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and the subsequent transfer of power, instead of rioting and causing civil unrest. In other words, it promotes preparing for the next election rather than plotting for a revolution.
C. Section 7-15-320 does not violate the VRA. As part of the VRA, “[n]o voting . . . standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S.C. § 10301(a). The Plaintiffs’ claim here is not the common vote-dilution one, but rather a vote-denial one. That is, they claim that requiring voters to be qualified to vote by absentee ballot unlawfully burdens the rights of African American voters and makes it harder or impossible without substantial risk for them to participate in elections. The Fourth Circuit has identified two prongs in a vote-denial case: First, the challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Second, that burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class. League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014) (internal quotation marks and citations omitted). This first element “inquires about the nature of the burden imposed and whether it creates a disparate effect” on the protected class. Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir. 2016); see also Ohio Democratic Party v. Husted, 834 F.3d
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620, 637–38 (6th Cir. 2016) (“We therefore emphasize that the first element of the Section 2 claim requires proof that the challenged standard or practice causally contributes to the alleged discriminatory impact by affording protected group members less opportunity to participate in the political process.”).
The second looks for “the requisite causal link between the burden on voting rights and the fact that this burden affects minorities disparately because it interacts with social and historical conditions that have produced discrimination against minorities currently, in the past, or both.” Veasey, 830 F.3d at 245 (citing Thornburg v. Gingles, 478 U.S. 30 (1986)). This “second step asks not just whether social and historical conditions ‘result in’ a disparate impact, but whether the challenged voting standard or practice causes the discriminatory impact as it interacts with social and historical conditions.” Husted, 834 F.3d at 638.
To resolve the Plaintiffs’ challenge to the Qualification Requirement, the Court need go no further than the first element. Data on absentee voting show that African-American voters, in percentage terms, use absentee voting more than white voters. Therefore, the Qualification Requirement does not disproportionately keep African-American voters from participating in elections.
Here are the relevant data from the Commission:

Total Registered Voters Percentage of Black Registered Voters Percentage of White Registered Voters

2020 Primary

2018 General

2016 Primary

2016 General

3,312,774

3,148,919

3,023,087

3,157,564

26.17%

25.54%

27.84%

27.58%

69.61%

69.89%

69.13%

69.19%

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Total Absentee Ballot Requests Percent of Requests from Black Voters Percent of Requests from White Voters Total Absentee Ballots Cast Percent Cast by Black Voters Percent Cast by White Voters

192,903
31.18%
67.08%
174,435 34.61% 64.32%

301,665
33.53%
64.64%
293,944 34.46% 63.99%

87,867
35.09%
63.51%
51,745 40.87% 58.38%

519,552
32.01%
66.21%
506,049 32.82% 65.69%

As this chart makes clear, African-American voters both request and cast

absentee ballots at a higher percentage than their percentage as registered voters.

This contrasts with white voters, who request and cast absentee ballots at a lower

percentage than their percentage as registered voters. That is true historically and

during this pandemic. In other words, having to be qualified to vote by absentee

ballot has not kept African-American voters from using this method to vote.

The Plaintiffs’ section 2 claim should be rejected, just as the Fourth Circuit

did with a section 2 claim in Lee v. Virginia State Board of Elections, 843 F.3d 592

(4th Cir. 2016). There, the plaintiffs challenged a voter-ID law. The court held that

a “complex § 2 analysis is not necessary to resolve this issue because the plaintiffs

have simply failed to provide evidence that members of the protected class have less

of an opportunity than others to participate in the political process.” Id. at 600.

And so here. The Plaintiffs have not shown (indeed, based on the data, they

cannot show) that the Qualification Requirement has a disparate effect on African-

American voters and keeps African-American voters from participating in elections.

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D. The Qualification Requirement does not violate the ADA. Title II of the ADA provides, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A Title II plaintiff must prove three things: “(1) she has a disability, (2) she is otherwise qualified to receive the benefits of a public service, program, or activity, and (3) she was excluded from participation in or denied the benefits of such service, program, or activity, or otherwise discriminated against, on the basis of her disability.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005).
1. The Plaintiffs are already eligible to vote by absentee ballot or are not disabled.
The Plaintiffs’ ADA challenge to the Qualification Requirement is inapposite for two of them because they are already qualified to vote by absentee ballot. See supra Part I.A.2.a. (discussing Plaintiffs Thomas and Rutledge).
Under the ADA, a person is disabled if she has “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). For elections in South Carolina, anyone “who, because of injury or illness, cannot be present in person at his voting place on election day,” S.C. Code § 7-15-310(4), may vote by absentee ballot, id. § 7-15-320(B)(1). Though not perfectly coextensive, there is substantial overlap in these provisions.
While Thomas and Rutledge can already vote by absentee ballot, the Plaintiffs have not identified (and discovery has not uncovered) any Plaintiff or
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other person who is disabled under the ADA but not qualified to vote by absentee ballot under section 7-15-320(B)(1). This is true not only for Thomas and Rutledge but also for The Family Unit and the NAACP, which never identified any members who wanted to vote by absentee ballot, were not already able to vote by absentee ballot, and were disabled under the ADA. This is a fatal flaw in the Plaintiffs’ ADA claim.
And Nea Richard never claimed to have a disability. She therefore cannot have a successful ADA claim.
2. Not all ADA-disabled Plaintiffs are “otherwise qualified” to vote by absentee ballot.
To be sure, voting is one of the most important things we do. But it does not follow that a disabled person has a right to vote by any means. A viable ADA claim requires that a person be “otherwise qualified” to participate in a particular program or service. See Nat’l Fed’n of the Blind v. Lamone, 813 F.3d 494, 503 (4th Cir. 2016).
As already discussed, states are not required to allow voters to cast an absentee ballot. See, e.g., Griffin, 385 F.3d at 1130. In South Carolina, in-person voting is the norm and the preferred method. Our General Assembly has determined which voters should be qualified to vote by absentee ballot, in an effort to balance making voting easier for voters who might otherwise have trouble voting in person on election day with the need to ensure the integrity of elections. In striking that balance between convenience and integrity, the General Assembly has decided that not every South Carolina voter is “qualified” to vote by absentee ballot.
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Rather, only some are: those who meet a statutorily adopted qualification. See S.C. Code § 7-15-320.
This limited scope of absentee voting distinguishes this case from Lamone, which addressed absentee voting in Maryland. There, the Fourth Circuit concluded that absentee voting (rather than voting generally) was the program at issue. In reaching this conclusion, the Court explained:
[S]ignificant for our analysis of the proper scope of review here is the fact that Maryland allows any voter to vote by absentee ballot. Absentee ballots are not just provided to a set of limited voters with a demonstrated need to vote absentee; they instead are provided to the entire Maryland electorate at the option of the individual voter. On the whole, then, we think it is far more natural to view absentee voting— rather than the entire voting program—as the appropriate object of scrutiny for compliance with the ADA . . . . Lamone, 813 F.3d at 504 (internal citation omitted). This analysis is inapposite of absentee voting in South Carolina. South Carolina is instead like the contrast the Fourth Circuit drew in Lamone—a state in which absentee ballots are only “provided to a set of limited voters with a demonstrated need to vote absentee.” Unlike in Maryland, where everyone was “otherwise qualified” to cast an absentee ballot, everyone is not “qualified” to vote by absentee ballot in South Carolina. This distinction in the scope of South Carolina’s absentee voting is important for another reason: Ruling for the Plaintiffs here would actually be inconsistent with the ADA. Just as a state may not deny a disabled person the opportunity to participate in a particular service for which that person is otherwise qualified, a state also may not “[a]fford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that
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afforded others.” 28 C.F.R. § 35.130(b)(1)(ii). If all ADA-disabled voters were allowed to vote by absentee ballot, they would be allowed to participate in a program that other South Carolinians are not. That would go beyond the ADA’s purpose to prohibit discrimination against individuals with disabilities and be inconsistent with the text of the statute. See 42 U.S.C. §§ 12101(b)(1), 12132.
3. No Plaintiff has been denied the ability to vote by absentee ballot “on the basis of” a disability.
The last element of an ADA claim requires a plaintiff to prove that she wasn’t allowed to participate in a program “on the basis of” her disability. Lamone, 813 F.3d at 503. Under Title II, a plaintiff must show that a disability was a “motivating cause”5 of her exclusion from a program. Wicomico Nursing Home v. Padilla, 910 F.3d 739, 750 (4th Cir. 2018). No Plaintiff here can satisfy this element.
If any Plaintiff is not allowed to vote by absentee ballot, it is not on account of a disability. It is because the Plaintiff does not qualify under section 7-15-320. That qualification requirement—not the disability—is the sole reason a Plaintiff cannot vote by absentee ballot. Thus, no one can satisfy the causal element of this claim. II. The Witness Requirement is likewise legal.
These same three claims on the Witness Requirement also fail.
5 There is another line of Fourth Circuit cases holding that the disability must be the sole cause of the exclusion. See Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). The Election Defendants cite the “motivating factor” line of cases for purposes of summary judgment because, even under this standard, which is more favorable to the Plaintiffs, the Plaintiffs still lose.
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A. The Witness Requirement is not an undue burden. 1. Getting a witness signature is a minimal burden.
Having a person sign an envelope is a minimal burden. So much so that even calling it a “burden” is misleading. All that is required is for one person to watch a voter sign the envelope and then for that person to sign the envelope herself and write her address. All told (and if the two people didn’t want to chat about anything else), this process should take less than sixty seconds. The statute does not limit who can be a witness. See S.C. Code § 7-15-385; see also Whitmire Dep. Tr. 32:24– 33:3.
COVID-19 does not make this brief interaction a health risk. For people who live in the same household or regularly interact in enclosed spaces without masks, the Witness Requirement poses no additional risks. And even for people who live alone and have perfectly self-isolated,6 getting a witness signature does not create a meaningful health risk. As Dr. Salgado explains, studies show that brief interactions—especially when people use proper hygiene, social distance, and wear face masks—do not pose a significant risk. See Salgado Expert Report 6–7. Dr. Reingold (the Plaintiffs’ expert) agreed that mask wearing, hygiene, and social distancing were possible in this process. See Reingold Dep. Tr. 63:12–64:16. Both Dr. Salgado and Dr. Reingold agreed that the shorter the interaction, the lower the risk of virus infection. See Reingold Dep. Tr. 50:5–10; Salgado Expert Report 5.
6 It seems unlikely for anyone to have done so after all these months. Certainly no Plaintiff here has. And even if someone had, that still doesn’t mean that a person has no risk of getting COVID-19. See Salgado Dep. Tr. 67:4–16.
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Specific to the Plaintiffs here, they face little burden. Mary Thomas is selfquarantining because of her medical condition, but even now, she has a housekeeper (Caroline Wallace) who comes once a week for about two-and-a-half hours to clean. See Thomas Dep. Tr. 13:19–14:17. All Thomas has to do is say, “Caroline, while you’re here, would you please witness my absentee ballot?” In other words, it’s a single question, hardly a burden and no different than any other voter has to do. As a second option, Thomas regularly visits with her friend, landlady, and lawyer in this case, Susan Dunn. See Thomas Dep. Tr. 6:6–10; 14:16–15:4; 17:16– 19.7
For other Plaintiffs, the burden is similarly minimal. Jeremy Rutledge may be self-quarantining more strictly than most, but he currently lives with his wife, who can easily be his witness. See Rutledge Dep. Tr. 35:4–17. Even if in-person school starts back and results in his wife and son living somewhere else (something that for now is only hypothetical), he still plans to see them (socially distanced) at least once a week. See Rutledge Dep. Tr. 41:6–42:19. When they see each other,
7 In her deposition, Thomas testified that she had Susan Dunn witness her absentee ballot for the June 9, 2020 primary. See Thomas Dep. Tr. 20:21–21:12. Thomas was asked whether Dunn had actually witnessed her ballot for the February presidential preference primary, but Thomas insisted Dunn was a witness for the June primary. See Thomas Dep. Tr. 29:8–20. More than two weeks after the deposition and only two days before summary judgment was due, Thomas submitted a declaration saying Dunn witnessed her February ballot, not her June one. See Thomas Decl. (Ex. 15). A party cannot avoid summary judgment with a declaration that contradicts deposition testimony, particularly a declaration that, without explanation, says what amounts to “my testimony was wrong.” See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999).
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Rutledge can sign his absentee envelope, put it on a bench or a table, let his wife walk over, sign and add her address, and mail the envelope for him. See Rutledge Dep. Tr. 42:22–44:16. This process could also be used with any of the myriad other people (including his mother) Rutledge has seen at a social distance since March. See Rutledge Dep. Tr. 16:13–19:1, 24:6–28:22 (describing socially distanced interactions with family, neighbors, and church members).
Richard doesn’t even have standing to assert this claim if she votes in person. If Richard votes in person, no ruling on the Witness Requirement would have any impact on her. Cf. Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018) (“A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.”). But assuming Richard were to vote absentee, she still has potential witnesses. She works in the same physical space as four other people, see Richard Dep. Tr. 11:22–12:13, although she claims not close enough to them for them to be a witness, see Richard Dep. Tr. 47:23–48:1. Even crediting that testimony at this stage, Richard still sees her family and friends. See Richard Dep. Tr. 16:4–17:4, 12:24–13:19. Thus, she has people who can be a witness for her.
The Family Unit says that some members have had absentee ballots rejected because of missing witness signatures. See Family Unit Dep. Tr. 48:4–50:20. Never did the Family Unit say that any of its members could not get a witness signature, just that on a few occasions, they had not (for unstated reasons).
The NAACP said some of its members either live alone or with someone who lacks the mental capacity to be a witness (although it could not offer any specificity
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on how many members live alone). See NAACP Dep. Tr. 40:10–41:1, 35:7–14. But the NAACP offers nothing about any of these members not having any other person who could be a witness. As Mary Thomas proves, living alone does not mean that a person cannot comply with the Witness Requirement.
2. The State has a compelling law-enforcement interest in this requirement.
The Witness Requirement serves an important law-enforcement investigatory function. The Election Law defines certain conduct as criminal. See S.C. Code § 7-25-10 et seq. The State’s interest includes investigating and prosecuting election-law violations. Election officials have no role on those fronts. See Andino Dep. Tr. 79:13–23; Whitmire Dep. Tr. 78:6–25.
Lieutenant Pete Logan of the South Carolina Law Enforcement Division (“SLED”) has decades of experience, both with SLED and with the Federal Bureau of Investigation, and investigates voting fraud. See Logan Decl. (Ex. 16) ¶¶ 2–4. He has pending investigations of fraud in absentee voting. See Logan Decl. ¶ 5. He explains that the Witness Requirement “provides SLED, and all criminal investigators, with a significant investigative lead to pursue in these cases because it provides another potential witness to interview in every case.” Logan Decl. ¶ 6. Not having a witness would remove this investigative lead. See Logan Decl. ¶ 7.
This interest should come as no surprise. Witnesses are required for myriad documents. See, e.g., S.C. Code §§ 30-7-20 (liens on real property); 62-2-502 (wills); 63-9-340 (consent or relinquishment for purpose of adoption).
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To be sure, election officials use the Witness Requirement only to determine whether to open and count the absentee ballot, not to investigate fraud. See Andino Dep. Tr. 64:9–24. This acknowledgment is not material here because the State’s interest is broader than the actual conduct of elections overseen by the Election Defendants. The State must enforce the integrity of the elections and its laws.
B. The Witness Requirement does not violate the VRA. Once again, the Court need address only the first element of the Plaintiffs’ section 2 claim because the challenged provision does not disproportionately affect African-American voters. Here are the data from the Commission:8

Total Absentee Ballots Cast Percent Cast by Black Voters Percent Cast by White Voters
Total Absentee Ballots Rejected based on Witness Requirement Total African-American Absentee Votes Rejected based on Witness Requirement
Percentage of African-American Absentee Votes Rejected based on Witness Requirement Total White Absentee Votes Rejected based on Witness Requirement Percentage of White Absentee Votes Rejected based on Witness Requirement

2020

2018

2016

Primary General General

174,435 293,944 506,049

34.61% 34.46% 32.82%

64.32% 63.99% 65.69%

n/a

802

1,575

n/a

331

649

n/a

0.33%

0.39%

n/a

451

899

n/a

0.45%

0.54%

8 This chart does not include the 2016 primary because the Commission did not track this particular statistic until the 2016 general election.
34

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-1 Page 35 of 36
As with the Qualification Requirement, African-American voters are not disproportionately affected by the Witness Requirement. In fact, in percentage terms, they comply with that requirement better than white voters do. Thus, the Plaintiffs do not have a viable section 2 claim.
C. The Witness Requirement does not violate the ADA. As a starting point, only someone with a disability could possibly prevail on this claim. Nea Richard cannot prevail because she never even claimed to have a disability. Further, neither organizational Plaintiff identifies a member with a disability who couldn’t get a witness. Thus, they also cannot prevail on this claim. That leaves only Thomas and Rutledge with potentially viable ADA claims on the Witness Requirement. They are disabled, and they are eligible to vote by absentee ballot. But to prevail on the third element of an ADA claim, they must show that they were prevented from casting an absentee ballot “on the basis of” their disability. Constantine, 411 F.3d at 498. Neither Thomas nor Rutledge can meet this standard. Both have ready access to someone to witness an absentee ballot. They therefore have not been excluded from voting by absentee ballot because of their disabilities.
Conclusion The motion for summary judgment should be granted.
35

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-1 Page 36 of 36
Respectfully Submitted,
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 Election Defendants
36

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-2 Page 1 of 19 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 1
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Deposition Excerpts of Jeremy Paul Rutledge

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-2 Page 2 of 19

1

1

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

2

COLUMBIA DIVISION

3

MARY T. THOMAS, NEA RICHARD,

4 JEREMY RUTLEDGE, TRENA WALKER,

THE FAMILY UNIT, INC., and the

5 SOUTH CAROLINA STATE CONFERENCE

OF THE NAACP,

6

Plaintiffs,

7

v.

C/A No.: 3:20-cv-01552-JMC

8 MARCI ANDINO, in her official capacity as

Executive Director of the South Carolina

9 State Election Commission; JOHN WELLS,

in his official capacity as Chair of the

10 South Carolina State Election Commission;

JOANNE DAY, CLIFFORD J. ELDER, LINDA McCALL,

11 and SCOTT MOSELEY, in their official capacity

as Members of the South Carolina State Election

12 Commission; and HENRY D. McMASTER, in his official

capacity as Governor of South Carolina,

13

Defendants.

14

15

D E P O S I T I O N

16 WITNESS:

JEREMY PAUL RUTLEDGE

17 DATE:

Friday, July 24, 2020

18 TIME:

10:06 a.m.

19 LOCATION:
20 TAKEN BY:
21

1406 Glencoe Drive Mount Pleasant, South Carolina
Attorneys for the Defendants SC State Election Commission officials

22 REPORTED BY: DEBORAH L. DUSSELJEE, RPR, CRC Realtime Systems Administrator
23 - - - - - - - - - - - - - - - - - - - - - - - - - -

24

COMPUSCRIPTS, INC.

www.compuscripts.com

25

1.888.988.0086

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-2 Page 3 of 19

Jeremy Paul Rutledge 7/24/2020

16 1 early.

2

And I went one other time, which I

3 approximate to be about three weeks later, to retrieve

4 a number of books and things from my office because I

5 knew I wouldn't be working from the church office. I

6 was working from home. And, again, I went early to

7 avoid any people.

8

Q. You live with your wife and son; is that

9 correct?

10

A. Yes.

11

Q. Does anyone else live in your house?

12

A. No.

13

Q. Has anyone else been to your house since

14 March 13th?

15

A. Yes.

16

Q. Who's been there?

17

A. I will do my best to recall this for you,

18 and it's also recorded in the document we provided.

19 My wife and I sat down and were very thorough, so I'm

20 working from memory at this moment.

21

Who has come to my house since March 13th?

22 My mother and her housemate, Barbara Cole, have come

23 to our house. Our administrative assistant, Kathryn

24 Cullinan, has come to our house. Actually last

25 evening, our choir director, Michael Laird, and his

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Jeremy Paul Rutledge 7/24/2020

17 1 wife Vanessa came to our house to pick up a computer.

2

All of these visits were outside at a

3 minimum of 15 feet with masks. In Michael and

4 Vanessa's case, we put the computer they were picking

5 up outside, and we did not come out of the house.

6

So in every case, we have kept a very strong

7 physical distance. There may be a visit that I'm not

8 recalling. I'm sort of straining to remember what we

9 put on that -- on the --

10

Q. And I'm not trying to test you right now as

11 compared to written responses, and we'll go through

12 those later, and I'll ask you who some of those people

13 are.

14

Where does your mother live?

15

A. My mother lives in a -- I mean, she lives in

16 Mount Pleasant.

17

Q. That's what I was asking, is she -- she

18 lives nearby.

19

A. Yes.

20

Q. How often have you seen her since

21 March 13th?

22

A. Oh, less than --

23

Q. Do you see her --

24

A. Go ahead.

25

Q. Do you see her once a week? Do you see her

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Jeremy Paul Rutledge 7/24/2020

18 1 once a month? Have you seen her once in the last four

2 months?

3

A. I'm approximating. About three times a

4 month. Much less than we would like. Maybe --

5

Q. How often did you see her before March 13th?

6

A. Oh, several times a week, so...

7

I would -- let's just approximate twice a

8 week, and now it is more like twice a month.

9

Q. Got it. Speaking of people, there's a list

10 you gave us. This is, again, a response, the one you

11 were just talking about. One is a list of people who

12 may know something about this case, and the other one,

13 there is a list of people who you've seen.

14

And I just want to ask you who these people

15 are and when you saw them and just find out a little

16 bit about it. So obviously I know that Sara is your

17 wife. So that's easy on the first one.

18

Kathryn Cullinan, who is that?

19

A. She is the church administrator.

20

Q. Approximately how many times have you seen

21 her since March 13?

22

A. Only one that I can remember, so I would say

23 approximately two. I mean, it's possible. I work

24 with Kathryn very closely, but I only remember

25 physically seeing her once. Again, it was outside

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Jeremy Paul Rutledge 7/24/2020

19 1 with face masks on at a distance.

2

Q. Barbara Cole is your mother, correct?

3

A. No. My mother is --

4

Q. No, I'm sorry. That's obviously not your

5 mother. Who is Barbara Cole again?

6

A. Barbara Cole is my mother's housemate. They

7 share a house together.

8

Q. Okay. Do you see her every time you see

9 your mother or just sometimes?

10

A. Just sometimes.

11

Q. Who is Dr. Brad Keith?

12

A. Dr. Brad Keith is one of -- I have three

13 doctors at MUSC, and he's one of my doctors.

14

Q. What is his specialty?

15

A. Internal medicine.

16

Q. Dr. Richard Silver, what is his specialty?

17

A. His specialty is rheumatology, and he is my

18 primary doctor. He's a specialist in my disease.

19

Q. Which -- since you mentioned it, what

20 condition do you have?

21

A. My disease is systemic scleroderma with

22 interstitial lung disease. And if Debbie needs me to

23 spell any of that, I would be happy to. It's

24 important, you know, that diagnosis.

25

Q. It is.

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Jeremy Paul Rutledge 7/24/2020

24 1 Houston.

2

Q. What would they know about the case?

3

A. The same as our families, I think. They may

4 have even been included in that same e-mail, kind of a

5 newsy e-mail, what is happening with us, so...

6

Q. Now I am looking at the other list. This is

7 the people you've had some interaction with since

8 March. And some of this you mentioned, your mother

9 and her housemate.

10

And then there's Stephanie and Noel Hunt.

11 Who is that?

12

A. They are church members, and they are

13 neighbors.

14

Q. Approximately how close do they live to you?

15

A. Approximately one mile.

16

Q. Have you seen them more than just that one

17 time in April?

18

A. No.

19

Q. What do you remember about when you saw them

20 in April? Where was it? How long did it last?

21

A. It was at their house outside. We kept a

22 large physical distance. I would say 15 feet, and it

23 probably lasted 30 minutes at the longest. Perhaps it

24 was shorter than that.

25

I remember feeling a little nervous, you

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-2 Page 8 of 19

Jeremy Paul Rutledge 7/24/2020

25 1 know, to be visiting, so maybe 20 to 30 minutes is my

2 estimate. Again, at a good social distance outdoors.

3

Q. Got it.

4

Lara D'Eugenio?

5

A. Yeah. Lara D'Eugenio, she's also a church

6 member and a friend. And we --

7

Q. Appro --

8

A. Go ahead.

9

Q. I was going to say, approximately where was

10 that and how long did it last?

11

A. That was at her house. I would approximate

12 that visit to be about 30 minutes. It was outside,

13 and I believe we wore masks as well. And that was

14 just one visit, so...

15

We kept --

16

Q. I don't want to cut you off. I'm sorry.

17

Who are Annie and Peter Steele?

18

A. They are also friends and church members.

19 We saw them once. It was here. It was outside at --

20 I would say, again, 15 feet. I'm pretty careful about

21 that distance and like to maintain that distance.

22 They had -- Annie had sewn us some new face masks, and

23 they were bringing them by to drop them off.

24

Q. Mike Fischer, who is he?

25

A. Mike -- Mike -- I'm sorry. I didn't mean to

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Jeremy Paul Rutledge 7/24/2020

26 1 speak too soon.

2

Q. That's all right.

3

A. Mike Fisher is our neighbor. He lives

4 across the street and over one house.

5

Q. When you see him, is it just the comings and

6 goings of in and out of your house and his house?

7

A. Yes. He walks his dogs, and so we wave to

8 him probably once a day. They have concerns about

9 being high risk, so none of us get close to each

10 other. Often, we will wave to Mike from 50 feet or

11 more. So we keep a good distance from Mike, but we

12 see him -- see him every day.

13

Q. Treva Williams, Rose Stump, and is it

14 Raynique Syas?

15

A. Yes. Yes. They -- they came by once. And

16 I -- I'm sorry to say I can't estimate this very well.

17 I think it was probably two months ago.

18

Q. That's almost spot on to what you had

19 written down, so well done.

20

A. Okay. Days are a little fuzzy right now.

21 Time is better with time of day than how many days

22 have passed.

23

They came by once. I think they knew I was

24 feeling a little dejected by having stayed home so

25 long. And I work with them closely in the community,

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Jeremy Paul Rutledge 7/24/2020

27 1 so they came by and brought like posters that said, We

2 love you Jeremy or whatever, and they were at the end

3 of my driveway.

4

So we were probably 15 feet away. Also, our

5 family had masks. And it was just that one visit.

6

Q. Who is Adam Parker?

7

A. Adam Parker is also a friend. He works for

8 "The Post and Courier" as well.

9

Q. Did you discuss this lawsuit with

10 Mr. Parker?

11

A. No.

12

Q. I see Barbara and Barry Sanders. I'm

13 guessing that's not the football player Barry Sanders.

14

A. No, no. They are church members, and we

15 visited them after a surgery one of them had. It was

16 a pastoral visit. We were going to visit them outside

17 their house, you know, 15 feet, face masks. That's

18 also how I visited with Adam, 15 feet and face masks.

19

When we went to see Barbara and Barry, it

20 was raining that day, so we actually were in our car,

21 and they were still in their house. So we called each

22 other and waved, so that was our way of keeping our

23 distance.

24

Q. Marcia and Tim West, who are they?

25

A. Marcia and Tim West are also friends from

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-2 Page 11 of 19

Jeremy Paul Rutledge 7/24/2020

28 1 church. And we went to their house on their

2 anniversary to wish them happy anniversary and met

3 them outside at a distance, again, I would say, of 15

4 feet, maybe a little more. They have a big yard. We

5 wore face masks and -- yeah.

6

Actually, to be honest, now I cannot

7 remember if it was an anniversary or a birthday

8 because I have a vague memory of my son singing Happy

9 Birthday, so...

10

But it was a happy occasion we went to.

11

Q. It was something exciting.

12

And then finally Ivy Wadsworth.

13

A. Ivy Wadsworth is a friend and a neighbor,

14 and they live two blocks away. And we saw her once on

15 a walk. She was outside of her house, and we spoke

16 with her briefly. Again, at about 15 feet.

17

We are always wearing face masks when we go

18 for a walk. And I believe that was just one time.

19 That was relatively recently. It was in the last two

20 weeks.

21

Q. Your thing says July 13th, so, again, spot

22 on.

23

A couple of -- you have a list of places

24 you've been, some -- like forests and the beach. You

25 have Marion Square on your list. When did you go to

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-2 Page 12 of 19

Jeremy Paul Rutledge 7/24/2020

35

1

A. Yes, generally.

2

Q. I want to talk a little bit about the

3 witness requirement first.

4

Could your wife be the witness for your

5 absentee ballot?

6

A. Could my wife be the witness for my absentee

7 ballot? The answer this morning is yes. If we were

8 voting this morning, she could be.

9

Q. You don't wear a face mask in your house, do

10 you?

11

A. No.

12

Q. Your wife lives there and doesn't wear a

13 face mask at home either.

14

A. That's correct.

15

Q. Right. You see your wife basically more

16 times a day than you can count, correct?

17

A. Yes.

18

Q. Good answer.

19

All right. So I want to talk about the

20 qualification requirement now. It's what your lawyers

21 have called the excuse requirement. I don't want to

22 get in a spitting contest over what we call it, but it

23 is the requirement that you must have a reason to vote

24 absentee because it's not open to just everyone.

25

I have the declaration that was filed with

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-2 Page 13 of 19

Jeremy Paul Rutledge 7/24/2020

40

1

A. Yeah, that's the only --

2

Q. Okay.

3

A. You have all that.

4

Q. We do. I just wanted to make sure you

5 weren't going to tell me what you told your lawyers

6 because that's privileged, and I don't want to ask

7 about that.

8

A. Yeah.

9

Q. And if you had started to, I don't know who

10 was going to stop you first, your lawyer or me.

11

All right. Do you know anyone who

12 contracted COVID-19 because they voted in the

13 June 9th, 2020 primary?

14

A. I do not know anyone that has told me that.

15 I'm not sure how I would know who contracted COVID and

16 how they got it. Or let me rephrase that. I'm not

17 sure I would know from someone with COVID where

18 exactly they contracted it, so I can't say -- can't

19 say with any certainty.

20

MR. LAMBERT: Those are the only questions I

21 have at this time.

22

As you probably realized, there are a lot of

23 other lawyers on this videoconference now. So

24 unfortunately, I have got to hand you off to them, and

25 you are not off the hot seat just yet. But

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-2 Page 14 of 19

Jeremy Paul Rutledge 7/24/2020

41 1 Mr. Rutledge, I appreciate you taking time this

2 morning to answer my questions and talk to me.

3

THE WITNESS: Could I clarify one answer as

4 well?

5

MR. LAMBERT: Sure.

6

THE WITNESS: When you asked if Sara could

7 be a witness for me and I said today she could be,

8 that is because she has stayed at home with me since

9 the schools closed in March. So we've been in a

10 bubble, and that allows us to safely be together.

11

If that bubble is broken, then the answer

12 would be no. And as we approach the start to school,

13 that's why I said today the answer is yes. But I just

14 wanted to clarify that's only for today.

15 BY MR. LAMBERT:

16

Q. So what would happen if the bubble were

17 broken? Would you or she have to go live somewhere

18 else?

19

A. Yes, and, in fact, that is our plan. When

20 the bubble is broken, Sara and Ian will go to live in

21 another house, and we will live separately until

22 there's a vaccine because the risk, again, is just too

23 great. Nobody wants me to die, right? And so --

24

Q. No, certainly not.

25

A. I didn't mean to be flip. I just meant --

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-2 Page 15 of 19

Jeremy Paul Rutledge 7/24/2020

42 1 yeah, so our plan is, once the bubble is broken, we

2 will have to live separately.

3

Q. If you have to do that, do you have any

4 thoughts about how you will see them, whether it's

5 socially distanced outside with a mask on? Have you

6 thought about what that might look like?

7

A. Yes. The only thing we have discussed is

8 the possibility of, you know, trying to meet at the

9 end of a school week, perhaps in a park or someplace

10 we can identify outdoors with masks at a distance,

11 again, in order to -- at least to keep me in a kind of

12 bubble or to keep me safe from infection.

13

Q. You would assume you're going to try to do

14 something, whenever this bubble breaks, so that you

15 can actually see your wife and son in person and not

16 go necessarily 8, 10, 12 months without laying eyes on

17 them; is that fair?

18

A. Yes. We would like to find a way to lay

19 eyes on each other.

20

Q. As if I were in your shoes, I would too. I

21 couldn't imagine it being otherwise.

22

If you were to figure out a way to be able

23 to see them in a park or some sort of public space

24 outdoors with masks, would it be possible there for

25 you to bring an absentee ballot and an envelope and

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Jeremy Paul Rutledge 7/24/2020

43 1 sign it and put it on a bench and then walk back and

2 your wife walk over and sign it and then leave it

3 there for you?

4

A. I think that is in the realm of possibility.

5 There's a little bit -- I've thought about this

6 question because I've wondered it myself.

7

It's a little speculative to me, speculative

8 because it would -- it would really require that we

9 find a park that works for us, that nobody is sick at

10 the time, that the weather is good, you know, from my

11 point of view that nobody else is around because I

12 would want my vote to be private. And so it requires

13 a lot of things to go right.

14

Q. It does. I think just today as you think

15 about it, your -- the ballot goes in the envelope, and

16 the envelope gets sealed, and the outside of the

17 envelope is what's signed.

18

So I think at least you don't have to worry

19 about the vote being private in the sense of someone

20 seeing your ballot. Your wife wouldn't even

21 necessarily see it and know who you voted for unless

22 you told her. So at least that's one piece of it you

23 could not have to worry about.

24

Unless you have anything else to clarify,

25 I'm going to pass you off now to -- I don't know who's

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Jeremy Paul Rutledge 7/24/2020

44 1 coming after me, but they can fight over who gets you

2 next.

3

MR. BURNS: Before we conclude, there wasn't

4 a pause before the end of your statement. I wanted to

5 object to the form of the last statement Mr. Lambert

6 made.

7 BY MR. LAMBERT:

8

Q. In that case, if I can do one thing, let me

9 ask a question then to follow up on that with the

10 objection to form.

11

Mr. Rutledge, are you aware that the ballot

12 goes in an envelope, which is sealed, and then that

13 envelope is which has the signatures on it for you and

14 for the witness?

15

A. Yes. I'm aware that the signatures can be

16 added to the sealed envelope.

17

MR. LAMBERT: Thank you very much. In that

18 case, I will now actually pass you off for real this

19 time.

20

THE WITNESS: Thank you.

21

MR. BURNS: If we could, I think now is a

22 good time for a brief five-minute break to give

23 Reverend Rutledge a chance to catch his breath. If

24 that's okay with everyone, we'll take a brief

25 five-minute break.

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Jeremy Paul Rutledge 7/24/2020

49 1 because she was still, you know, living in the bubble

2 with me, and we didn't want there to be any reason for

3 that ballot to get thrown out.

4

So since we were all still living in the

5 same house, it was an easy thing to do. We went ahead

6 and did that to ensure that the vote was counted.

7

Q. And Mr. Lambert asked you a couple of

8 questions or commented about your declaration. And I

9 think it said something about under your

10 interpretation of the excuse requirement, you don't

11 qualify to vote absentee.

12

Is that an accurate statement?

13

A. Yes, and that's still my interpretation. I

14 do not consider myself to be a disabled person, and I

15 think that there's some medical definitions about

16 being disabled that I don't believe I meet.

17

Q. Have you called anybody, like your -- I

18 guess you're in Charleston County, right, or are you

19 in Berkeley County?

20

A. I'm in Charleston County.

21

Q. Have you called your Charleston County

22 election commission to see if your interpretation is

23 accurate?

24

A. No. To see if my interpretation of my

25 medical condition is accurate?

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Jeremy Paul Rutledge 7/24/2020

55 1 share with them.

2

But does that answer your question? I'm not

3 sure I followed exactly what you were asking.

4

Q. Sure. And could you give me the names of

5 those folks that you referenced?

6

A. Yeah. Senator Kimpson, I see from time to

7 time. And then I'm trying to think of some of my

8 friends from the Furman program. Tom Davis, I believe

9 I have spoken with about different things. It's been

10 a while. Beth, and I'm blanking on her last name. I

11 can provide these for you.

12

Just friends that I've called about

13 different things or reached out to, especially

14 relating to the pandemic in our state and the spread

15 of the virus. But not about --

16

Q. But you don't recall -- just to be clear,

17 you don't recall ever contacting any house member or

18 senator requesting that they change the law related to

19 absentee ballots for the upcoming election.

20

A. No. I think my focus has not been on trying

21 to get the legislature to change the law this quickly.

22 It had been more about going to the Election

23 Commission, which seems like the way that something

24 could happen quickly during an election year. That's

25 been my understanding as a citizen.

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-3 Page 1 of 16 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 2
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Deposition Excerpts of Nea Symone Richard

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-3 Page 2 of 16

1

1

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

2

COLUMBIA DIVISION

3

MARY T. THOMAS, NEA RICHARD,

4 JEREMY RUTLEDGE, TRENA WALKER,

THE FAMILY UNIT, INC., and the

5 SOUTH CAROLINA STATE CONFERENCE

OF THE NAACP,

6

Plaintiffs,

7

v.

C/A No.: 3:20-cv-01552-JMC

8 MARCI ANDINO, in her official capacity as

Executive Director of the South Carolina

9 State Election Commission; JOHN WELLS,

in his official capacity as Chair of the

10 South Carolina State Election Commission;

JOANNE DAY, CLIFFORD J. ELDER, LINDA McCALL,

11 and SCOTT MOSELEY, in their official capacity

as Members of the South Carolina State Election

12 Commission; and HENRY D. McMASTER, in his official

capacity as Governor of South Carolina,

13

Defendants.

14

15

D E P O S I T I O N

16 WITNESS:

NEA SYMONE RICHARD

17 DATE:

Saturday, July 25, 2020

18 TIME:

11:02 a.m.

19 LOCATION:
20 TAKEN BY:
21

525 Roper Pond Circle Columbia, South Carolina
Attorneys for the Defendants SC State Election Commission officials

22 REPORTED BY: DEBORAH L. DUSSELJEE, RPR, CRC Realtime Systems Administrator
23 - - - - - - - - - - - - - - - - - - - - - - - - - -

24

COMPUSCRIPTS, INC.

www.compuscripts.com

25

1.888.988.0086

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Nea Richard 7/25/2020

11

1

Q. When did you work at Belk's?

2

A. I worked at Belk's the -- from the end of

3 August to the beginning of November in 2019.

4

Q. And when did you start working at Red

5 Stripe?

6

A. May 11th, 2020.

7

Q. What do you do at Red Stripe -- well, first

8 let me ask you this. What is Red Stripe?

9

A. Red Stripe Management is an investment

10 company that looks out for nonprofits, small

11 nonprofits and churches, and tries to help them build

12 their business into organizational structures.

13

Q. And what do you do at Red Stripe?

14

A. I am a legal research analyst.

15

Q. What kind of things do you research?

16

A. I currently have been into trademarking and

17 copyrighting. The company is a family company, so

18 we're trying to make sure that all of our like bills

19 and whatnot are legal and work in the system. I also,

20 from time to time, review contracts. But that's what

21 I have been doing so far.

22

Q. In your response to the interrogatories, you

23 had identified certain folks that you actually work

24 with.

25

A. Yes.

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Nea Richard 7/25/2020

12

1

Q. You had identified Jerry Josey, Joseph

2 Douglas, Cassandra Harden, Shaquanna Tolen. Are those

3 your coworkers?

4

A. Yes.

5

Q. And your response also said they were

6 workers with whom you usually interact.

7

A. Right.

8

Q. Who else do you interact with?

9

A. At work?

10

Q. Yes, ma'am.

11

A. Physically, no one outside of those names.

12 Virtually, my boss, which is Bianca Rodriguez; my COO,

13 which is the D'Jaris Douglas.

14

Q. I'm sorry. What was her last name?

15

A. Douglas.

16

Q. Douglas.

17

Where is Red Stripe located?

18

A. In Irmo, South Carolina.

19

Q. What's the address?

20

A. 401 Western Lane, Irmo, South Carolina, and

21 I cannot remember the ZIP code. We have three

22 different locations, though, so that is the one where

23 I work at.

24

Q. Okay. Now, you said that on June the 20th,

25 you attended a birthday party in Spartanburg with four

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Nea Richard 7/25/2020

13 1 friends.

2

A. Yes.

3

Q. Akeela Dendy, Naisha Goggans, Timya Burton,

4 and Hailey Gayle; is that right?

5

A. Yes.

6

Q. Where was the birthday party?

7

A. In Spartanburg, South Carolina, at an

8 Airbnb.

9

Q. Okay. What was the address of the Airbnb?

10

A. I do not recall.

11

Q. Can you tell me what part of Spartanburg it

12 was in?

13

A. I don't remember. I just followed.

14

Q. Okay. Was it a freestanding house?

15

A. Yes.

16

Q. Did y'all rent that house for the weekend?

17

A. Yes -- well, just for two days.

18

Q. Two days. Okay.

19

Saturday and Sunday?

20

A. Well, she rented it for Friday and Saturday.

21 I didn't show up until Saturday.

22

Q. Okay. Did you stay Sunday?

23

A. No.

24

Q. Okay. Did y'all go out anywhere when you

25 were in Spartanburg?

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Nea Richard 7/25/2020

16 1 about a month, though, but...

2

Q. Out on Forest Drive?

3

A. Forest -- yeah.

4

Q. That's the same one I go to.

5

March the 13th -- oh, do you have your hair

6 done?

7

A. I do my hair myself.

8

Q. Other than going to Walmart and going to

9 work and finishing up school at Claflin and the

10 birthday party, what have you done that involves going

11 out of your apartment?

12

A. I went home for a week.

13

Q. And that's in Cross Hill?

14

A. Yes.

15

Q. And did you stay with your family?

16

A. Yes.

17

Q. Who is physically located in your family

18 home?

19

A. Andrill Richard and Donnie Oneal Richard.

20

Q. Are those your parents?

21

A. Yes.

22

Q. What about your grandmother?

23

A. My grandmother, she stays in front of us.

24

Q. I'm sorry?

25

A. She stays in front of my Cross Hill

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Nea Richard 7/25/2020

17 1 residence.

2

Q. So she is in a separate house, but just

3 right next to you.

4

A. Right.

5

Q. Okay. Have you done anything else going out

6 other than the things we've just talked about?

7

A. I've moved into a new apartment.

8

Q. Right.

9

A. I've typically switched to online shopping

10 at the grocery store.

11

Q. If you think of something else along the

12 way, don't hesitate to interrupt and let me know

13 because often if I quit thinking about something, it

14 pops up into my mind.

15

A. Got you.

16

Q. You -- when did you start voting in South

17 Carolina?

18

A. As early as possible. I can't remember if

19 there was an election the year I turned 18.

20

Q. What year did you turn 18?

21

A. I turned 18 exactly four years ago, so that

22 would be 2016.

23

Q. And that was a general election for -- a

24 presidential election year, correct?

25

A. Right.

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Nea Richard 7/25/2020

22

1

Q. Poll manager. Okay.

2

Do you know of anyone who contracted

3 COVID-19 from voting in Cross Hill?

4

A. No, I do not know for sure.

5

Q. Have you had any conversations with your

6 grandmother about whether she knows anyone who

7 contracted COVID from voting in the primaries at Cross

8 Hill?

9

A. I have not.

10

Q. Okay. Do you know approximately how many

11 people voted at Cross Hill in person?

12

A. For the general election, no.

13

Q. No, no. I'm talking about the primaries.

14

A. No, I didn't check the numbers.

15

Q. Okay. And I assume the same is true about

16 absentee ballots. You don't know that either.

17

A. No.

18

Q. Okay. Why didn't you work as a poll worker

19 this year in the primaries?

20

A. Because I had just begun my job and didn't

21 want to take off.

22

Q. Okay. I got you.

23

Let me ask you some questions about your

24 declaration. I think you just said you had reviewed

25 it prior to the deposition, right?

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Nea Richard 7/25/2020

25 1 or the June 23rd runoff because they had a fear of

2 COVID and catching COVID?

3

A. No, I have not asked.

4

Q. In your declaration, you made the following

5 statement: The challenged provisions do not allow all

6 voters with reasonable fear of contracting or

7 spreading COVID-19 to vote by mail and require voters

8 who do qualify to vote by mail to have a witness sign

9 their ballots -- the ballot envelope. These

10 requirements will lead to unnecessary encounters that

11 I fear will cause risk to both personal and public

12 health.

13

What is the basis of your fear of the risk

14 to both personal and public health?

15

A. So I know a lot of people personally from

16 home who take voting very seriously, but I also know

17 the same people, if they were contracting COVID

18 symptoms, would not be willing to put someone else's

19 health at risk in order to vote.

20

So I don't want someone's vote to have to be

21 suppressed or taken away because they fear infecting

22 others with the symptoms that has affected my hometown

23 dearly.

24

Q. Do you know this because of talking to these

25 folks?

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Nea Richard 7/25/2020

26

1

A. Yes.

2

Q. Who have you talked to?

3

A. I have a cousin who has contracted COVID.

4 Her name is Ms. Beverly Jones. I have another aunt

5 who -- well, not aunt, but a close family friend who

6 has contracted COVID. Her name is Tammy. Just I know

7 for myself personally, and I know for my parents as

8 well, that they would not be willing to do such

9 things, as well as my close family members.

10

Q. How old are your parents?

11

A. My parents are 45 and 46.

12

Q. And your grandmother? I know you're not

13 supposed to ask a lady's age, but...

14

A. I know she is in her -- I can give you a

15 range, late sixties, early seventies.

16

Q. Have you had conversations with anyone else

17 regarding their fear of voting in person because of

18 COVID?

19

A. No.

20

Q. Have you had conversations with anyone about

21 their inability to vote absentee because they can't

22 get -- don't have a witness?

23

A. I haven't.

24

Q. In paragraph 8 of your declaration, you say

25 that poll workers at my polling site are

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Nea Richard 7/25/2020

35 1 Ms. Crum's questions.

2

So I apologize if it seems scattered, but

3 I'm just working my way through that. Okay?

4

A. Okay.

5

Q. Ms. Crum was just asking you as she finished

6 about the Complaint. And this is the Amended

7 Complaint, and it was filed in July, on July the 13th.

8 And so I think Ms. Crum asked -- or have you read

9 these allegations that are in the Complaint?

10

A. The witness requirement as well as the

11 excuse requirement, yes.

12

Q. Okay. And so my question to you is, do you

13 know of any people who didn't get to vote in your town

14 either by absentee or in person?

15

A. Not in my town. I know a lot of people a

16 couple of towns over, but not in my town specifically.

17

Q. But in -- where are they? Where are those

18 people?

19

A. Saluda County.

20

Q. Saluda County.

21

What happened to them? Why didn't they get

22 to vote?

23

A. Well, my other grandma is completely

24 terrified of COVID, so she has been barricading

25 herself, outside of work, from all COVID interaction.

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Nea Richard 7/25/2020

36

1

Q. I'm sorry. You said she's terrified of

2 COVID, and then what did you say?

3

A. Outside of work, she has been barricading

4 herself in her home, so...

5

Q. So she didn't vote.

6

A. No.

7

Q. Okay. Could she have voted by absentee?

8

A. I don't know. I haven't asked her that. I

9 know she didn't vote though.

10

Q. Did you see her before the June election

11 any?

12

A. No.

13

Q. Does she -- is she married?

14

A. No.

15

Q. Does she have anybody that lives with her?

16

A. No.

17

Q. So your grandmama that doesn't live in front

18 of you, the one that lives in Saluda County, she

19 didn't get to vote.

20

Anybody else?

21

A. Not that I've asked.

22

Q. So you don't know of anybody else, then,

23 specifically.

24

A. I haven't asked anyone specifically.

25

Q. Okay. Let me make sure that I understood

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Nea Richard 7/25/2020

39

1

A. Physically, no, but in the same area, yes.

2

Q. Okay. And let me just ask, if you -- you

3 said you weren't sure how you -- whether you were

4 going to work as a poll manager in the general

5 election in November, right?

6

A. Correct.

7

Q. You said that was -- you just want to wait

8 and see how COVID works out.

9

A. Yes.

10

Q. But will you plan on going to vote in person

11 again in Cross Hill?

12

A. It just depends on how COVID moves. I can't

13 give you an answer for that right now.

14

Q. But let's say you can't go in person because

15 COVID is rampant and you're not going to go there.

16 Would you be able -- will you vote by absentee?

17

A. Yes.

18

Q. Okay. And so will you -- so you'll meet one

19 of the criteria for justification to voting for an

20 absentee ballot, right?

21

A. Right.

22

Q. Work presumably. Would that be the reason

23 why, potentially?

24

A. I wouldn't be able to say work potentially

25 because my company is looking forward to going --

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Nea Richard 7/25/2020

46

1

Q. Are you aware that the witness requirement

2 and the excuse requirement are statutory provisions?

3

A. No, I was not aware.

4

Q. Who are your representatives -- who is your

5 representative in the House of Representatives, the

6 South Carolina House of Representatives?

7

A. I -- I can't remember.

8

Q. Do you know who your state senator is?

9

A. Sorry. I'm completely combobbled right now.

10 I don't remember off the top of my head.

11

Q. That's fine.

12

Have you contacted any members of the South

13 Carolina General Assembly about any concerns related

14 to absentee voting or absentee ballots?

15

A. No. I'll just kind of let this case do what

16 it does.

17

Q. Excuse me? I didn't hear that.

18

A. I just took my place in this case as me

19 taking my concerns forward.

20

Q. So you've not taken any action to try to

21 change the law through the legislative process.

22

A. No.

23

Q. Or to encourage members of the General

24 Assembly to do so.

25

A. No.

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Nea Richard 7/25/2020

47

1

MR. LIMEHOUSE: Okay. All right. I believe

2 that's all the questions I have. Thank you.

3

THE WITNESS: No problem.

4

MR. JASON: Can I just have five minutes

5 real quickly as I just collect my thoughts and --

6 yeah, and I'll be -- and maybe we could just return in

7 a couple or five?

8

MS. CRUM: What? I'm sorry. I didn't hear

9 the very last part of what you said.

10

MR. JASON: I'm sorry. I'm saying I just

11 need about five minutes to collect my thoughts really

12 quickly and to reconvene at 12:05.

13

(A brief recess transpired.)

14

EXAMINATION

15 BY MR. JASON:

16

Q. So I also -- I also only have a couple of

17 questions, and I may jump around a little bit.

18

So first, you were talking about working as

19 a poll worker in June. At the time, did you have the

20 accrued time to take the day off from work to

21 volunteer as a poll worker?

22

A. No.

23

Q. Okay. At work, do you ever get close enough

24 to people physically so, that way, a coworker would be

25 able to witness you signing a document?

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-3 Page 16 of 16

Nea Richard 7/25/2020

48

1

A. No.

2

Q. And I guess lastly, since June, what

3 measurements have you taken to better protect yourself

4 in regard to social distancing?

5

A. So I rarely go anywhere. I've been at work.

6 I've been at home. And then as I am around people,

7 it's the same amount of people -- same people that

8 I've been around since April, and that's on very short

9 occasions.

10

Q. And so does that mean you've essentially

11 only seen your coworkers and your boyfriend?

12

A. Yes, and my family as well.

13

Q. And have you seen anyone else besides those

14 few various people?

15

A. No.

16

Q. And your family?

17

A. No.

18

MR. JASON: Okay. That's it for plaintiffs.

19

RE-EXAMINATION

20 BY MS. CRUM:

21

Q. One very quick follow-up.

22

Ms. Richard, you had testified that you had

23 gone to the birthday party in Spartanburg. You recall

24 additional people there, correct?

25

A. Right, close family and friends.

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-4 Page 1 of 78 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 3
to Defendants’ Memorandum in Support of Motion for Summary Judgment
30(b)(6) Deposition of the NAACP LEGAL DEFENSE and EDUCATIONAL FUND, INC.

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-4 Page 2 of 78

1

1

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

2

COLUMBIA DIVISION

3 MARY T. THOMAS, NEA RICHARD, JEREMY RUTLEDGE, TRENA WALKER,
4 THE FAMILY UNIT, INC., and the SOUTH CAROLINA STATE CONFERENCE
5 OF THE NAACP,

6

Plaintiffs,

7

vs.

Civil Action No.:

3:20-cv-01552-JMC

8

MARCI ANDINO, in her official capacity as

9 Executive Director of the South Carolina

State Election Commission; JOHN WELLS,

10 in his official capacity as Chair of the

South Carolina State Election Commission;

11 JOANNE DAY, CLIFFORD J. ELDER, LINDA McCALL,

and SCOTT MOSELEY, in their official capacity

12 as Members of the South Carolina State Election

Commission; and HENRY D. McMASTER, in his official

13 capacity as Governor of South Carolina,

14

Defendants.

15

16

30(b)(6) Deposition of the NAACP LEGAL

DEFENSE and EDUCATIONAL FUND, INC.,

17

by BRENDA C. MURPHY

18 DATE:

July 27, 2020

19 TIME:

2:10 p.m.

20 LOCATION:
21 TAKEN BY:
22

115 Saxonbury Drive Columbia, South Carolina 29223
Attorney for Defendants SC State Election Commission officials

23 REPORTED BY: Colette Cantoni,

Realtime Court Reporter

24

COMPUSCRIPTS, INC.

25

888.988.0086

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-4 Page 3 of 78

Brenda Murphy 7/27/2020

2

1 APPEARANCES:

2

ATTORNEYS FOR PLAINTIFFS:

3

NAACP LEGAL DEFENSE

and EDUCATIONAL FUND, INC.

4

BY: KEVIN JASON, ESQUIRE,

Assistant Counsel

5

DEUEL ROSS, ESQUIRE,

Senior Counsel

6

-and-

ZACHERY MORRIS, ESQUIRE

7

40 Rector Street

New York, New York 10006

8

kjason@naacpldf.org

dross@naacpldf.org

9

zmorris@naacpldf.org

10

-and-

11

AMERICAN CIVIL LIBERTIES UNION

BY: ADRIEL L. CEPEDA DERIEUX, ESQUIRE

12

125 Broad Street

New York, New York 10004

13

646-885-8381

acepedaderieux@aclu.org

14

-and-

15

ACLU OF SOUTH CAROLINA

16

BY: SUSAN K. DUNN, ESQUIRE

Post Office Box 20998

17

Charleston, South Carolina 29413

843-720-1423

18

sdunn@aclusc.org

19

20

21

22

23

24

25

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-4 Page 4 of 78

Brenda Murphy 7/27/2020

3

1 APPEARANCES (Continued):

2

ATTORNEYS FOR DEFENDANTS MARCI ANDINO, in

her official capacity as Executive Director

3

of the South Carolina State Election

Commission; JOHN WELLS,

4

in his official capacity as Chair of the

South Carolina State Election Commission;

5

JOANNE DAY, CLIFFORD J. ELDER, LINDA McCALL,

and SCOTT MOSELEY, in their official

6

capacity as Members of the South Carolina

State Election Commission:

7

BURR & FORMAN, LLP

8

BY: M. ELIZABETH CRUM, ESQUIRE

1221 Main Street, Suite 1800

9

Columbia, South Carolina 29201

803-753-3240

10

lcrum@burr.com

11

ATTORNEYS FOR DEFENDANT HENRY D. McMASTER,

12

in his official capacity as Governor of

South Carolina:

13

OFFICE OF THE GOVERNOR

14

BY: THOMAS A. LIMEHOUSE, JR., ESQUIRE

1100 Gervais Street

15

Columbia, South Carolina 29201

803-734-6023

16

tlimehouse@governor.sc.gov

17 ALSO PRESENT:

18

ATTORNEYS FOR SOUTH CAROLINA

REPUBLICAN PARTY:

19

ROBINSON GRAY STEPP & LAFFITTE, LLC

20

BY: ROBERT E. TYSON, JR., ESQUIRE

1310 Gadsden Street

21

Columbia, South Carolina 29201

803-231-7838

22

rtyson@robinsongray.com

23

(EVERYONE PARTICIPATING VIA A

VIDEOCONFERENCE, INCLUDING THE COURT

24

REPORTER)

25

(INDEX AT REAR OF TRANSCRIPT)

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-4 Page 5 of 78

Brenda Murphy 7/27/2020

4

1

MR. JASON: Plaintiff again would make

2

the usual stipulations. And we would also

3

like to read and sign.

4

MS. CRUM: Fine.

5

- - - - -

6 B R E N D A C. M U R P H Y

7

having been first duly sworn, was

8

examined and testified as follows:

9 EXAMINATION

10 BY MS. CRUM:

11

Q. Ms. Murphy --

12

A. Yes?

13

Q. -- I'm Liz Crum, and I am one of the

14 lawyers for Ms. Andino and the State Election

15 Commission. And I will be asking you some questions

16 today.

17

If you don't understand a question,

18 would you please, ma'am, ask me to rephrase it.

19

A. I will.

20

Q. Thank you, ma'am. And if you don't hear

21 a question, ask me to repeat it, if you would,

22 please.

23

A. I will.

24

Q. And if you do not ask me either to

25 rephrase or to repeat the question, I will assume

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Brenda Murphy 7/27/2020

5 1 that you understood the question and heard the

2 question. Okay?

3

A. Okay.

4

Q. Since this deposition has started, you

5 cannot discuss the substance of your deposition with

6 anyone, including your attorney. And if we happen to

7 take a break, I can ask you when we come back whether

8 or not you discussed anything with your attorney.

9 Okay?

10

A. Okay. Yeah.

11

Q. And you must answer "yes," "no," or,

12 "okay," some verbal answer, because the court

13 reporter can't write down your response if you're

14 shaking your head, which I have a bad habit of doing.

15 So you have to actually verbalize your answer,

16 please, ma'am.

17

A. Okay.

18

Q. And if you would let me finish my

19 questions and I will let you finish your answers,

20 because we're both -- at least I tend to anticipate

21 sometimes and talk before I should. So if you could

22 do that, that would be greatly appreciated,

23 particularly by the court reporter, who has to write

24 down everything that we say. Okay?

25

A. Okay.

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Brenda Murphy 7/27/2020

6

1

Q. Now, you understand that you have been

2 designated as a 30(b)(6) deponent today, don't you?

3

A. Give me the definition, please.

4

Q. Yes, ma'am. What that means is you have

5 been designated as the witness to speak on behalf of

6 the NAACP. And as such, the answers that you give to

7 my questions will bind the NAACP as a plaintiff. Do

8 you understand that?

9

A. I do understand, but I'm here as a

10 representative of the South Carolina NAACP.

11

Q. Yes, ma'am. And I should have clarified

12 that.

13

Any time I'm talking about the NAACP,

14 I'm talking about the South Carolina NAACP, unless I

15 specifically clarify otherwise. Okay?

16

A. Okay.

17

Q. That's a whole mouthful if I have to add

18 the "South Carolina" in front of it every time.

19

A. I understand.

20

Q. And the topics that you have been

21 designated to answer questions are as follows: The

22 history and structure of the NAACP. The membership

23 of the NAACP. The NAACP's involvement in elections.

24 Specific activities of the organization for 2012,

25 2016, and 2018 elections. And the impact of COVID-19

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Brenda Murphy 7/27/2020

7 1 on the NAACP and its members.

2

Do you understand that those are the

3 topics I'll be asking you questions about?

4

A. I understand. But will you be asking

5 those questions one at a time?

6

Q. Oh, yes, ma'am.

7

A. Okay.

8

Q. I'll be asking a lot of questions one at

9 a time. And if I accidentally kind of wind some

10 together, tell me, I'll stop and rephrase everything.

11 Okay?

12

A. Thank you.

13

Q. Thank you. Now, if your attorney

14 objects, you have to answer the question, unless he

15 or she instructs you not to answer. Okay?

16

A. Okay.

17

Q. And let me know if at any time you need

18 a break. Because if you do, we will absolutely,

19 immediately take a break. Okay?

20

A. Okay.

21

Q. Okay. Thank you, ma'am. We're over the

22 general instructions now.

23

What did you do to prepare for your

24 deposition? And when I say "your deposition," I'm

25 talking about you as the 30(b)(6) deponent for the

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8 1 NAACP, not you individually. Okay?

2

A. Okay.

3

Q. Yes. So what did you do in preparation

4 for this deposition today?

5

A. Not much. The only thing that I did in

6 preparation for this deposition is I think on last

7 Thursday I spoke with the attorney. And that was

8 just in terms of letting me --

9

Q. Ms. Murphy, don't let me -- I don't want

10 to know anything your attorney told you. Okay?

11

A. No. I'm just -- I'm not going to tell

12 you what -- okay.

13

MR. JASON: Objection.

14

THE WITNESS: (Continuing) Just in terms

15

of to speak --

16

MR. JASON: Ms. Murphy? Ms. Murphy --

17

THE WITNESS: Yes?

18

MR. JASON: -- don't talk about anything

19

that you talked about with your attorneys,

20

please.

21

THE WITNESS: Oh, okay.

22

Nothing specific to today.

23 BY MS. CRUM:

24

Q. Did you read the Amended Complaint that

25 was filed in this case?

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9

1

A. I did.

2

Q. Did you read that recently in

3 preparation for your deposition?

4

A. You mean -- I need you to clarify that.

5 What do you mean?

6

Q. Okay. Well, you've read the Amended

7 Complaint --

8

A. Yes.

9

Q. -- that was filed? Okay.

10

Did you read it before today, to get

11 ready for your testimony today?

12

A. No.

13

Q. Okay. Have you reviewed any documents

14 in preparation for your testimony today?

15

A. Honestly, no. Not -- no. Not until --

16 I looked at what you asked me about just a few

17 minutes before I got online, today.

18

Q. All right. Thank you. Now, I know

19 you've done* this, but we always have to ask this

20 question: Could you state your full name for the

21 record, please, ma'am.

22

A. Brenda C. Murphy.

23

Q. I'm going to go through a series of

24 questions. And this is something I ask all of my

25 deponents, people who are being deposed. It is not

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10 1 at you. I don't want you to take any offense at it.

2 It's just general questions. Okay?

3

A. Okay.

4

Q. The first one. Are you on any

5 medication today that would affect your ability to

6 testify?

7

A. No.

8

Q. Have you had any alcohol today?

9

A. No.

10

Q. Have you ever been deposed before, had

11 your deposition taken like this?

12

A. Approximately maybe four years -- three

13 to four years ago.

14

Q. And what kind of case was that in?

15

A. That was a case in South Carolina. Do

16 you need to know the --

17

Q. No. I just need to know what it

18 involved.

19

A. It was a discrimination case.

20

Q. Was it in state or federal court?

21

A. It was in federal court.

22

Q. Do you remember the name of the case?

23

A. It was dealing with Myrtle Beach and the

24 Black bikers group. Discrimination case.

25

Q. Was it Myrtle Beach?

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11

1

A. Myrtle Beach.

2

Q. Okay. Thank you. And you said it was

3 three or four years ago?

4

A. Yeah.

5

Q. Were you a plaintiff in the case?

6

A. I gave a deposition. Yes.

7

Q. Was the deposition --

8

A. It was -- it was by the National office,

9 but I had to give a deposition.

10

Q. By "the National office," you mean by

11 the National office of the NAACP?

12

A. Correct.

13

Q. Okay. Have you ever been arrested?

14

A. No.

15

Q. What is your e-mail address?

16

A. Brenda, br- --

17

Q. And I'm sorry. May I stop you. Could

18 you give me the South Carolina NAACP e-mail address

19 instead of your personal address.

20

A. bbmurphy@scnaacp.com.

21

Q. And is there a telephone address for the

22 NAACP?

23

A. The telephone is 803-754-4584.

24

Q. Do you use your personal cell phone in

25 conjunction with NAACP business?

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12

1

A. Only in an emergency situation.

2

Q. Can you give me that telephone number,

3 please, ma'am.

4

A. 803-318-6188.

5

Q. And I hate to ask you this, but how old

6 are you?

7

A. Seventy-two.

8

Q. We're the same age.

9

A. Oh, okay.

10

Q. Do you have anyone living with you?

11

A. Yes. My husband.

12

Q. Does the NAACP have any social

13 networking media accounts, for example, Facebook,

14 Twitter, Instagram?

15

A. No.

16

Q. Do you have a web page?

17

A. Yes.

18

Q. What is the site for the web page?

19

A. scnaa- -- scnaacp.org.

20

Q. Is that the National site?

21

A. No. SC, South Carolina.

22

Q. Oh, SC. Gotcha. Thank you.

23

The National NAACP website has a

24 function, I guess, it says, "Tell Us Your Story."

25

Does the South Carolina website have

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13 1 that same sort of request, "Tell Us Your Story"?

2

A. No.

3

Q. How many counties in South Carolina does

4 the NAACP have branches in?

5

A. All counties.

6

Q. Did you vote in the 2020 primary? And

7 "you" is you individually.

8

A. Yes.

9

Q. Did you vote in person on

10 Election Day --

11

MR. JASON: Objection. Again, this is

12

-- these questions are going to her in her

13

personal capacity.

14

MS. CRUM: She is a member of the NAACP.

15

And one of the issues is how COVID affects the

16

NAACP. Therefore, as a member, I can ask her

17

that question.

18

THE WITNESS: Yes, I did vote. I voted

19

in person as a handicapped person, so I did

20

not have to enter the building.

21 BY MS. CRUM:

22

Q. At what precinct did you vote in,

23 Ms. Murphy?

24

A. Richland County.

25

Q. Yes, ma'am. What precinct?

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14

1

A. Richland County. I went to the actual

2 Richland County office to vote.

3

Q. I've got you. You went to 2020 Hampton

4 Street?

5

A. Yes.

6

Q. Okay. Thank you. Did they bring one of

7 the curbside voting machines out to you?

8

A. They did.

9

Q. What is your handicap?

10

MR. JASON: Objection.

11

Q. Ms. Murphy, do you consider yourself to

12 be disabled?

13

A. My doctor has given me orders for my

14 handicap sticker -- plate, placard, plaque.

15

Q. Okay. So am I correct then that at

16 least your doctor considers you to be disabled?

17

A. Well, I am. I'm not able -- I need it.

18

Q. Do you still teach as adjunct professor

19 at the University of South Carolina in the School of

20 Nursing?

21

A. That is South University, not -- at

22 South University.

23

Q. Okay. I apologize. I read that wrong.

24

A. Yes. Part time.

25

Q. Do you teach in person or do you teach

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15 1 virtually?

2

A. Last -- I teach in person.

3

Q. Where is South University located, the

4 campus?

5

A. It's out in the northeast area of

6 Columbia, off of Farrow Road and near Parklane.

7

Q. Ms. Murphy, when did you first join the

8 NAACP?

9

A. In the late eighties.

10

Q. '85, '6, '7; do you know?

11

A. It was somewhere '87/'88.

12

Q. Would you please, ma'am, give me your

13 educational history after high school.

14

A. I received my B- -- bachelor's of

15 nursing at the University of South Carolina, Columbia

16 campus. And I received my master's in nursing from

17 the University of South Carolina, Columbia campus.

18

Q. When did you graduate from

19 undergraduate?

20

A. 1975.

21

Q. What about your master's, when did you

22 get that?

23

A. 1981.

24

Q. And you said you joined the NAACP in

25 1987 or '88, thereabouts?

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16

1

A. That's correct. Wait a minute. Let

2 me -- let me think about this.

3

That's correct.

4

Q. Okay. Thank you, ma'am.

5

What roles have you played in the NAACP

6 South Carolina branch over the years? South Carolina

7 Chapter, I'm sorry.

8

A. State Conference. I have functioned --

9 it's State Conference -- I have functioned as the

10 Chair of the Health Committee, the advisor for the

11 Youth & College Division, and president.

12

Q. Could you give me the approximate dates

13 that you served in each of those roles?

14

A. Okay. Give me a minute. Let me think.

15

Approximately, Health Chair, '95 until

16 around '9- -- about 2000.

17

Youth & College, that was 2000 up

18 until -- and I'm giving you approximate dates

19 because, you know, I'm speaking off the top of my

20 head -- until 2017.

21

Q. When did you become president of the

22 South Carolina Conference?

23

A. January 2017.

24

Q. How long is your term?

25

A. Two years.

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17

1

Q. So have you rotated off as president

2 now?

3

A. No. Actually, I'm into my third year.

4 I think that's --

5

Q. Okay. How much longer, if you know,

6 will you --

7

A. May I make a correction.

8

Q. Yes, ma'am.

9

A. That Health Chair is 2018. Because I

10 became president January 2018, and currently still in

11 the role.

12

Q. Okay. Ms. Murphy, are you looking at

13 something when you're answering that?

14

A. I'm writing on a piece of paper, trying

15 to figure out these dates.

16

Q. I've got you. Okay. Thanks. So how

17 much longer, if you know, will you be president of

18 the South Carolina Conference?

19

A. We will have elections maybe -- I've

20 heard we may have elections in August. I haven't

21 heard anything -- I was just told that. I haven't

22 gotten anything in writing, but I know --

23

Q. Who told you that?

24

A. One of our board members, just in terms

25 of when the date will be.

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18

1

Q. Okay. Who are the board members for the

2 South Carolina Conference?

3

A. We don't have board members for the

4 South Carolina Conference. That was a National board

5 member.

6

Q. Okay. Who was the National board member

7 who told you?

8

A. Madie Robinson.

9

Q. Could you spell that, please, ma'am.

10

A. M-A-D-I-E R-O-B-I-N-S-O-N.

11

Q. Where is she located?

12

A. Florence.

13

Q. Have you consulted with Ms. Robinson

14 about this lawsuit?

15

A. No, I have not.

16

Q. When was the South Carolina Conference

17 formed?

18

A. 1939.

19

Q. When was the National NAACP formed?

20

A. 19- -- 1901, I think.

21

Q. Is the mission for the South Carolina

22 Conference and the National Conference the same?

23

A. They have a mission statement.

24

Our mission statement is related to the

25 National statement. And, yes, it follows under that.

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19 1 It's not -- what we do, we follow the mission of the

2 National. Yes.

3

Q. How many members does the South Carolina

4 Conference have?

5

A. Approximately 3,000-plus.

6

Q. How much, if anything, does it cost to

7 join the South Carolina Conference?

8

A. We don't have members -- member fees

9 per se. They join the National NAACP. So there's no

10 cost for --

11

Q. And if you --

12

A. There's no cost for State Conference.

13

Q. Okay. So if you're a member of the

14 National Conference, you're automatically a member of

15 the State Conference?

16

A. Yes.

17

Q. How much is the membership fee for the

18 National Conference?

19

A. Thirty dollars annually.

20

Q. How do you, in South Carolina,

21 communicate with the South Carolina Conference

22 members?

23

A. Since COVID-19, it's been by Zoom

24 meetings and conference calls.

25

Q. Do you send out e-mails?

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20

1

A. And e-mails, yes.

2

Q. Did you -- and by "you," again, I am

3 talking about the South Carolina Conference -- do you

4 use Twitter or Instagram to communicate with members?

5

A. No.

6

Q. How frequently -- oh, one other

7 question.

8

Do you from time to time post alerts on

9 the naacp.org website?

10

A. We -- yes.

11

Q. Is that another way of communicating

12 with the South Carolina Conference members?

13

A. Yes. The branches, yes.

14

Q. Yes, ma'am. Okay. Do you just

15 communicate with the branches and not the members?

16

A. I generally communicate with the

17 presidents and the secretaries.

18

Q. Of the branches?

19

A. Yes.

20

Q. And you generally communicate with them

21 by e-mail?

22

A. E-mail. Zoom meetings.

23

Q. What's your most frequent form of

24 communication with the branches?

25

A. E-mail.

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21

1

Q. Is your e-mail address posted on the

2 website?

3

A. I'm certain it is.

4

Q. What is the average age, if you know, of

5 the South Carolina Conference membership?

6

A. Fifty. That's a -- that's an average.

7

Q. Does the South Carolina Conference

8 conduct membership drives?

9

A. Yes.

10

Q. Where do you conduct them?

11

A. Well, we haven't been able to do any

12 recently because of the COVID-19 situation. So we

13 can only post it on the website for the individuals

14 to join.

15

Q. How did you conduct membership drives in

16 2012?

17

A. They were done -- now, most -- let me

18 clarify.

19

Membership drives are done by the

20 branches. The branches do them. There's a

21 face-to-face situation. They go to churches. They

22 go to, it may be stores. A number of situations

23 where they can meet and greet individuals to solicit

24 memberships. But it's face to face primarily, up

25 until COVID, the restrictions were put in place.

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22

1

Q. When were the restrictions put in place

2 this year?

3

A. March the 18th, I think. On or about

4 March 18th.

5

Q. Did it coincide generally with the

6 Governor's state of emergency declaration?

7

A. It did.

8

Q. Have any of the branches, to your

9 knowledge, held Zoom recruitment meetings with

10 colleges or universities or high schools or other

11 facilities?

12

A. Let me add that we do -- I mentioned

13 that I was an advisor for the state -- for the state

14 chapters and some of the universities. And we have

15 youth councils, also. They communicate by Zoom as

16 well. And if the branch needs to communicate with

17 them, it's by Zoom or conference call.

18

Q. All right. And do you know whether the

19 youth councils communicate by Zoom or Instagram or

20 Twitter?

21

A. I'm not certain. I know they do by

22 Zoom.

23

Q. Thank you, ma'am. Ms. Murphy, I want to

24 talk to you about the Amended Complaint and the NAACP

25 joining as a party.

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23

1

Do you remember approximately when you

2 were contacted about the NAACP joining as a party?

3

MR. JASON: Objection.

4

Q. You can answer.

5

MR. JASON: I'm objecting to the extent

6

that this calls for any discussion with any

7

attorney.

8

MS. CRUM: I didn't ask that. I only

9

asked when she was contacted. I did not ask

10

by whom or anything else. Simply, when.

11

THE WITNESS: I can only give you an

12

approximate date. In maybe May.

13 BY MS. CRUM:

14

Q. Were you contacted by someone other than

15 an attorney about participating in this lawsuit?

16

A. Yes.

17

MR. JASON: Objection.

18

Q. Who contacted you?

19

A. Another organization.

20

Q. What organization contacted you?

21

MR. JASON: Objection. I think there

22

might be some confusion. Again, I'm going to

23

instruct my client not to answer to the extent

24

that she's going to talk about communications

25

with any attorney.

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24

1

MS. CRUM: Yet again, I have not asked

2

for any communication from another attorney.

3

I asked whether she was contacted by someone

4

other than an attorney about participating in

5

this lawsuit. And then she answered that,

6

yes, she was contacted by someone other than

7

an attorney.

8

I am simply trying to find out who the

9

person other than an attorney was.

10

MR. JASON: I'm just saying that, from

11

my understanding of the situation, I think

12

she's confusing "organization" with an

13

attorney, and that the party that she is

14

thinking of may actually be an attorney.

15

MR. LIMEHOUSE: Liz, if I may. I'm

16

having a hard time determining if counsel is

17

testifying here or if the witness is.

18

I'd ask counsel to please refrain from

19

his continued speaking objections and either

20

object to form or object and instruct the

21

witness not to answer, but to omit the

22

commentary.

23

MR. JASON: Okay. Well, I'm instructing

24

my witness not to answer the question.

25

MR. LIMEHOUSE: We look forward to the

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25

1

protective order.

2

THE WITNESS: Well, I don't mind

3

answering, because I can't -- I can't give you

4

a specific name, because I don't remember. I

5

don't want to give a wrong person that I

6

talked with, because I really don't remember.

7 BY MS. CRUM:

8

Q. Ms. Murphy --

9

A. Yes?

10

I talk to a lot of people in a lot of

11 organizations. I really don't remember. I don't

12 want to give misinformation.

13

Q. And I'm certainly not asking you to do

14 that.

15

A. Okay.

16

Q. Let me just say one thing. If during

17 this deposition --

18

A. Um-hum.

19

Q. -- you quit thinking about this and you

20 suddenly remember -- because that happens to me all

21 the time, if I quit thinking about something, you

22 know, five minutes later it'll pop into my head -- if

23 you happen to remember something, then please stop me

24 and tell me, "I remembered something," and tell me

25 what it is. Okay?

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26

1

A. Okay.

2

Q. Now, I'm going to read something from

3 the Complaint -- the Amended Complaint, and I want

4 you to tell me if this is a correct assessment of the

5 fundamental mission of the South Carolina NAACP.

6

"The fundamental mission of the South

7 Carolina NAACP is the advancement and improvement of

8 the political, educational, social, and economic

9 status of minorities."

10

Is that correct?

11

A. Also, political representation.

12

Q. I was going to get there. I was just

13 trying not to read the whole thing all at once.

14

And the next segment -- as far as I

15 went, is that correct?

16

A. Yes.

17

Q. Okay. Then the next, it says,

18 "Elimination of racial prejudice." Is that correct?

19

A. Yes.

20

Q. "The publicizing of adverse effects of

21 racial discrimination." Is that correct?

22

A. Yes.

23

Q. "And the initiation of lawful action to

24 secure the elimination of racial bias." Is that

25 correct?

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27

1

A. Yes.

2

Q. Okay. Let me ask you, how do you define

3 "minority groups"? How does the NAACP define

4 "minority groups"?

5

A. People of color.

6

Q. Does that include Latinos?

7

A. People of color.

8

Q. Okay.

9

A. Yes.

10

Q. The Complaint says, "To further the

11 mission, the South Carolina NAACP advocates to ensure

12 that the interest of the Black community are

13 represented in local, state, and national legislative

14 bodies by representatives who share the community's

15 interest and who will be accountable to the

16 community."

17

Is that a correct statement?

18

A. Yes, it is.

19

Q. Okay. How many new voters has the South

20 Carolina Conference registered this year, to your

21 knowledge?

22

A. I don't have that information at hand.

23

Q. Can you give me an approximate number?

24 I'm not holding you to it exactly.

25

A. I can only say we -- before COVID-19,

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28 1 the pandemic, at the first of the year we did hold a

2 voter registration drive.

3

And they hold voter registration drives

4 throughout the state. I cannot give you an estimate.

5

Q. Okay. That's fair. If you can't, I'm

6 not trying to get you to make something up out of

7 whole cloth. Okay?

8

A. Okay.

9

Q. Again, I'm reading from the Complaint.

10 "Because of state and federal social distancing

11 guidelines and the challenge requirements, the South

12 Carolina NAACP has been forced to divert its

13 resources from its usual 'get out the vote' efforts."

14

Is that a correct statement?

15

A. That is a correct statement. Yes.

16

Q. What -- thank you, ma'am. As far as the

17 NAACP goes, what are the challenge requirements?

18

A. The challenge requirements are in

19 relationship to the standards that are established

20 for somebody that's wanting to do an absentee ballot,

21 it's not inclusive, therefore, it would significantly

22 limit the number of individuals that are not able to

23 vote due to COVID-19 and the restrictions that come

24 with it.

25

The second thing -- and I'm drawing a

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29 1 blank right now --

2

Q. You had mentioned the witness

3 requirement earlier.

4

A. Yes.

5

Q. Is that what you were talking about?

6

A. Yes. The witness requirement that's

7 there. There are individuals that live alone, do not

8 have anyone that can come in to witness the form for

9 them, the absentee ballot.

10

And that was the second.

11

Q. Is there a difference between the "get

12 out the vote" and the registration with regard to how

13 the NAACP approaches it?

14

A. Yes. The "get out the vote," what we

15 generally do, it's inclusive of voter registration,

16 encouraging individuals -- and this is like

17 face-to-face, knocking on doors, asking people to

18 vote, and then there's a component where we would

19 carry individuals in need of a ride to the voting

20 place.

21

Q. Does the "get out the vote" also include

22 assistance with voting, like what you just said, with

23 carrying people to the polls?

24

A. Yes.

25

Q. Does it also include assistance with

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30 1 getting witnesses available to assist people in

2 signing their -- getting the votes signed?

3

A. That, because of COVID-19, would be an

4 issue. Because we would asking individuals to go

5 into homes that we don't know, the person may not

6 know if they've been exposed to COVID-19. The

7 individuals -- you know, there are carriers, you

8 know, people that don't know that they are carriers.

9 So the potential for exposure is significantly

10 increased.

11

Q. Let me go back, because I was just

12 asking generally about the "get out of the vote."

13

As a general rule, before COVID-19 --

14

A. Yes.

15

Q. -- did the "get out the vote" include

16 assisting individuals obtaining witness signatures?

17

A. No.

18

Q. So it is the NAACP's testimony that --

19

A. Now, what you're saying, if somebody

20 wanted to vote, do absentee balloting?

21

Q. Yes, ma'am.

22

A. Well, yes, it would be inclusive,

23 because all they needed to do is make a phone call

24 for somebody to come and sign off.

25

Q. Again, I'm asking prior to --

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31

1

A. Yes. Yes.

2

Q. Yeah, okay. And up until the recent

3 pandemic, the NAACP would assist homebound voters who

4 live alone in getting a witness to actually sign

5 the --

6

A. Yes.

7

Q. -- witness requirement?

8

A. Yes.

9

Q. Okay. Does the NAACP have a hotline

10 that it publicizes so that members or constituents

11 can call to get assistance with either a ride to the

12 poll or a witness signature?

13

A. Yes. That's coordinated by the

14 branches. And we also have our lines -- had our

15 lines available at the state office for them to call

16 as well.

17

Q. Okay. Your Complaint -- the Complaint

18 also talks about, like, press strategies.

19

What are the press strategies?

20

A. Press releases to the branches, maybe to

21 the papers, to encourage people to vote or to make

22 branches aware of any situations that might need to

23 be shared with them.

24

Q. And that's --

25

A. That's done by e-mail.

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32

1

Q. Okay. As I understand the Complaint,

2 because of COVID you have had to divert your

3 resources from its usual "get out the vote" to

4 instead engage in new activities, like press

5 releases -- press strategies and host virtual

6 meetings; is that correct?

7

A. And we also use the VAN system, which

8 identifies individuals that need to register to vote.

9 That's a program, okay, that you can use to identify

10 those individuals that are not registered to vote,

11 those that are registered to vote. So we make

12 telephone calls to those individuals.

13

Q. The VAN, is that V-A-N?

14

A. V-A-N. It's a --

15

Q. Is that an acronym?

16

A. It's an automated system for identifying

17 voters in order for us to call them and encourage

18 them.

19

We have to depend on this now primarily

20 because we can't do face-to-face contact.

21

So we're using that system that provides

22 those names that I just mentioned, those categories

23 that I just mentioned, in order to be able to make

24 telephone calls.

25

Q. Can you tell me how the VAN system

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33 1 works?

2

A. Yes. It's a national system, database.

3 It will show individuals in the communities, so you

4 can target communities, and you'd know who your

5 voters are and who needs to register to vote.

6

Q. Is this a national database operated by

7 the NAACP?

8

A. It's a national database. But it's not

9 only operated by the NAACP. There are other

10 organizations as well. It's just that the NAACP uses

11 that system as well.

12

Q. Am I correct that it's a service that

13 you can actually purchase?

14

A. Well, I can say we didn't have to pay

15 for it. I don't know if National paid for it or not.

16

Q. Okay. Thank you. I'm again reading

17 from the Complaint, the Amended Complaint,

18 Ms. Murphy.

19

"If the challenge requirements remain in

20 effect, the South Carolina NAACP will be required to

21 provide additional rides to the polls."

22

Is that something you-all have the

23 ability to do?

24

A. It's going to be very difficult because

25 of the social distancing requirement -- regulation.

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34 1 Whereas in the past we may have been able to take a

2 church van with a number of individuals, that's not

3 possible now.

4

Q. Okay. Let me just read to you from the

5 Amended Complaint from the NAACP section.

6

"If the challenge requirements remain in

7 effect, the South Carolina NAACP will be required to

8 provide additional rides to the polls or assistance

9 to the voters in obtaining a witness signature, and

10 be required to answer additional questions regarding

11 how to vote from members and constituents who desire

12 to vote while attempting to comply with the social

13 distancing guidance."

14

Is that correct?

15

A. Yes. With -- yes.

16

Q. Do you know how many NAACP members of

17 your 3,000 members, 3,000 approximately, are

18 registered to vote?

19

A. All of them.

20

Q. Okay. Do you know how many are over 65?

21

A. At least 30 percent. Thirty to 40- --

22

Q. Is that -- I'm sorry. I thought you

23 were finished. Go ahead.

24

A. Thirty to 40 percent.

25

Q. Is that information that is obtainable

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35 1 from the VAN system?

2

A. Meaning -- I'm sorry.

3

Q. In other words, based on the data that

4 you get from the VAN system, does it tell you how old

5 registered voters are?

6

A. I can't answer that.

7

Q. Okay. Do you know what percentage of

8 the NAACP members live alone?

9

A. I can't give you an exact amount, no.

10 But I know that there are -- just to my knowledge, I

11 can't give you a number, but I know there are many

12 that live alone, because of the age. The average age

13 being 50. And we have quite a few members that are

14 over 65.

15

Q. I think you said 30 to 40 percent?

16

A. Yeah. And that's an approximate.

17

Q. Do you know how many of your members

18 have access to a vehicle?

19

A. No.

20

Q. Do you know how many of your members

21 have disabilities, so that they wouldn't have to vote

22 in person?

23

A. No.

24

Q. Does the South Carolina Chapter of the

25 NAACP have a definition of "disability" for purposes

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36 1 of the excuse requirement?

2

A. Different than what's stated by

3 voters -- voter registration, is that what you're

4 asking?

5

Q. I was asking what the NAACP's definition

6 of "disability" was, if you have one.

7

A. No, we don't. No.

8

Q. Okay. What does voter registration

9 state?

10

A. Age 65 --

11

MR. JASON: Objection.

12

THE WITNESS: All right.

13 BY MS. CRUM:

14

Q. You can still answer.

15

A. Age 65. And then the medical conditions

16 are listed.

17

Q. How many members of the NAACP have

18 served as poll managers?

19

A. I can't answer that.

20

Q. Is that something you encourage your

21 members to do?

22

A. Our goal is for members to be poll

23 monitors.

24

Q. Poll monitors as opposed to poll

25 workers; is that correct?

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37

1

A. That's correct. That's what's

2 encouraged.

3

Q. What is the process -- and I think

4 you've touched on this already -- but what is the

5 process that the NAACP has used to take voters to the

6 polls in 2012, 2016, and 2018?

7

A. Church buses, cars, vans.

8

Q. Did the NAACP take voters to the polls

9 in the primaries in 2020?

10

A. No.

11

Q. What about any of the branches?

12

A. No.

13

Q. Were they instructed not to take folks

14 to the polls because of COVID?

15

A. They were instructed, because of the

16 risk factors, that they should not take individuals

17 to the polls.

18

Q. Does the NAACP keep a file on its

19 members who have been denied an absentee ballot,

20 mail-in absentee ballot, based on his or her

21 disability claim?

22

A. No, we don't. What -- no. No, we

23 don't.

24

Q. Do you know anyone, based on your

25 capacity as an officer of the NAACP since I think

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38 1 2000, who has been denied an absentee ballot and his

2 or her claim of disability was denied?

3

A. I can only answer from when I was

4 president, because that was not something that I had

5 knowledge of.

6

Q. Okay. Well, what about since you've

7 been president?

8

A. No.

9

Q. Does the NAACP keep a file on its

10 members who have had their absentee ballots not

11 counted based on a lack of witness signature or

12 address?

13

A. No.

14

MR. JASON: Objection.

15

Q. Do you know, since you've been president

16 of the NAACP, of anyone who has not had their vote

17 counted because it didn't have a witness signature or

18 an address?

19

A. No.

20

Q. Does the NAACP, as part of its voter

21 outreach, emphasize to its members and constituents

22 the fact that an absentee ballot has to have a

23 witness, and the witness has to put an address on it?

24

A. Yes.

25

Q. What steps will the NAACP take to

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39 1 provide assistance to voters in the general elections

2 in obtaining a witness signature?

3

A. I can't answer that. It depends on the

4 pandemic, in November.

5

Q. Okay. What steps did the NAACP take to

6 assist members in getting witness signatures during

7 the primaries this year?

8

A. None.

9

MR. JASON: Objection.

10

Q. You can answer.

11

A. None.

12

Q. In your role -- no. I asked that

13 question. I'm sorry.

14

A. May I clarify something.

15

Q. Yes, ma'am.

16

A. You asked, what did we do to assist

17 during the primaries? Now --

18

Q. Obtaining witness signatures for

19 absentee ballots.

20

A. Okay. But the restriction was lifted

21 just for the primaries.

22

Q. It was my understanding that the witness

23 signature wasn't lifted. Only the age restriction.

24 Am I wrong on that?

25

MR. JASON: Objection.

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40

1

Q. Do you know, Ms. Murphy, whether or not

2 the legislature lifted both the age restriction and

3 the witness restriction for the primaries?

4

MR. JASON: Objection.

5

Q. You can answer.

6

A. No. It was the signature, witness

7 signature only.

8

Q. That was lifted?

9

A. Yes.

10

Q. In the Complaint it states that "the

11 NAACP has members who are citizens and registered

12 voters, and who will be directly impacted by the

13 challenge requirements that would effectively require

14 voters to expose themselves and others to the grave

15 effects of COVID-19, or else forego their right to

16 vote."

17

What is the basis for the NAACP's

18 allegation there?

19

A. We have members that are confined to

20 their home. Husband maybe is there, but husband has

21 dementia, so he would not be able to witness her

22 signature.

23

Q. Anything else?

24

A. And then we have members that live alone

25 that are over that 65-year-old age, that 65 or older,

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41 1 that would not have a witness in the home.

2

Q. Okay. The Complaint goes on to say,

3 "For example, one member who has been practicing

4 strict social distancing is over 80 years of age and

5 has limited mobility. She lives only with her

6 husband who has been diagnosed with dementia and is

7 therefore unable to witness an absentee ballot."

8

Is that what you were talking -- the

9 person you were talking about?

10

A. Yes. Yes.

11

Q. What is her name?

12

A. Generally -- well, we don't give

13 members' names, because --

14

Q. Ms. -- go ahead. I'm sorry. I didn't

15 mean to interrupt you.

16

A. -- the NAACP has a requirement that we

17 don't give out the names of the membership.

18

There was a lawsuit filed some years ago

19 where there were problems when names were provided or

20 shared, and there was some legal ramifications.

21

Q. Are you talking about the NAACP v.

22 Alabama? If you don't know, that's okay.

23

A. I don't know the specific [sic]. All I

24 know is we're not supposed to.

25

Q. Well, your lawyer did not object to your

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42 1 giving that name.

2

A. Yeah --

3

MR. JASON: No, no. I'm trying to clear

4

that up, Liz.

5

MS. CRUM: Yes.

6

MR. JASON: President Murphy, in this

7

specific situation you should feel comfortable

8

disclosing that name.

9

THE WITNESS: Okay.

10

Dorothy Cunningham.

11 BY MS. CRUM:

12

Q. And where does Ms. Cunningham live?

13

A. Columbia, South Carolina.

14

Q. Where in Columbia?

15

A. In the Greenview community.

16

Q. In the Complaint, you talked about, or

17 the NAACP talked about members who are citizens and

18 registered voters who will be directly impacted by

19 COVID.

20

Who, other than Ms. Cunningham,

21 specifically by name, were you referring to?

22

A. I don't have that information with me.

23 I did have some names I listed, but I don't have that

24 directly in front of me.

25

Q. Can you tell me approximately how many

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43 1 names you listed?

2

A. I think it was five or six.

3

Q. What part of the state do they live in?

4

A. Sumter and Columbia.

5

Q. Anybody in the Upstate?

6

A. No, I didn't have a name from the

7 Upstate.

8

Q. What about in the Lowcountry?

9

A. No, I didn't list anyone from the

10 Lowcountry.

11

Q. What about the PD?

12

A. No, I didn't list anyone.

13

Q. Do you know of anyone from any of those

14 areas?

15

A. Do I need to give names?

16

Q. Yes, ma'am.

17

A. I -- I can't -- really, I can't answer

18 that with certainty. Because you're asking about

19 individuals that would not be able to vote, is that

20 correct?

21

Q. Well, those are your allegations, not

22 mine.

23

A. No. No. You were asking me for names.

24 That's what I'm asking.

25

Q. Yes, ma'am. And I'm asking for the

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44 1 names that the NAACP alleged who are members, who are

2 citizens and registered voters who will be directly

3 impacted by the challenge requirements that

4 effectively [sic] require voters to expose themselves

5 and others to the grave effects of COVID-19, or else

6 forego their right to vote.

7

A. I did not give you -- I gave you the

8 names. I did not know it was necessary to list

9 people throughout the state. So I listed individuals

10 that I know of specifically.

11

Q. And do you know of anyone else

12 specifically throughout the state?

13

And remember, you're answering on behalf

14 of the NAACP South Carolina Conference.

15

A. I know I am.

16

I would have to say -- well, I'll say, I

17 don't know anybody's specific medical condition, so I

18 cannot say affirmatively that any others other than

19 the ones that I personally have listed.

20

Q. Okay. And I'm sorry, I did not get the

21 names of those you personally listed, other than

22 Ms. Cunningham.

23

A. One was Liz Kilgore. Amelia Glisson.

24

Q. Could you spell that, please, ma'am.

25

A. A-M-E-L-I-A G-L-I-S-S-O-N.

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45

1

Q. Is she from Sumter?

2

A. No.

3

Liz Kilgore -- Elizabeth Kilgore is from

4 Sumter.

5

Amelia Glisson is from Columbia.

6

Priscilla --

7

Q. And who else? I'm sorry.

8

A. Priscilla Smith. Sharon Bell.

9

Q. Bell?

10

A. B-E-L-L.

11

Q. Yes, I didn't hear it well. Thank you.

12

And you had said, I think, five or six.

13

A. How many is that?

14

Q. Well, if you count Ms. Cunningham,

15 that's five.

16

A. Okay. You've got Priscilla Smith.

17 Sharon Bell. I can't --

18

Q. Amelia Glisson. Liz Kilgore. And

19 Dorothy Cunningham.

20

A. LaTosha, LaTosha Wilson.

21

Q. And where is she from?

22

A. Columbia.

23

Q. Ms. Murphy --

24

A. Yes?

25

Q. -- the Complaint also goes on to say,

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46 1 "Many other members of the South Carolina NAACP will

2 also be impacted by the documented disproportionate

3 harm that COVID-19 is causing Black people."

4

What is the basis of that allegation?

5

A. DHEC information, Department of Health.

6

Q. Okay. And I'm just about finished.

7

A. Okay.

8

Q. What election reforms has the NAACP

9 suggested to the legislature in this legislative

10 session beginning January 2019?

11

MR. JASON: Objection.

12

Q. You can answer that, Ms. Murphy.

13

A. The State Conference has not made any

14 recommendation to the Assembly, General Assembly.

15

Q. What about in the January 2017, for that

16 session 2018 through '19?

17

MR. JASON: Objection.

18

Q. You can answer.

19

A. You were asking legislative changes

20 that --

21

Q. Yes, ma'am.

22

A. I can't think of any.

23

Q. Do you have any recollection as to

24 whether the NAACP actually suggested that the

25 legislature allow anyone who wanted to vote by

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47 1 absentee ballot to vote by absentee ballot regardless

2 of age?

3

A. The reason -- I'm sorry. I'm thinking,

4 because I have to think about committee activities as

5 well, so...

6

I can't think of anything specifically.

7

Q. What about with regard to the witness

8 requirement, anything you can think of, from a

9 legislative standpoint?

10

MR. JASON: Objection.

11

THE WITNESS: I'm not sure. I don't

12

want to say no. And I'm not sure. I'm really

13

not.

14

I can only say I have not sent a

15

document on behalf of the State Conference.

16 BY MS. CRUM:

17

Q. Have you authorized anyone to send a

18 document on behalf of the State Conference?

19

A. No.

20

MS. CRUM: Ms. Murphy, thank you very

21

much for your time. I don't have any

22

additional questions. Some of the other

23

lawyers for other parties may have some

24

questions.

25

Do you need to take a break?

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48

1

THE WITNESS: I'm good.

2

MS. CRUM: Okay. Thank you.

3

THE WITNESS: You're welcome.

4 EXAMINATION

5 BY MR. TYSON:

6

Q. Hey, Ms. Murphy. I'm Rob Tyson. Do you

7 see me?

8

A. Yes, I can.

9

Q. Hey, how are you doing? I'm an attorney

10 for the State Republican Party. I've just got a

11 handful of questions I'd like to ask you.

12

I think I heard Liz -- I was trying to

13 figure out how to do that. She asked if you wanted

14 to take a few-minute break. But, are you okay?

15

A. I'm okay. I'm good.

16

Q. Okay. Very good. I'm just going to

17 kind of follow up going down the Complaint that

18 Ms. Crum asked you some questions about. I've just

19 got a couple of follow-ups to ask about that. Okay?

20

Ms. Murphy, in the Complaint, one of the

21 first allegations, it says you've got members who are

22 citizens and registered voters.

23

And that's right, that's accurate, isn't

24 it?

25

A. Yes.

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49

1

Q. Okay. And it says, (Reading) the

2 challenge requirements will effectively require

3 voters to expose themselves and others to the grave

4 effects of COVID, or forego their right to vote.

5

That's your allegation, right?

6

A. Yes. Yes.

7

Q. And is that allegation -- I'm sorry?

8

A. I said, yes.

9

Q. And that allegation, would that not

10 affect other groups, also?

11

A. Yes, it would affect other people, other

12 groups.

13

Q. And then your next comment is the

14 reference about Ms. Cunningham, who is an 80-year-old

15 lady and who lives with her husband.

16

That could be anybody, right, any

17 80-year-old, and not just a member of the NAACP,

18 correct?

19

A. Correct.

20

Q. For example, it could be someone not of

21 color, that was white, correct?

22

A. Yes.

23

MR. JASON: Objection.

24

Q. Further on in the paragraph it says,

25 "The NAACP has members who are unable to cast an

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50 1 absentee ballot because of the excuse requirements,

2 but who have disabilities."

3

Do you remember that paragraph?

4

A. Yes. I think I just -- yes.

5

Q. And you know one of the reasons that you

6 can vote absentee ballot is if you're physically

7 disabled, right?

8

A. They may not -- well, yes.

9

Q. At the top of the next page it says that

10 "South Carolina NAACP encourages and facilitates

11 nonpartisan voter registration drives by its chapters

12 to promote civic participation."

13

And that's correct, isn't it?

14

A. That's true. Yes.

15

Q. And it says, "The current health crisis

16 has largely disrupted the organization's efforts to

17 meet and organize members and voters in person,"

18 right?

19

A. Yes.

20

Q. Well, that's true for a lot of other

21 groups, too, right?

22

A. Yes.

23

Q. That would be the same for the ACLU

24 members, if that was the --

25

MR. JASON: Objection.

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51

1

THE COURT REPORTER: I have to

2

interrupt. I did not hear the last part of

3

the question.

4 BY MR. TYSON:

5

Q. I'm sorry. My question was, the Senate

6 said that the health crisis has largely disrupted the

7 organization's efforts to meet and organize members

8 and voters in person.

9

And, Ms. Murphy, you said that's also a

10 problem for other organizations, correct?

11

A. Yes. But African-Americans are

12 disproportionately affected, according to DHEC

13 statistics.

14

Q. Yes, ma'am. But it says it's disrupted

15 the organization's efforts to meet and organize

16 members and voters in person.

17

That would affect probably the League of

18 Women Voters, too, right?

19

MR. JASON: Objection.

20

THE WITNESS: I can't say, because I

21

don't know how they conduct their meetings.

22 BY MR. TYSON:

23

Q. But let me just ask it again. Do you

24 think there are other organizations that try to meet

25 and help with voters in person?

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52

1

A. Yes.

2

Q. And your next sentence says that "the

3 NAACP has been forced to divert its resources from

4 its usual 'get out the vote' efforts."

5

The same question goes there, too. A

6 lot of other organizations do that, also, right?

7

MR. JASON: Objection.

8

THE WITNESS: I cannot speak for other

9

organizations.

10 BY MR. TYSON:

11

Q. Do you know whether the State Republican

12 Party has "get out the vote" efforts?

13

A. No.

14

Q. How about, do you know whether the State

15 Democratic Party has "get out the vote" efforts?

16

A. When you use the terminology "get out to

17 vote," what do you mean?

18

Q. I'm just -- in other words, "get out the

19 vote" efforts. I'm just regurgitating the language

20 that's in your Complaint, your allegation.

21

A. "Get out to vote"?

22

Q. No. "Get out the vote".

23

A. "Get out the vote"? Now --

24

Q. Yes, ma'am.

25

A. Okay.

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53

1

Q. Other organizations do that, right?

2

A. I think that's the terminology used by

3 the NAACP.

4

Q. Okay. And then the sentence further

5 states that you've had to engage in new activities,

6 like press strategies and host virtual meetings for

7 its members.

8

Other organizations have to do the

9 exact, same thing, don't they?

10

MR. JASON: Objection.

11

THE WITNESS: I can't answer for other

12

organizations.

13 BY MR. TYSON:

14

Q. Do you belong to a church, ma'am?

15

MR. JASON: Objection.

16

Q. Go ahead and answer.

17

A. Yes, I do.

18

Q. Okay. And so have you had any virtual

19 meetings through your church?

20

A. Yes.

21

Q. Okay. Are you active in your

22 neighborhood association?

23

A. I'm active in my neighborhood

24 association. But what does that mean? What are you

25 asking?

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54

1

Q. Well, have you had any other

2 organizations that you have participated in in

3 virtual meetings?

4

A. Not in a community meeting, no.

5

Q. Let me make sure I understand. I think,

6 Ms. Crum asked you a question, and you answered that

7 you voted in person in the June primaries, right?

8

A. Yes.

9

Q. And do you know of members of the NAACP

10 that voted in the June primary?

11

A. In the NAACP --

12

Q. Yes, ma'am.

13

A. -- during the primary?

14

Q. Yes, ma'am.

15

A. Yes. Yes.

16

Q. Did they vote in person? Did some of

17 those members vote in person?

18

A. Some of them did.

19

Q. Did some of them vote by absentee

20 ballot?

21

A. Yes.

22

Q. There's a general election coming up in

23 November. And will the NAACP have members that will

24 vote in the general election?

25

A. I'm certain, yes.

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55

1

Q. Will the NAACP have members that will

2 have the opportunity to vote in the November general

3 election?

4

A. Yes.

5

MR. JASON: Objection.

6

A. I don't -- what are you asking?

7

Q. Can you state your answer again. I'm

8 sorry.

9

A. What are you asking? Ask the

10 question -- clarify what you're asking.

11

Q. Let's just make sure that you said

12 "yes," was the answer, and then I'll ask it again.

13

A. Yeah.

14

Q. For the general election this November,

15 you've got -- the NAACP has members that will have

16 the opportunity to vote, correct?

17

A. Yes.

18

Q. And they will take advantage of that,

19 and some of the NAACP's members in the November

20 election will vote in person, correct?

21

MR. JASON: Objection.

22

THE WITNESS: Yes. Using social

23

distancing, if the pandemic is still here.

24 BY MR. TYSON:

25

Q. Yes, ma'am. So, Ms. Crum represents the

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56 1 State Election Commission, and they will follow the

2 CDC guidelines. And your members will come to vote

3 at those polls, presumably pursuant to whatever the

4 guidelines are in place at that point in time, right?

5

MR. JASON: Object.

6

THE WITNESS: I answered yes.

7 BY MR. TYSON:

8

Q. So let me make sure I'm clear. So your

9 members of the NAACP will vote this fall in the

10 general election by absentee, correct?

11

MR. JASON: Objection.

12

Q. And your answer?

13

A. My answer is yes, but they are putting

14 their life in jeopardy because of the risk factors of

15 COVID-19.

16

Q. If they vote --

17

A. They are being placed in a position to

18 make a choice of whether to expose themselves

19 potentially to COVID-19 or to vote, because they

20 think that it's important, they need to.

21

Q. Well, hold on. Let me back up then,

22 Ms. Murphy. Let's be clear. So you'll have -- I

23 think you've said you've got thousands of members,

24 roughly 3,000 individual members. Some of those

25 members will vote in this November election, correct?

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57

1

A. Correct.

2

Q. And some of them will vote by absentee,

3 correct?

4

A. Yes.

5

Q. And some of them will vote in person,

6 too, correct?

7

A. Correct. But my answer is still the

8 same. They are placing themselves at grave risk

9 because of COVID-19 and not knowing, because not

10 everyone is complying to the CDC requirements.

11

Q. Ms. Crum asked you a handful of

12 questions about the excuse provisions in the absentee

13 ballot. Do you remember those questions, that line

14 of questions?

15

A. Yes.

16

Q. Okay. And you know there's a number of

17 them, right, probably about a dozen or so?

18

A. Yes. We went over those.

19

Q. Okay. And would you agree with me that

20 those provisions are not race related?

21

A. Yes.

22

Q. Let me go through just a couple of them.

23 Well, let me ask it differently.

24

Do you have members of the NAACP here in

25 South Carolina that are members of the American Red

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58 1 Cross?

2

A. I can't answer that question.

3

Q. Do you have members of the NAACP here in

4 South Carolina that are government employees?

5

A. I can't answer that question, with

6 certainty.

7

Q. You don't know?

8

A. We don't ask where someone works.

9

Q. Okay. What about people on vacation?

10 Will there be members posting an absentee ballot this

11 fall because they're on vacation?

12

A. I can't answer that question.

13

Q. How about, are there members of the

14 NAACP that work as certified poll watchers, or poll

15 managers?

16

A. I can't answer that question.

17

Q. Let me make sure -- Ms. Crum asked you

18 some questions, so I'm understanding. The system

19 that you used was called the VAN system?

20

A. Yes.

21

Q. Could you tell me what VAN stands for.

22

A. It's Voter- -- it's an automated system

23 where, as I shared with her, it shares the names of

24 registered voters, nonregistered voters, and it's a

25 national system that can be accessed to get names of

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59 1 individuals in specific communities.

2

Q. Is it still working today?

3

A. Yes.

4

Q. All right. So it hadn't slowed down due

5 to COVID then, right?

6

A. It hadn't slowed down -- what are you --

7

Q. Let me ask -- that was a poor question.

8 I'm sorry.

9

It hadn't been affected by COVID then,

10 has it?

11

MR. JASON: Objection.

12

Q. Go ahead and answer the question,

13 Ms. Murphy.

14

A. I can't -- I can't answer that.

15

Q. Well, you're still using it today,

16 right?

17

A. Yeah. We're able to pull the data, yes.

18

Q. So the NAACP is still meeting some of

19 its core functions, correct?

20

A. Just some of them, yes. Yes.

21

MR. TYSON: Thank you, Ms. Murphy. I

22

appreciate your answering my questions.

23

THE WITNESS: Okay. You're welcome.

24

MR. TYSON: Okay.

25

MR. LIMEHOUSE: Ms. Murphy, my name's

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60

1

Thomas Limehouse, I represent

2

Governor McMaster, he's a defendant in this

3

matter, as you know, in his official capacity

4

as governor of the State of South Carolina. I

5

don't have any questions, but I just want to

6

thank you for your time today.

7

THE WITNESS: You're welcome.

8

MR. JASON: I think I'd like to just

9

take five minutes again. Yes. I think five

10

minutes is all I need. So either at 3:45 or

11

thereabouts we will go back on the record.

12

(Recess from 3:41 p.m. to 3:48 p.m.)

13 EXAMINATION

14 BY MR. JASON:

15

Q. Good afternoon, President Murphy. I'm

16 just going to ask you a handful of questions.

17

First, earlier you were talking about

18 the witness requirement with Ms. Crum back in the

19 June primary.

20

Are you aware of the Court Order which

21 lifted the witness requirement from the June primary?

22

A. Yes.

23

Q. Does the NAACP have any younger members

24 who might want to vote absentee in order to avoid

25 going into any crowded places?

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61

1

A. Our college chapters, if they are in

2 school.

3

Q. And can you predict what's going to

4 happen this November?

5

A. No.

6

Q. To your knowledge, has COVID

7 disproportionately impacted Black people?

8

A. It has disproportionately impacted

9 individuals of color, yes.

10

Q. And does that include African-Americans?

11

A. Yes.

12

Q. And would it also include Latinx or

13 Latino people of color?

14

A. Yes.

15

Q. What is the racial makeup of the South

16 Carolina NAACP?

17

A. Probably 98 percent African-American,

18 maybe 2 percent Caucasian.

19

Q. And does that makeup influence your view

20 that the South Carolina NAACP members will be

21 disproportionately affected by the challenge

22 requirements?

23

A. No.

24

Q. Do you believe that the NAACP South

25 Carolina members will be disproportionately affected

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62 1 by the challenge requirements?

2

A. Yes.

3

Q. Do you believe that they'll be

4 disproportionately affected by COVID?

5

A. They are, based on DHEC, yes.

6

Q. And by "DHEC," do you mean their racial

7 demographics?

8

A. Yes. The South Carolina Department of

9 Health, they give statistics daily.

10

Q. And just to be specific, in your view,

11 do those statistics show a greater intensity of COVID

12 on the demographics that correspond with your

13 membership?

14

A. Yes.

15

MR. JASON: Okay. That's it for

16

plaintiffs.

17

MS. CRUM: This is Liz Crum.

18

THE WITNESS: Yes.

19

MS. CRUM: I have just one question.

20 EXAMINATION

21 BY MS. CRUM:

22

Q. The answers you just gave to Mr. Jason,

23 based on the disproportionate impact on

24 African-Americans, did that come from your reading of

25 the DHEC website and other information published by

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63 1 DHEC?

2

A. Yes.

3

MS. CRUM: Thank you, ma'am.

4

THE WITNESS: You're welcome.

5

MR. TYSON: Ms. Murphy, I've just got

6

one follow-up question, too.

7 EXAMINATION

8 BY MR. TYSON:

9

Q. Your attorney asked you a question about

10 the age of your membership. And then you answered

11 that, yes -- I think you said that there are a number

12 of college chapters that it would affect. Do you

13 remember that?

14

A. In terms of doing -- I thought the

15 question was related to absentee balloting.

16

Q. Yes, ma'am. And so I just wanted to

17 make sure that you know that there was a -- that if a

18 college kid -- if one is a student, that is a reason

19 that you can vote absentee ballot?

20

A. Right. I do know.

21

MR. TYSON: Okay. Thank you.

22

THE WITNESS: Um-hum. You're welcome.

23

MR. JASON: Mr. Limehouse, do you have

24

any questions?

25

MR. LIMEHOUSE: I do not. Thanks.

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64

1

MR. JASON: Okay. I have a follow-up

2

question.

3 EXAMINATION

4 BY MR. JASON:

5

Q. President Murphy, earlier I had asked

6 about people under the age of 65 who might be

7 affected by the absentee requirements, and you

8 answered regarding college campuses.

9

Are there any other individuals under

10 the age of 65 who may want to avoid crowded polling

11 sites or locations -- who may want to avoid crowded

12 polling sites or locations --

13

A. Yes.

14

Q. -- and who may want to vote absentee?

15

A. Yes.

16

Q. Okay. I'm sorry, I should -- my

17 apologies. I just want to make sure that was clear

18 for the record. So I am just going to ask one more

19 time since I essentially did.

20

Essentially, are there any individuals

21 under the age of 65 who would benefit from voting

22 absentee because they do not want to go into a

23 crowding polling site?

24

A. Yes.

25

Q. And are any of these individuals members

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65 1 of the NAACP?

2

A. Yes.

3

MR. JASON: Okay. Thank you.

4

MS. CRUM: Ms. Murphy, I hate to do

5

this, but I wasn't going to ask any more until

6

Mr. Jason followed up.

7 EXAMINATION

8 BY MS. CRUM:

9

Q. Can you give me names of any of the

10 individuals that you were referring to in answer to

11 his questions?

12

A. And I need to clarify at this point,

13 because I think when I gave that second listing of

14 individuals, those were individuals under that 65

15 that, you know, had conditions -- they're not, quote,

16 disabled, but they have some health conditions that

17 -- actually, one has a condition where she works, she

18 works full time, but in terms of getting -- being in

19 a crowd, because of some of her health -- and they're

20 not major health things, but could be a major issue

21 for her if she did get the virus. And so she did not

22 vote because of that. Not even in the primary.

23

Q. All right. And when you were just

24 responding to Mr. Jason's questions, were those the

25 individuals you were thinking about?

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66

1

A. Yes.

2

MS. CRUM: Thank you, ma'am. I promise,

3

I don't have any more questions.

4

THE WITNESS: Okay.

5

MR. JASON: No more questions for

6

plaintiffs.

7

MR. TYSON: Colette, are we good?

8

THE COURT REPORTER: Yes.

9

The same transcript orders as stated

10

earlier?

11

MS. CRUM: We're doing the same on each

12

of our depositions.

13

MR. JASON: The same for us as earlier.

14

MR. TYSON: The same.

15

(Deposition concluded at 3:57 p.m.)

16

17

18

19

20

21

22

23

24

25

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67

1

SIGNATURE OF DEPONENT

2

I, the undersigned, BRENDA C. MURPHY, do

3 hereby certify that I have read the foregoing

4 deposition transcript and find it to be a true and

5 accurate transcription of my testimony, with the

6 following corrections, if any:

7

8 PAGE

LINE

CHANGE

9 ____

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10 ____

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23 _______

______________________________

24 DATE

BRENDA C. MURPHY

25

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68

1

CERTIFICATE OF REPORTER

2 I, Colette Cantoni, a Certified Realtime
3 Reporter and Notary Public for the State of South Carolina at Large, do hereby certify:
4 That the foregoing deposition was taken
5 before me on the date and at the time and location stated on Page 1 of this transcript; that the
6 deponent was duly sworn to testify to the truth, the whole truth and nothing but the truth; that the
7 testimony of the deponent and all objections made at the time of the examination were recorded
8 stenographically by me and were thereafter transcribed; that the foregoing deposition as typed
9 is a true, accurate and complete record of the testimony of the deponent and of all objections made
10 at the time of the examination to the best of my ability.
11 I further certify that I am neither related
12 to nor counsel for any party to the cause pending or interested in the events thereof.
13 Witness my hand, I have hereunto affixed my
14 official seal this 28th day of July 2020, at Greenville, Greenville County, South Carolina.
15

16

17

18

____________________________

19

Colette Cantoni

20

Certified Realtime Reporter

Notary Public

21

State of South Carolina at Large

My Commission expires:

22

October 15, 2025

23

24

25

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1

I N D E X

2 Examination
3 By Ms. Crum
4 By Mr. Tyson
5 By Mr. Jason
6 Signature of Deponent
7 Certificate of Reporter
8
9 E X H I B I T S
10 (No Exhibits Proffered)
11
12
13
14
15
16
17
18
19
20
21
22
23
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25

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-5 Page 1 of 10 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 4
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Deposition Excerpts of Mary Louise Thomas

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-5 Page 2 of 10

1

1

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

2

COLUMBIA DIVISION

3

MARY T. THOMAS, NEA RICHARD,

4 JEREMY RUTLEDGE, TRENA WALKER,

THE FAMILY UNIT, INC., and the

5 SOUTH CAROLINA STATE CONFERENCE

OF THE NAACP,

6

Plaintiffs,

7

v.

C/A No.: 3:20-cv-01552-JMC

8 MARCI ANDINO, in her official capacity as

Executive Director of the South Carolina

9 State Election Commission; JOHN WELLS,

in his official capacity as Chair of the

10 South Carolina State Election Commission;

JOANNE DAY, CLIFFORD J. ELDER, LINDA McCALL,

11 and SCOTT MOSELEY, in their official capacity

as Members of the South Carolina State Election

12 Commission; and HENRY D. McMASTER, in his official

capacity as Governor of South Carolina,

13

Defendants.

14

15

D E P O S I T I O N

16 WITNESS:

MARY LOUISE THOMAS

17 DATE:

Thursday, July 23, 2020

18 TIME:

10:08 a.m.

19 LOCATION:
20 TAKEN BY:
21

34 Charlotte Street, Apartment C Charleston, South Carolina
Attorneys for the Defendants SC State Election Commission officials

22 REPORTED BY: DEBORAH L. DUSSELJEE, RPR, CRC Realtime Systems Administrator
23 - - - - - - - - - - - - - - - - - - - - - - - - - -

24

COMPUSCRIPTS, INC.

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25

1.888.988.0086

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-5 Page 3 of 10

Mary Thomas 7/23/2020

6 1 is going to work, let me know. Otherwise, we'll dive

2 right in.

3

A. No questions.

4

Q. All right. How did you first get involved

5 in this lawsuit?

6

A. I was asked by my friend.

7

Q. Who is your friend?

8

A. Susan.

9

Q. Susan Dunn?

10

A. Yes.

11

Q. All right. What have you done to prepare

12 for your deposition today?

13

MS. SYED: Counsel, objection. This is

14 getting into privilege.

15

MR. LAMBERT: That she spoke with someone

16 is --

17

THE WITNESS: Nothing.

18 BY MR. LAMBERT:

19

Q. I don't want to know any more about what,

20 Ms. Thomas, you and Ms. Susan talked about.

21

Did you talk with anyone before your

22 deposition today?

23

A. No.

24

Q. Would you please tell us your full name for

25 the record.

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-5 Page 4 of 10

Mary Thomas 7/23/2020

13 1 come?

2

A. Sometimes she changes, but usually it's

3 Monday or Wednesday.

4

Q. Approximately how long is she there when she

5 comes?

6

A. About two and a half hours.

7

Q. What does she do when she's there?

8

A. She dusts. She mops. She sometimes --

9 well, she doesn't have to cook anything, but she

10 cleans. And this is a good-sized apartment, so it

11 takes a lot. Sometimes she waters plants.

12

Q. How long has she been coming to your

13 apartment to clean?

14

A. About two years.

15

Q. In the responses to some of our written

16 questions your lawyer sent us, you said you had gone

17 out one day in May to run some errands to a couple of

18 different places, and I think they were -- let me get

19 the list here -- Walmart, Marvin's fish mart, and Food

20 Lion.

21

A. Yes.

22

Q. Do you recall that trip?

23

A. I do.

24

Q. Is that the only time you've left your

25 apartment other than for medical reasons since March?

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-5 Page 5 of 10

Mary Thomas 7/23/2020

14

1

A. Right.

2

Q. What made you take a trip out that day in

3 May?

4

A. Because I needed to pick up my eyeglasses

5 that were being tinted.

6

Q. Are those the glasses you're wearing now?

7

A. One pair. There's another pair. There were

8 two pair.

9

Q. Do you ever have any visitors other than

10 Mr. Morrison and your housekeeper? Was it

11 Ms. Wallace?

12

A. Right. No.

13

Q. Do you know anyone else in your building

14 other than Mr. Morrison?

15

A. Susan Dunn.

16

Q. Have you seen Susan in person since March?

17

A. Yes.

18

Q. Where have you seen Susan?

19

A. Usually in my home.

20

Q. She comes to visit you in your apartment?

21

A. Yes, she comes to visit me in my apartment.

22

Q. Approximately how often does she come to

23 visit?

24

A. Well, she's my landlady, and sometimes she

25 comes a couple times a week. If I need help with

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-5 Page 6 of 10

Mary Thomas 7/23/2020

15 1 something, she'll come, if I ask her to.

2

Q. Do you have Susan's telephone number if you

3 ever need to call her?

4

A. Yes, I do.

5

Q. Have you ever voted by absentee ballot

6 before?

7

A. Yes.

8

Q. What reason do you usually have for voting

9 by absentee ballot?

10

A. Person over 65 and physical disability.

11

Q. I don't have a whole lot of questions,

12 Ms. Thomas, but I want to make sure I get all the ones

13 I've got --

14

A. Okay.

15

Q. You said the physical disability is one of

16 the things you checked. I don't want you to get too

17 far into the weeds of your medical condition, but can

18 you describe for me at a high level, for someone who

19 doesn't have a medical degree, generally what your

20 medical conditions are and what you do to treat them?

21

A. Okay. Well, my medical conditions are --

22 I'll start with the heart. Aortic insufficiency,

23 that's one. Hypertension. Osteo --

24

Q. Yes, ma'am.

25

A. Osteoarthritis. Glaucoma, both eyes.

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-5 Page 7 of 10

Mary Thomas 7/23/2020

17

1

A. You're welcome.

2

Q. Do you know of any person who contracted

3 COVID-19 as a result of voting in the June 2020

4 primary?

5

A. No.

6

Q. When you had seen Mr. Morrison, Ms. Wallace,

7 and Ms. Dunn, did they wear a face mask, or did you

8 wear a face mask during those interactions?

9

A. The physician says I should not wear a face

10 mask. Everyone who enters this building or this

11 apartment has to wear a face mask if they are going to

12 come in here, the entire time.

13

Q. And your physician says don't wear one

14 because of your own medical conditions?

15

A. I don't wear one, right.

16

Q. When Susan's visited you, approximately how

17 long does she stay?

18

A. Oh, I don't know. Sometimes maybe 15, 20

19 minutes, maybe 30 minutes.

20

MR. LAMBERT: Ms. Thomas, I told you this

21 would be short today, and I'm going to keep to my

22 word. You have answered all of the questions that I

23 have. There are a whole bunch of other lawyers on

24 this video conference, so now I've got to let them

25 have their chance to ask questions if they want. But

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-5 Page 8 of 10

Mary Thomas 7/23/2020

20

1

A. 2018?

2

Q. Yes, ma'am.

3

A. Yes, I think so. I don't remember -- I

4 don't remember 2018.

5

Q. That would have been for a congressman down

6 in your district, and then we would have had -- South

7 Carolina had a governor. Do you remember --

8

A. Oh, yes, yes, I did, because they had to run

9 it off. Yeah, I remember.

10

Q. Yes, ma'am.

11

Do you remember whether you went to the poll

12 in that one, or did you vote absentee?

13

A. I voted absentee.

14

Q. Okay. And did you have somebody sign as a

15 witness at that point in time too?

16

A. Yes.

17

Q. Okay. Were you able to go out and have

18 somebody do it, or did somebody come into your

19 apartment?

20

A. Somebody -- somebody was here with me.

21

Q. Okay. And then Mr. Lambert asked you about

22 the primary that was back in June.

23

A. Uh-huh.

24

Q. You said you voted then, right?

25

A. I did.

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-5 Page 9 of 10

Mary Thomas 7/23/2020

21

1

Q. Okay. And I'm assuming you voted by

2 absentee, right?

3

A. I did.

4

Q. And you had somebody witness your absentee

5 ballot voting then, right?

6

A. Yes, I did.

7

Q. Who was that?

8

A. It was Susan Dunn.

9

Q. Okay. Did you call her and ask her to do

10 that, or did she come by just as one of her visits?

11

A. I called her and asked her to come by and do

12 that.

13

Q. Okay. And so I'm just guessing -- I think

14 the complaint says when -- in November, you're

15 planning on voting, right?

16

A. Yes, I do.

17

Q. And you're probably not going to the poll.

18 You're going to vote absentee again, right?

19

A. Yes, I am.

20

Q. And so will Susan -- will you call Susan

21 again to come be your witness?

22

A. I'm not going to call anybody because I'm

23 hoping that nobody will have to ever witness it again.

24

Q. Okay.

25

A. I hope that that was the last time that it

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-5 Page 10 of 10

Mary Thomas 7/23/2020

29

1

Q. And you mentioned that you sometimes call

2 Susan over to help you in your apartment when you need

3 her for -- to help you with things.

4

A. Yes.

5

Q. Do you ever call her over, since COVID

6 began, for social visits?

7

A. No. We don't visit socially.

8

Q. Okay. And Ms. Thomas, I think there was a

9 little bit of confusion because there have been a

10 number of elections already in 2020.

11

Do you recall voting in the election -- the

12 primary election in February before COVID began?

13

A. I think I did. Maybe I don't remember it,

14 but usually if there's any voting, I'm in on it as a

15 rule.

16

Q. Okay. And Ms. Thomas, do you remember you

17 thought for the June primary this year there was no

18 witness requirement?

19

A. No, there was. There was. For the June

20 9th, yes, there was a witness requirement.

21

Q. Okay. So Ms. Thomas, are you totally sure

22 that you had someone witness your ballot for June 9th,

23 or do you think that you meant the February primary

24 was when Susan witnessed your ballot?

25

MR. LIMEHOUSE: Object to the form.

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-6 Page 1 of 73 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 5
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Brenda Chapman Williams, MD The Family Unit 30(b)(6) Representative

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-6 Page 2 of 73

1

1

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

2

COLUMBIA DIVISION

3

MARY T. THOMAS, NEA RICHARD,

4 JEREMY RUTLEDGE, TRENA WALKER,

THE FAMILY UNIT, INC., and the

5 SOUTH CAROLINA STATE CONFERENCE

OF THE NAACP,

6

Plaintiffs,

7

v.

C/A No.: 3:20-cv-01552-JMC

8 MARCI ANDINO, in her official capacity as

Executive Director of the South Carolina

9 State Election Commission; JOHN WELLS,

in his official capacity as Chair of the

10 South Carolina State Election Commission;

JOANNE DAY, CLIFFORD J. ELDER, LINDA McCALL,

11 and SCOTT MOSELEY, in their official capacity

as Members of the South Carolina State Election

12 Commission; and HENRY D. McMASTER, in his official

capacity as Governor of South Carolina,

13

Defendants.

14

15

D E P O S I T I O N

16 WITNESS:
17 DATE:
18 TIME:
19 LOCATION:
20

BRENDA CHAPMAN WILLIAMS, M.D. The Family Unit 30(b)(6) Representative
Friday, July 24, 2020
3:12 p.m.
2 Aubrey Circle Sumter, South Carolina

21 TAKEN BY:

Attorneys for the Defendants

SC State Election Commission officials

22

REPORTED BY: DEBORAH L. DUSSELJEE, RPR, CRC

23

Realtime Systems Administrator

- - - - - - - - - - - - - - - - - - - - - - - - - -

24

COMPUSCRIPTS, INC.

www.compuscripts.com

25

1.888.988.0086

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Brenda Chapman Williams, MD 7/24/2020

2

1 APPEARANCES:

2

3

ATTORNEYS FOR THE PLAINTIFFS:

4

ACLU OF SOUTH CAROLINA

BY: SUSAN K. DUNN, ESQUIRE

5

Post Office Box 20998

Charleston, South Carolina 29413

6

843.720.1423

sdunn@aclusc.org

7

- AND -

8

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND,

9

INC.

BY: KEVIN E. JASON, ESQUIRE

10

- AND -

DEUEL ROSS, ESQUIRE

11

40 Rector Street, 5th Floor

New York, New York 10006

12

212.965.2221

kjason@naacpldf.org

13

dross@naacpldf.org

14

ATTORNEYS FOR THE DEFENDANTS MARCI ANDINO, in her

15

official capacity as Executive Director of

the South Carolina State Election

16

Commission; JOHN WELLS, in his official

capacity as Chair of the South Carolina

17

State Election Commission; JOANNE DAY,

CLIFFORD J. ELDER, LINDA McCALL, and SCOTT

18

MOSELEY, in their official capacity as

Members of the South Carolina State Election

19

Commission:

20

BURR & FORMAN, LLP

BY: M. ELIZABETH (LIZ) CRUM, ESQUIRE

21

1221 Main Street, Suite 1800

Columbia, South Carolina 29201

22

803.753.3240

lcrum@burr.com

23

24

25

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3

1 APPEARANCES (Continued):

2

ATTORNEYS FOR THE DEFENDANT HENRY D. McMASTER,

3

in his official capacity as Governor of

South Carolina:

4

OFFICE OF THE GOVERNOR

5

BY: THOMAS A. LIMEHOUSE, JR., ESQUIRE

1100 Gervais Street

6

Columbia, South Carolina 29201

803.734.6023

7

tlimehouse@governor.sc.gov

8

ATTORNEYS FOR THE INTERVENOR SOUTH CAROLINA

9

REPUBLICAN PARTY:

10

ROBINSON GRAY STEPP & LAFFITTE, LLC

BY: ROBERT E. TYSON, JR., ESQUIRE

11

1310 Gadsden Street

Columbia, South Carolina 29201

12

803.231.7838

rtyson@robinsongray.com

13

14

15

16

(EVERYONE IS PARTICIPATING VIA

17

WEB CONFERENCING, INCLUDING THE COURT REPORTER)

18

19

20

21

22

23

(INDEX AT REAR OF TRANSCRIPT)

24

25

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4

1

BRENDA CHAPMAN WILLIAMS, M.D.,

2 being first duly sworn, testified as follows:

3

EXAMINATION

4 BY MS. CRUM:

5

Q. Okay. Dr. Williams, I am Liz Crum. I am

6 with the law firm of Burr Forman McNair in Columbia,

7 and we represent the defendants Andino and the State

8 Election Commission.

9

Let me just give you a few kind of general

10 rules of depositions so that we're all on the same

11 page. Okay?

12

A. Yes.

13

Q. Dr. Williams, if you don't understand a

14 question that I ask -- and while I may think I'm the

15 model of clarity, sometimes I'm not. So I would

16 appreciate your asking me to rephrase so that we know

17 we are on the same page. Okay?

18

A. Thank you. Yes.

19

Q. Thank you.

20

And if you don't hear a question, ask me to

21 repeat it, please, ma'am.

22

A. Yes. Thank you.

23

Q. And if you don't ask me to repeat it, I'll

24 assume that you understand the question. Okay?

25

A. Yes.

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5

1

MS. CRUM: All right. And if y'all hold on

2 a second, I've got Dave here.

3

(Off-the-record discussion.)

4 BY MS. CRUM:

5

Q. Dr. Williams, let me go back to where I was.

6 You must answer yes or no so the court reporter can

7 write down your answer. I know I always -- I often

8 nod my head, but she can't see us nodding our heads

9 and taking -- taking notes. So if you could please

10 say yes and no, we would really appreciate that.

11

A. Thank you.

12

Q. And then since we're on Zoom, I will try to

13 speak slowly and finish my question, and then if you

14 let me finish my question, I promise I will let you

15 finish your answer because it will be impossible for

16 our court reporter to be able to take down both of us

17 talking at once. Okay?

18

A. Okay.

19

Q. And at any time, if you need a break, please

20 let me know, and we will be glad to take a break. And

21 I'm sure that you understand that during the break,

22 you shouldn't talk to your attorneys about answers.

23 And if you do, then when we come back, I get to ask

24 you whether or not you have talked to your attorneys

25 during the break.

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6

1

Do you understand that?

2

A. Yes.

3

Q. Thank you. Okay. Ms. Williams --

4 Dr. Williams, I'm sorry.

5

You did that to me, Debbie.

6

Let's see. This is a -- you understand that

7 this is a 30(b)(6) deposition for The Family Unit. Do

8 you --

9

A. Yes.

10

Q. Do you want me to go over for you what a

11 30(b)(6) deposition is?

12

A. Yes.

13

Q. Okay. What that means is, you are giving

14 responses for The Family Unit. In this case, The

15 Family Unit is one of the named plaintiffs.

16 Therefore, you have been designated by The Family Unit

17 to give responses to our questions, and the answers

18 that you give will bind The Family Unit.

19

Do you understand that?

20

A. Yes.

21

Q. Thank you, ma'am.

22

Now, what did you do to prepare for the

23 deposition of The Family Unit today?

24

A. In preparation for this deposition, I

25 reviewed many correspondences that I have had with the

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7 1 South Carolina Election Commission, which spanned over

2 several years in reference to the absentee ballot

3 requirement of the witness signature. Also, I spoke

4 with my attorneys.

5

Q. Okay. Did you do anything else?

6

A. No, ma'am.

7

Q. Can you tell me the time frame that your

8 correspondence with the SEC regarding absentee ballots

9 spans?

10

A. The time frame spanned over four years.

11

Q. Would that be basically from 19 -- 2016 to

12 date?

13

A. Yes.

14

Q. Of the correspondence that you reviewed, are

15 those the e-mails that were produced by one of the

16 expert witnesses?

17

A. One of the --

18

MR. ROSS: Objection. Which expert are you

19 talking about?

20

MS. CRUM: I don't know the name.

21

Q. Dr. Williams, did you give your e-mails to

22 someone?

23

A. Only to my attorneys.

24

Q. Okay. We'll get to your interrogatories,

25 and I think you may have referenced those in responses

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8 1 to either the interrogatories or the requests to

2 produce, so we'll talk about that when we get there.

3 Okay?

4

A. Yes.

5

Q. Other than your attorneys -- because I don't

6 want to know what you said with your attorneys. Other

7 than your attorneys, did you talk to anyone about this

8 deposition?

9

A. No.

10

Q. Okay. Now I'm going to ask you a series of

11 questions, and I ask these of everyone I depose. So

12 please don't take any of these as personal; they're

13 not. It's just a general cover-the-base. Okay?

14

A. Yes.

15

Q. Would you please state your full name for

16 the record. I know that's stupid because you've

17 already given it to us, but if you could do that,

18 please.

19

A. My full name is Brenda -- that's

20 B-R-E-N-D-A -- Chapman -- that's C-H-A, P as in Paul,

21 M-A-N -- Williams, W-I-L-L-I-A-M-S.

22

Q. Thank you, ma'am.

23

Are you on any medication today that would

24 affect your ability to testify?

25

A. No.

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9

1

Q. Have you had any alcohol today?

2

A. No.

3

Q. Have you ever been deposed before, had your

4 deposition taken?

5

A. Yes.

6

Q. When?

7

A. In 2012, I was a part of the lawsuit South

8 Carolina versus Holder. In 2013, I was part of the

9 lawsuit Shelby versus Holder in 2013.

10

Q. Are those the only two depositions that you

11 can recollect?

12

A. Yes.

13

Q. And what was the lawsuit SC versus Holder

14 about?

15

A. That was about the voter I.D. law that South

16 Carolina wanted to put into effect, and...

17

Q. And what was Shelby versus Holder?

18

A. Shelby versus Holder was also in reference

19 to the voter I.D. issue and the Voting Rights Act.

20

Q. This is a -- did this arise from South

21 Carolina?

22

A. It arose from several states.

23

Q. Is this the Shelby versus Holder that went

24 to the United States Supreme Court regarding Article 5

25 of the -- I'm sorry, Section 5 of the Voting Rights

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10 1 Act?

2

A. Yes.

3

Q. What's your address?

4

A. My address is 2 Aubrey -- that's A-U, B as

5 in boy, R-E-Y -- Circle, Sumter, South Carolina,

6 29153.

7

Q. And who lives at that address with you?

8

A. My husband.

9

Q. And what is your husband's name?

10

A. His name is Joseph -- that's J-O-S-E-P-H --

11 Cecil, C-E-C-I-L, Williams, W-I-L-L-I-A-M-S.

12

Q. And is your husband also a physician?

13

A. Yes.

14

Q. What type medicine does he practice?

15

A. He specializes in internal medicine,

16 geriatric medicine, and medical directorship.

17

Q. And what is medical directorship?

18

A. Medical directorship is a specialty in

19 internal medicine that deals with the care of elderly

20 citizens who are in nursing homes and long-term care

21 facilities.

22

Q. Okay. Is -- let's see. Since it's two

23 Dr. Williams, is Dr. Joseph Williams involved in The

24 Family Unit operations?

25

A. Yes.

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11

1

Q. Do you have any children?

2

A. Yes.

3

Q. How many?

4

A. Three children.

5

Q. Do they live at home with you?

6

A. No.

7

Q. Do they live in South Carolina?

8

A. One of our children lives in South Carolina.

9

Q. Have you ever been arrested?

10

A. Yes.

11

Q. What were you arrested for?

12

A. I was trying to tour a school here in Sumter

13 County that had no heating or air conditioning for

14 five long years. And because the district didn't want

15 me to tour that school, I was arrested.

16

Q. Was the charge trespassing?

17

A. Yes.

18

Q. What was the result of the charge?

19

A. There will be a jury hearing, a jury trial

20 that is upcoming.

21

Q. Do you know when that will be?

22

A. No.

23

Q. When was the charge made? When were you

24 charged?

25

A. February 19th, 2020.

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12

1

Q. Do you know whether or not the case will be

2 heard in Circuit Court or Magistrate's Court?

3

A. I do not know.

4

Q. What is your e-mail address?

5

A. My e-mail address is

6 familyunitinc@gmail.com. That's

7 F-A-M-I-L-Y-U-N-I-T-I-N-C at Gmail.com.

8

Q. And what is The Family Unit telephone

9 number?

10

A. The Family Unit's telephone number is

11 803-968-3375.

12

Q. Do you have any social networking or media

13 -- when I say "you," Dr. Williams, I really mean

14 Family Unit. Okay?

15

A. Yes.

16

Q. Okay. And do you have -- other than The

17 Family Unit Facebook account, do you have any other

18 networking or social media accounts?

19

A. Yes.

20

Q. What are those?

21

A. The Family Unit, Inc., has an Instagram

22 account, and The Family Unit has a Twitter account.

23 And --

24

Q. And -- I'm sorry. Go ahead.

25

A. There's a Facebook account also.

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13

1

Q. Who maintains those accounts?

2

A. I do.

3

Q. What is the -- do I call it hashtag for the

4 Twitter?

5

A. I would suspect the hashtag is

6 familyunitinc.

7

Q. Would that be the same for Instagram?

8

A. Yes.

9

Q. Okay. What is your educational history?

10

A. I attended school in Savannah, Georgia,

11 where I was born: Elementary school, middle school,

12 high school, and Savannah State University, as well as

13 the Medical College of Georgia.

14

Q. By whatever name it is now known?

15

A. I don't know. They've changed the name most

16 recently, so I don't know the --

17

Q. That's what I mean. I can't keep up with

18 it.

19

But the Medical College of Georgia, when did

20 you graduate?

21

A. I graduated from the Medical College of

22 Georgia in 1978.

23

Q. What area did you specialize in?

24

A. I finished an internship in pediatrics.

25

Q. Where did you do your internship?

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14

1

A. I did my internship at the Medical College

2 of Georgia, Augusta, Georgia, Department of

3 Pediatrics.

4

Q. Have you had any additional training?

5

A. Yes. For a few years, I worked at the Lower

6 Richland health center as a part of the National

7 Healthcare Corporation. I've also worked at the

8 Crafts-Farrow State Hospital. In --

9

Q. And -- I'm sorry. Go ahead.

10

A. Yeah. In addition to that, I did some

11 emergency room work at Tuomey Hospital.

12

Q. With regard to the Lower Richland, was that

13 here in Richland County?

14

A. Yes.

15

Q. Is that a -- what kind of entity is that?

16

A. It's a rural health care center.

17

Q. Okay. What did you do there?

18

A. I practiced general medicine.

19

Q. Okay. And then Crafts-Farrow, is that part

20 of the South Carolina Department of Mental Health

21 system?

22

A. Yes, it is.

23

Q. What did you do at Crafts-Farrow?

24

A. I practiced general medicine.

25

Q. Okay. Have you taken any additional

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15 1 training after you did your pediatric internship?

2

A. No.

3

Q. Okay. With regard to your medical practice,

4 after you got out -- after you completed your

5 internship, did you go straight to the Lower Richland

6 health care center?

7

A. Yes.

8

Q. And then you went from there to

9 Crafts-Farrow; is that correct?

10

A. Yes.

11

Q. And from there, you worked in the emergency

12 department of Tuomey.

13

A. Yes.

14

Q. And other than The Family Unit, have you

15 practiced medicine anywhere else?

16

A. Yes.

17

Q. Where?

18

A. My husband and I practiced the private

19 practice of medicine at the Excelsior -- that's E, X

20 like in xylophone, C-E-L-S-I-O-R -- the Excelsior

21 Medical Clinic.

22

I, along with my husband, practiced there

23 for 32 and one half years. We ended that practice,

24 closed that practice, November of 2014.

25

Q. And where was the Excelsior Medical Clinic

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16 1 located?

2

A. The Excelsior Medical Clinic was located at

3 448 North Main Street, M-A-I-N, North Main Street,

4 Sumter, South Carolina 29150.

5

Q. When did you and your husband start the

6 Excelsior Medical Clinic? What year?

7

A. We started the Excelsior Medical Clinic

8 June 1st, 1982.

9

Q. Did you vote in the 2020 primary?

10

A. Yes, I did.

11

Q. What about in the 2018 general election?

12

A. Yes, I did.

13

Q. The 2016 general election?

14

A. Yes.

15

Q. And the 2016 primary elections?

16

A. Yes.

17

Q. And did you vote in the presidential

18 preference primary in 2020?

19

A. Yes.

20

Q. And in the presidential preference primary

21 in 2016?

22

MR. ROSS: I'm going to object to the line

23 of questioning about her as an individual since this

24 is a 30(b)(6) deposition about The Family Unit, not

25 about Dr. Williams as an individual.

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17

1

MS. CRUM: You're absolutely right.

2

Q. Let's go to the organizational information.

3 Dr. Williams, what is your role in The Family Unit?

4

A. I am the chief executive officer of The

5 Family Unit and its founder.

6

Q. When was it founded?

7

A. The Family Unit was founded in 2009.

8

Q. Where was it founded?

9

A. It was founded in Sumter, South Carolina.

10

Q. How many employees does The Family Unit

11 have?

12

A. We have no paid employees. Volunteers only.

13

Q. How many volunteers?

14

A. Eight.

15

Q. What do those volunteers do?

16

A. Number one, I'm the CEO, and I do a number

17 of things.

18

Q. What do you do?

19

A. I go into the community and speak on voting

20 issues, housing issues, issues in reference to

21 elevating the status of indigent, disenfranchised

22 people in our community, and help with senior

23 citizens' issues, such as helping those without birth

24 certificates who were delivered by midwives decades

25 ago and have no formal stamped birth certificate.

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18

1

We also -- I also help to identify families

2 who are homeless and have no shelter, children who are

3 homeless and have no identifiable school to attend.

4 And I, on behalf of The Family Unit, advocate for

5 these families.

6

Q. Advocate what? I'm sorry, I didn't hear

7 you.

8

A. Advocate for the rights of these families to

9 have adequate housing, adequate medical care, adequate

10 treatment in schools, voting rights. And I help with

11 senior citizens to acquire and obtain state-issued

12 I.D.s so that they will be able to vote and enjoy

13 other privileges of citizens with such identification.

14

Q. And that's -- Dr. Williams, do you also

15 provide medical services to the members of The Family

16 Unit?

17

A. Yes. My husband and I have established this

18 year a free medical clinic under the name of our

19 organization, The Family Unit Inc.'s Free Medical

20 Clinic, which provides medical services to all

21 individuals in Sumter County who have no medical

22 insurance at all and who are between the ages of 18

23 years old and 64 years old.

24

Q. And Dr. Williams, when you say "no medical

25 insurance," would that include no Medicaid?

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19

1

A. Yes.

2

Q. Or Medicare?

3

A. Yes.

4

Q. Okay. Do you help individuals who may

5 qualify for Medicaid or Medicare to get qualified?

6

A. Yes.

7

Q. Okay. You just -- you've listed everything

8 that you do. What do your volunteers do?

9

A. My volunteers go into the community to help

10 register people who are unregistered.

11

Q. When you say "register," you are talking

12 about register to vote?

13

A. Yes.

14

Q. What are the names of your volunteers?

15

A. My volunteers are Joseph Cecil Williams;

16 Aisha -- that's A-I-S-H-A -- Ngosi -- that's

17 N-G-O-S-I -- Williams; Mr. Harmon, H-A-R-M-O-N,

18 Sumter, S-U-M-T-E-R; Mrs. Jacqueline,

19 J-A-C-Q-U-E-L-I-N-E, Glisson, G-L-I-S-S-O-N;

20 Mrs. Lottie -- that's L-O-T-T-I-E -- Spencer,

21 S-P-E-N-C-E-R; Mr. Harmon, H-A-R-M-O-N, Sumter;

22 Professor Willie -- that's W-I-L-L-I-E -- Mack,

23 M-A-C-K, Thompson, T-H-O-M-P-S-O-N; and of course,

24 myself, Brenda Chapman Williams.

25

Q. That's actually seven because you listed

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20 1 Mr. Sumter twice.

2

A. Did I? Okay.

3

Q. Yes, ma'am.

4

A. It's --

5

Q. Is there someone else?

6

A. Myself. That's Brenda Williams.

7

Q. Yes, ma'am.

8

A. Cecil Williams, Aisha Williams, Lottie

9 Spencer, Jacqueline Glisson, Mr. -- oh, yeah. I

10 didn't mention Mr. Ted James Wilson.

11

Q. Okay. And Dr. Williams, are Joseph Cecil

12 Williams and Aisha Ngosi Williams related to you?

13

A. Yes.

14

Q. Is Dr. -- well, Joseph Cecil Williams is

15 your husband, Dr. Williams?

16

A. Yes.

17

Q. And Aisha, is that your daughter?

18

A. Yes.

19

Q. Where does she live?

20

A. Aisha lives in Charlotte, North Carolina.

21

Q. The other -- excluding, of course,

22 Dr. Joseph Williams, do the other volunteers live in

23 Sumter?

24

A. Yes.

25

Q. Okay. And Professor Willie Mack Thompson,

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21 1 where does he teach?

2

A. Now he is a professor emeritus in

3 California. He's in retirement now, and he gets

4 people registered actually in California. He's --

5

Q. So he -- I'm sorry. Go ahead.

6

A. Sorry. He's in San Francisco, California.

7

Q. So his volunteer work includes getting folks

8 in California registered to vote?

9

A. Yes.

10

Q. Does he have anything to do with getting

11 folks registered to vote in South Carolina?

12

A. No.

13

Q. I noticed on the website -- I'm sorry, the

14 Facebook site -- you refer to the folks that you deal

15 with, The Family Unit deals with, as members.

16

How many members do you have?

17

A. I have 60 members --

18

(Telephone ringing.)

19

THE WITNESS: I'm turning off my phone.

20

I have approximately 60 members that I

21 actually actively work with and deal with on a pretty

22 regular basis.

23 BY MS. CRUM:

24

Q. I'm not asking for their names. Okay?

25

A. Yes.

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22

1

Q. But what kind of work do you do with the 60

2 members on a regular basis?

3

A. The Family Unit has provided homes. We have

4 donated six homes to indigent, hardworking families

5 over the past ten years. I have identified, on behalf

6 of The Family Unit, abandoned homes in our city that

7 have been left for no good. And The Family Unit has

8 obtained these homes, renovated these homes, and to

9 the families that abide by our strict set of rules and

10 regulations, we have donated these homes.

11

Q. Are your rules and regulations posted on

12 your website -- on the Facebook site?

13

A. Yes.

14

Q. So what else do you do for the approximately

15 60 members?

16

A. Well, The Family Unit doesn't leave it

17 there. We set out those rules and regulations and

18 challenge individuals who work to send their children

19 to school. And I regularly, on behalf of The Family

20 Unit, visit these families, inspecting the homes,

21 making sure they're clean, inspecting the yards,

22 inspecting the community to make sure that they are

23 free of litter, trash, and debris.

24

I also have for years with family members

25 gone to the Sumter School District for them in

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23 1 reference to advocating for these children to be able

2 to get the training and schooling and fostering that

3 they need in order for them to go higher in education.

4

Q. Okay. How do you define "member" when

5 you're talking about -- when The Family Unit is

6 talking about what a member is?

7

A. Members are those individuals who have come,

8 who have petitioned The Family Unit for help, help

9 with social needs, help with paying utility bills to

10 keep utilities on and not cut off, families who are

11 threatened with being evicted -- The Family Unit has

12 stepped in and helped several families to prevent

13 eviction -- those individuals who have come to us

14 asking for advice in reference to their problems,

15 social problems that they have had.

16

There are many who have come to The Family

17 Unit or petitioned to our organization to help them

18 understand what voting is about, to explain to them

19 what general elections are, to explain to them what

20 primaries are about, to explain to them what parties

21 are about, to explain to them that they have the right

22 to vote under constitutional law, South Carolina

23 constitutional law as well as federal constitutional

24 law.

25

Q. Dr. Williams, I went online before we began

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24 1 today and looked at The Family Unit Facebook page.

2 And one of the Facebook pages says, Appointment

3 availability. For example, on July the 28th, you have

4 appointments available from 9 -- or posted from 9

5 until 12:30.

6

What kind of appointments are those?

7

A. Those are appointments for The Family Unit

8 Inc.'s Free Medical Clinic.

9

Q. Okay. Does The Family Unit use telemedicine

10 when it sees its patients?

11

A. No.

12

Q. So when a patient comes in, they actually

13 physically come into the office.

14

A. Yes.

15

Q. Okay. Do you have any medical staff that

16 assists you with that, like nurses or nurses' techs,

17 LPNs?

18

A. No.

19

Q. How many -- strike that.

20

As opposed to members, would these be

21 patients?

22

A. Some of them are. Most of the members of

23 The Family Unit are not patients of myself nor my

24 husband.

25

Q. I'm sorry. Let me clarify. I was talking

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25 1 about the appointment availability. When they come in

2 to see you for medical reasons, those would be

3 patients; would they?

4

A. They become patients once they visit our

5 office. The only thing that we know about those

6 individuals who make appointments are two main things.

7 If they have no medical insurance, they are eligible

8 for our free clinic. If they are between the ages of

9 18 years old and 64 years of age, they are eligible.

10 They become patients once they formally come to our

11 office, register in, and are examined.

12

Q. Am I correct in assuming that the reason the

13 upper age limit is 64 is that at 65 folks become

14 eligible for Medicare?

15

A. Yes.

16

Q. Okay. Again, on your Facebook -- on Family

17 Unit's Facebook page, it talks about past events. One

18 of them was The Family Unit's monthly meeting. What

19 is The Family Unit's monthly meeting?

20

A. We have had meetings in my medical office,

21 in the medical office that my husband and I retired in

22 November 2014. We held our meetings there. Since our

23 retirement, I have met at the Sumter County public

24 library. And now since we have our free clinic

25 office, we meet there.

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26

1

Q. Okay. What happens at the meetings?

2

A. We discuss issues that are relevant to

3 what's going on in the community. We talk about the

4 importance of voting. We help in educating our

5 patients on why it's important to vote.

6

We have other issues that people in the

7 community have called me -- called The Family Unit

8 about. Some school issues, parents who have special

9 education children and the parents are concerned that

10 they have not been adequately responded to by the

11 Sumter School District, and they have reached out to

12 The Family Unit in reference to helping them have a

13 voice in the Sumter School District.

14

Q. Dr. Williams, when was the last meeting that

15 The Family Unit held at the Family meeting offices,

16 monthly meeting?

17

A. January 2020.

18

Q. On behalf of The Family Unit, Dr. Williams,

19 other than -- strike that.

20

On behalf of The Family Unit, have you

21 contacted elected officials in Sumter County?

22

A. Yes, I have.

23

Q. On what issues?

24

A. I've contacted elected officials in Sumter,

25 particularly the Sumter County legislative delegation,

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27 1 the Sumter County Council, the Sumter City Council,

2 and that's it.

3

Q. And since January 2020, what have you

4 contacted the Sumter County legislative delegation

5 about?

6

A. I've contacted the Sumter County legislative

7 delegation in 2020 -- I'm thinking actually the last

8 time that I contacted the legislative delegation might

9 have been in 2019. And it was about -- well, you

10 asked about 2020. I didn't contact them in 2020, no.

11

Q. Okay. What about the Sumter County Council

12 in 2020; what have you contacted them about?

13

A. I contacted the Sumter County Council in

14 2020 in reference to the payment of poll workers that

15 will be working in the polls this year.

16

I had -- on behalf of my organization, The

17 Family Unit was and still is concerned about the fact

18 that the poll workers will need extra, specialized

19 training in dealing with the COVID-19 infection, and

20 my letter to the county council was in reference to

21 making sure that the poll workers get adequate

22 treatment and are paid more since their

23 responsibilities would be increased substantially in

24 reference to COVID-19.

25

Q. Dr. Williams, do you remember about when you

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28 1 sent that letter to the legislative -- I mean to the

2 county council?

3

A. Yes. As a matter of fact, it must have been

4 shortly after the COVID infection really blew up and

5 took a rise in Sumter. So chances are, it's between

6 April 2020 and June 2020.

7

Q. Do you know whether or not the poll workers

8 received any training regarding the CDC guidelines for

9 voting?

10

A. Yes. As a matter of fact, that same letter

11 that I addressed to the Sumter County Council, council

12 administrator, and to all of its members, that same

13 letter was sent to the director of the Sumter County

14 Voter Registration and Elections Office and to the

15 Sumter County voter registration and elections

16 commission.

17

I was in receipt of a letter from the Sumter

18 County Voter Registration and Elections Office

19 director, which specified the fact that the poll

20 workers will get adequate training in an effort to

21 help them deal with the COVID-19.

22

And in addition to that, adequate funding

23 had been received -- well, I will say funding had been

24 received; I don't know if it's adequate -- from the

25 State of South Carolina in helping those poll workers

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29 1 to be paid sufficiently for the great work that they

2 do.

3

Q. Dr. Williams, I would appreciate it if you

4 would give a copy of the letter that you wrote to the

5 county council and copied the election folks on and

6 the one you received back to your lawyer so they can

7 send it to us. Okay?

8

A. Okay. I certainly will.

9

Q. Thank you, ma'am.

10

Are any of the members of Family Unit --

11 have they served as poll workers? Did they serve as

12 poll workers either in the presidential preference

13 primary or in the primaries this year?

14

A. No.

15

Q. Okay. Have any of your volunteers served as

16 poll workers in 2020?

17

A. No.

18

Q. I'm assuming it does not cost anything to be

19 a member of Family Unit; is that correct?

20

A. Yes.

21

Q. I think you also said that you had contacted

22 city council on behalf of Family Unit. Have you

23 contacted them in 2020 on behalf of Family Unit?

24

A. I believe that they received, the city

25 council -- no, actually it was county council,

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30 1 basically because I understand that the county is

2 responsible for issuing out the payments to the poll

3 workers.

4

Q. Yes, ma'am. But I thought you -- and maybe

5 I misunderstood it. I thought that you said that you

6 had contacted city council on behalf of The Family

7 Unit.

8

A. I did, and I was incorrect. I believe that

9 it was only the Sumter County Council, as well as the

10 voter registration office and the voter registration

11 commission here in Sumter, but not the city council.

12 I stand corrected.

13

Q. Thank you, ma'am.

14

Does The Family Unit hold voter registration

15 drives?

16

A. Yes.

17

Q. When is the last one you held?

18

A. The last voter registration drive had to be

19 in the year 2018, and let me say that we always -- we

20 never stop registering people to vote. There is not a

21 start and cutoff date for voter registration. It goes

22 on indefinitely.

23

Q. Okay. But I'm -- I understand what you've

24 testified to with that, but I'm talking about specific

25 days when you advertise we're going to have a voter

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31 1 registration drive here, please come, vote -- register

2 to vote.

3

Is the last one of those you held in --

4 "you" being Family Unit -- in 2018?

5

A. Actually in 2020, when I met with a group of

6 school workers who came to me under the auspices of

7 The Family Unit and we met in my office in 2020,

8 January. I never lose the opportunity to register

9 people to vote. Those individuals came to our office,

10 which serves, also, as a free clinic, during a day

11 that we didn't hold clinic hours.

12

And those individuals -- it was about

13 twenty-some-odd, 22 individuals that came for another

14 issue related to the school district. And while they

15 were there, before they left, I pulled out the voter

16 registration sheets and said, While you guys and

17 ladies are here, are you registered to vote? When was

18 the last time you voted? Do you know why voting is

19 important? And I signed up some people then.

20

It might have been three persons in the

21 group who had not voted in the past couple of -- three

22 years.

23

Q. Dr. Williams, when is the last time that you

24 on behalf of The Family Unit actually registered a

25 potential voter in South Carolina to vote?

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32

1

A. That had to be in January of 2020.

2

Q. Okay. So is it your testimony that since

3 January 2020, The Family Unit has not registered

4 additional voters?

5

A. Yes.

6

Q. Why did you -- did The Family Unit stop

7 attempting to register voters?

8

A. Well, the corona 19 virus came to town in a

9 big way. As a matter of fact, I had plans on behalf

10 of The Family Unit to get back out into the community,

11 in February actually, to start voter registration

12 again.

13

And then my husband became infected with the

14 corona 19 virus, and shortly after he became infected,

15 so was I. And we were both on quarantine for several

16 weeks before we were tested negative.

17

Q. Well, I am glad to see that you are doing

18 much better now.

19

A. Thank you.

20

Q. Dr. Williams, let's see here. I'm getting

21 pretty close to the end here.

22

How long have you been registered -- "you"

23 being, again, The Family Unit -- have y'all been

24 registering voters in Sumter County and/or California?

25

A. As The Family Unit, The Family Unit became a

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33 1 501(c)(3) nonprofit charitable organization approved

2 through the State of South Carolina December of 2009.

3 And that was our formal introduction into the

4 community.

5

Q. Is that when The Family Unit began

6 registering folks to vote?

7

A. Yes, ma'am. Well, actually -- actually The

8 Family Unit formally became The Family Unit in 2009.

9 However, we were registering people shortly before

10 2009. It might have been a couple of weeks. I had to

11 go through a lot of paperwork to get approved as a

12 501(c)(3).

13

So once we became a 501(c)(3), from December

14 2009 and on, is when The Family Unit took its -- came

15 to the forefront.

16

Q. Yes, ma'am.

17

A. I'll have to say 2009 December. Before

18 that, registering people as Brenda Williams.

19

Q. Approximately how many voters has The Family

20 Unit registered since -- from December 2009 to date?

21

A. We have registered approximately 7,000.

22

Q. How many of those are from Sumter?

23

A. At least 98.9 percent.

24

Q. Other than California, does The Family Unit

25 attempt to register citizens to vote in other South

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34 1 Carolina counties?

2

A. No. Well, we don't register people in

3 California, now. Our member, Professor Thompson,

4 registers Californians to vote.

5

Q. Right.

6

A. Okay. Now, he's a member of our board, but

7 he doesn't go outside California. The Family Unit

8 primarily registers persons who live in Sumter County.

9 We have -- because we register pretrial inmates at the

10 Sumter-Lee Regional Detention Center, we've registered

11 inmates who reside in other states, but that number is

12 very small.

13

Q. Who all is on the board of The Family Unit?

14

A. The board of The Family Unit consists of

15 myself, Brenda Chapman Williams, CEO; Joseph Cecil

16 Williams; Aisha Williams; Mr. Sumter, Mr. Harmon

17 Sumter; Mrs. Jacqueline Glisson; Mrs. Lottie Spencer;

18 Mr. Ted Wilson; and Professor Willie Mack Thompson.

19

Q. So the board members are the same as the

20 volunteers; is that correct?

21

A. Yes. They are among the volunteers.

22

Q. Are there other volunteers, because I

23 thought you said there were only eight volunteers?

24

A. There -- those are the board members, yes.

25 And they actually are the official volunteers.

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35

1

Q. How much contact, other than what you've

2 discussed with the January meeting, have you or the

3 volunteers had on behalf of The Family Unit with

4 voters about voter registration?

5

A. Repeat that question, please.

6

Q. Yes, ma'am. That was very inartful. Let me

7 try that again.

8

You and the volunteers have contacted folks

9 about registering to vote this year, correct?

10

A. Yes.

11

Q. Other than the January meeting, how much

12 contact have you had with folks about voting,

13 registering to vote?

14

A. Since the January meeting, my contact has

15 been through the Facebook, The Family Unit Facebook.

16

Q. With the Facebook, have you told members how

17 to go online and pull down the voter registration

18 application, for example?

19

A. Yes.

20

Q. What else have you posted on Facebook?

21

A. I've posted for the voters of Sumter County

22 and surrounding areas information about the importance

23 of having their votes counted and about voting during

24 the time that is allotted for voting.

25

For instance, absentee voting in South

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36 1 Carolina starts 30 days before the election date. I

2 remind the audience to be cognizant of the fact that

3 they could vote early.

4

I remind them that voting early helps you to

5 not have to stand in a long line and not have to be

6 among a crowd of people, and that, in particularly, is

7 important in view of the COVID-19 infection. My

8 husband and I have gone on together, on Facebook,

9 informing the community to get tested for COVID and to

10 vote.

11

Q. What concerns have your members or the folks

12 who become your patients -- what concerns have they

13 expressed to you with regard either about their

14 ability to get registered or their ability to vote?

15

A. Members of my organization, The Family Unit,

16 Incorporated, have contacted me in reference to their

17 fear of going into crowds of people, exposing

18 themselves to contracting COVID-19.

19

They have expressed the fact that they would

20 need help in voting primarily because the State of

21 South Carolina has now enacted a new way of voting in

22 that the voting is no longer on computer, as it had

23 been at the polls, but at the polls, even in South

24 Carolina, there are paper backs never used ever in

25 South Carolina.

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37

1

So I've had members of The Family Unit and

2 other members who are not members of The Family Unit

3 but who are cognizant of the fact that The Family Unit

4 helps voters to call me, to text, to send me messages

5 on Facebook asking how should they go about voting,

6 especially in view of the COVID-19 pandemic.

7

Q. Dr. Williams, I just want to make sure I

8 understand. When you talked about -- talked about the

9 help in voting since the State wasn't using computers,

10 are you talking about the new voting system which

11 is --

12

A. Yes.

13

Q. -- computerized and also has the paper

14 trail?

15

A. Yes.

16

Q. Approximately how many people that you're

17 aware of have contacted The Family Unit with these

18 fears?

19

A. At least -- I can say at least 10 to 12.

20

Q. Let me look through my papers. I think I'm

21 just about finished. I don't think that -- I don't

22 have but a couple things more.

23

A. Thank you.

24

Q. Dr. Williams, you said that The Family Unit

25 is a 501(c)(3).

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38

1

A. Yes.

2

Q. Okay. How are the proceeds of the donations

3 you get used?

4

A. The donations that we get are used in

5 several ways. Number one, I mentioned that we have

6 renovated abandoned homes. A good portion of The

7 Family Unit's money goes towards the renovation of

8 those homes.

9

We also assist persons in our free clinic

10 with getting medication. We have to buy supplies for

11 our medical clinic. We help people pay utility bills

12 when their water and lights have been cut off. We

13 help people buy groceries. We help people buy

14 medication.

15

We advocate for people learning the rules

16 and regulations of voting. So we purchase, from time

17 to time, copies of the United States Constitution and

18 Declaration of Independence. Those booklets cost

19 $2.99 apiece. And periodically, we purchase those

20 books and distribute them to the jail, to the

21 correctional officers, to churches, and in the

22 community.

23

Q. Dr. Williams, approximately -- of everything

24 you've listed that y'all use your donations for, what

25 percentage of the total donations does that cover?

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39 1 Like is that 90 percent or 10 percent or what?

2

A. 100 percent.

3

Q. Okay. Let's see here. Dr. Williams, have

4 you -- you've answered that one.

5

Every time I flip a page, that's a good

6 thing. It means you've already answered the question.

7

A. Great.

8

Q. Has The Family Unit held any events since

9 March the 13th of this year?

10

A. No.

11

Q. Dr. Williams, in the Plaintiffs' Responses

12 and Objections to Defendant Marci Andino's First Set

13 of Requests for Production, one of the requests, the

14 answer states that The Family Unit refers defendants

15 to expert disclosures made by plaintiffs in this case

16 and states there are no other responsive documents.

17

I'll tell you what, let's just strike that.

18

Have you personally, on behalf of The Family

19 Unit, provided documents to anyone other than your

20 attorneys in this case with regards to this lawsuit?

21

A. No.

22

Q. What are the -- your clinic, The Family

23 Unit's clinic -- ordinary operating hours?

24

A. We operate every other Tuesday and Thursday

25 from 9 a.m. until 1 p.m.

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40

1

Q. Are y'all still doing that?

2

A. Yes.

3

Q. Have you had any individuals at The Family

4 Unit building for any purpose other than the treatment

5 of patients since March 2000 -- March 2020?

6

A. No.

7

MS. CRUM: Okay. Dr. Williams, I certainly

8 appreciate your time very much.

9

We've got a couple of other lawyers on the

10 phone that may want to ask questions, but I really do

11 appreciate your time. Thank you.

12

THE WITNESS: Thank you very kindly.

13

MR. TYSON: This is Rob Tyson. Why don't we

14 take -- or do you mind if we take about a five-minute

15 break, and then I have got just a handful of

16 questions.

17

THE WITNESS: That's fine.

18

MR. TYSON: We will be back in five minutes

19 then. How about at 4:30 we start up again?

20

THE WITNESS: Okay. I will still be on.

21 Thank you.

22

(A brief recess transpired.)

23

EXAMINATION

24 BY MR. TYSON:

25

Q. Hey, Dr. Williams. I'm Rob Tyson. I'm the

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41 1 guy over here. It's nice to see you. I'm a lawyer

2 that represents the South Carolina Republican Party,

3 and I just have a handful of questions to ask you.

4 I'm sure you want to be someplace besides here late on

5 a Friday afternoon, so hopefully I won't be too long.

6

If you'll just work with me for a second,

7 I've just got the Complaint, and I'm just going to ask

8 a couple of questions off the Complaint, and then I

9 will follow up with you on some of your answers to

10 Ms. Crum.

11

A. Okay.

12

Q. I'm still kind of confused, or I -- can you

13 help me understand a little bit better about how one

14 becomes a member of The Family Unit?

15

I heard you say people come ask for help,

16 but I didn't quite understand what happens then, if

17 that made them a member. Can you walk me through that

18 process, please?

19

A. Yes. The Family Unit, Incorporated,

20 considers anyone who comes to us, particularly for our

21 help, as a member. It's just as simple as that.

22

Q. Got you.

23

So for the services that you provide,

24 whether it was helping with housing or school issues

25 or voting issues, anybody that asks those questions,

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42 1 that asks for assistance, you just classify them as a

2 member.

3

A. Yes.

4

Q. Okay. Great. Thank you.

5

In your Complaint, you -- or the way that

6 it's worded in several places, it's -- it talks about

7 The Family Unit members and constituents.

8

Is there a difference in who your

9 constituents are from who your members are?

10

A. No. The members are my constituents.

11

Q. So they are one and the same then

12 essentially, right?

13

A. Yes.

14

Q. Okay. Let me make sure, if I understood

15 again, that -- Ms. Crum asked you and you answered

16 that you are a 501(c)(3) nonpartisan, charitable

17 nonprofit organization, right?

18

A. Yes.

19

Q. And then you talked about this medical

20 clinic where you provide free medical assistance.

21

Does that fall under the umbrella of The

22 Family Unit, Inc., or is that something separate?

23

A. That falls under the umbrella of The Family

24 Unit, Inc., yes.

25

(Court reporter clarification.)

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43

1

MR. TYSON: Debbie, if my questions aren't

2 clear, you just let me know.

3

Q. Or, Dr. Williams, more importantly, if my

4 questions aren't clear, you definitely let me know.

5 Okay?

6

A. Yes.

7

Q. You recognize The Family Unit as a plaintiff

8 in this lawsuit, right?

9

A. The last part of your question was blanked

10 out. I didn't hear that half.

11

Q. In this lawsuit that we are here today, The

12 Family Unit is a plaintiff, right?

13

A. Yes.

14

Q. Okay. How did you become -- how did The

15 Family Unit come to be a plaintiff in this lawsuit?

16

MR. ROSS: Objection.

17

I will instruct the witness not to answer to

18 the extent that it involved any conversations with

19 your attorneys.

20 BY MR. TYSON:

21

Q. Dr. Williams, you heard your lawyer say that

22 he's instructed you not to answer or to talk about any

23 conversations with your attorneys.

24

What I'm asking is, how did you become a

25 plaintiff in this lawsuit? Did you find out about it,

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44 1 you went out and told somebody; or did somebody ask

2 you about it? How did that happen?

3

MR. ROSS: Same objection.

4 BY MR. TYSON:

5

Q. Go ahead, Dr. Williams.

6

A. I'll have to follow the instructions of my

7 attorney.

8

MR. TYSON: Let me make sure that I'm clear.

9 You're instructing her not to answer about any

10 conversations with a lawyer, but what I'm asking her

11 is how did she become a plaintiff in this lawsuit. I

12 don't -- am I missing something?

13

MR. ROSS: Well, I guess I'm missing

14 something. I don't understand how, you know -- you

15 become a plaintiff in this lawsuit by talking to your

16 lawyer, so I don't know what it is you want her to

17 answer. You know, can you be a little more specific

18 about what it is you're trying to get at or what you

19 want her to talk about that doesn't involve

20 conversations with her attorney?

21 BY MR. TYSON:

22

Q. Let's be clear, Dr. Williams. I don't want

23 to go into anywhere where it's close to any

24 conversations that you've had with an attorney. I'm

25 just trying to find out, did somebody call you and ask

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45 1 you whether you wanted to be a plaintiff in this

2 lawsuit, or did you call somebody and ask them that

3 you wanted to be a plaintiff in the lawsuit?

4

MR. ROSS: That is a conversation --

5 fundamentally you are asking did she call an attorney

6 and ask an attorney about representing her or did an

7 attorney call her. That's all within the privilege.

8

I don't understand what it is you are trying

9 to get at except trying to get at privileged

10 information.

11

MR. TYSON: I'm not trying to get any

12 privileged information. I just want to figure out how

13 she became a plaintiff. You have got -- in this

14 lawsuit there are one, two, three, four, five -- seven

15 different separate entities. I'm just trying to

16 figure out how The Family Unit came to be a plaintiff

17 in this lawsuit.

18

MR. ROSS: I'm going to instruct her not to

19 answer. I don't understand the question outside of

20 attorney/client privilege, and you haven't provided

21 any clarity, so I'm sorry.

22 BY MR. TYSON:

23

Q. Dr. Williams...

24

A. Yes.

25

Q. The Family Unit is a plaintiff in this

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46 1 lawsuit, correct?

2

A. Yes.

3

Q. Have you received all of the filings in this

4 lawsuit?

5

A. Yes.

6

Q. In the Complaint, it says that The Family

7 Unit educates and registers voters.

8

Is that solely done on those -- in the voter

9 registration drives that Ms. Crum was asking you about

10 and in that manner you described where you were at a

11 county event and you then started signing people up,

12 or are there other ways where you register voters, I

13 guess is my question?

14

A. Would you repeat that? Part of what you

15 said wasn't clear. Could you clarify what you just

16 said?

17

Q. How do you register voters?

18

A. I register voters by going into the

19 community. I preface my voter registration drives by

20 going into the lower-income housing projects and into

21 the lower-income mobile home areas and into our local

22 jail and actually into the Sumter community of

23 lower-income individuals.

24

Q. When you said earlier that you had helped

25 people register to vote that were -- I think you said

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47 1 they were detained in jails, and you said some of them

2 weren't from Sumter County.

3

Were they from South Carolina, or were you

4 registering them in other states? That wasn't clear.

5

A. The Sumter-Lee Regional Detention Center is

6 a regional center. It houses individuals who are

7 incarcerated mostly from Sumter County. However,

8 there are individuals from Lee County, from Clarendon

9 County, from Darlington.

10

And oftentimes there are individuals,

11 pretrial individuals -- all of these individuals are

12 pretrial -- that come from other states who are

13 transferred to the Sumter County regional detention

14 center, such as the state of -- I have seen folks from

15 New Jersey and other areas who temporarily are housed

16 at our local facility.

17

Q. And so my question was, are you registering

18 them in Sumter County then?

19

A. No. I'm registering them from the state and

20 counties where they live.

21

Q. Okay. So if somebody was from New Jersey

22 that you've just mentioned and he was detained and he

23 was there at the Sumter regional correctional

24 facility, you're not registering that person to vote

25 in Sumter County. You're just saying you're helping

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48 1 that person register to vote in wherever their home

2 state is; is that right?

3

A. That's right.

4

Q. Okay. You further say in the Complaint, In

5 recent years, The Family Unit members and constituents

6 have had absentee ballots rejected because of the

7 witness requirement.

8

How many times would you say that your

9 members and your constituents have had their absentee

10 ballots rejected because of the witness requirement?

11

A. There have been at least eight individuals

12 that have had their absentee ballots rejected on the

13 basis of the witness requirement.

14

Q. And why were they rejected?

15

A. Those absentee ballots were rejected because

16 of the absence of a witness signature.

17

Q. I got you.

18

A. And one ballot was rejected because the

19 address of the witness was not put on the voter's

20 envelope. The signature was there, but the witness

21 forgot to put her address, and subsequently, the

22 voter's ballot was discarded.

23

Q. Who does that? Who's rejecting the ballot?

24 That's the county election commission?

25

A. Yes.

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49

1

Q. So they are looking outside of that ballot

2 to determine whether the law has been followed and

3 whether the witness has signed it and then if it's

4 got -- or she has got an address on it. Is that what

5 you are saying?

6

A. Some of your voice is fading in and out.

7

Q. I'm sorry, Dr. Williams.

8

MR. ROSS: I'm sorry. Liz, do you mind

9 muting yourself? I think that's part of what the

10 issue is. When you crumple papers and things, I'm

11 hearing that.

12

MS. CRUM: I'm not moving any papers, but I

13 will mute.

14 BY MR. TYSON:

15

Q. Dr. Williams I'm pretty confident if there's

16 any problems, it's going to be on my end, working the

17 computer and making too much noise. Let me try this

18 again.

19

If I heard you, you just testified that

20 these eight ballots that were rejected over a period

21 of years were done so by the county election

22 commission, right?

23

A. Yes.

24

Q. Okay. And you said that they were rejected

25 because either they didn't have the witness signature

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50 1 on there -- right?

2

A. Yes.

3

Q. So the -- so somebody at the county election

4 commission was following that, to see whether the

5 ballot was properly witnessed, correct?

6

A. Say that again, please.

7

Q. So somebody at the county election

8 commission was looking -- reviewing the absentee

9 ballot to see whether it was properly signed, correct?

10

A. Yes.

11

Q. Okay. And then you also said that there

12 were some ballots that were rejected because they

13 didn't have the address on it, right?

14

A. One of those absentee ballots was rejected

15 because the witness forgot to put the home address, at

16 least to put that. That ballot was discarded and not

17 counted.

18

Q. And the county election commission did that,

19 right?

20

A. Yes.

21

Q. Dr. Williams, the Complaint goes on further,

22 and it says some of your members and constituents are

23 people with disabilities, right?

24

A. Yes.

25

Q. And so you know if they want to vote by

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51 1 absentee ballot. Are they able to vote as -- or do

2 they qualify for being physically disabled?

3

MR. ROSS: Objection.

4 BY MR. TYSON:

5

Q. Go ahead, Dr. Williams, and answer the

6 question.

7

A. Those individuals who are disabled have been

8 formally designated by their medical physician as

9 having a medical disability.

10

Q. And Dr. Williams, you've been so active in

11 this voter registration and this voter education, you

12 know that physically disabled is a reason that one

13 could use to vote by absentee ballot, right?

14

A. Yes.

15

MR. ROSS: Objection.

16 BY MR. TYSON:

17

Q. Dr. Williams, in the Complaint it says -- a

18 little bit further, it says, As a result -- a direct

19 result of the challenged requirements, The Family Unit

20 has been forced to divert its limited resources and

21 time away from its core activities to new activities.

22

Can you help explain to me how your

23 members -- or what that means? Let me just stop.

24 What does that mean?

25

A. It means that our usual activity of

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52 1 renovating abandoned homes for indigent families has

2 been interfered with. It means that the voter

3 registration activity, mostly performed by myself, has

4 been significantly interfered with in that I, over

5 decades, have gone into the community in areas where

6 lower-income families live, housing projects,

7 lower-income communities, our jail -- all of those

8 activities have been put aside in view of the fact

9 that we are cognizant of the elections that are coming

10 forth in 2020, and we know that things have changed

11 significantly for voters.

12

The COVID-19 virus has taken the forefront,

13 and that has really changed things. The state of

14 South Carolina's Governor, McMaster, has declared an

15 emergency situation in the state of South Carolina

16 wherein certain things, such as social distancing and

17 stay-in-place, stay-at-home orders, are in effect

18 actually since March of this year.

19

So the time, the effort, the ability for The

20 Family Unit to advocate for voters, to go into the

21 hinterlands, into the lower-income, disenfranchised

22 communities and do the work that we have done for over

23 a decade consistently has been hampered.

24

And so the effort, then, is focused on the

25 problems, what form of disenfranchisement has come

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53 1 about as a result of COVID-19, the restrictions of the

2 State, very necessary restrictions of distancing and

3 mask wearing, those things.

4

And so instead of being able to delve into

5 the community as we have so fervently done, we have

6 had to focus on informing the community of the fact

7 that more and more of the residents of Sumter County

8 will have the opportunity to vote by way of the

9 absentee ballot.

10

And being cognizant of the fact that the

11 absentee ballot requires a witness signature, it's

12 going to be most difficult for the voters who are

13 accustomed to getting help to actually get the help

14 that they so desperately need in order to vote and to

15 exercise their constitutional right to the ballot.

16

Q. Dr. Williams, back to my question. When it

17 says, As a direct result of the challenged

18 requirement, you have been forced to divert your

19 resources, if I heard you, you're saying you are not

20 able to do those things like education and housing or

21 whatever as much as you normally do because you've got

22 to go over here and work with voting, election issues;

23 is that what you're saying?

24

A. Yeah. When you say you have to go over

25 here, quote, unquote, I'm not physically going outside

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54 1 my home.

2

Q. Yes, ma'am.

3

A. I am diverting very necessary energies

4 toward making sure that I identify any voter, any

5 registered eligible voter of Sumter County and other

6 states, to make sure that those individuals are

7 informed voters; that they know about voter

8 suppression, which is real, not only in South Carolina

9 but nationally; that the voters in Sumter County know

10 that there are stumbling blocks that are associated

11 with the act of casting the ballot. And one stumbling

12 block would be the witness signature requirement.

13

Q. Somewhere in the response to one of

14 Ms. Crum's questions, I heard you say that you've

15 helped -- I think this is right, and let me make sure

16 I'm getting this right -- that you've helped register

17 7,000 voters.

18

A. Yes.

19

Q. And was that over a period of time, over the

20 last -- I think I've got ten years --

21

A. Yes.

22

Q. -- since The Family Unit has been created.

23 Is that --

24

A. Yes.

25

Q. And most of those are in Sumter County.

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55

1

A. Yes. Most of those, the vast majority of

2 those 7,000, were pretrial inmates who were housed at

3 the Sumter-Lee Regional Detention Center.

4

Q. So it's pretty clear that's part of your

5 mission, to help -- The Family Unit's mission is to

6 help people become registered to vote.

7

And now, has The Family Unit helped members

8 turn in their absentee ballots?

9

A. Yes. I personally deliver those ballots to

10 the courthouse, and those ballots that belong to the

11 voters who are out of state, I personally, on behalf

12 of The Family Unit, take those ballots to the local

13 post office, pay for the postage, and mail those

14 ballots.

15

Q. And I think I heard you say earlier that you

16 know that there's a 30-day window from which to vote

17 by absentee, right?

18

A. Right.

19

Q. So when you go take those, you made them

20 early enough to make sure that they get there, right?

21

A. Yes.

22

Q. Because you know that they've got to be

23 received by 7:00 on voting day, right?

24

A. Yes.

25

Q. So you take all the efforts to make sure

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56 1 that the postage and that the ballots are received by

2 the election commission, correct?

3

A. Yes. As a matter of fact, in Sumter County,

4 I personally drive to the voter registration office in

5 Sumter County and turn those ballots in myself.

6

Q. And so -- can I just kind of go off kilter

7 here?

8

Thank you for doing that because what we

9 hear frequently is that -- well, I won't say that

10 anymore. I'll just say thank you for helping make

11 sure that people's votes are actually received in a

12 proper time. So thank you.

13

A. (Nodding head.)

14

Q. Do you help campaigns collect their absentee

15 ballots and turn them back in?

16

A. No.

17

Q. Have you ever done that before?

18

A. Never.

19

Q. So what you're doing, going out and helping

20 people on the absentee ballots, is done all on behalf

21 of The Family Unit, Inc.

22

A. Yes. We are a nonpartisan organization.

23

Q. Have you -- Ms. Crum asked you a question,

24 and you talked about your -- some of your members had

25 expressed fears about voting, and then you described

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57 1 the concerns over the new voting machines.

2

Can you describe a little bit more about

3 your members' fears of going in and voting in person

4 on these new machines?

5

A. Yes. Primarily, the new thing to do is

6 accept it cautiously, and that is a need-be kind of

7 thing. Anything new is approached with apprehension

8 on the part of many voters.

9

So I personally -- as soon as those new

10 machines were brought into effect, I personally went

11 to the Sumter County Voter Registration and Elections

12 Office and practiced on the machines myself.

13

As a matter of fact, I have it on my

14 Facebook page, The Family Unit's Facebook page,

15 showing the voters this is the machine, this is how it

16 works. I challenged and encouraged the voters to go

17 and practice on the machine themselves.

18

Q. I think you said in response to one of

19 Ms. Crum's questions that you help your members get

20 over their fears about those voting machines, and then

21 I think you added nonmembers.

22

That sounded like to me you're just willing

23 to make sure any and all voters are able to get out

24 and vote. Is that fair?

25

A. Yes. And I'd have to add the emergence of

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58 1 the COVID-19 pandemic, which is and has been and

2 continues to be a very urgent topic when voting comes,

3 basically because those members that I spoke of have

4 spoken of their fear of standing in crowds of people.

5

Being well aware of the fact that the

6 elections this year primarily are primaries and the

7 general election, which is scheduled for November 3rd,

8 there will be a substantial number of people who are

9 going to vote or who want to vote, and that increases

10 one's chance of contracting the highly infectious

11 COVID-19 disease.

12

And so the voters that have contacted me

13 have voiced their fears and anxieties and reservations

14 about going into crowds. And they want to, and

15 rightly so, adhere and abide by the mandates set in

16 place by Governor McMaster in reference to social

17 distancing and the stay-home-for-work order.

18

Q. You mentioned earlier that you've got --

19 that you have 60 members of The Family Unit. What

20 would you say is the approximate age of those 60

21 members, if you could group them into something?

22

A. The approximate age would be 45. All right.

23

MR. ROSS: Are you asking -- I guess I was

24 confused. What was -- your question was the average

25 age; is that what you meant?

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59

1

MR. TYSON: Yep. And she answered 45, so I

2 was looking at my notes for the next question.

3

Q. Dr. Williams, do you know of anyone who

4 voted in person that has contracted the virus?

5

A. I know of -- and I want to interject here.

6 We have in the membership -- actually, the average age

7 of my board is 64 at least, the average age of my

8 board. I wanted to clarify that. And we see people

9 in the houses that we've given away, that their

10 average age is -- runs like 45 years old to 60 years

11 old. I wanted to clarify that point. Our board

12 consists mostly of senior citizens on our board.

13

Now to your other question, sir, can you

14 please repeat it? I wanted to point out that

15 correction and clarification.

16

Q. So most of your board is over 65; is that

17 fair to say?

18

A. Yes.

19

Q. And so they can vote by absentee ballot,

20 right?

21

A. They can vote by absentee ballot, but not at

22 the polls.

23

Q. That's right.

24

And then my next question was, do you know

25 of anybody yourself that has contracted the

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60 1 coronavirus due to their going to vote on June the

2 9th?

3

A. I don't know if anyone who contracted

4 coronavirus was as a result of voting on the primary

5 June 9th.

6

MR. TYSON: Thank you, Dr. Williams. I

7 appreciate you answering all my questions. Have a

8 great day.

9

THE WITNESS: Thank you.

10

MR. ROSS: Is that it for the defendants?

11 Do you know if the Governor's Office is here or wants

12 to ask questions?

13

MR. TYSON: Debbie, is Mr. Limehouse still

14 on the line?

15

MS. CRUM: This is Liz. I'm sorry, I had it

16 on mute, and I had to remember how to unmute it. He

17 had to get off the phone. So I'm assuming he has not

18 gotten back on yet.

19

Is that correct, Debbie?

20

COURT REPORTER: Yes, that is correct.

21

MR. TYSON: Liz, I just finished my

22 questions, and I didn't know whether counsel for

23 Dr. Williams was going to ask any questions before you

24 had the follow-up, so that's where we were.

25

MR. ROSS: I'm confused. Liz, are you going

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61 1 to ask additional questions, or are we --

2

MS. CRUM: I was waiting to see if you had

3 any questions.

4

MR. TYSON: Yeah. We were waiting to see

5 whether you --

6

MR. ROSS: I'm sorry. I thought you were

7 saying -- I thought you said Liz may have some

8 additional questions. No, I think we are set. Thank

9 you.

10

So with that, are we done then?

11

MS. CRUM: I was just going to say I don't

12 have any follow-up questions.

13

And Dr. Williams, thank you very much for

14 your time on this, at least in Columbia, very hot

15 Friday afternoon.

16

THE WITNESS: Thank you very kindly. I

17 appreciate your time and effort.

18

MR. TYSON: Thank you, Dr. Williams. Have a

19 great weekend.

20

THE WITNESS: Thank you.

21

MS. CRUM: Thank you. Remember, y'all, we

22 are on for tomorrow morning at 11:00.

23

(The deposition concluded at 5:04 p.m.)

24

25

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62

1

CERTIFICATE OF REPORTER

2 I, Deborah L. Dusseljee, Registered Professional
3 Reporter and Notary Public for the State of South Carolina at Large, do hereby certify:
4 That the reading and signing of the foregoing
5 deposition by the witness has not been requested.

6

That the foregoing deposition was taken before me

on the date and at the time and location stated on the

7 title page of this transcript; that the deponent was

duly sworn to testify to the truth, the whole truth and

8 nothing but the truth; that the testimony of the

deponent and all objections made at the time of the

9 deposition were recorded stenographically by me and were

thereafter transcribed; that the foregoing deposition as

10 typed is a true, accurate and complete record of the

testimony of the deponent and of all objections made at

11 the time of the examination to the best of my ability.

12

I further certify that I am neither related to nor

counsel for any party to the cause pending or interested

13 in the events thereof.

14

Witness my hand, I have hereunto affixed my

official seal this 27th day of July, 2020, at Columbia,

15 Richland County, South Carolina.

16

17

18

19

______________________________

20

Deborah L. Dusseljee, RPR, CRC

Notary Public

21

State of South Carolina at Large

My Commission expires:

22

June 12, 2027

23

24

25

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1

I N D E X

2

3 EXAMINATION

4

By Ms. Crum

5

By Mr. Tyson

6 CERTIFICATE OF REPORTER

7

8

9

E X H I B I T S

10

(None was proffered.)

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-7 Page 1 of 7 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 6
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Deposition Excerpts of Chad Dario Cotti, Ph.D.

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-7 Page 2 of 7

1

1

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH CAROLINA

2

COLUMBIA DIVISION

3

MARY T. THOMAS, NEA RICHARD,

4 JEREMY RUTLEDGE, TRENA WALKER,

THE FAMILY UNIT, INC., and the

5 SOUTH CAROLINA STATE CONFERENCE

OF THE NAACP,

6

Plaintiffs,

7

v.

C/A No.: 3:20-cv-01552-JMC

8 MARCI ANDINO, in her official capacity as

Executive Director of the South Carolina

9 State Election Commission; JOHN WELLS,

in his official capacity as Chair of the

10 South Carolina State Election Commission;

JOANNE DAY, CLIFFORD J. ELDER, LINDA McCALL,

11 and SCOTT MOSELEY, in their official capacity

as Members of the South Carolina Election

12 Commission; and HENRY D. McMASTER, in his official

capacity as Governor of South Carolina,

13

Defendants.

14

15

D E P O S I T I O N

16 WITNESS:

CHAD DARIO COTTI, Ph.D.

17 DATE:

Thursday, July 30, 2020

18 TIME:

1:08 p.m. CT

19 LOCATION:
20 TAKEN BY:
21

6 Timberline Court Appleton, Wisconsin
Attorneys for the Defendants SC Election Commission officials

22 REPORTED BY: DEBORAH L. DUSSELJEE, RPR, CRC Realtime Systems Administrator
23 - - - - - - - - - - - - - - - - - - - - - - - - - -

24

COMPUSCRIPTS, INC.

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25

1.888.988.0086

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-7 Page 3 of 7

Chad Dario Cotti, Ph.D. 7/30/2020

29

1

Q. Have you read that?

2

A. I have. I can't tell you that I could

3 recall many of the details at this moment, but I know

4 I have looked at it. I think -- it does say -- it's

5 like a bullet-pointed thing, if you're referencing the

6 same thing, with like little paragraphs.

7

Q. Were those CDC guidelines at all part of the

8 study you did?

9

A. No. I didn't -- it was more recently that I

10 read them. I don't know if they even existed at the

11 time.

12

Q. Do you know if the State of Wisconsin

13 implemented those guidelines for the primary?

14

A. I don't -- I don't know that those

15 guidelines were out at the time of the primary, so I

16 couldn't say.

17

Q. Your report, you looked only at Wisconsin?

18

A. That's correct.

19

Q. Have you studied South Carolina's primary on

20 June 9th?

21

A. No.

22

Q. Are you aware of anyone -- or any cases of

23 COVID-19 that are attributed to voting in South

24 Carolina's June 9th primary?

25

A. I haven't studied the primary.

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-7 Page 4 of 7

Chad Dario Cotti, Ph.D. 7/30/2020

30

1

Q. So that would be a no?

2

A. I wouldn't know either way.

3

Q. Are you aware of any cases of COVID

4 attributed to the primary?

5

A. No. I haven't looked.

6

Q. Are you familiar with South Carolina's

7 election law generally?

8

A. Only to the extent that I voted when I was a

9 resident of South Carolina, so I only know it from

10 participating.

11

Q. Have you looked at it since you left South

12 Carolina in 2009?

13

A. No.

14

Q. Have you ever studied voting in any other

15 states?

16

A. No. I've never studied voting besides this

17 paper, and this paper is not about voting.

18

MR. LAMBERT: Fair enough.

19

Well, Dr. Cotti, those are the only

20 questions I have. Some of the other lawyers on the

21 line may have questions for you as well. I really

22 appreciate your time and being willing to answer our

23 questions this afternoon.

24

THE WITNESS: I do too.

25

MR. LAMBERT: Thomas or Rob?

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-7 Page 5 of 7

Chad Dario Cotti, Ph.D. 7/30/2020

39

1

Once you account for the differences, does

2 the difference in the in-person voting density, does

3 that variation across places correspond to the

4 variation across places in COVID-19 spread or

5 transmission?

6

So it doesn't really matter if it was high

7 or low as much as does the difference -- were the

8 places higher, the places that had more in-person

9 voting per location; were the places lower that --

10 where the places had less in-person voting per --

11 yeah, per location.

12

What we found was that as that variation

13 went up, statistically there is a relationship between

14 transmission also going up, unfortunately.

15

Q. And I think Mr. Lambert asked you this, but

16 you haven't done any analysis on the June primary in

17 South Carolina, correct?

18

A. No, sir.

19

Q. So your analysis, your estimates of this in

20 Wisconsin, might have some relevance to South

21 Carolina, but you don't know that, right?

22

A. Well, I would say that it has relevance to

23 an election, but how much it would is up for debate.

24

Q. But there's nothing in your report that asks

25 anything that would give any kind of conclusion about

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-7 Page 6 of 7

Chad Dario Cotti, Ph.D. 7/30/2020

40 1 the South Carolina primary in June, right?

2

A. We don't study anything about the South

3 Carolina primary in June.

4

Q. Nor do you make any kind of conclusion or

5 guesstimate about the November election in South

6 Carolina, correct?

7

A. Well, we aren't doing -- the conclusion that

8 we draw is -- so the election in Wisconsin took place

9 during the Wisconsin shelter-in-place, work-from-home

10 law.

11

And so it provides you kind of a good

12 laboratory for looking at the effects of voting

13 because nothing else was going on at the same time

14 that you have to also account for, in terms of you

15 don't have baseball games and parades and other things

16 happening simultaneously to confound your estimation.

17

And so it actually gives you a pretty good

18 read on if people show up at the polls, how much

19 density makes a difference in terms of transmission.

20

And the other thing I should point out is

21 that -- and this is something to your point,

22 Mr. Tyson, about applicability -- if the spread of the

23 virus is -- was pretty low at the time in Wisconsin

24 because of the shelter-in-place law, et cetera, if the

25 election was to have taken place in a larger-spread

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-7 Page 7 of 7

Chad Dario Cotti, Ph.D. 7/30/2020

41 1 environment, because you have more connection points,

2 people who are -- there are more people sick who could

3 potentially show up and run into each other, the

4 amplification effect of the election could have been a

5 lot higher.

6

We were fortunate that the election took

7 place when there were very few cases in Wisconsin

8 relative to what we see, say, now in Arizona or

9 something and Oregon and Wisconsin. And as a result,

10 the effect was probably muted.

11

Q. Let me make sure that I'm clear. There is

12 nothing in your report that would describe what you

13 believe the potential effects of this analysis and all

14 these factors that you just laid out -- there is

15 nothing in your report about -- or any conclusion

16 about the November election in South Carolina, right?

17

A. Not about South Carolina specifically.

18

MR. TYSON: Thank you, sir. I appreciate

19 your time. No further questions.

20

THE WITNESS: You are very welcome.

21

EXAMINATION

22 BY MR. LIMEHOUSE:

23

Q. Mr. Cotti, how are you doing?

24

A. I'm good.

25

Q. My name's Thomas Limehouse. I represent the

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 1 of 13 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 7
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Deposition Excerpts of Arthur Lawrence Reingold, M.D.

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 2 of 13

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 3 of 13

Arthur Lawrence Reingold, MD 7/30/2020

21 1 returning students in the fall is fluid?

2

A. I think that's a fair statement, yes.

3

Q. Have you been in isolation since the

4 outbreak of COVID?

5

A. Well, I have not been back on the campus

6 since the end of March with one exception where I

7 needed some papers, and I needed to get special

8 permission to be allowed into the building and into my

9 office by someone designated to do that. So I have

10 not been on the campus for the last, what is that,

11 four months. But that's correct.

12

Q. What do you do in terms of grocery shopping?

13

A. I do go grocery shopping. I do all the

14 cooking and the shopping in my household, and the

15 grocery store I shop at, like all stores in

16 Berkeley -- well, the grocery store I shop at, first

17 of all, has special hours for old people.

18

So I go to the old people shopping, number

19 one. Number two, they let only a limited number of

20 people into the store at any one time, and they don't

21 let more people in until people have left.

22

Everyone is required to wear a mask. Gloves

23 are offered but not required. And of course there are

24 things marked on the floors to keep people from

25 bunching up at the checkout counter. There are

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 4 of 13

Arthur Lawrence Reingold, MD 7/30/2020

22 1 Plexiglas shields between the checkers and the people

2 buying the groceries, things like that.

3

So quite a few things in place to try and

4 protect people, but I do need to buy food.

5

Q. Yes, sir.

6

And I laughed when you said the old people

7 shopping because I graduated in 1970 also, so I think

8 we are the same age, and I tried the old people

9 shopping one time, and I figured it was safer when

10 there were young people around because they didn't run

11 me over with carts trying to get things. But that's

12 just my personal experience here.

13

In your experience, when you are grocery

14 shopping, for example, do the folks tend to abide by

15 wearing masks, standing in line, going the one

16 direction down the aisle, and the other precautions

17 that are put in place by stores?

18

A. So where I shop, a place called the Berkeley

19 Bowl, which is famous here in Berkeley, the answer is

20 yes. By my observation, I have not seen anyone not

21 wearing a mask inside the store, and certainly people

22 have been physically distancing when they check out.

23

In the aisles themselves, of course, things

24 are a little more fluid, but I would say people

25 generally try and give other people distance within

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 5 of 13

Arthur Lawrence Reingold, MD 7/30/2020

23 1 that framework, and having relatively few people in

2 the store makes that a little easier in terms of not

3 bunching up.

4

Q. Okay. What did you do to prepare for your

5 deposition today?

6

A. Well, I reviewed the most recent information

7 about South Carolina in The New York Times and on the

8 South Carolina website with regard to COVID-19 cases

9 and deaths.

10

I think I saw a story in the newspaper from

11 yesterday about the Governor adding to some of the

12 restrictions in response to COVID-19. I've reviewed

13 the CDC guidelines with regard to voting and safe

14 voting.

15

So I would say generally I tried to make

16 sure I was relatively current with regard to those

17 things. But I also generally am aware of what's

18 happening nationally on a daily basis.

19

Q. Let me ask you -- you said you reviewed the

20 South Carolina website. We've got a bunch of

21 websites. Which one did you review?

22

A. Well, this is the one that primarily looks

23 at what percentage of tests are coming back positive

24 and the number of -- it's the --

25

Q. Is it the South Carolina Department of

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 6 of 13

Arthur Lawrence Reingold, MD 7/30/2020

30 1 And then we had quite an extensive back-and-forth with

2 the 500 or so people in the audience.

3

Q. Dr. Reingold, you said what was known about

4 COVID on February 6th, 2020. Is what is known about

5 COVID also fluid and rapidly changing?

6

A. Yes, ma'am.

7

Q. Okay. And what is -- would it be true to

8 say that what is the case with COVID today may not be

9 the case with COVID in October or November?

10

A. You know, Yogi Berra once said it's hard to

11 make predictions, especially about the future. So we

12 are all having to make educated guesses about what the

13 future has in store.

14

Q. But you would be pretty certain that it

15 wouldn't be the same on November the 3rd as it is

16 today in terms of the number of deaths, the number of

17 cases, the amount of testing.

18

A. I have no way to predict what the situation

19 will be with regard to any of those things in

20 November.

21

Q. I'm going to ask you a couple of questions

22 about phrases or words you used in your declaration.

23

What is a vaccine preventable disease?

24

A. Well, it's pretty much what it says. It's

25 a -- so far, at least, this refers to only infectious

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 7 of 13
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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 8 of 13

Arthur Lawrence Reingold, MD 7/30/2020

50 1 and somebody with COVID-19 walks past me ten feet

2 away. That -- I suppose you could argue I was exposed

3 to that individual, but I would consider that a

4 low-risk exposure.

5

On the other hand, if I were in a room with

6 that person for a protracted period of time, that

7 would be a high-risk exposure. If I was in a room

8 with that person for a shorter period of time or with

9 more ventilation in the room, that might be a

10 medium-risk exposure.

11

Does that help?

12

Q. What if you were in a room with someone for

13 10 minutes, 15 minutes, you both had on masks, and you

14 were socially distancing? What risk -- would that be

15 a low risk of exposure?

16

A. It would probably be classified as -- these

17 are arbitrary terms and definitions, so it's not that

18 anybody -- you know, these didn't appear in the Ten

19 Commandments anywhere. But that would probably be

20 considered somewhere between low and medium risk,

21 depending on who you talk to.

22

Q. Does the link -- time you're with a person

23 change the level of risk, assuming you're indoors and

24 you have masks on?

25

In other words, is it, in your opinion, the

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 9 of 13

Arthur Lawrence Reingold, MD 7/30/2020

51 1 longer -- is it true that the longer you're with

2 someone in a room, the greater the risk of exposure or

3 the greater the risk of contracting coronavirus?

4

A. Yes. We think the level of risk depends in

5 part on proximity, on length of exposure, on the size

6 of the room, on the amount of ventilation. So there

7 are a number of variables that go into that, but yes.

8

Q. In your opinion, would the risk in a

9 classroom, just a common high school classroom, be

10 higher than the risk in a high school gym, just given

11 the size of the room?

12

A. Well, if you are only talking about the size

13 of the room, then I think the answer to that is yes.

14 But it also would depend on how many people are in the

15 room and how hard they are breathing or coughing or

16 sneezing or what activities they are engaged in, so...

17

Q. Would it also depend on whether they wear

18 masks and whether they are social distancing?

19

A. We like to think so, yes.

20

Q. Is that a yes, because "we like to think so"

21 is kind of qualifying?

22

A. All the evidence we have suggests that the

23 answer is yes, that these measures have some impact,

24 yes.

25

Q. Dr. Reingold, would you agree or not that if

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 10 of 13

Arthur Lawrence Reingold, MD 7/30/2020

52 1 the Election Commission uses the CDC voting guidelines

2 in November, we could mitigate the effect of COVID on

3 voters and poll workers?

4

A. Compared to not using the guidelines, yes.

5

Q. On page 16 of your declaration, you're

6 talking about mitigation, and it says, Other than

7 those included in the state plan.

8

What state plan are you talking about?

9

A. I'm sorry. Could you read me the whole

10 sentence?

11

Q. Yeah. Let me get you the whole sentence

12 here. I'm a little slow. I had cataract surgery on

13 Tuesday, and I'm still a bit fuzzy.

14

Here's the sentence. It's in paragraph 24,

15 and it's about two thirds of the way down. And it

16 reads, "In the instant case, there are public health

17 interventions other than those included in the state

18 plan that are available to minimize the risk of

19 transmission of SARS-CoV-2".

20

So what state plan are you --

21

A. So my understanding at the time that I said

22 that was that the State would be doing things such as

23 requiring masks and social distancing, wiping down of

24 surfaces, and things that are similar to what are

25 described in the CDC guidelines.

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 11 of 13

Arthur Lawrence Reingold, MD 7/30/2020

63 1 signs the ballot, right, or then he votes and then

2 he -- do you know the process after that?

3

A. I don't know the process after signing it.

4

Q. Right.

5

A. My understanding was that it needs to be

6 witnessed by someone.

7

Q. That's right.

8

So the voter signs the ballot, he puts it in

9 an envelope, and the voter signs it, and then there is

10 a witness that signs it, on the back of it, correct?

11

A. That's how it works in California.

12

Q. And the -- if the witness needs to observe

13 the voter's signature, would you agree with me that

14 that observation and signature of the witness can be

15 done in complete accord with the CDC guidelines for

16 the prevention of the spread of COVID?

17

A. So you mean -- I just want to make sure I

18 understand your question. So you mean that I can --

19 if I wear a mask and I use hand hygiene and the like,

20 that by being in the same room with you to witness it,

21 that I can reduce the risk of transmission through

22 those various steps. Is that what you mean?

23

Q. That's right.

24

A. Yes. So those steps are intended to reduce

25 the risk of transmission if one of those individuals

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 12 of 13

Arthur Lawrence Reingold, MD 7/30/2020

64 1 is infected. That's correct.

2

Q. That's right.

3

So if I'm the voter and I sign it and you

4 are going to witness it, if we are following CDC

5 guidelines, you could witness it by standing more than

6 6 feet away, right?

7

A. Unless you're nearsighted, I presume you

8 could.

9

Q. That's right.

10

And you could wear a mask, and you could do

11 the other things like you said, but you wouldn't have

12 the -- you could take precautions to prevent the

13 spread of COVID, correct?

14

A. You could take precautions to reduce the

15 risk of the spread, yeah.

16

Q. Yes. Yes, sir.

17

I've just got a handful of questions on your

18 Rule 26(a) disclosure, and I believe this was the June

19 filing. Yes, it was June the 26th.

20

Do you have it there?

21

A. I don't have it in front of me. I could get

22 it if you want me to.

23

Q. I have got just a couple of general

24 questions on it that I think you'll understand where

25 I'm coming from.

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-8 Page 13 of 13

Arthur Lawrence Reingold, MD 7/30/2020

67 1 that we just had.

2

And did you know that they've testified that

3 there weren't any health issues related to them after

4 they voted in person?

5

A. I didn't know that, but I will take your

6 word.

7

Q. Going down to Paragraph 22, you talk

8 about -- this is how it starts off: Evidence of

9 outbreaks of COVID-19 at polling locations is clear

10 epidemiologic evidence of the risks. And it goes on.

11

And my question is, do you have any specific

12 evidence related to South Carolina?

13

A. No.

14

Q. Okay. Paragraph 23 starts off, Widespread

15 vote by mail, however, for individuals without another

16 person able to -- the requirement that someone else

17 witness the absentee ballot puts them at an increased

18 risk of exposure to and/or transmission of COVID.

19

(Court reporter clarification.)

20 BY MR. TYSON:

21

Q. Dr. Reingold, I'm just refreshing your

22 memory from your statement -- or Paragraph 23 of your

23 declaration. And it just makes -- this is what it

24 says. With widespread vote by mail for individuals

25 without another person able to witness in their

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-9 Page 1 of 19 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 8
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Deposition Excerpts of Christopher Whitmire

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-9 Page 2 of 19

Page 1

1

2 UNITED STATES DISTRICT COURT

3 FOR THE DISTRICT OF SOUTH CAROLINA.

4 COLUMBIA DIVISION

5 -----------------------------------x

6 MARY T. THOMAS, et al.,

7

Plaintiffs,

Case No.

8

-against-

3:20-cv-01552-JMC

9 MARCI ANDINO, et al.,

10

Defendants.

11 -----------------------------------x

12

July 31, 2020

1:50 a.m.

13

14

15

16

17

Videotaped Remote Deposition of CHRISTOPHER

18 WHITMIRE, taken by All Parties, pursuant to

19 Notice, at 1221 Main Street, Columbia, South

20 Carolina, before William Visconti, a Shorthand

21 Reporter and Notary Public within and for the

22 State of New York.

23

24

25

212-267-6868

Veritext Legal Solutions www.veritext.com

516-608-2400

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-9 Page 3 of 19

Page 32

1

CHRISTOPHER WHITMIRE

2 know.

3

But if the witness -- if the

4 voter's signature was not there or it was not

5 witnessed, they would place it in the attention

6 envelope and that designates that that ballot

7 is not counted because it is not -- it did not

8 have the witness signature or voter's

9 signature.

10

Assuming it did have both of

11 those items, then the election official would

12 log that into the statewide voter registration

13 system. They would pull the voter's record and

14 record that absentee ballot for a particular

15 election had been received on a certain date.

16 Once it is logged in they would put it into an

17 absentee ballot box for processing at the

18 appropriate time.

19

Q.

So you mentioned witnesses, let's

20 focus on just as you have been answering -- as

21 you answered your last question. Assuming --

22 pre the June election and how ballots are

23 counted.

24

What qualifies a person to be a

25 witness on a ballot? Are there any

212-267-6868

Veritext Legal Solutions www.veritext.com

516-608-2400

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-9 Page 4 of 19

Page 33

1

CHRISTOPHER WHITMIRE

2 qualifications that a person has to meet?

3

A.

I know of no qualifications.

4

Q.

Could a child be a witness?

5

A.

I believe they could.

6

Q.

Could someone who doesn't know the

7 voter be a witness?

8

A.

Yes.

9

Q.

Could someone who doesn't live in

10 South Carolina be a witness?

11

A.

Yes.

12

Q.

What if anything is done to verify

13 whether the witness is in fact the person he

14 says he is?

15

A.

There is nothing that election

16 officials do to verify that information.

17

Q.

What if anything is done to verify

18 that the witness did in fact observe the

19 absentee voter as the voter signed the ballot?

20

A.

Nothing.

21

Q.

Is there anything done to verify

22 that the witness is a real person?

23

A.

No.

24

Q.

So as I think you know, in your

25 capacity as a 30(b)(6) witness someone that is

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2 case in Eastover, South Carolina, I think that

3 was 2008 which I believe resulted in a

4 conviction and had something to do -- I don't

5 know the details of case, but it had something

6 to do with absentee by mail ballots in the Town

7 of Eastover election.

8

Going back to prior to my time,

9 sort of the election law of South Carolina I'm

10 aware of an instance in McCormick, I believe

11 that was around the year 2000 where, again,

12 involving an absentee by mail ballots. And

13 again, I believe that resulted in I believe a

14 conviction there.

15

Those are the two instances that

16 come to mind of by mail voter fraud.

17

Q.

You're not aware of any others as

18 you sit here today besides the two that you

19 just recounted?

20

A.

Correct.

21

Q.

So that sounds like you go back

22 about 20 years to 2000, that's in the McCormick

23 instance; is that right?

24

A.

Yes.

25

Q.

You said election law, I want to

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2 anything like a prosecutor's, I don't know.

3 But what I can tell you about from an election

4 official's perspective it does nothing for us.

5 So, yes, I agree with that idea, yes.

6

Q.

It provides no safeguard that

7 you're aware of?

8

A.

Correct.

9

MS. CRUM: Objection to the form of

10

the question.

11

MR. LIEB: I didn't hear you.

12

MS. CRUM: I said I object to the

13

form of the question. He can still answer,

14

but I objected to the form.

15

A.

And if I can clarify. I'm drawing

16 a line with their saying no safeguard. I'm not

17 making a determination about that because I

18 really don't know how -- we are not a law

19 enforcement or an investigatory agency and what

20 value it might have to them. I'm not

21 commenting on that. So I was clarifying that

22 point. You're asking me if I agree with that

23 statement, I'm just pointing that part of it

24 out. The overall feeling behind it, yes, yes,

25 I agree with it.

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2

Q.

Let me ask the question in a

3 slightly different way. Does the witness

4 signature requirement provide a safeguard that

5 benefits election officials, that you're aware

6 of?

7

A.

No.

8

Q.

The document goes on to read

9 "Moreover, many voters are struggling to cope

10 with the idea that they must find someone else

11 to signed their ballot while sticking to social

12 distancing requirements." Do you agree with

13 that sentence?

14

A.

Yes.

15

Q.

Let's focus on in-person voting

16 during the June 9th primaries. Were there any

17 unusual difficulties that were encountered in

18 the June 9th primaries?

19

A.

Yes.

20

Q.

What were some of the difficulties

21 that were encountered?

22

A.

There were a number of counties

23 where polling place consolidation occurred due

24 to either the lack of poll managers or lack of

25 facilities. I'm particularly aware of Richland

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2 County because I live here in Columbia and

3 that's usually in the forefront of my mind. So

4 I know of the struggles they had where they

5 consolidated polling places resulting in long

6 lines at polling places. And with the long

7 lines and crowds social distancing problems

8 occur where it is harder to do that or doesn't

9 happen at all.

10

Poll managers, they had a poll

11 manager shortage in Richland which resulted not

12 only in some consolidations, but they scrambled

13 to get new poll managers and so you either have

14 totally new poll managers, new poll managers

15 working in a precinct they've never worked in

16 before or a poll manager serving as a clerk

17 which is the head poll manager who has never

18 done it before and I observed and heard about

19 confusion at polling places on election day due

20 to that as well.

21

But I believe that played out to

22 some extent in various counties throughout the

23 state.

24

Q.

You mentioned Richland County.

25 Were there long lines in Charleston?

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2

A.

I believe I did hear about some

3 lines in Charleston.

4

Q.

How about Greenville?

5

A.

I believe I did hear about some

6 lines in Greenville. I will make this point

7 about that, is that certainly from my

8 perspective the extent of it in Richland was

9 more severe than in Charleston or Greenville,

10 but I certainly heard about lines there to.

11

Q.

Do you know were there other parts

12 of the state where there were long lines to

13 vote?

14

A.

My feeling is that with 2300

15 polling places out there that that is likely,

16 but an example is not coming to mind.

17

Q.

So you believe there were more but

18 you don't have a specific recollection of any.

19 Is that a fair statement?

20

A.

Correct.

21

Q.

Are there any health dangers that

22 arise from having longer lines at polling

23 stations in this pandemic?

24

MS. CRUM: Objection to the form of

25

the question.

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2

Q.

So in this instance where the

3 voter didn't vote until after midnight, that

4 voter must have waited at least five hours, is

5 that fair?

6

A.

That's fair.

7

Q.

I would like to ask you to pick up

8 a document entitled "South Carolina Election

9 Officials Intervene in Richland County After

10 Long Lines Ballot Problems." It's dated June

11 10th. Can you get a copy of that document and

12 I would ask the reporter to mark this as

13 Exhibit 11.

14

(Whitmire Exhibit 11 for

15

identification, Document entitled South

16

Carolina Election Officials Intervene in

17

Richland County After Long Lines Ballot

18

Problems dated June 10th, 2020.)

19

A.

I got it.

20

Q.

Have you seen this document

21 before?

22

A.

Yes.

23

Q.

Looking at the bottom of the first

24 page, the language reads, "In a statement

25 Wednesday, State Election Commission spokesman

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2 Chris Whitmire bemoaned that in the state's

3 second most populous county which has been

4 plagued by election mishaps for years, 'Yet

5 again, voters were unnecessarily subjected to

6 extreme wait times and confusion at polling

7 places'." Mr. Whitmire is that a statement

8 that you made?

9

A.

Again I have no reason to believe

10 it is not and it looks like it's a statement

11 that I made, yes.

12

Q.

Your recollection is that these

13 voters were subjected to extreme wait times and

14 confusion at polling places in Richland County;

15 is that correct?

16

A.

Yes, in some polling places, other

17 polling places no. But they certainly had some

18 extreme issues in some polling places.

19

Q.

You can turn to page 3, two-thirds

20 of way down. It is not highlighted. Do you

21 see the paragraph that reads, "A shortage of

22 poll workers willing to volunteer amid fears

23 contracting Covid 19 led to long lines at a

24 number of combined precincts with voters still

25 waiting to cast their vote five hours after

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2

question. I didn't ask him about that

3

paragraph.

4

A.

You want me to go ahead and

5 answer?

6

Q.

Yes.

7

A.

Yes, I would say the lack of

8 leadership in Richland and -- I'm sorry, I'm

9 getting tired, can you repeat the question.

10

Q.

My question was that this article

11 specifically address -- those two shaded

12 paragraphs on the second page specifically

13 addressed leadership and systemic issues at the

14 Election Commission of Richland County not

15 Covid-related issues, right?

16

A.

Yes.

17

Q.

Now just to my questions, there

18 aren't that many. As we went through this, the

19 State Election Commission has taken a number of

20 actions to ensure in-person voting in South

21 Carolina this fall is going to be safe;

22 correct?

23

A.

Yes.

24

Q.

Do you want to just give some of

25 specific actions that the Commission took in

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2 June and/or will take again or in addition in

3 November for in-person voting ensure voters are

4 safe?

5

A.

So part of our approach is to take

6 steps to make polling places as safe as

7 possible for poll managers and voters and some

8 of those steps include providing personal

9 protective equipment to poll managers. Sneeze

10 guards for check in stations. Social

11 distancing tools so they can apply social

12 distancing at the polling place and hand

13 sanitizers for voters and poll managers,

14 special coronavirus training for poll managers

15 that they are required to take before the

16 election. Cotton swaps to reduce the amount of

17 touching of the touch screens on the voting

18 equipment. Cleaning supplies for poll managers

19 to clean surfaces and the training to go along

20 with that. I think I covered it.

21

Q.

One of the questions that I had is

22 that you were asked about whether you had --

23 what are concerns about the November elections

24 and you expressed a number of those concerns.

25 I want to make sure that we heard the follow up

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2 they are going to vote in person absentee or in

3 person at polling place on election day to

4 understand what we are doing to -- what steps

5 we're talking to make those polling places as

6 safe as we can for poll managers and voters.

7

And then to talk to the voters

8 what they can do, what they can do to help

9 which includes recommending wearing a mask,

10 bringing your own pen so they don't have to

11 touch the pen in the polling place, to

12 encourage them to be prepared to practice

13 social distancing and generally be ready to

14 vote which is one of our standard messages

15 before any statewide election so that you're

16 familiar with your sample ballots. That you're

17 ready to vote. You viewed a demonstration on

18 how to use the voting equipment so you know how

19 to do that. You're familiar with any

20 questions, referendum questions that might be

21 on the ballot so you're not standing in the

22 booth reading long referendum questions. Bring

23 you phot ID. All the things that we do to say,

24 hey, be ready to vote.

25

Q.

Other than that, I'm assuming in

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2 works is that basically we created this link

3 that can be shared by our partners, the

4 parties, all the voter advocacy groups, anybody

5 that we are working with, hey, try to help

6 share our message throughout the state. You

7 can share this link, you go there, basically

8 fill out an online application to be a poll

9 manager and it automatically sends an e-mail to

10 the county voter registration elections office

11 and county that the applicant selected.

12

Q.

I'm told that persons have tried

13 that but they have not heard back from their

14 counties. Have you heard any similar type of

15 complaint?

16

A.

Yes.

17

Q.

What is the Election Commission

18 doing to ensure that people that are interested

19 in signing up to be poll workers actually do

20 get signed up or at least get filtered or

21 reviewed?

22

A.

So, very early on when we did this

23 one of the points that we talked to county

24 directors about was to say, hey, not every

25 county in the state was in dire need of poll

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2 managers but some were. And we were putting

3 out statewide messages saying, hey, South

4 Carolina needs poll managers. So we wanted to

5 make a point to the, especially those counties

6 where they might not need anybody, to say, hey,

7 you're going to have people apply. You need to

8 respond to these applicants, tell them

9 something, you might tell them, hey, we might

10 need you, we'll let you know. We don't need

11 you. We may need you in November. We are

12 going to add you to our list, but to

13 acknowledge that the manger applied and give

14 them some feedback on what your needs are in

15 your counties. And also encourage them if they

16 didn't need additional poll managers to share

17 it with neighboring counties that may need

18 that.

19

As we moved forward we get reports

20 of a poll manager who was not contacted after a

21 reasonable amount of time. We'll send that to

22 the county to which they applied and say we

23 heard from a poll manager here that said they

24 applied and never heard anything, can you

25 please reach out to them.

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2 about Covid as it relates to the June 9th

3 primary. Do you know of any evidence of any

4 new Covid cases directly attributable to

5 in-person voting at the June 9th primary?

6

A.

I do not.

7

Q.

How about at the June 23rd

8 runoffs?

9

A.

I do not.

10

Q.

So you have no information or any

11 evidence beyond the story that was in the

12 newspaper about Colleton County or about what

13 you reported about Colleton County, anything

14 else?

15

A.

Well, you were asking me about

16 cases where Covid had been spread due to the

17 primaries or runoffs and I wouldn't put the

18 Colleton -- what I knew about Colleton County

19 as that. I don't know that Covid was spread in

20 that case either. So maybe I don't understand

21 fully understand you question.

22

Q.

No information or evidence about

23 any in-person voting about any Covid-related

24 claim due to in-person voting; is that right?

25

A.

Correct.

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2 consider additional restrictions on citizens

3 and enforcing wearing masks; isn't that right?

4

A.

Yes, I did hear that.

5

MR. TYSON: Thank you for taking

6

the time to answer my questions, it has

7

been a long day so I appreciate you hanging

8

in there, thank you.

9

THE WITNESS: You're welcome.

10

MR. LIMEHOUSE: Mr. Whitmire, this

11

is Thomas Limehouse, I represent Governor

12

McManus in this action I do not have any

13

questions, but want to thank you for your

14

time on a Friday afternoon.

15

THE WITNESS:

You're welcome

16

Mr. Limehouse.

17

MR. LIEB: I do have a couple of

18

redirect.

19

MS. CRUM: This is Liz, I have a

20

couple of questions.

21

MR. LIEB: Sorry.

22 EXAMINATION BY MS. CRUM:

23

Q.

Mr. Whitmire you were asked a

24 series of questions about the preventive

25 measures that the SEC is putting in place for

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2 the November general election.

3

Does the SEC intend to follow the

4 then current guidelines established by the CDC

5 in the November elections?

6

A.

Yes.

7

Q.

Are the preventive measures that

8 you talked about that were put in place for the

9 primary and runoff derived from the then

10 current CDC voting guidelines?

11

A.

Yes, they were.

12

Q.

Has the State Election Commission

13 been informed by any county board of elections

14 and voter registration that the particular

15 board knows of any Covid cases that allegedly

16 resulted from the primary or the runoff?

17

A.

None that I'm aware of..

18

Q.

Is the presidential election

19 always held during a general election?

20

A.

Yes.

21

MS. CRUM: Thank you, Mr. Whitmire

22

I don't have anymore questions.

23

MR. LIEB: I think it is my turn.

24

I have just a handful.

25 EXAMINATION CONTINUED BY MR. LIEB:

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-10 Page 1 of 16 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 9
to Defendants’ Memorandum in Support of Motion for Summary Judgment
South Carolina v. Campbell, No. 2007-GS-47-01 (S.C. Gen. Sess. Feb. 29, 2008)

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-11 Page 1 of 26 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 10
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Bailey v. S.C Election Comm’n, No. 2020-000642 (S.C. May 8, 2020)

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-11 Page 2 of 26
THE STATE OF SOUTH CAROLINA In the Supreme Court
In its Original Jurisdiction
Appellate Case No. 2020-00642 ___________________________________
Rhodes Bailey, Robert Werhman, South Carolina Democratic Party, and DCCC,................................Plaintiffs-Petitioners,
v.
South Carolina Election Commission and Marci Andino as Executive Director of the State Election Commission, ..................................................... Defendants-Respondents.
_______________________________________
RETURN TO INTERVENOR’S MOTION TO DISMISS _______________________________________

M. Elizabeth Crum Wm. Grayson Lambert BURR & FORMAN LLP P.O. 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

Counsel for Defendants-Respondents South Carolina Election Commission and Marci Andino as Executive
Director of the State Election Commission

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TABLE OF CONTENTS TABLE OF AUTHORITIES............................................................................................... ii INTRODUCTION ............................................................................................................... 1 ARGUMENT....................................................................................................................... 2 I. The SEC, acting through its executive director, is charged with
implementing and overseeing South Carolina’s statutorily established election procedures............................................................................. 2 II. State law provides a limited and clear definition of who is physically disabled and thus qualifies to vote by absentee ballot ...................................... 3 A. The plain language of section 7-15-310(4) belies the Petitioners’
position. ........................................................................................................ 3 B. The history of sections 7-15-310(4) and 7-15-320(B)(1) is
inconsistent with the Petitioners’ interpretation ..................................... 6 C. The other authorities on which the Petitioners rely are unavailing ...... 9
1 Sections 7-15-310(4) and 7-15-320(B)(1) do not violate the South Carolina Constitution................................................... 9
2. None of the other cases the Petitioners cite support the relief they seek .......................................................................... 11
III. The Petitioners’ arguments are addressed to the wrong branch of government ........................................................................................................... 13
CONCLUSION ................................................................................................................. 16
i

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TABLE OF AUTHORITIES

Cases

Page(s)

Anderson v. S.C. Election Comm’n, 397 S.C. 551, 725 S.E.2d 704 (2012).................................................................. 11, 12

Bazzle v. Huff, 319 S.C. 443, 462 S.E.2d 273 (1995).......................................................................... 1

Buchanan v. S.C. Prop. & Cas. Ins. Guar. Ass’n, 424 S.C. 542, 819 S.E.2d 124 (2018)........................................................................ 14

Callison v. Peeples, 102 S.C. 256, 86 S.E. 635 (1915)........................................................................ 12, 13

Capco of Summerville, Inc. v. J.H. Gayle Constr. Co., 368 S.C. 137, 628 S.E.2d 38 (2006).......................................................................... 13

Captain’s Quarters Motor Inn, Inc. v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).......................................................................... 15

CFRE, LLC v. Greenville Cty. Assessor, 395 S.C. 67, 716 S.E.2d 877 (2011)............................................................................ 4

Cothran v. W. Dunklin Pub. Sch. Dist. No. 1-C, 189 S.C. 85, 200 S.E. 95 (1938)............................................................................ 9, 10

Eagle Container Co. v. Cty. of Newberry, 379 S.C. 564, 666 S.E.2d 892 (2008)........................................................................ 11

George v. Mun. Election Comm’n of City of Charleston, 335 S.C. 182, 516 S.E.2d 206 (1999).................................................................. 11, 12

Gregory v. S.C. Democratic Exec. Comm., 271 S.C. 364, 247 S.E.2d 439 (1978).................................................................... 5, 14

Hampton v. Haley, 403 S.C. 395, 743 S.E.2d 258 (2013).................................................................. 15, 16

Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000)............................................................................ 3

ii

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In re Hosp. Pricing Litig., King v. AnMed Health, 377 S.C. 48, 659 S.E.2d 131 (2008)............................................................................ 6
N. Sec. Co. v. United States, 193 U.S. 197 (1904) .................................................................................................... 1
Olds v. City of Goose Creek, 424 S.C. 240, 818 S.E.2d 5 (2018).............................................................................. 4
Redfearn v. Bd. of State Canvassers of S.C., 234 S.C. 113, 107 S.E.2d 10 (1959).......................................................................... 12
S.C. Dep’t of Soc. Servs. v. Michelle G., 407 S.C. 499, 757 S.E.2d 388 (2014).......................................................................... 4
Senate by & through Leatherman v. McMaster, 425 S.C. 315, 821 S.E.2d 908 (2018)...................................................................... 4, 5
Smith v. Tiffany, 419 S.C. 548, 799 S.E.2d 479 (2017).......................................................................... 3
State ex rel. McLeod v. Ellisor, 259 S.C. 364, 192 S.E.2d 188 (1972)...................................................................... 7, 8
State v. Huntley, 167 S.C. 476, 166 S.E. 637 (1932)............................................................................ 10
State v. McKnight, 352 S.C. 635, 576 S.E.2d 168 (2003).......................................................................... 8
United States v. Dickson, 40 U.S. 141 (1841) 40 U.S. 141 (1841) ..................................................................... 1
Constitutional Provisions S.C. Const. art. I, § 5.................................................................................................. 2, 9 S.C. Const. art. I, § 7.................................................................................................... 15 S.C. Const. art. I, § 8.................................................................................................... 13 S.C. Const. art. II, § 1 .................................................................................................. 10 S.C. Const. art. II, § 10 ............................................................................................ 2, 13
iii

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S.C. Const. art. III, § 1................................................................................................. 13 S.C. Const. art. V, § 1 .................................................................................................. 13
Statutes S.C. Code § 7-1-10 .................................................................................................... 2, 13 S.C. Code § 7-3-10(a)...................................................................................................... 2 S.C. Code § 7-3-10(d)...................................................................................................... 2 S.C. Code § 7-3-10(e) ...................................................................................................... 2 S.C. Code § 7-3-20(A) ..................................................................................................... 2 S.C. Code § 7-3-20(C) ..................................................................................................... 3 S.C. Code § 7-15-320 .................................................................................................. 1, 3 S.C. Code § 7-15-320(B)(1) ........................................................................................ 3, 6 S.C. Code § 7-15-320(B)(4) ........................................................................................ 5, 6 S.C. Code § 25-1-440 .................................................................................................... 15 S.C. Code § 23-441(4) (1962).......................................................................................... 8 S.C. Code § 23-442(5) (1962).......................................................................................... 8
Legislative Acts 2015 S.C. Acts No. 79, § 4.............................................................................................. 8 2014 S.C. Acts No. 289, § 6............................................................................................ 8 2000 S.C. Acts No. 392, § 10.......................................................................................... 8 1997 S.C. Acts No. 25, § 1.............................................................................................. 8 1996 S.C. Acts No. 434, § 19.......................................................................................... 8
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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-11 Page 7 of 26 1994 S.C. Acts No. 365, § 3............................................................................................ 8 1989 S.C. Acts No. 193, § 2............................................................................................ 8 1984 S.C. Acts No. 266, § 7............................................................................................ 8 1982 S.C. Acts No. 280, § 1............................................................................................ 8 1975 S.C. Acts No. 301, § 1............................................................................................ 8 1972 S.C. Acts No. 1574, § 2.......................................................................................... 7 Other Authorities Compact Edition of the Oxford English Dictionary (1971) .................................... 4, 11
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INTRODUCTION Justice Holmes was right: “Great cases, like hard cases, make bad law.” N. Sec. Co. v. United States, 193 U.S. 197, 364 (1904) (Holmes, J., dissenting). That is “because some accident of immediate overwhelming interest” acts as “a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.” Id. Here, that “accident” is COVID-19. (See Compl. ¶ 50 (referring to “this unprecedented situation”).) To be sure, COVID-19 is serious. Governments have rightly taken measures to protect citizens from the spread of the disease. But whatever measures government takes must be lawful. As Justice Story admonished almost two centuries ago, “ours is a government of laws, and not of men.” United States v. Dickson, 40 U.S. 141, 162 (1841). That is still true today. It is why the State Election Commission (“SEC”) and Marci Andino, as the SEC’s executive director, may exercise only that authority granted to them by the General Assembly. See Bazzle v. Huff, 319 S.C. 443, 445, 462 S.E.2d 273, 274 (1995). Therefore, the SEC and Andino are authorized to allow certain, statutorily qualified people to vote by absentee ballot. See S.C. Code § 7-15-320. At its core, this case is really a simple one of statutory interpretation. The Petitioners invite the Court to adopt a novel interpretation of the South Carolina Election Law and hold that, because of the possibility of being infected by COVID-19, all South Carolina voters are “physically disabled” and are thus qualified to vote by absentee ballot in the primary and general elections in 2020. That interpretation is
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inconsistent with the plain language and history of sections 7-15-310(4) and 7-15320(B)(1). The Court should therefore reject the Petitioners’ invitation to rewrite these statutes, which would violate well-established legal rules and take the Court beyond the scope of its constitutional role.1
ARGUMENT I. The SEC, acting through its executive director, is charged with
implementing and overseeing South Carolina’s statutorily established election procedures. In our State, “[a]ll elections shall be free and open, and every inhabitant of this State possessing the qualifications provided for in this Constitution shall have an equal right to elect officers and be elected to fill public office.” S.C. Const. art. I, § 5. The procedures for elections must be established by the General Assembly. See id. art. II, § 10. The General Assembly has fulfilled this constitutional obligation. See S.C. Code § 7-1-10 et seq. (“Election Law”). The General Assembly has given the SEC the authority to implement and oversee the Election Law. Id. § 7-3-10(d). The SEC consists of five members, appointed by the Governor. Id. § 7-3-10(a). The SEC acts independent of any political campaign. Id. § 7-3-10(e). The SEC, in turn, elects an executive director, who “shall be the chief administrative officer for the [SEC].” Id. § 7-3-20(A). The executive
1 The SEC and Andino believe the Court should answer the legal question raised by the Petitioners, regardless of whether it is on a motion to dismiss or a motion for summary judgment. That answer should come as quickly as possible, given that absentee voting is already underway.
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director is responsible for myriad statutorily defined duties, including the conducting of registration and elections. See id. § 7-3-20(C). II. State law provides a limited and clear definition of who is physically
disabled and thus qualifies to vote by absentee ballot. As part of the statutory procedure for elections established by the General Assembly, voters can vote either in person on election day, see id. § 7-13-710 et seq., or by absentee ballot, see id. § 7-15-10 et seq. Any registered voter may vote in person. See id. § 7-13-710(A). But only certain voters qualify to vote by absentee ballot. See id. § 7-15-320. Under this statute, certain voters are qualified to vote by absentee ballot, as opposed to being exempt or excused from voting in person. Among the people qualified to vote by absentee ballot are “physically disabled persons.” Id. § 7-15-320(B)(1). The Election Law defines a “physically disabled person” as someone “who, because of injury or illness, cannot be present in person at his voting place on election day.” Id. § 7-15-310(4). The interpretation of a “physically disabled person” is at issue here. A. The plain language of section 7-15-310(4) belies the Petitioners’
position. To answer this question, the starting point must be the General Assembly’s intent. Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) (calling this intent the “cardinal rule of statutory construction”). And to determine legislative intent, this Court looks first to the words that the General Assembly used. Smith v. Tiffany, 419 S.C. 548, 555, 799 S.E.2d 479, 483 (2017) (“It is axiomatic that statutory interpretation begins (and often ends) with the text of the statute in question.”).
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Those words must be read in context so that all parts of the statute are given effect and work harmoniously together. CFRE, LLC v. Greenville Cty. Assessor, 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011).
The Petitioners call COVID-19 an illness. (Compl. ¶ 59.) On that point, they are correct. An “illness” is a “[b]ad or unhealthy condition of the body” or a “disease.” I Compact Edition of the Oxford English Dictionary 1374–75 (1971); see also S.C. Dep’t of Soc. Servs. v. Michelle G., 407 S.C. 499, 509, 757 S.E.2d 388, 394 (2014) (looking to a dictionary for the plain meaning of words).
But it does not follow that every South Carolina voter is statutorily defined as “physically disabled” because COVID-19 is an illness. (See Compl., Prayer (A).) For one, that conclusion belies the common use of the words in section 7-15-310(4). See Olds v. City of Goose Creek, 424 S.C. 240, 249, 818 S.E.2d 5, 10 (2018) (“In construing a statute, its words must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand the statute’s operation.”). A simple example shows how. If someone says, “I am not going because of the flu,” the listener would understand that that person has the flu. In other words, he is sick. On the other hand, to convey that this person did not want to go somewhere because of “fear of contracting” (to use the Petitioners’ phrase (Compl. ¶ 50)) the flu, that person would say, “I am not going because I don’t want to catch the flu.”
For another, their argument wrongly reads “because of . . . illness” in isolation. See Senate by & through Leatherman v. McMaster, 425 S.C. 315, 322, 821 S.E.2d 908, 912 (2018) (“We . . . should not concentrate on isolated phrases within the statute.”).
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In addition to a “physically disabled person” being qualified to vote by absentee ballot, a voter “attending sick or physically disabled persons” is also qualified to vote by absentee ballot. S.C. Code § 7-15-320(B)(4). The only way to harmonize these two qualifications and give meaning to both is to interpret a “physically disabled person” as a person with an illness and to interpret a person “attending” the physically disabled person as someone giving care to a person with an illness. After all, a person with only the fear of contracting an illness does not need a caregiver, so this qualification for absentee voting would be superfluous. See Senate by & through Leatherman, 425 S.C. at 322, 821 S.E.2d at 912 (2018) (“we must read the statute so that no word, clause, sentence, provision or part shall be rendered surplusage, or superfluous” (internal quotation mark omitted)). Thus, a “physically disabled person” must actually have an illness, not just be fearful of contracting one.
Granted, section 7-15-310(4) must “be liberally construed in order to effectuate” its purpose. S.C. Code § 7-15-20. That is why, for example, the SEC has never strictly read “cannot” in section 7-15-310(4) to require a voter literally to be unable to appear in person to qualify as “physically disabled.” Nevertheless, liberally construing the statute is not a license to ignore the words themselves or the context in which they appear. See Gregory v. S.C. Democratic Exec. Comm., 271 S.C. 364, 374–75, 247 S.E.2d 439, 444 (1978) (“While we agree with Petitioner that our absentee voting statutes should be given a liberal construction, we cannot extend statutes to accommodate errors if such interpretation would be contrary to clear mandatory language by the Legislature.”). The words here require a voter to have an
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illness to qualify to vote by absentee ballot, not simply have the fear of contracting an illness.
It is worth noting the many categories of voters already covered by the statute. Among the people at heightened risk with COVID-19 include those who are sixty-five years of age and older; live in a nursing home or assisted-living facility; are immunocompromised; or have conditions like asthma, severe obesity, chronic lung disease, diabetes, serious heart conditions, kidney disease requiring dialysis, and liver disease. See Ctrs. for Disease Control & Prevention, Groups at Higher Risk for Severe Illness (Apr. 17, 2020), https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/groups-at-higher-risk.html. Assuming that someone living in a assisted-living facility is either over sixty-five or has some serious health condition (a seemingly safe assumption), all of these people are already qualified to vote by absentee ballot. See S.C. Code §§ 7-15-320(B)(1) (“physically disabled persons”); 7-15320(B)(8) (“persons sixty-five years of age or older”). So are people caring for these people. See id. § 7-15-320(B)(4). Thus, South Carolina’s absentee-voting rules already protect many of those most at risk due to COVID-19.
B. The history of sections 7-15-310(4) and 7-15-320(B)(1) is inconsistent with the Petitioners’ interpretation.
If the statutory language leaves any doubt, the history of these statutes removes it. See In re Hosp. Pricing Litig., King v. AnMed Health, 377 S.C. 48, 54, 659 S.E.2d 131, 134 (2008) (“The history of the period in which the statute was passed may be considered in interpreting the statute.”).
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The General Assembly established in 1972 the right to vote by absentee ballot if a voter was “physically unable to present himself” at the polls. 1972 S.C. Acts No. 1574, § 2 (“Any qualified elector who will be physically unable to present himself at his precinct on election day shall be permitted to vote by absentee ballot.”). When five Richland County voters sought to use this provision to vote by absentee ballot because they would be out of town on election day, the Attorney General sought a declaration from this Court on whether this statute “extends the right of absentee voting only to those qualified electors who are unable to present themselves at their voting precinct by reason of illness, injury or other physical infirmity.” State ex rel. McLeod v. Ellisor, 259 S.C. 364, 368, 192 S.E.2d 188, 188–89 (1972) (per curiam).
In examining the language of Act 1574, this Court recognized that the “ordinary signification of the words ‘physically unable’ is bodily incapacity or physical infirmity.” Id. at 368–69, 192 S.E.2d at 189. This Court looked to the dictionary for definitions for “unable” and “physically” and concluded that “[t]o interpret these words to mean something other than inability by reason of illness, injury or other bodily infirmity is to place a strained and unnatural construction on them in violation of the South Carolina rule that the words are to be taken in their ordinary and literal meaning.” Id. at 369, 192 S.E.2d at 189. This Court bolstered its conclusion by comparing Act 1574 with other provisions on absentee voting and recognizing that, if it interpreted Act 1574 to mean any voter who was absent on election day regardless of illness or injury, that would implicitly repeal the other absentee-voting provisions (something, of course, the law disfavors). See id. at 369–70, 192 S.E.2d at 189–90.
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Less than three years later, the General Assembly amended the provisions for absentee voting. In Act 301 of 1975, the General Assembly defined a “physically disabled person” as “a person who, because of injury or illness, cannot be present in person at his voting place on Election Day.” 1975 S.C. Acts No. 301, § 1 (codified at S.C. Code § 23-441(4) (1962)). The General Assembly allowed a physically disabled person to vote by absentee ballot, whether or not that person would be absent from her county of residence on election day. Id. (codified at S.C. Code § 23-442(5) (1962)). This provisions have not substantively changed since 1975. See 2015 S.C. Acts No. 79, § 4; 2014 S.C. Acts No. 289, § 6;2 2000 S.C. Acts No. 392, § 10; 1997 S.C. Acts No. 25, § 1; 1996 S.C. Acts No. 434, § 19; 1994 S.C. Acts No. 365, § 3; 1989 S.C. Acts No. 193, § 2; 1984 S.C. Acts No. 266, § 7; 1982 S.C. Acts No. 280, § 1.3
When Act 301 is considered in light of Ellisor, it is apparent that the General Assembly was codifying this Court’s holding. See State v. McKnight, 352 S.C. 635, 648, 576 S.E.2d 168, 175 (2003) (“There is a presumption that the legislature has knowledge of previous legislation as well as judicial decisions construing that legislation when later statutes are enacted on related subjects.”). The General Assembly used the same words (“injury” and “illness”) to define “physically disabled person” that this Court used in analyzing Act 1574. And the General Assembly gave the same people (that is, those unable to vote in person because of injury or illness)
2 This act restructured the subsections of 7-15-320 and moved “physically disabled persons” to its current location in section 7-15-320(B)(1).
3 This act moved these provisions to their current sections of 7-15-310 and 715-320.
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the right to vote by absentee ballot that had that right under the Court’s interpretation of Act 1574.
C. The other authorities on which the Petitioners rely are unavailing. 1. Sections 7-15-310(4) and 7-15-320(B)(1) do not violate the South Carolina Constitution.
The Petitioners insist that not interpreting “physically disabled person” as they do violates our State Constitution. (See Compl, p. 11 (Part III).) They are wrong.
The Free and Open Elections Clause requires what its name suggests: that “elections . . . be free and open, and every inhabitant of this State possessing the qualifications provided for in this Constitution . . . have an equal right to elect officers.” S.C. Const. art. I, § 5.
The Petitioners’ reliance on the Free and Open Elections Clause is misplaced, as they stretch the clause beyond both its plain language and what this Court has said about it. First, as for the language of the clause, it is satisfied here. Every registered voter is free to cast a ballot (whether in person or by absentee ballot), and every vote counts the same.
Second, the Petitioners’ position ignores what this Court has said about the Free and Open Elections Clause. The types of “impediment or restraint” which keep an election from being free and open are legal ones, which restrict the right of voters to participate in an election. For instance, in Cothran v. West Dunklin Public School District No. 1-C, 189 S.C. 85, 200 S.E. 95 (1938), the election at issue was about school bonds. That election was open to all voters, not just those who had real or personal
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property subject to taxation, as Act 102 of 1933 required. Id., 200 S.E. at 95. The election was challenged based on that act. This Court held that that act limiting who could vote was unconstitutional, so the election was valid. Id., 200 S.E. at 97.
State v. Huntley, 167 S.C. 476, 166 S.E. 637 (1932), reinforces this interpretation of the Free and Open Elections Clause. The election in that case was for school trustees in Chesterfield County. Id., 166 S.E. at 638. A state statute provided that the election was to be conducted according to the rules governing primary elections. Id. Primary elections allowed someone to vote if (and only if) that person’s name was on the party rolls. Id., 166 S.E. at 639–40. By contrast, in general elections, the Constitution established who was a qualified elector. Id., 166 S.E. at 639. Because qualified electors were excluded from the election for school trustees, that election violated the Free and Open Elections Clause. Id., 166 S.E. at 640. Once again, the impediment at issue was a legal one, restricting some people’s right to vote.
Both Cothran and Huntley show that the Free and Open Elections Clause protects voters from legal restrictions on their right to vote, not from natural events that affect all voters. The Petitioners have thus put more weight on the Free and Elections Clause than it can bear. (See Compl. ¶ 26.)
The Petitioners, in passing, also reference Article II, § 1, which provides, “The right of suffrage, as regulated in this Constitution, shall be protected by laws regulating elections and prohibiting, under adequate penalties, all undue influence from power, bribery, tumult, or improper conduct.” S.C. Const. art. II, § 1; (see Compl. ¶ 29). Their reliance here (unclear as it is) is also misplaced, this time for three
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reasons. In the first place, they cite no cases suggesting that this provision could apply to a natural event like COVID-19.
In the second, they do not read “tumult” in context. That word means “[c]ommotion for a multitude, usually with confused speech or uproar; public disturbance; [or a] disorderly or riotous proceeding.” II Compact Edition of the Oxford English Dictionary 3431. Given the other words in Article II, § 1, it is clear that the prohibition on “tumult” during elections is to ensure voters may cast their ballots in peace, without disruption or any improper influence. See Eagle Container Co. v. Cty. of Newberry, 379 S.C. 564, 570, 666 S.E.2d 892, 895–96 (2008) (“Words in a statute must be construed in context, and the meaning of particular terms in a statute may be ascertained by reference to words associated with them in the statute.” (internal alteration and quotation marks omitted)).
And in the third, they ignore why this provision exists. “Polling places on Election Day, unlike today’s typical experience of waiting quietly in line, often were scenes of battle, murder, and sudden death. In addition to real violence, sham battles were staged to frighten away elderly and timid voters.” George v. Mun. Election Comm’n of City of Charleston, 335 S.C. 182, 188–89, 516 S.E.2d 206, 209 (1999). Article II, § 1 seeks to keep this history repeating itself.
2. None of the other cases the Petitioners cite support the relief they seek.
At various points, the Petitioners cite cases that do not shed any light on how sections 7-15-310(4) and 7-15-320(B)(1) should be interpreted. For example, they cite Anderson v. South Carolina Election Commission, 397 S.C. 551, 556, 725 S.E.2d 704,
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706 (2012), for the proposition that election cases are important and that “[i]ntegrity in elections is foundational.” (Compl. ¶ 19.) No one disputes those points. But that case was about what forms candidates for office had to file. See Anderson, 397 S.C. at 558, 725 S.E.2d at 708 (holding that candidates had to file a statement of economic interest at the same time as their statement of intention of candidacy). It is irrelevant here.
Likewise, the Petitioners rely on Redfearn v. Board of State Canvassers of South Carolina, 234 S.C. 113, 120, 107 S.E.2d 10, 14 (1959), for the assertion that the “purpose of an election is to express the will of the electorate.” (Compl. ¶ 28.) Of course that is the purpose of an election. The challenge to a particular disputed election in Redfearn, however, does not help answer the question presented here of how to interpret “physically disabled person.”
As a third example, George has no significance in this case. That case held that an election was invalid when voting booths and foldable ballots were not used, issues that do not arise here. (Pet. ¶ 31.)
Finally, the cases from other jurisdictions either interpret law from other states in other contexts (like the Pennsylvania case, which addressed redistricting) or state basic principles that do not provide any guidance in determining what section 7-15-310(4) means (like the North Carolina case). (Compl. ¶ 28.)
Other cases that the Petitioners cite are not only not helpful, but they actually undermine the Petitioners’ argument. Take, for example, Callison v. Peeples, 102 S.C. 256, 86 S.E. 635 (1915). Callison was about whether certain people were qualified
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voters in an election to decide whether to create a new county out of part of Greenwood County. In deciding the case, the Court observed that “the provisions of the Constitution were mandatory.” Id., 86 S.E. at 637. Just as that is true of constitutional provisions regarding elections, it is true of constitutional provisions about separation of powers. See infra Part III. III. The Petitioners’ arguments are addressed to the wrong branch of
government. An essential feature of our government is the separation of powers. See S.C. Const. art. I, § 8 (“the legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other”). When all of the clamor about the “accident” (as Justice Holmes put it) giving rise to this case is calmed, the separation-of-powers issue in this case become apparent. The “legislative power” is vested in the General Assembly. S.C. Const. art. III, § 1. This includes the specific power and responsibility to “provide for the administration of elections and for absentee voting.” S.C. Const. art. II, § 10. The General Assembly has exercised that power and fulfilled its constitutional obligation to establish procedures for elections in this State. See S.C. Code § 7-1-10 et seq. The “judicial power” to interpret the Election Law is vested in this Court. S.C. Const. art. V, § 1. That power does not include the power to rewrite statutes. As this Court has observed, even if it is “troubled by th[e] result” in a case, it is “not at liberty to rewrite the statutes, and any amendment must come from the Legislature.” Capco
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of Summerville, Inc. v. J.H. Gayle Constr. Co., 368 S.C. 137, 144, 628 S.E.2d 38, 42 (2006); see also Buchanan v. S.C. Prop. & Cas. Ins. Guar. Ass’n, 424 S.C. 542, 553, 819 S.E.2d 124, 130 (2018) (Few, J., concurring) (“If it were true courts have the authority to interpret statutes according to a sense of justice and right, then courts would have the power to rewrite statutes to suit their own personal preferences, regardless of legislative intent. Courts do not have that power.”).
In fact, the Court has said as much in the context of election laws. Gregory v. South Carolina Democratic Executive Committee involved a disputed primary election, including some absentee ballots. In taking up the issue of those ballots, this Court explained that although “our absentee voting statutes should be given a liberal construction, we cannot extend statutes to accommodate errors if such interpretation would be contrary to clear mandatory language by the Legislature.” 271 S.C. at 374– 75, 247 S.E.2d at 444. In other words, the Court cannot rewrite statutes governing absentee ballots because that is not its constitutionally assigned role.
But these are not issues with which the Petitioners wrestle. Instead, they jump straight to their policy concerns, insisting that social distancing is not possible with in-person voting. (Compl. ¶ 46.) As a factual matter, the Petitioners are not necessarily correct, as they themselves acknowledge. (Compl. ¶ 46.) Social distancing can still be observed with in-person voting. Lines would stretch out as people left space before the next person, and machines could be wiped between voters by a poll worker with gloves and a mask. In fact, the SEC has taken steps to keep in-person voting safe. For example, the SEC has provided special COVID-19 training to poll
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managers on social distancing and sanitation, so that check-in stations are properly spaced, voters leave six feet between them in line, and voting equipment is cleaned between voters. The SEC has also ordered personal protective equipment (like masks and gloves), cleaning supplies, sneeze guards for check-in stations, and cotton swabs for voters to use instead of fingers. See also Ctrs. for Disease Control & Prevention, Recommendations for Election Polling Locations: Interim Guidance to Prevent Spread of Coronavirus Disease 2019 (COVID-19) (Mar. 27, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/election-pollinglocations.html (providing guidance for safer in-person voting).
More fundamentally, the Petitioners make this argument to the wrong branch of government. The Petitioners may have valid policy arguments. Or they may not. It does not matter in this forum. What matters is our constitutional structure and the role that each branch of government plays. The SEC and its executive director have only the power to enforce the Election Law as the General Assembly adopted it. Nothing more. See Hampton v. Haley, 403 S.C. 395, 403, 743 S.E.2d 258, 262 (2013) (“the executive department carries the laws into effect”); see also Captain’s Quarters Motor Inn, Inc. v. S.C. Coastal Council, 306 S.C. 488, 490, 413 S.E.2d 13, 14 (1991) (“a regulatory body is possessed of only those powers expressly conferred or necessarily implied for it to effectively fulfill the duties with which it is charged”).4
4 Even the Governor’s emergency powers do not extend to changing the Election Law. See S.C. Code § 25-1-440 (providing the Governor’s additional powers during a declared emergency); see also S.C. Const. art. I, § 7 (“The power to suspend the laws shall be exercised only by the General Assembly or by its authority in particular cases expressly provided for by it.”).
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This Court has only the power to interpret the Election Law. Nothing more. See Hampton, 403 S.C. at 403, 743 S.E.2d at 262 (“the judicial department interprets and declares the laws”). The General Assembly has the power to change the Election Law. See id. (“the legislative department makes the laws” (alteration omitted)). That is therefore the branch of government to which the Petitioners should be making their policy arguments.
CONCLUSION The Court should deny the Petitioners’ requested relief.
Respectfully Submitted, s/ Wm. Grayson Lambert M. Elizabeth Crum Wm. Grayson Lambert S.C. Bar No. 101282 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
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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-11 Page 24 of 26 Harrison D. Brant STATE ELECTION COMMISSION 1122 Lady Street, Suite 500 Columbia, SC 29201 (803) 734-9063 Counsel for Defendants-Respondents South Carolina Election Commission and Marci Andino as Executive Director of the State Election Commission
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THE STATE OF SOUTH CAROLINA In the Supreme Court
In its Original Jurisdiction Appellate Case No. 2020-00642 ___________________________________ Rhodes Bailey, Robert Werhman, South Carolina Democratic Party, and DCCC,................................Plaintiffs-Petitioners,
v. South Carolina Election Commission and Marci Andino as Executive Director of the State Election Commission, ..................................................... Defendants-Respondents.
_______________________________________ CERTIFICATE OF SERVICE
______________________________________ I certify that this RETURN TO INTERVENOR’S MOTION TO DISMISS was served on all counsel of record via electronic mail, pursuant to Supreme Court Order 2020-03-20-01, § (g)(3), on May 8, 2020, and a copy of that electronic mail is attached to this certificate:
Christopher J. Bryant PERKINS COIE LLP 700 Thirteenth Street, N.W., Suite 800 Washington, D.C. 20005 cbryant@perkinscoie.com Counsel for Plaintiffs-Petitioners
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Robert E. Tyson, Jr. Vordman Carlisle Traywick, III ROBINSON GRAY STEPP & LAFFITTE, LLC 1310 Gadsden Street Columbia, S.C. 29201 rtyson@robinsongray.com ltraywick@robinsongray.com Counsel for Intervenor South Carolina Republican Party Alan Wilson Robert D. Cook J. Emory Smith, Jr. Harley Kirkland SOUTH CAROLINA ATTORNEY GENERAL’S OFFICE P.O. Box 11549 Columbia, SC 29211 awilson@scag.gov esmith@scag.gov Counsel for Amicus South Carolina Attorney General
s/ Wm. Grayson Lambert
19

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-12 Page 1 of 11 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 11
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Deposition Excerpts of Marci Andino

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-12 Page 2 of 11

Page 1

1

2 UNITED STATES DISTRICT COURT

3 FOR THE DISTRICT OF SOUTH CAROLINA

4 COLUMBIA DIVISION

5 -----------------------------------x

6 MARY T. THOMAS, et al.,

7

Plaintiffs,

Case No.

8

-against-

3:20-cv-01552-JMC

9 MARCI ANDINO, et al.,

10

Defendants.

11 -----------------------------------x

12

July 31, 2020

9:36 a.m.

13

14

15

16

17

Videotaped Remote Deposition of MARCI

ANDINO taken by All Parties, pursuant to

18 Notice, at 1221 Main Street, Columbia, South

Carolina, before William Visconti, a Shorthand

19 Reporter and Notary Public within and for the

State of New York.

20

21

22

23

24

25

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Page 46

1

MARCI ANDINO

2

are signing, they're taking an oath, they will

3

receive an absentee ballot.

4

Q.

It would probably be fraud, I

5

agree, but they could still do it, right?

6

A.

Yes.

7

MS. CRUM: Objection to the form.

8

You can answer.

9

A.

Yes.

10

Q.

Miss Andino, is it your

11

understanding that certain health conditions

12

put people at increased risk of complications

13

from the coronavirus?

14

A.

Yes.

15

Q.

So let's take diabetes, do you

16

understand that to be one of the conditions

17

that I just described?

18

A.

Yes.

19

Q.

Miss Andino, would someone who has

20

diabetes but usually votes in person on

21

election day qualify as physically disabled to

22

qualify for an absentee ballot in November?

23

A.

If they check yes or they check

24

that option, yes.

25

Q.

Even if their diabetes is not

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1

MARCI ANDINO

2

preventing them from being in person on

3

electric day?

4

A.

If they check the box, yes.

5

Q.

How about someone with an

6

autoimmune disease who commonly leads a very

7

active lifestyle?

8

A.

If they check the box, yes.

9

Q.

I was reading the other day, Miss

10

Andino, Drew Brees, the quarterback for The

11

Saints has celiac disease. Celiac is an

12

autoimmune disorder, could Drew Brees vote

13

absentee as physically disabled in November if

14

he were a South Carolina registered voter?

15

A.

If he checked the box, yes.

16

Q.

Miss Andino, would someone who

17

lives in a nursing home but is under the age of

18

65 and has no illnesses or injuries, would they

19

be able to request an absentee ballot?

20

A.

I'm not sure that I understand

21

your question. You said they live in a nursing

22

home but they don't have any illnesses?

23

Q.

Correct. And provided they are

24

under the age of 65, would they have any excuse

25

to use the vote by absentee ballot?

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1

MARCI ANDINO

2

A.

I don't know.

3

Q.

That's fine. Miss Andino, we just

4

walked through several illnesses and your

5

answer was so long as the voter checks the box

6

they would be entitled to vote by absentee

7

ballot.

8

Has that fact that those voters I

9

described qualifies physically disabled to vote

10

absentee, has that been made public in the

11

Commission's public facing documents?

12

A.

I believe so.

13

Q.

Do you know off the top of your

14

head like where those public education

15

documents might be? Maybe on your website?

16

A.

Yes, they are on our website and

17

we did add clarification that physical

18

disability includes illness.

19

Q.

That includes any illness, is that

20

clear in your materials?

21

A.

That would be up to the voter to

22

decide. I think it is. We think it is. We

23

try to put out clear information.

24

Q.

Thank you, Miss Andino. I would

25

like to go back to Exhibit 3, the March 30th

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MARCI ANDINO

2

having a witness on those ballots?

3

A.

I haven't seen any evidence to the

4

contrary.

5

Q.

Do you know off the top of your

6

head how many states do have a witness

7

requirement for absentee ballot?

8

A.

I do not.

9

Q.

So, looking at page 3 of the

10

March 30th letter, the third paragraph from the

11

top. It is the second full paragraph. It

12

reads, "Absentee voting also requires voters to

13

have another person witness their signature

14

when returning their ballot. While election

15

officials check the voter's signature, the

16

witness signature offers no benefit to the

17

election officials as they have no ability to

18

verify the witness signature." It ends

19

"Removing the requirement for a witness

20

signature would remove a barrier many voters

21

would likely encounter while in

22

self-isolation." Did I read that right, Miss

23

Andino?

24

A.

Yes, you did.

25

Q.

When you say the witness

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MARCI ANDINO

2

signature in the June primaries?

3

A.

I do not.

4

Q.

Would that information be captured

5

in any of the Commission's data?

6

A.

I don't believe so, unless we have

7

asked counties specifically to provide that and

8

I don't know that for sure.

9

Q.

You don't know whether you have

10

asked counties to provide that data

11

specifically?

12

A.

I do not.

13

Q.

Miss Andino, are you aware of any

14

instances of voter fraud involving absentee

15

ballots during the June primaries?

16

A.

I am not.

17

Q.

Are you aware of instances of

18

fraud of any kind in the South Carolina June

19

primaries?

20

A.

There may have been some alleged

21

fraud, but we don't investigate. We would turn

22

that over to law enforcement. So I don't have

23

any information about that.

24

Q.

But if there were any instances of

25

fraud, you would know about them, right or any

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1

MARCI ANDINO

2

These are recommendations that you're putting

3

on the table for the legislature to consider

4

when it comes back; correct?

5

A.

Correct.

6

Q.

So the legislature might take some

7

of these and they might not?

8

A.

That's right.

9

Q.

Just as they did in the other one.

10

Let me ask you, given the pandemic right now,

11

the primaries were all conducted under CDC

12

guidelines, correct?

13

A.

Yes.

14

Q.

And presumably the November

15

election will be done the same way, right?

16

A.

Yes.

17

Q.

What other steps is the State

18

Election Commission taking to ensure persons

19

who vote in person can vote in a safe manner?

20

A.

We are providing PPE for every

21

county and every polling place in the state and

22

that includes masks and gloves and face shields

23

for poll managers. We are also providing

24

sneeze guards to put a little distance between

25

poll managers and voters. We are providing

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2

hand sanitizer. We are providing Q-Tips so

3

voters don't have to touch the voting machines.

4

We are providing alcohol wipes so that poll

5

managers can clean the voting machines and we

6

are providing disinfecting spray so they can

7

wipe down other hard surfaces within the

8

polling place.

9

We have signage that reminds

10

voters to wear a mask and in our communications

11

to voters we ask that they also bring their own

12

pen so they won't have to touch a pen that was

13

touched by other voters.

14

We sent out rolls of tape as well

15

as string cut into six foot sections so that

16

poll managers can put tape down on the floor to

17

aid in social distancing. We have purchased

18

additional scanners for precincts and we have

19

also scanners or also tabulators, they read the

20

ballot and count the votes. We also purchased

21

large high speed scanners so that counties can

22

process the number of absentee ballots that

23

they are receiving by mail.

24

Q.

You have taken a lot of steps to

25

ensure that persons, voters who want to vote in

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2

THE WITNESS: You're welcome.

3

MS. CRUM: This is Liz, I have a

4

couple of questions and I'm trying to

5

figure out how to do them and I guess I

6

will just bend over like this and ask and

7

then move out of the way and let Miss

8

Andino answer. Does that work for

9

everybody?

10

EXAMINATION BY MS. CRUM:

11

Q.

Mr. Tyson asked you whether or not

12

the June primaries were conducted using the CDC

13

guidelines and I believe you answered yes.

14

A.

Yes.

15

Q.

Would you please explain what the

16

agency did to train the county poll workers,

17

poll managers with regard to the CDC

18

guidelines?

19

A.

The first thing that we did is

20

post a copy the CDC guidelines on our intranet

21

site so county election officials would be

22

aware. We also created a PowerPoint

23

presentation specifically for Covid 19 and it

24

included CDC guidelines and we incorporated

25

that into our poll manager training for the

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1

MARCI ANDINO

2

primaries.

3

We do not conduct the training

4

ourselves, but we provide the training

5

materials to all counties so that they can

6

conduct training. And then we also have an

7

online training prepared following CDC

8

guidelines and made it mandatory for poll

9

managers to take the training prior to working

10

the polls. And we paid them out of CAREs

11

funding to do that extra training.

12

Q.

Could the poll manager serve as a

13

poll manager if they had not completed the CDC

14

training?

15

A.

We made the training mandatory.

16

However, there were people who were not called

17

to work as poll managers until the day before

18

the election and they may have not completed

19

the training.

20

Q.

You have talked about certain I

21

guess PPE paraphernalia that was given to the

22

poll managers and one of them was a squeeze

23

guard. What is a sneeze guard?

24

A.

A sneeze guard is a large clear

25

plastic shield that sits in front of the poll

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-13 Page 1 of 9 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 12
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Amicus Br. of Att’y Gen. 6–7, Bailey v. S.C Election Comm’n, No. 2020-000642 (S.C. May 7, 2020)

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-13 Page 2 of 9
THE STATE OF SOUTH CAROLINA IN THE SUPREME COURT
_____________________________ IN THE ORIGINAL JURISDICTION OF THE SUPREME COURT
______________________________ Appellate Case No. 2020-00642
_____________________________ Rhodes Bailey, Robert Wehrman, South Carolina Democratic Party, and DCCC………………….….….……………….………........Plaintiffs - Petitioners,
v. South Carolina State Election Commission and Marci Andino as Executive Director of the State Election Commission……………………………...Defendants-Respondents.
_________________________________________ MEMORANDUM OF AMICUS CURIAE ATTORNEY GENERAL
_________________________________________ Attorney General Alan Wilson, as Amicus Curiae, submits the following Memorandum. This case is of paramount importance to the citizens of South Carolina. In the face of a pandemic of historic magnitude, as well as a fast-approaching June primary, this Court is called upon to address the novel question of the pandemic’s effect, if any, upon the absentee ballot statutes. Does Art. I, § 5 of the South Carolina Constitution, guaranteeing a “free and open” election, require, as Plaintiffs-Petitioners contend, that all eligible voters are “physically disabled persons” and are thus entitled to vote absentee because of the pandemic? See § 7-15-320(B)(1) and § 7-15-310(4). Or, instead, does the Court possess sufficient interpretive flexibility to construe the phrase “physically disabled person” so that certain additional voters may vote absentee as a result of COVID-19 without a wholesale rewriting of the statute? We believe that the Plaintiffs-Petitioners’ interpretation would unhinge the statute altogether and that a more

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-13 Page 3 of 9
reasonable interpretation is that, applying CDC guidelines, together with a liberal interpretation of the statutes, the Court possesses the required flexibility to read the statute with common sense and reasonable latitude in the wake of the pandemic.
Plaintiffs-Petitioners urge the Court that Art. I, § 5 [and Art. II, § 1] of the State Constitution, guaranteeing “free and open” elections, mandate that, in the wake of the pandemic, all eligible voters be allowed to vote by absentee ballot in the upcoming primary and general election. In their words, “[u]nless South Carolina’s 3.3 million registered voters are given the ability to exercise their right to vote without having to make that choice [between voting and protecting their health], the upcoming elections will not be free and open and protected from tumult in violation of the South Carolina Constitution.” Petition at pgs. 1-2.
Courts have rejected such reasoning that the constitutional requirement of a “free and open” election mandates absentee balloting upon demand. In Franks v. Hubbard, 498 S.W.3d 862, 872 (Mo. 2019), the Missouri Court emphasized that absentee voting was conferred by the Legislature, not by the federal or state Constitutions. Missouri possesses a constitutional provision similar to our own Art. I, § 5 [Missouri Constitution Art. I, § 25 guarantees that all elections shall be “free and open” and that no power, “civil or military,” shall interfere or prevent the free exercise of the right of sufferage]. In Franks, that Court construed this provision of the state Constitution, as well as the federal Constitution and its effect upon absentee voting, as follows:
[s]imilarly, the U.S. Constitution and Missouri Constitution grant qualified voters a constitutional right to vote. Here, no person’s constitutional right is being infringed upon. Under the Missouri Constitution, the right to vote by absentee ballot is “clearly a privilege and not a right.” Barks [v. Turnbeau], 573 S.W.2d 677 (Mo. App. E.D. (1978) at 681) (emphasis added). Under the U.S. Constitution, the “fundamental right to vote” is different from a “claimed right to receive [an] absentee ballot [ ].” McDonald v. Board of Election Comm’rs of Chicago, 394 U.S. 802, 807, 89 S.Ct. 1404, 22 L.Ed. 739 (1969);
2

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-13 Page 4 of 9
see also Griffin v. Roupas, 385 F.3d 1128, 1130 (7th Cir. 2004) [stating that the U.S. Constitution does not require states to allow voters to vote by absentee ballot and it gives broad authority to regulate the conduct of elections].
As the Court emphasized in Roupas, “[s]o at bottom the plaintiffs are arguing that the
Constitution requires all states to allow unlimited absentee voting and the argument ignores a
host of serious objections to judicially legislating so radical a reform in the name of the
Constitution Voting Fraud is a serious problem in U.S. elections generally and one with a
particular gamey history in Illinois . . . and it is facilitated by absentee voting.” 385 F.3d at
1130-31 (citing authorities). See also State ex rel. Dunn v. Coburn, 168 S.W. 956, 958 (Mo.
1914) [holding that Constitution requiring “all elections shall be ‘free and open’ does not mean
that there cannot be reasonable regulation of elections in the interest of good citizenship and
honest government.”].
We also note that this Court, in Cothran v. West Dunklin Pub. Schools, 189 S.C. 85, 200
S.E. 95, 97 (1938), commented upon the meaning of what is now Art. I, § 5. There, the Court
stated:
[u]nder such a guaranty, the right to vote, as the words expressly state, must be maintained absolutely free and the vote of every elector must be granted equal influence with that of every other elector. To be free means that the voter shall be left in the untrammeled exercise, whether by civil or military authority, of the right or privilege, that is to say, no impediment or restraint of any character shall be imposed upon him either directly or indirectly whereby he shall be hindered or prevented from participation at the polls. As otherwise expressed, an election is free and equal within the meaning of the Constitution when it is public and open to all qualified electors alike, when every voter has the same right as any other voter; when each voter under the law has the right to cast his ballot and have it honestly counted; when the regulation of the right to exercise the franchise does not deny the franchise itself, or make it so difficult as to amount to a denial; and when no constitutional right of the qualified voter is subverted or denied him.
(quoting R.C.L., § 8, p. 984).
3

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-13 Page 5 of 9
While admittedly the language quoted in Cothran is quite broad, it is important to note that the case turns upon the validity of a statute which disqualified certain voters and that only those “who return real or personal property for taxation in the school district” could vote. The Court declared that such a statute violated what is now Art. I, § 5. Here , by comparison, while the act of voting will undoubtedly be difficult, and subject to risk, it is not infringed by “civil or military authority.” In short, the Constitution, guaranteeing a “free and open election” protects against infringement by civil or military authority, or mankind’s acts, not by the forces of nature.
We turn now to the absentee ballot statutes themselves. Section 7-15-320(B)(1) allows a “physically disabled person” to vote absentee. Moreover, subsection (B)(4) of § 7-15-320 permits “persons attending sick or physically disabled persons” to obtain an absentee ballot. Pursuant to § 7-15-310(4), the term “physically disabled person” is defined as a “person, who because of injury or illness cannot be present in person at his voting place on election day.” Plaintiff-Petitioners would read this definition so broadly that the “illness” referred to essentially prevents all voters from being “present in person at his voting place on election day.” This interpretation would allow every registered voter to be a “physically disabled person” because of the presence of the coronavirus in the community even if a voter does not know that he or she is infected or otherwise ill.
We believe that this interpretation stretches the provision beyond any limits. Surely, the provision refers to the particular voter’s “illness” not illness which is currently prevalent in the form of a pandemic. As this Court explained in Gregory v. S.C. Dem. Pty. Ex. Comm., 271 S.C. 364, 374-75, 247 S.E.2d 439, 444 (1978), while “. . . our absentee voting statutes should be given a liberal construction, we cannot extend statutes . . . if such construction would be contrary to clear mandatory language by the Legislature.” Section 7-5-20 requires a liberal construction of
4

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-13 Page 6 of 9
the absentee voters statutes “in order to effectuate their purpose.” See also Knight v. State Bd. of Canvassers, 297 S.C. 55, 57, 374 S.E.2d 685, 686 (1988) [rejecting a strict scrutiny standard to interpret absentee registration and voting statutes].
In State ex rel. McLeod v. Ellisor, 259 S.C. 364, 369, 192 S.E.2d 188, 189 (1972), the Court held that Act No. 1574 of 1972 – the predecessor to the current § 7-15-320 – applied only to those electors who are unable to present themselves at their voting precinct because of a “physical incapacity.” Section 2 of the Act stated that “[a]ny qualified voter who will be physically unable to present himself at his precinct on election day shall be permitted to vote by absentee ballot.” 259 S.C. at 368, 192 S.E.2d at 189 (emphasis added). The Court explained that this statute did not apply to an elector absent from his voting precinct for reasons unrelated to their health or physical condition. According to the Court, “[t]o interpret these words to mean something other than inability by reason of illness, injury or other bodily infirmity is to place a strained and unnatural construction upon them in violation of the South Carolina rule that the words are to be taken in their ordinary and literal meaning.” 259 S.C. at 369, 192 S.E.2d at 189.
Subsequently, the General Assembly deleted Act No. 1574 of 1972 and instead opted for the language in McLeod v. Ellisor. See 1975 Act No. 301. In view of the closeness of McLeod’s view of “physically disabled person” and the language contained in Act 301 of 1975, it is reasonable to glean the legislative intent of the present Act. In other words, an elector may qualify for absentee voting as a “physically disabled person” only when he or she possesses a physical condition which impacts his or her ability to be present at that person’s voting place. Such intent is, of course, dramatically inconsistent with Plaintiffs-Petitioners’ interpretation whereby everyone – all registered voters – are “physically disabled.”
5

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-13 Page 7 of 9

.

This Court is not a “super legislature” and cannot rewrite the present statute into oblivion.

As the Court emphasized in Hodges v. Rainey, 341 S.C. 79, 87, 533 S.E.2d 578, 582 (2000),

“[w]hen the language of a statute is clear and explicit, a court cannot rewrite the statute and

inject mattes into it which are not in the legislative language.” Here, the General Assembly did

not specify that every elector could request an absentee ballot based upon an infectious

pandemic, or that the forces of nature, make it hazardous to go to the polls, thus necessitating

voting only by absentee ballot. This Court should not create such exception. To do so would

create a dangerous precedent for the future. Ordinary seasonal flu? As discussed, the legislative

intent of the Act was that a person’s individual physical condition impacts that person’s ability to

go to the polls.

Such does not mean that this Court may not construe the words “physically disabled

person” broadly and in conformity with the Legislature’s direction that the statute be liberally

construed. A worldwide pandemic is certainly an event the General Assembly did not anticipate

when drafting the current Act. Moreover, it should be noted that the statute also addresses

“persons attending sick or physically disabled persons” as being entitled to seek an absentee

ballot. § 7-15-320(B)(4). Therefore, based upon the statute’s plain meaning and its legislative

history, it is reasonable for the Court to construe the term “physically disabled person” as it

applies to COVID-19 so as to include: persons diagnosed with COVID-19; persons awaiting test

results for COVID-19; persons having one of the conditions which the Center for Disease

Control identified as placing a person at higher risk for severe illness from COVID-19 (People

Who Need Extra Precautions CDC.gov.https//www.cdc.gov/coronavirus/2019-ncov/need-

extraprecautions/indiex.html (last updated April 28, 2020). Further, those persons providing care

for such individuals may also qualify to vote absentee as “persons attending sick or physically

6

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-13 Page 8 of 9
disabled persons.” § 7-15-320(B)(4). Certainly, first responders and hospital workers are on the front lines of fighting the pandemic.
There is precedent for our suggested construction. We would refer the Court to decisions such as School Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987); Bragdon v. Abbott, 524 U.S. 624 (1998); Grey v. Avondale Serv. Foundry, 305 So.2d 639 (La. 1975). In Arline, a school teacher was fired because of susceptibility to tuberculosis. The Court held that the teacher was a “handicapped person” for purposes of the Rehabilitation Act. Even though the disease had gone into remission for more than twenty years, the teacher upon testing positive on several occasions – indicating the disease was back in his system – was then suspended and later terminated because of the “continued recurrence of tuberculosis.” Id. at 276. According to the Court, notwithstanding these unusual circumstances, including the fact that the disease had remained dormant for so long, the teacher qualified as a “handicapped person” for purposes of federal law.
Likewise, in Bradgon, the Court held that HIV is a “disability” under the Americans With Disabilities Act even when the infection has not progressed to the so-called symptomatic phase. Finally, in Avondale, the Court concluded that “silicosis was un underlying condition making the person more apt to contract tuberculosis.” 305 So.2d at 641. The Court noted that there is a “sufficient relationship between plaintiff’s silicosis, a listed occupational disease, and his ultimate disability [tuberculosis] to entitled him to [Workers Compensation] benefits.” In short, the identifiable underlying condition would more likely lead to the “ultimate disability” – tuberculosis.
We certainly recognize that these cases are not on “all fours” with the current situation. But they are useful guidance for this Court. They suggest that certain underlying conditions
7

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-13 Page 9 of 9

which can be recognized as a “disability” and would render contracting of COVID-19 more likely or more severe.
Thus, we believe it would be reasonable for the Court to interpret the term “physically disabled person” to include the categories of persons, set forth above, as entitled to vote absentee. We emphasize, however, that the interpretation proposed by Plaintiffs-Petitioners is inconsistent with the intent of the General Assembly, in enacting the absentee ballot statute and would render those statutes meaningless – even in the current crisis we face.

May 7, 2020

Respectfully submitted,
ALAN WILSON Attorney General
ROBERT D. COOK Solicitor General S.C. Bar. No. 1373
s/ J. EMORY SMITH, JR. Deputy Solicitor General S.C. Bar No. 5262
HARLEY KIRKLAND Assistant Attorney General S.C. Bar No. 100382
Office of the Attorney General Post Office Box 11549 Columbia, SC 29211 (803) 734-3680
ATTORNEYS FOR THE ATTORNEY GENERAL

8

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-14 Page 1 of 8 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 13
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Deposition Excerpts of Cassandra D. Salgado, MD, MS

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-14 Page 2 of 8

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-14 Page 8 of 8

Page 68

1

C. Salgado

2 you've given in your report?

3

A.

Yes. The only thing I would change

4 would be the discussions that we had regarding

5 testing.

6

MS. CRUM: Thank you, Dr. Salgado.

7

I don't have any additional information --

8

questions.

9

MS. LEE: I have.

10 CONTINUED EXAMINATION

11 BY MS. LEE:

12

Q.

This is Theresa Lee. I have just a

13 couple of follow-ups based on the questions

14 Ms. Crum just asked you.

15

Ms. Crum just asked you about folks

16 still coming into the MUSC system for checkups.

17 Do you recall that?

18

A.

Yes.

19

Q.

Is this the case that today people

20 can choose to have a telemedicine appointment

21 with their MUSC provider?

22

A.

That's correct.

23

Q.

Is the .92 effective reproductive

24 number in your report at page 3 from the

25 COVID-19 projections website?

212-267-6868

Veritext Legal Solutions www.veritext.com

516-608-2400

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-15 Page 1 of 11 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 14
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Expert Report of Cassandra D. Salgado, MD, MS

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-16 Page 1 of 3 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 15
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Second Declaration of Mary T. Thomas

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-16 Page 2 of 3

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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-17 Page 1 of 3 Mary T. Thomas, et al. v. Marci Andino, et al. C/A No.: 3:20-cv-01552-JMC
Exhibit 16
to Defendants’ Memorandum in Support of Motion for Summary Judgment
Declaration of Pete Logan

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-17 Page 2 of 3

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 108-17 Page 3 of 3

 
 3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 109 Page 1 of 29

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

MARY T. THOMAS, NEA RICHARD, )

JEREMY RUTLEDGE, THE FAMILY )

UNIT, INC., and the SOUTH CAROLINA )

STATE CONFERENCE OF THE NAACP )

)

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;

)

JOANNE DAY, CLIFFORD J. EDLER, )

LINDA MCCALL, 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,

)

)

and

)

)

South Carolina Republican Party,

)

)

Intervenor–Defendant.

)

)

Case No.: 3:20-cv-01552-JMC
INTERVENOR–DEFENDANT SOUTH CAROLINA REPUBLICAN PARTY’S MOTION FOR SUMMARY JUDGMENT

PLEASE TAKE NOTICE that the intervenor–defendant, South Carolina Republican Party

(the SCGOP), will move before the Honorable J. Michelle Childs, United States District Judge for

the District of South Carolina, ten days after service hereof, or as soon thereafter as counsel may

be heard, for an Order granting summary judgment in favor of the defendants and dismissing the

amended complaint, with prejudice, pursuant to Federal Rule of Civil Procedure 56. For the

reasons that follow, the plaintiffs—Mary T. Thomas, Nea Richard, Jeremy Rutledge, The Family

1

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 109 Page 2 of 29
Unit, Inc., and the South Carolina Conference of the NAACP—failed as a matter of law to prove any of their claims, and they are not entitled to a mandatory permanent injunction. The Court should therefore grant this motion and decline the plaintiffs’ invitation to fundamentally change the landscape governing absentee voting in South Carolina on the eve of the 2020 election.1
BACKGROUND “Integrity in elections is foundational.” Anderson v. S.C. Election Comm’n, 397 S.C. 551, 556, 725 S.E.2d 704, 706 (2012) (per curiam). And “[i]t is clear that preservation of the integrity of the electoral process is a legitimate and valid state goal.” Rosario v. Rockefeller, 410 U.S. 752, 761 (1973). After all, “as 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). This action in federal court nevertheless stems from the plaintiffs’ personal distaste for state law governing absentee voting in South Carolina. In the latest bout of pandemic politics, the plaintiffs—none of whom are injured or burdened by these laws—ask this Court to rewrite South Carolina’s election code by erasing certain statutory criteria to expand the State’s absentee voting privilege for the upcoming election. At bottom, the plaintiffs disagree, from a public policy standpoint, with the South Carolina General Assembly’s decision to grant a pandemic exception only for the June 2020 primary. But “[f]ederal courts resolve cases and controversies, not crusades.” Timpson ex rel. Timpson v. McMaster, 437 F. Supp. 3d 469, 472 (D.S.C. 2020). Everyone agrees COVID-19 is serious. Over 100,000 South Carolinians have contracted the novel coronavirus, and it is reported that almost 2,000 have lost their lives to the disease. And
1 Pursuant to Local Civil Rule 7.04, DSC, a supporting memorandum is not submitted because a full explanation of the motion is contained in this filing and a memorandum would serve no useful purpose. Unless otherwise noted below, the SCGOP relies upon and incorporates by reference the State Election Commission defendants’ legal arguments in their motion for summary judgment. See ECF No. 108-1.
2

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 109 Page 3 of 29
it has created a number of challenges for individuals, families, businesses, and every level and branch of government. The federal courts certainly have not been immune to these challenges. Social distancing, face masks, face shields, gloves, and hand sanitizer have become the new norm. What is more, everyone agrees that the upcoming general election must be conducted in a safe manner—consistent with CDC guidelines—to protect voters and folks serving as poll workers. Fortunately, that happened in the June primary. The State Election Commission has imposed, and will continue to impose, measures at polling locations to ensure the safety of all those who choose to cast their votes in person.
Voters who choose not to vote in person, however, are eligible to vote absentee if they meet any of a host of exceptions under South Carolina law. See S.C. Code Ann. §§ 7-15-310 & 320. Although Petitioners suggest it is too burdensome to meet these requirements, the statute actually covers a huge swath of voters:
(A) Qualified electors in any of the following categories must be permitted to vote by absentee ballot in all elections when they are absent from their county of residence on election day during the hours the polls are open, to an extent that it prevents them from voting in person:
(1) students, their spouses, and dependents residing with them; (2) persons serving with the American Red Cross or with the United Service Organizations (USO) who are attached to and serving with the Armed Forces of the United States, their spouses, and dependents residing with them; (3) governmental employees, their spouses, and dependents residing with them; (4) persons on vacation (who by virtue of vacation plans will be absent from their county of residence on election day); or (5) overseas citizens.
3

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 109 Page 4 of 29
(B) Qualified electors in any of the following categories must be permitted to vote by absentee ballot in all elections, whether or not they are absent from their county of residence on election day:
(1) physically disabled persons;
(2) persons whose employment obligations require that they be at their place of employment during the hours that the polls are open and present written certification of that obligation to the county board of voter registration and elections;
(3) 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;
(4) persons attending sick or physically disabled persons;
(5) persons admitted to hospitals as emergency patients on the day of an election or within a four-day period before the election;
(6) persons with a death or funeral in the family within a three-day period before the election;
(7) persons who will be serving as jurors in a state or federal court on election day;
(8) persons sixty-five years of age or older;
(9) persons confined to a jail or pretrial facility pending disposition of arrest or trial; or
(10) 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.
If a voter falls into one of these categories, that person submits an application to the county
election and voter registration office. See S.C. Code Ann. § 7-15-210. Upon receipt, the county
office returns a ballot to the applicant. The applicant then votes and inserts the completed ballot
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in the envelope provided by the county office.2 But the applicant must first sign an oath affirming he or she is “duly qualified to vote.” S.C. Code Ann. § 7-15-220. And the applicant’s signature must be accompanied by a witness’s signature. Id. Once the applicant mails the ballot to the county election and voter registration office, that office reviews the application and ballot to ensure all requirements are met. See S.C. Code Ann. § 7-15-230. An absentee ballot is not counted if the ballot is not signed, witnessed, and returned prior to polls closing. Id.
The General Assembly crafted this statutory scheme to ensure registered voters had ample opportunities to vote via absentee ballot. In doing so, the General Assembly sought to preserve the integrity of elections by developing a scheme that ensured the reliability of our voting system and protected it from fraud. As a matter of public policy, South Carolina still prefers in-person voting. Here, despite the wide availability of absentee voting detailed above, the plaintiffs are trying to seize on the current global pandemic to change the law through the courts. The plaintiffs want the Court to excise any absentee voter requirements and rewrite the law to say the election may be conducted, in full, via mail-in absentee ballot with zero protections in place. The Supreme Court of South Carolina, however, already rejected their cohorts’ invitation to do so just a few months ago. See Bailey v. S.C. State Election Comm’n, ___ S.C. ___, 844 S.E.2d 390 (2020).
In their amended complaint, the plaintiffs ask this Court to enjoin the defendants from enforcing South Carolina law that establishes categories of “persons qualified to vote by absentee ballot” (the excuse requirement) and requires a witness signature on the absentee ballot (the witness requirement). The plaintiffs argue the Court must strike down these challenged requirements because they (1) place an unreasonable burden on the right to vote in violation of the
2 Alternatively, a voter may vote absentee in person. After the voter submits an application, the county election and voter registration office then provides the voter a ballot or directs the voter to vote at a voting machine. Or the voter could drop off the absentee ballot to the office or have someone else—subject to certain limitations—do so on his or her behalf.
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First and Fourteenth Amendments, (2) run afoul of Section 2 of the Voting Rights Act (the VRA),
and (3) violate Title II of the Americans with Disabilities Act (the ADA). While the plaintiffs use
the COVID-19 pandemic as justification to challenge these laws, this is merely a means to an end
because they have been on the books for decades.
Respectfully, the plaintiffs are overplaying their hand. The SCGOP certainly agrees the
current situation has created new challenges that the State Election Commission must address to
safely administer the upcoming election for South Carolina’s voters and poll workers in the era of
COVID-19. But changing our state’s voting laws is up to the South Carolina General Assembly.
And although we are in the midst of a global pandemic, the constitution and the rule of law cannot
fall by the wayside. The ends do not justify the means—even in the most emergent of times. What
inevitably follows is bad law. Because their requested relief is so drastic, the plaintiffs bear a
heavy burden of demonstrating entitlement to a mandatory permanent injunction. After all, if
successful, this will wreak havoc on the administration of the upcoming general election.
Although the plaintiffs received a preliminary injunction only on the witness requirement,
the parties have now had the opportunity to engage in discovery. And the previous injunction has
no bearing on the issues now presented on a more fully developed record. This matter thus comes
before the Court on the SCGOP’s motion for summary judgment.3
3 The Court should also remain mindful of the posture of the case. Here, the plaintiffs are requesting a mandatory permanent injunction—they want the Court to alter the status quo by ordering the defendants to change the law governing absentee voting on the eve of an election. “Mandatory preliminary injunctive relief in any circumstance is disfavored[] and warranted only in the most extraordinary circumstances.” De La Fuente v. S.C. Democratic Party, 164 F. Supp. 3d 794, 798 (D.S.C. 2016). Although the Court stated in its Order granting a preliminary injunction that the parties did not address the mandatory versus prohibitory distinction, see ECF No. 65 at 23 n.13, respectfully, that was not the case. The SCGOP argued the plaintiffs were seeking a mandatory preliminary injunction. See ECF No. 50 at 7–8. They were then, and they still are now—only this time, the plaintiffs want the Court to permanently rewrite the law. While they received a preliminary injunction only on the witness requirement, as the Court noted, that “does not preclude a different resolution of [the plaintiffs’] claims on a more fully developed record.” Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003). Now that the parties have a fully developed record, the plaintiffs’ claims fail as a matter of law. And for the reasons set forth below, as well as in the SCGOP’s
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STANDARD It is well-settled that summary judgment is appropriate when no genuine issue of material fact exists in the case. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy[,] and inexpensive determination of every action.’” Celotex, 477 U.S. at 327 (quoting Fed R. Civ. P. 1). Courts have an “obligation . . . to prevent ‘factually unsupported claims’ . . . from proceeding to trial.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Celotex, 477 U.S. at 323–24). As the Supreme Court has recognized, “a scintilla of evidence in support of the plaintiffs’ position will be insufficient [to overcome summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 252 (1986); see also Austin v. Clark Equip. Co., 48 F.3d 833, 836 (4th Cir. 1995) (stating a plaintiff must come forward with evidence that shows more than some “metaphysical doubt” that genuine factual issues exist). As the party opposing summary judgment, a plaintiff may not rest on mere allegations or denials. See Anderson, 477 U.S. at 248. A plaintiff must produce “significant probative evidence tending to support the complaint” or provide “specific facts showing . . . a genuine issue for trial.” Id. at 248, 249 (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968)).
response in opposition to the plaintiffs’ motion for preliminary injunction, they are not entitled to a permanent injunction. See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156–57 (2010) (holding that, to obtain a permanent injunction, “[a] plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction” (quoting eBay Inc. v. MercExchange, LLC., 547 U.S. 388, 391 (2006))).
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ARGUMENT Having set forth the lens through which the Court must analyze the case, the plaintiffs failed as a matter of law to shoulder their burden of proof. The Court should therefore grant summary judgment in favor of the defendants because the plaintiffs are not entitled to a mandatory permanent injunction that, at bottom, rewrites South Carolina law governing absentee voting and forces the defendants to implement those new laws in the upcoming election. I. At the outset, the plaintiffs lack standing to bring these claims. As a threshold matter, the Court should dismiss this action for want of jurisdiction because the plaintiffs failed to establish the critical elements of the “irreducible constitutional minimum” for standing under Article III to the U.S. Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Article III “restricts the federal courts to the adjudication of ‘cases’ and ‘controversies.’” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 153 (4th Cir. 2000). To satisfy Article III’s jurisdictional requirement of standing, the plaintiffs must establish “that he ‘(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’” Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018) (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016)). “While each of the three prongs should be analyzed distinctly, their proof often overlaps. Moreover, these requirements share a common purpose—namely, to ensure that the judiciary, and not another branch of government, is the appropriate forum in which to address a plaintiff’s complaint.” Friends of the Earth, Inc., 204 F.3d at 154. For a plaintiff to establish a cognizable injury in fact, he “must show that he . . . suffered an invasion of a legally protected interest that is concrete and particularized and actual or
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imminent, not conjectural or hypothetical.” Spokeo, Inc., 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). The Supreme Court, of course, has “long recognized that a person’s right to vote is ‘individual and personal in nature.’” Gill, 138 S. Ct. at 1929 (quoting Reynolds v. Sims, 377 U.S. 533, 561 (1964)). But to demonstrate the requisite standing, voters must allege facts sufficient to show “disadvantage to themselves as individuals.” Id. (quoting Baker, 369 U.S. at 206).
Here, the plaintiffs have not suffered an injury in fact because of the witness requirement and the excuse requirement. Thomas and Rutledge are already eligible to vote absentee in the November 3, 2020 election under existing South Carolina law, see S.C. Code Ann. §§ 7-15320(b)(1) & (8), and both testified they have access to a witness, see Ex. A, Thomas Dep. Tr. at pp. 12, 13 & 14; Ex. B, Rutledge Dep. Tr. at p. 16. And Richard already testified she voted in person in the June primary and intends to vote in person for the general election too. See Ex. C, Richard Dep. Tr. at pp. 20 & 24. The challenged requirements therefore do not affect her at all. Accordingly, the individual plaintiffs have not suffered an injury in fact.
Turning to the organizational plaintiffs, they fare no better. The Family Unit and the South Carolina Chapter of the NAACP cannot vote, and they have failed to identify a single member of their respective organizations who has suffered an injury in fact due to the excuse and witness requirements. See Warth v. Seldin, 422 U.S. 490, 511 (1975) (recognizing “an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy,” or it “may assert the rights of its members, at least so long as the challenged infractions adversely affect its members’ associational ties”); Md. Hwys. Contractors Ass’n, Inc. v. State of Md., 933 F.2d 1246, 1250 (4th Cir. 1991) (noting “the association may have standing as the representative of its members who have been harmed” (emphasis added)).
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Conclusory testimony that some unidentified members may be harmed amounts to nothing more than sheer speculation and is insufficient to survive summary judgment. See Md. Hwys. Contractors Ass’n, Inc., 933 F.2d at 1252 (holding that, given the “evidence of lack of injury to members of the Association, the passing mention of economic harm in a letter of questionable reliability was not enough evidence for a jury to find by a preponderance of the evidence that any member suffered an injury”); White v. Boyle, 538 F.2d 1077, 1079 (4th Cir. 1976) (holding summary judgment was proper because the plaintiff “failed to make any showing beyond mere conclusory allegations”). The organizational plaintiffs here have come forward with no evidence that any of their members have suffered an injury in fact. And the Court should not be in the business of taking jurisdiction over cases to strike down laws solely based upon a hypothetical voter who truly never interacts with any other individuals.
What is more, the plaintiffs cannot show their alleged harms are “fairly trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Lujan, 504 U.S. at 560–61 (alteration in original). Notably, the plaintiffs failed to include the South Carolina General Assembly—the only branch of government to which the South Carolina Constitution vested plenary authority for “regulat[ing] the time, place and manner of elections” and “providing] for the administration of elections and for absentee voting,” S.C. CONST. art. II, § 10—in their legal challenge. The plaintiffs’ beef is with the General Assembly’s exercise of its constitutionally committed discretion under article II, section 10, not the actions of any of the named defendants.
“To ensure that the Federal Judiciary respects ‘the proper—and properly limited—role of the courts in a democratic society,’ a plaintiff may not invoke federal-court jurisdiction unless he can show ‘a personal stake in the outcome of the controversy.’” Id. (quoting Allen v. Wright, 468
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U.S. 737, 750 (1984); Baker v. Carr, 369 U.S. 186, 204 (1962)). After all, federal courts are “not responsible for vindicating generalized partisan preferences.” Rucho v. Common Cause, 139 S. Ct. 2484, 2501 (2019) (quoting Gill, 138 S. Ct. at 1933–34).
Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagrees with them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts must be more careful to insist on the formal rules of standing, not less so. Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 145–46 (2011). The standing requirement “tends to assure that the legal questions presented to the court will be resolved, not in the rarefied atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian Coll. v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). Here, the plaintiffs have suffered no injury. They are merely asking the Court to invalidate laws with which they personally disagree on policy grounds. Accordingly, the Court should dismiss the complaint with prejudice for want of subject matter jurisdiction. II. Principles of separation of powers, federalism, and comity—at a minimum—counsel this Court to proceed with caution when asked to rewrite a State’s election laws. Next, the Court should dismiss or stay this action under the abstention doctrine. See, e.g., Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (holding that “[o]bjections to subject-matter jurisdiction . . . may be raised at any time”).
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“Abstention is appropriate ‘in cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law.’” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976) (quoting Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 189 (1959)). The Supreme Court has also found it “appropriate where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar.” Id. “In some cases, however, the state question itself need not be determinative of state policy. It is enough that exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Id.
The U.S. Constitution gives “States ‘broad power to prescribe the Times, Places and Manner of holding Elections for Senators and Representatives, which power is matched by state control over the election process for state offices.’” Clingman v. Beaver, 544 U.S. 581, 586 (2005) (quoting U.S. CONST. Art. I, § 4, cl. 1, Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)). And the South Carolina Constitution vests the General Assembly with the sole authority to regulate absentee voting. See S.C. CONST. art. II, § 10 (“The General Assembly shall provide for the nomination of candidates, regulate the time, place and manner of elections, provide for the administration of elections and for absentee voting, insure secrecy of voting, establish procedures for contested elections, and enact other provisions necessary to the fulfillment and integrity of the election process.” (emphasis added)).
As noted above, preserving “the integrity of the electoral process is a legitimate and valid state goal.” Rosario, 410 U.S. at 761. Regulating the absentee voting privilege presents “difficult
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questions of state law bearing on policy problems of substantial public import,” Colo. River Water Conservation Dist., 424 U.S. at 814, that are well within the General Assembly’s discretion under both the state and federal constitutions. And if the Court were to undertake federal constitutional review of the questions presented in this case, that “would be disruptive of state efforts to establish a coherent policy with respect to” absentee voting in South Carolina. Id.
What is more, the questions may become moot in this case—whether it be via act of the General Assembly or a decision from the Supreme Court of South Carolina. See id. (finding abstention appropriate if the federal constitutional issue becomes mooted “by a state court determination of pertinent state law”). The State should be given an opportunity to address this important issue before a federal court weighs in on it. See S.C. Elec. & Gas Co. v. Whitfield, 329 F. Supp. 2d 191, 209 (D.S.C. 2018) (“Abstention is a judicially created doctrine in which federal courts may abstain from exercising jurisdiction out of respect for the independence of state governments and in the interest of facilitating the smooth working of the federal judiciary.”). As the Court knows, the General Assembly is returning to the State House to potentially address this very issue next month. That the Court and the parties have tied the timing of the hearings on these matters to this special session is telling. Indeed, this matter of public policy belongs in the legislative branch, not this Court.
But another recent development has the potential to moot this case. On July 31, 2020, two petitioners filed an action in the original jurisdiction of the Supreme Court of South Carolina against Jay Lucas, in his official capacity as Speaker of the House of Representatives; Harvey Peeler, in his official capacity as President of the Senate; and the South Carolina Election Commission. See Ex. D, Pls.’ Compl., Duggins v. Lucas, App. Case No. 2020-001042 (S.C. Sup. Ct. filed July 31, 2020). In that case, the petitioners challenge the same absentee ballot provisions
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at issue in this case, arguing the General Assembly’s failure to act violates the South Carolina Constitution. See S.C. CONST. art. I, § 5; id. art. II, § 1. Our state supreme court’s ruling on the state constitutional questions could moot the federal questions raised in this case. Out of respect for the State, then, the Court should abstain and enter an Order staying this action pending resolution of the state constitutional issues in the state supreme court. See generally Bush v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 78 (2000) (per curiam) (“It is fundamental that state courts be left free and unfettered by [federal courts] in interpreting their state constitutions.” (quoting Minnesota v. Nat’l Tea Co., 309 U.S. 551, 557 (1940))).
Even if the Court declines to rely upon the abstention doctrine, the Court must remain mindful of federalism, separation of powers, and comity in passing upon this intensely local policy debate. “The function of the judiciary is to apply the law, not to rewrite it to conform with the policy positions of litigants.” Mort Ranta v. Gorman, 721 F.3d 241, 253 (4th Cir. 2013). As the Supreme Court of South Carolina noted just a few months ago in a similar challenge, the plaintiffs are arguing “as to what the law should be” and asking the Court to “change the law.” Bailey, 844 S.E.2d at 394. But “whether any change should be made to the law is a political question for the [General Assembly] . . . to answer.” Id. “Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement.” Badaracco v. Comm’r of Internal Revenue, 464 U.S. 386, 398 (1984).
In sum, the Court should dismiss or stay this action on abstention grounds. Alternatively, if the Court decides to weigh in on this matter, the Court should respect the Supreme Court of South Carolina’s decision to defer this policy debate to the only entity with the constitutionally committed discretion to address it—the South Carolina General Assembly.
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II. The plaintiffs’ Section 1983 claim arising under First and Fourteenth Amendments fails as a matter of law because neither the excuse requirement nor the witness requirement violates one’s fundamental right to vote. “It is beyond dispute that ‘voting is of the most fundamental significance under our
constitutional structure.’” N.C. State Conference of NAACP v. McCrory, 831 F.3d 204, 241 (4th Cir. 2016) (quoting Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)). “For ‘[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.’” Id. at 241–42 (quoting Wesberry v. Sanders, 376 U.S. 1, 17 (1964)).
The Supreme Court of South Carolina, however, has clarified that absentee voting is a “privilege,” not a right. State ex rel. McLeod v. Ellisor, 259 S.C. 364, 370, 192 S.E.2d 188, 190 (1972); see also O’Brien v. Skinner, 414 U.S. 524, 530 (1974) (referring to it as “absentee voting privileges”); Am. Party of Texas v. White, 415 U.S. 767, 795 (1974) (same); McDonald v. Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 809 (1969) (same). After all, “the General Assembly intended to extend the absentee voting privilege only to those who are absent from the polls on election day by reason of physical infirmity.” Ellisor, 259 S.C. at 370, 192 S.E.2d at 190. The State’s preferred method, as a matter of public policy, is still in-person voting.
Here, the plaintiffs are complaining about South Carolina’s regulation of the absentee voting privilege, not the right to vote itself. The Court therefore does not employ strict scrutiny to adjudge the constitutionality of the statutes in question. To be sure, the Supreme Court has held that “a careful examination on [its] part is especially warranted where lines are drawn on the basis of wealth or race, two factors which would independently render a classification highly suspect and thereby demand a more exacting judicial scrutiny.” McDonald, 394 U.S. at 807. But as in
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McDonald, “[s]uch an exacting approach is not necessary here” because (1) “the distinctions made
by [South Carolina]’s absentee provisions are not drawn on the basis of wealth or race,” and (2)
“there is nothing in the record to indicate that the [South Carolina] statutory scheme has an impact
on appellants ability to exercise the fundamental right to vote. Id.
After all, “the right to vote” is not “at stake here.” Id. Instead, the plaintiffs’ argument
rests on some “claimed right to receive absentee ballots.” Id. And “[d]espite [the plaintiffs’] claim
to the contrary, the absentee statutes, which are designed to make voting more available to some
groups who cannot easily get to the polls, do not themselves deny [them] the exercise of the
franchise.” Id. at 807–08.
Though the wide leeway allowed the States by the Fourteenth Amendment to enact legislation that appears to affect similarly situated people differently, and the presumption of statutory validity that adheres thereto, admit of no settled formula, some basic guidelines have been firmly fixed. The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them.
Id. at 808–09. In other words, the excuse requirement and witness requirement must only survive
rational basis review. See id. at 809. And they do.
Although the right to vote is “fundamental, not all restrictions imposed by the States on
candidates’ eligibility for the ballot impose constitutionally-suspect burdens on voters’ rights to
associate or to choose among candidates.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). As
the Supreme Court has recognized,
States have enacted comprehensive and sometimes complex election codes. Each provision of these schemes, whether it governs
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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. Nevertheless, the state’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions. Id. In White, the Court upheld that state’s use of a notary signature requirement, finding the parties made “little or no effort to demonstrate its impracticability or that it is unusually burdensome.” 415 U.S. at 787. So too here. Respectfully, the plaintiffs failed to allege any cognizable burden here. In their depositions, the plaintiffs conceded they had access to another individual who could sign their absentee ballot. For her part, Thomas said she regularly speaks with Susan Dunn, who represents the plaintiffs in this action, because Dunn is her landlady. Yet they filed a lawsuit and allowed counsel to tell this Court that they cannot find a witness. That is nonsense. Even if the plaintiffs are fully quarantined and have not left the house, they have to interact with someone. Indeed, all of them have. Any of those people can quickly witness their absentee ballot. The witness requirement therefore imposes no burden at all. Further, the State has a recognized legitimate interest in enforcing the witness requirement to prevent voter fraud by having some accountability mechanisms in place. According to Lieutenant Pete Logan—who has worked as an agent with the State Law Enforcement Division (SLED) for 30 years—“[t]he witness requirement for absentee ballots provides SLED, and all criminal investigators, with a significant investigative lead to pursue in these cases because it provides another potential witness to interview.” Ex. H, Logan Decl. at ¶ 6. As Lieutenant Logan noted, he has “investigated numerous cases involving allegations of voter fraud, including various allegations of absentee-voting fraud,” and he even currently “has an ongoing investigation. Id. at ¶¶ 4 & 5.
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As for the excuse requirement, the plaintiffs fare no better. It is worth noting that most of them already qualify to vote absentee under the statute as written. The excuse requirement thus does not place any burden on the plaintiffs’ right to vote. Instead, it outlines qualifications to vote absentee. South Carolina law still provides for numerous other ways for voters to exercise the franchise. Because the excuse requirement only regulates the privilege of absentee voting and does not place any burden on the plaintiffs’ fundamental right to vote, the plaintiffs’ claim under the First and Fourteenth Amendments fails as a matter of law.
Neither the General Assembly nor the State Election Commission is trying to make it so difficult as to amount to a denial of the right to vote. To the contrary, voters have several options. They can vote in person consistent with CDC guidelines, vote absentee if they meet the requirements, and vote curbside if eligible. See S.C. Code Ann. §§ 7-13-710, -771 & -385. Importantly, under the statute, all voters over the age of sixty-five—which is the population identified by the CDC as most susceptible to contracting COVID-19—can already vote absentee. S.C. Code Ann. § 7-15-320(B)(8). So can physically disabled persons, which includes those with injuries and illnesses, and their caretakers. S.C. Code Ann. § 7-15-320(B)(1), (4); § 7-15-310(4). While voters going to cast their votes in person may need to wear a mask and gloves, that has become an inconvenient fact of life these days for any venture outside the home, whether it be to shop for groceries or pick up takeout for dinner.4 But this new normal certainly does not infringe
4 In its Order, the Court said that “[i]n-person voting, while technically still available, 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.” ECF No. 65 at 33 n.20. But out of the 767,187 votes cast in the June 2020 primary, only 174,077 came from returned absentee ballots. And that was with the temporary global pandemic excuse for absentee voting in effect. Respectfully, a choice made by nearly 78% of South Carolina’s voting population is not an illusory one. Nor is it only “technically available.” Voters overwhelmingly preferred casting their votes in person during the last election. While the plaintiffs continue to draw this line in the sand, the numbers simply prove otherwise. To that end, the plaintiffs have yet to identify a single individual who purportedly contracted COVID-19 as a result of voting in person.
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upon the right to vote. Thus, the plaintiffs’ manufactured dilemma is insufficient to survive summary judgment on their constitutional claims.
Notwithstanding their lofty rhetoric, the criteria outlined in the statute allow numerous persons to vote absentee and do not place any meaningful burden on right to vote. The State has a compelling interest in enforcing the excuse requirement as a valid exercise of the General Assembly’s plenary authority to regulate absentee voting procedures under the South Carolina Constitution while maintaining our State’s preference for in-person voting. See S.C. CONST. art. II, § 10. The Court should not take the bait from the plaintiffs to adopt their proposed policy preferences. To do so would violate principles of federalism, comity, and separation of powers.
Prior to an election, a plaintiff mounting an attack on the constitutionality of an absentee ballot statute that “would invalidate the statute in all its applications” shoulders “a heavy burden of persuasion.” Crawford v. Marion Cty Election Bd., 553 U.S. 181, 200 (2008) (plurality opinion). The plaintiffs wholly failed to meet that burden here. “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, 544 U.S. at 593. Fortunately, “[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)).
Because the plaintiffs failed as a matter of law to prove their claim that the excuse requirement and witness requirement violate the First and Fourteenth Amendments, the Court should grant summary judgment in favor of the defendants. Simply put, the plaintiffs have experienced no burden at all, and in any event, the State’s interests pass rational basis review. To
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the extent the Court finds rational basis is not the appropriate test, the SCGOP would rely upon and incorporate by reference the State Election Commission defendants’ fine analysis of this issue under the Anderson-Burdick framework. See ECF No. 108-1 at pp. 16–23. For the sake of judicial economy, the SCGOP will not rehash those arguments here. III. The excuse and witness requirements do not run afoul of Section 2 of the Voting Rights Act.
Section 2 of the Voting Rights Act of 1965 (the VRA) prohibits any “standard, practice, or procedure . . . imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S.C. § 10301(a).
A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. 52 U.S.C. § 10301(b) (emphasis added). In Thornburg v. Gingles, the Supreme Court set forth the seminal test for demonstrating a Section 2 violation: (1) “the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in the single-member district,” (2) the minority group must be able to show that it is politically cohesive,” and (3) “the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it . . . to defeat the minority’s preferred candidate.” 478 U.S. 30, 50–51 (1986). This case, however, does not involve the typical vote-dilution claim. Instead, the plaintiffs boldly contend the excuse and witness requirements amount to a denial of the fundamental right to vote. We therefore turn to the Fourth Circuit’s treatment of the issue.
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According to the Fourth Circuit, the plaintiffs must demonstrate the following in this votedenial case:
First, the challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Second, the burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class. League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 240 (4th Cir. 2014). As the Fifth Circuit has held, the first element “inquires about the nature of the burden imposed and whether it creates a disparate effect” on the protected class. Veasey v. Abbott, 830 F.3d 216, 244 (5th Cir. 2016); see also Ohio Democratic Party v. Husted, 834 F.3d 620, 637–38 (6th Cir. 2016) (emphasizing “that the first element of the Section 2 claim requires proof that the challenged standard or practice causally contributes to the alleged discriminatory impact by affording protected group members less opportunity to participate in the political process”). And the second element probes “the requisite causal link between the burden on voting rights and the fact that this burden affects minorities disparately because it interacts with social and historical conditions that have produced discrimination against minorities currently, in the past, or both.” Veasey, 830 F.3d at 245. Under this prong, the Court must conduct an “intensely local appraisal” of the challenged provisions, Gingles, 478 U.S. at 79, taking into account the “totality of the circumstances,” 52 U.S.C. § 10301(b). Included in this inquiry is an analysis of the appropriate “Senate Factors.”5 Gingles, 478 U.S. at 44–45. Importantly, this “second step asks
5 Specifically, the Senate Factors include (1) “the history of voting-related discrimination in the State or political subdivision;” (2) “the extent to which voting in the elections of the State or political subdivision is racially polarized;” (3) “the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as
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not just whether social and historical conditions ‘result in’ a disparate impact, but whether the challenged voting standard or practice causes the discriminatory impact as it interacts with social and historical conditions.” Husted, 834 F.3d at 638.
Here, the plaintiffs failed to meet their burden. The plaintiffs have not produced any evidence that the excuse requirement or the witness requirement “contributed to the alleged discriminatory impact.” In fact, the individual plaintiffs testified to just the opposite—each of them voted in the June primary. Thomas and Rutledge voted via absentee ballot, and Richard voted in person. Further, the Family Unit, Inc and the South Carolina State Conference of the NAACP did not identify a single person who was unable to vote due to the excuse or witness provisions of South Carolina law. Essentially, these organizational plaintiffs complain that COVID-19 has affected their manner in which they provide services to their members. Unfortunately, they are not alone. Everyone has been impacted by the coronavirus. Providing services differently due to a global pandemic, however, does not rise to a Voting Rights Act violation. A review of the Amended Complaint, as well as the evidence in the record, reveals the plaintiffs’ beef is with COVID-19, not the challenged provisions.
The Family Unit corporate representative testified she knew of only eight absentee ballots that were rejected in recent years allegedly due to the witness requirement. See Ex. E, Williams Dep. Tr. at p. 48. That is all she said. She did not say who these individuals were, when they cast their ballots, why the ballots were not accepted, or how or why the voters failed to comply with
unusually large election districts, majority vote requirements, and prohibitions against bullet voting;” (4) “the exclusion of members of the minority group from candidate slating processes;” (5) “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;” (6) “the use of overt or subtle racial appeals in political campaigns;” and (7) “the extent to which members of the minority group have been elected to public office in the jurisdiction.” Id. But the list “is neither comprehensive nor exclusive.” Id. at 45.
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the witness requirement. She did not say whether the alleged voters were White or AfricanAmerican. She only knew that some ballots were not signed, and one did not include the address of the witness. Respectfully, that is not good enough. This testimony, without more, is meaningless and fails to satisfy the first element.
Nor did the NAACP corporate witness provide evidence of a Section 2 violation. She testified that as part of the “get out the vote” services provided to members pre-pandemic, the NAACPC offered assistance to individuals who needed to obtain witness signatures. See Ex. F, Murphy Dep. Tr. at p. 30. The NAACP testified that it would assist homebound voters who live alone in getting a witness to actually sign the absentee ballots. Id. at 31. NAACP rendered these services for constituents adhering to absentee ballot laws for years. It is disingenuous for the NAACP to now argue these same laws have a discriminatory impact on African-Americans under the guise of COVID-19.
As to the three individual plaintiffs, they presented zero evidence that the absentee voting process adversely affects them. Richard voted in person and intends to work as a poll worker at the precinct in the general election. Thomas voted absentee because she is over the age of 65 and interacts with numerous people, including her counsel of record in this case, any of whom could witness her absentee ballot. And Rutledge is White. So he lacks standing to argue the absentee voting process created a disparate effect on African-American voters. Accordingly, the plaintiffs failed to establish the first element necessary to move forward on a Section 2 claim.
Even if the plaintiffs were able to overcome this initial hurdle, they cannot establish “the requisite causal link between the burden on voting rights and the fact that this burden affects minorities disparately because it interacts with social and historical conditions that have produced discrimination against minorities currently, in the past, or both.” Veasey, 830 F.3d at 245. While
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the plaintiffs offer a smattering of historical and social conditions that produced discrimination, the plaintiffs failed as a matter of law to establish any causal link as required to prove the second element. Given that the three individual plaintiffs all voted in the June primary, they certainly were not denied the right to vote. As to the two organizational plaintiffs, they have offered no testimony or evidence on how the absentee voting process specifically harmed their members.
In an attempt to make the requisite showing, the plaintiffs offered John Ruoff to discuss the Voting Rights Act. Dr. Ruoff described “the history of racially discriminatory voting practices in South Carolina” in his purported expert report. But nowhere in his report does Ruoff even reference the absentee voting process in South Carolina. If that is not enough, take his own word for it. In his deposition, Ruoff acknowledged, “I was not asked to look at the question of absentee ballots.” Ex. G, Ruoff Dep. Tr. at p. 65. Because he did not analyze the link between potential burdens of voting by absentee ballots and the Voting Rights Act, the Court cannot undertake the “intensely local appraisal of the challenged provisions” required to meet the second prong given that Dr. Ruoff never reviewed or opined on the excuse or witness provisions. Dr. Ruoff, however, testify that the excuse and witness requirements, on their face, are race-neutral and not discriminatory.
As to Dr. Ruoff’s discussion on the history of South Carolina voting practices, he does not reference an instance over the last decade of any successful challenge to a voting practice imposed by the State of South Carolina. In fact, he goes back two cycles of redistricting, totally omitting the cycle of 2010. He fails to discuss how South Carolina’s redistricting plans for the state Senate, state House of Representatives, and Congressional districts were each approved by both chambers of the General assembly, approved by the Governor, and given preclearance under Section 5 of the Voting Rights Act by President Obama’s Department of Justice. Nor does he mention any of the
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40-plus counties in South Carolina that received preclearance of their redistricting plans after the 2010 census. Nor does he mention any of the numerous municipalities or school districts that also received preclearance this last cycle. How can one opine on the history of South Carolina voting practices without mentioning any of these major successes of the state? Presumably, this information was omitted from his report because it did not fit the plaintiffs’ narrative.
Dr. Ruoff states he was asked to review whether the Senate Factors, outlined in the Senate Report to the 1982 amendments to the VRA, support the plaintiffs’ claims under the Voting Rights Act. These factors were used by Congress to support the amendments to the Voting Rights Act. But in Dr. Ruoff’s report, he does not analyze any South Carolina voting practice since the amendments in 2011 to the South Carolina voter ID law. And as mentioned above, his report omits a huge swath of recent South Carolina history pertaining to changes in voting districts all across the state. For these reasons, the Court should disregard his report because it offers no help for the Section 2 analysis.
Finally, the plaintiffs also attempted to rely on Dr. Courtney Cogburn to support their Voting Rights Act claim. Dr. Cogburn provided data on the impact of COVID-19 on the citizens of South Carolina. But she, too, did not review South Carolina law on the absentee voting process. Without this analysis, her report fails to assist the Court in any way to determine “the requisite causal link between the burden on voting rights and the fact that this burden affects minorities disparately.” Veasey, 830 F.3d at 245. Accordingly, the plaintiffs failed to introduce any evidence in support of the second element of their Section 2 claim.
Indeed, a review of their claim reveals it is not even tethered to the plight of COVID-19. The General Assembly’s purpose in enacting the requirements is hardly new or subject to debate. As the Supreme Court of South Carolina recognized over forty years ago, the “purpose” of the
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signature requirement is to ensure “the authenticity of the absentee vote.” Gregory v. S.C. Democratic Exec. Comm., 271 S.C. 364, 375, 247 S.E.2d 439, 444 (1978). Not even COVID-19 can carry them across the finish line. The law was designed to prevent voter fraud—irrespective of political party or race or gender or any other classification—and reading anything more into the witness requirement flies in the face of a reasonable interpretation of the statute as well as its legislative history.
Because the plaintiffs’ failed as a matter of law to establish their claim under Section 2 of the VRA, the Court should grant summary judgment in favor of the defendants. IV. The plaintiffs’ claims under Title II of the ADA are without merit.
Last, the plaintiffs’ claims that the excuse requirement and witness requirement violate Title II of the Americans with Disabilities Act (the ADA) fail as a matter of law.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “Public entity” includes state and local governments, and any department, agency, or other instrumentality of a state or local government.6 42 U.S.C. § 12131(1). The term “qualified individual with a disability” means “an individual with a disability who, with or without reasonable modifications . . . meets the essential eligibility requirements for . . . the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). “Disability” is defined as “[a] physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 28 CFR § 35.108(a)(1)(i).
6 It is far from clear whether Congress intended for public officials like the defendants here to qualify as a “public entity” under the ADA.
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The Attorney General is empowered to issue regulations to implement Title II. 42 U.S.C. § 12134. In their Amended Complaint, the plaintiffs rely on two regulations. The first one provides that “[a] public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration . . . that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities.” 28 C.F.R. § 35.130(b)(3)(ii). And the second one states that “[a] public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R. § 35.130(b)(8)
Ultimately, “[t]o establish a prima facie case under Title II, a plaintiff must show: (1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities or was otherwise discriminated against; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.” Spencer v. Easter, 109 F. App'x 571, 573 (4th Cir. 2004) (citing cases).
In this case, Plaintiffs cannot establish a prima face case of discrimination under Title II of the ADA. According to the plaintiffs, “Thomas, Rutledge, Walker, members of the Family Unit, and members of the South Carolina NAACP have disabilities within the meaning of the ADA . . . including serious health conditions that make them susceptible to severe complications from COVID-19” and, as such, “are ‘qualified’ for the programs, services, and activities being challenged herein in that they meet all essential eligibility requirements to vote in South Carolina.” Compl. ¶ 162. The evidence, however, tells a different story.
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First, the plaintiffs’ claims fail right out the gate because there is no evidence that any of them have a “disability” as that term is defined under Title II of the ADA. Although Thomas mentioned a number of medical issues, nothing in the record indicates she has a disability. And being elderly, of course, is not a disability. See NAACP v. Phil. Bd. of Elections, No. CIV. A. 977085, 1998 WL 321253, at *4 (E.D. Pa. June 16, 1998) (“Being over the age of 65 is not in and of itself an impairment, although medical conditions associated with age, such as osteoporosis, can be.”). Turning to Reverend Rutledge, he expressly testified he was not disabled. Last, the organizational plaintiffs have not shown any of their members are disabled within the meaning of the ADA. Accordingly, the plaintiffs’ ADA claims fail as a matter of law.
Even if any of the plaintiffs had a qualifying disability, they are not being excluded from voting absentee by reason of that disability. Thomas is over the age of 65 and automatically qualifies to vote absentee. And she failed to show the witness requirement will keep her from voting. In fact, Thomas testified that opposing counsel, Susan Dunn, signed and witnessed her June primary absentee ballot.7 That is certainly a far cry from the representations the plaintiffs made in Court during the preliminary injunction hearing about the impossibility of getting a witness to sign their absentee ballot. Suffice it to say, Thomas has plenty of folks who can witness her absentee ballot.
Finally, to the extent the plaintiffs do not qualify to vote absentee, they cannot establish the inability to participate in absentee voting “was by reason of their disability.” An insurmountable hurdle to this argument is that one of the categories of people who can vote absentee—regardless of whether they are absent from the county of residence on election day—is “physically disabled persons.” It is difficult to see how the plaintiffs can argue with a straight face
7 While the plaintiffs appear to be trying to walk back that testimony from Thomas via a new declaration, the Court should decline to consider it.
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that the State is excluding them from participation in absentee voting because of a disability when persons with disabilities are a specific category of those permitted to vote absentee under existing South Carolina law. The plaintiffs’ claims are therefore specious.
Because the plaintiffs failed as a matter of law to demonstrate the witness requirement and excuse requirement violate Title II of the ADA, the Court should grant summary judgment in favor of the defendants.
CONCLUSION Based upon the foregoing, the Court should grant the SCGOP’s motion for summary judgment and decline the plaintiffs’ invitation to change South Carolina’s election laws on the eve of the 2020 presidential election.
Respectfully submitted, ROBINSON GRAY STEPP & LAFFITTE, LLC

Columbia, South Carolina August 10, 2020

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–Defendant South Carolina Republican Party

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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THE STATE OF SOUTH CAROLINA In the Supreme Court
_______________________
In the Original Jurisdiction _______________________

Regina Duggins and Chaunta R. Hamilton …..…………………………………….….Petitioners,

v.

Jay Lucas, in his capacity as Speaker of the House of Representatives and Harvey Peeler, in his capacity as President of the Senate………...……………..…….Respondents,

and

South Carolina Election Commission…..……………….……….Respondent/Nominal Defendant.

_______________________
PETITION FOR ORIGINAL JURISDICTION, EXPEDITED DISPOSITION, AND EMERGENCY RELIEF
_______________________

Christopher P. Kenney (SC Bar No. 100147) RICHARD A. HARPOOTLIAN, P.A. 1410 Laurel Street (29201) Post Office Box 1090 Columbia, South Carolina 29202 (803) 252-4848 (803) 252-4810 (facsimile) cpk@harpootlianlaw.com

Shaundra Young Scott (SC Bar No. 75374) SOUTH CAROLINA DEMOCRATIC PARTY 1929 Gadsden Street Columbia, SC 29201 (803) 799-7798 shaundra@scdp.org

July 31, 2020 Columbia, South Carolina.

ATTORNEY FOR PETITIONERS REGINA DUGGINS AND CHAUNTA R. HAMILTON

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South Carolina election workers and voters are headed for calamity. The COVID-19 pandemic threatens the orderly conduct of the November general election by diminishing the number of election workers willing to expose themselves to certain harm and the number of available polling locations willing to welcome the public. According to the State’s elections chief, poll manager shortages, inexperienced poll managers, and a lack of polling places will lead to precinct consolidation, crowding, long lines, confusion, and errors such that “immediate action” is needed to ensure election officials are able to plan for and meet “the greatest challenge to our election system our state has ever seen.” Without action now, the rapidly approaching general election promises to be tumultuous and to place voters in certain high-risk cohorts—voters like Petitioners Regina Duggins and Chaunta R. Hamilton—in harm’s way when casting the only ballot they are presently allowed to under South Carolina law: an in-person ballot on election day.
The first principle of South Carolina government is that all political power is vested in and derived from the people and the people have the right to change their government at all times. See S.C. CONST. art. I, § 1. To that end, elections must be free and open such that every inhabitant of this State who is qualified to vote under the Constitution “shall have an equal right to elect officers and be elected to fill public office.” S.C. CONST. art. I, § 5 (emphasis added). “The right of suffrage, as regulated in this Constitution, shall be protected by laws regulating elections and prohibiting, under adequate penalties, all undue influence from power, bribery, tumult, or improper conduct.” S.C. CONST. art. II, § 1 (emphasis added). Accordingly, the General Assembly is tasked with regulating the time, place, and manner of elections and enacting other provisions necessary to the fulfillment and integrity of the election. S.C. CONST. art. II, § 10. But the simple, uncontradicted fact is that the current method of regulating elections during the COVID-19 pandemic violates individual rights, particularly those of sick and vulnerable voters. Voters with compromised health
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conditions, and those simply unsure whether they would suffer a severe case of the coronavirus, will be forced to choose between safeguarding their life and health and exercising the franchise. Placing Petitioners and those with compromised conditions, whether known or unknown, in such an untenable position violates the Constitution. This action seeks to remedy that profound injustice.
This original jurisdiction petition is submitted pursuant to article V, § 5 of the Constitution, South Carolina Code § 14-3-310, and Rule 245 of the South Carolina Appellate Court Rules. It respectfully seeks (1) leave to file Petitioner’s proposed complaint; (2) (if necessary) expedited discovery; (3) an expedited hearing and decision declaring a clear and present danger to free and open elections fulfilled with provisions sufficient to guarantee their integrity and secure them from tumult; and (4) an injunction instructing Nominal Defendant South Carolina Election Commission to implement the procedures it has already identified as necessary to protect election workers and voters and conduct a successful election. Respectfully, time is of the essence.
FACTUAL BACKGROUND The relevant factual background is detailed in Exhibit A, Petitioners’ proposed complaint.
STANDARD OF REVIEW When appropriate, the Court will consider matters in its original jurisdiction when they cannot be considered by a lower court first without material prejudice to the rights of the parties. Rule 245(a), SCACR. “Only when there is an extraordinary reason such as a question of significant public interest or an emergency will this Court exercise its original jurisdiction.” Key v. Currie, 305 S.C. 115, 116, 406 S.E.2d 356, 357 (1991).
GROUNDS FOR GRANTING THE PETITION This Court is the only venue where voters can obtain redress for the profound constitutional injury complained of here. This case turns on two obviously true propositions.
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First, the unprecedented public health crisis caused by the COVID-19 coronavirus will disenfranchise a significant number of voters unless election procedures change. As Petitioners’ epidemiologist explains, a significant cohort of South Carolina voters are at high risk for severe complications or death from COVID-19 and in-person voting is a “high-risk” activity for all people. See Ex. A at Ex. 3. Moreover, the risk associated with in-person voting—a risk particularly acute to those with compromised conditions—is guaranteed to be far greater than it need be due to too few election workers assisting too many voters at too few polling locations, resulting in longer lines. This is not a matter of conjecture: it is precisely what happened during the June statewide primary and the reason the State’s elections chief has twice pled with lawmakers to act while there is still time. See Ex. A at Exs. 4 & 6.
Second, “the right to vote is a cornerstone of our constitutional republic.” Bailey v. S.C. State Election Comm’n, No. 2020-000642, 2020 WL 2745565, at *1 (S.C. May 27, 2020). Because all legitimate power of this government flows from the people’s exercise of the franchise, the Court cannot abstain when the legislature fails to meet its constitutional responsibilities. Yes, the General Assembly is tasked by the Constitution with providing free and open procedures that secure the election from tumult. But, for whatever reason, current law fails to meet the moment with procedures that make voting safe to all eligible voters. That shortcoming undermines the rights of individuals and the people’s very power to call the political branches to account. Accordingly, it is not a legitimate or lawful exercise of government power to sit idly on ones’ hands and watch an election meltdown. It threatens constitutional republicanism itself.
The petition should be granted to address this once-in-a-generation emergency. Discovery (if necessary), briefing, and disposition should all be expedited to give election administrators what they need: time to prepare. Petitioners respectfully offer two further suggestions in support.
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I. Ensuring free and open elections secure from tumult is a matter of public interest that can only be resolved by the Court.
The Court should conclude this matter warrants original jurisdiction for three reasons. First, there is no reasonable debate about the threat posed by the coronavirus or that election procedures must be implemented now to allow officials sufficient time to prepare and avoid failed elections. This State remains in the midst of a crisis. The Governor has declared repeated states of emergency. See Ex. A ¶¶ 16–31. The Court has used emergency powers to prevent large gatherings of people both indoors and out. See id. ¶¶ 32–36. Two weeks ago, a member of the U.S. District Court aptly summarized the precarious nature of South Carolina’s situation in an order denying a federal inmate compassionate release: COVID-19’s virulence to date has not only taken the lives of over 130,000 Americas and infected over 3 million more, but it has also wreaked havoc on all of society. Six months ago, the thought that an American citizen’s well-being would be threatened with such regularity was unfathomable. Three months ago, the notion that a person would be at a greater risk for exposure to COVID-19 in South Carolina than in a prison in New Jersey was preposterous. Yet, here we are. United States v. Morgan, No. 2:17-cr-00727-DCN, Dkt. No. 62 at 10–11 (D.S.C. July 17, 2020) (denying motion with leave to refile “[i]f conditions at FCI Fort Dix worsen or if the circumstances in South Carolina improves”). Here we are indeed. Notably, when the Court heard argument in Bailey, it was not disputed that the coronavirus pandemic was a sufficiently serious threat to warrant original jurisdiction and consider whether persons attempting to maintain physical distance were “physically disabled” within the meaning of South Carolina Code § 7-15-320. Since that case was decided, the threat to South Carolina voters has only grown (see Ex. A ¶¶ 9–15) while current election procedures afford fewer opportunities to vote in-person or mail absentee. The highly communicable nature of the coronavirus and its capacity for symptomless spread threatens a substantial portion of the State’s 3.3 million registered voters who are ineligible
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to cast an absentee ballot. Whether an activity is high or low risk for COVID-19 transmission turns on four factors: people, place, time, and space. Ex. A at Ex. 3 ¶ 21. Petitioner’s epidemiologist explains, “[i]n-person voting is a high-risk activity for all people because it necessarily gathers strangers together, indoors, and for potentially long stretches of time.” Id. ¶ 22. Thus, current election procedures “will increase the risk that poll workers and voters will contract COVID-19” (see id. ¶ 18), and that threatens the State’s very ability to conduct a successful election without substantial changes in existing law. Because many election workers also fall into high-risk categories (Ex. A at Ex. 6 p. 1), there will be a severe shortage of election workers that will force election administrators to consolidate precincts, which in turn will result in more voters in longer lines at fewer polling locations, making physical distancing impossible. On this point, State and local election officials and an independent watchdog all agree. See Ex. A at ¶¶ 57–79.
But there is no reason to accept this foreseeably horrible outcome as a fait accompli. The South Carolina Election Commission has offered nine specific procedures which, if ordered now to allow election officials time to implement them, would alleviate many of the risks associated with a high-turnout, in-person election. Specifically, this State’s top election official has proposed a plan that includes no-excuse absenteeism, online absentee applications, no witness requirement for absentee return envelopes, drop boxes for absentee returns, additional time for election officials to count absentee ballots, designated curbside voting locations, expanding electronic ballot delivery (already used for military voters) to disabled voters and first responders, early voting, and vote-by-mail. See Ex. A at Ex. 6 p. 3. Generally, these procedures all facilitate safe, free, and open access to the franchise by spreading voter participation across a greater number of days and balloting procedures to dilute the concentration of persons casting an in-person ballot on election day. These efforts—procedures that facilitate physical distance between voters and election
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workers alike—comport with guidance from public health experts as the only sure way to stop the spread of this highly infectious disease. An association of local South Carolina election officials and an independent election watchdog group agree remedial procedures are necessary to make voting safe and that time is of the essence. See Ex. A at Exs. 7 & 8. For these reasons, the extraordinary and (quite literally) unprecedented circumstances here should weigh heavily in favor of granting original jurisdiction.
Second, waiting for this case to further ripen forecloses the prospect of granting any relief. As explained by the executive director of the State election commission, election officials need clarity now to ensure sufficient time to implement any changes to election law. The director has repeatedly pled with Defendants to act quickly (Ex. A at Exs. 4 & 6), but those pleas have fallen on deaf ears. While precedent allows the Court to cure a constitutional violation by ordering a new election, e.g., George v. Mun. Election Comm’n of City of Charleston, 335 S.C. 182, 516 S.E.2d 206 (1999) (nullifying election where procedure violated constitutional guarantee of secret ballot), that is not a workable remedy under these circumstances. For starters, there is no precedent for invalidating statewide elections. The few instances where it could not be avoided concerned county or municipal elections. Further, no one knows when the current pandemic will end, so any do-over would necessarily place voters right back in their present circumstance. Or, actually, far worse circumstances since a post-election dispute could delay timely certification of presidential contest results necessary to select electors to represent the State’s voters in the Electoral College. Postelection review also invites a parade of horribles that all good-faith actors should be eager to avoid. As one election law commentator explains:
Allowing post-election review when pre-election review would have been relatively easy to request essentially gives a campaign the “option” whether to sue: The campaign identifying a potential election problem can sit on its hands until it sees the election results, and if it does not like the election results it can use the
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problem as an excuse to get a more favorable outcome. It is far better to have a legal system that discourages such speculation and encourages preventing harm in elections that would prove difficult to undo after the fact. Richard L. Hasan, “Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown,” 62 WASH. & LEE L. REV. 937, 994 (2005). Such a result is anathema to the notion that election integrity should be held “foundational”, see Anderson v. S.C. Election Comm’n, 397 S.C. 551, 556, 725 S.E.2d 704, 705 (2012), and the Court has power to prevent this self-inflicted catastrophe. Respectfully, it should. Third, this is a matter of intense public interest arising from an unprecedented national emergency that implicates questions of constitutional power. It fits squarely within original jurisdiction jurisprudence. For example, original jurisdiction has been held to exist when necessary to clarify the effective date of a new constitutional amendment. See Davis v. Leatherman, 419 S.C. 44, 46, 796 S.E.2d 137, 138 (2017). It is often held to exist when necessary to resolve questions of government power, like whether a governor had power to make recess appointments, Senate v. McMaster, 425 S.C. 315, 821 S.E.2d 908 (2018), or remove a board member from a public utility. Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000). Likewise, with matters disputing whether legislative power was constitutionality exercised. S.C. Pub. Interest Found. v. Lucas, 416 S.C. 269, 271, 786 S.E.2d 124, 125 (2016) (challenging proviso under the one subject rule). The Court has frequently granted original jurisdiction to settle election disputes, like whether a procedure for the nomination of candidates in municipal election was lawful, Mitchell v. City of Greenville, 411 S.C. 632, 770 S.E.2d 391 (2015), whether state election officials were obligated to conduct a party primary election, S.C. Libertarian Party v. S.C. State Election Comm’n, 407 S.C. 612, 757 S.E.2d 707 (2014), and whether candidates were eligible for certification to appear on the ballot. Florence Cty. Democratic Party v. Florence Cty. Republican Party, 398 S.C. 124, 727 S.E.2d 418 (2012);
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Anderson, supra. This petition implicates all the weighty concerns engendered in these precedents: constitutional duty, separation of powers, and lawful election procedures. However, unlike an intradepartmental squabble, this dispute implicates free exercise of the franchise—the right on which all legitimate government action must be founded.
Accordingly, this is a grave matter of public interest that only this Court can resolve. II. The Court should not abstain or show further comity to the legislature. The obvious impediment to relief here is the decision in Bailey v. South Carolina State Election Commission, No. 2020-000642, 2020 WL 2745565 (S.C. May 27, 2020), where the Court was asked whether South Carolina Code § 7-15-320(B)’s inclusion of “physically disabled person[s]” as a category of voters eligible to cast an absentee ballot was broad enough to include voters attempting to maintain physical distance during the pandemic. The Court (correctly) held the claim concerning the June statewide primary was mooted by legislative action, but then cited the political question doctrine in declining to rule on claims concerning the November general election. See Bailey, 2020 WL at *2–3. Bailey poses no obstacle here for at least four reasons. First, this case is just different from the statutory construction question presented in Bailey. Resolving statutory construction questions turns on discerning legislative intent. Fullbright v. Spinnaker Resorts, Inc., 420 S.C. 265, 272, 802 S.E.2d 794, 797 (2017) (collecting cases). If a statute is clear and constitutional, the Court will decline to wade into a policy dispute over its efficacy. See id. at 271–72, 281, 802 S.E.2d at 797, 802 (collecting cases, leaving policy concerns “for the legislature.”). The claim here sounds in the Constitution as Petitioners seek redress for an injury founded on the express guarantee of free and open elections secure from tumult. See S.C. CONST. art. I, § 5 & art. II, § 1. Construing the Constitution is a different task altogether. “When this Court is called to interpret our Constitution, it is guided by the principle that both the citizenry
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and the General Assembly have worked to create the governing law.” State v. Long, 406 S.C. 511, 514, 753 S.E.2d 425, 426 (2014). So, while the Court applies rules of construction similar to those used to construe statutes (id.), legislative power is not plenary, and the Court has the responsibility to construe the Constitution and laws of the State “without concern for political or popular opinion.” Mims Amusement Co. v. S.C. Law Enf’t Div., 366 S.C. 141, 149, 621 S.E.2d 344, 348 (2005). For example, “[t]he Legislature may not abrogate the right to a jury trial simply by designating a proceeding as a civil action without a jury” (id.) because, unlike the code of laws, the Constitution provides a hard, non-negotiable floor for government action.
The provisions of the state constitution are not a grant but a limitation of legislative power, so that the Legislature may enact any law not expressly, or by clear implication, prohibited by the state or federal constitution. Segars-Andrews v. Judicial Merit Selection Comm’n, 387 S.C. 109, 118, 691 S.E.2d 453, 458 (2010). So, while the Court was correctly concerned with legislative intent when it considered the statutory construction claim in Bailey, legislative intent only gets you so far here where the Court must consider the prerogative of a far greater power: the people’s exercise of the franchise. Here, current election procedures violate the Constitution during the COVID-19 pandemic. Second, when the Court dismissed Bailey there was a reasonable expectation the pandemic might recede, or that the General Assembly would act to safeguard the November general election. Neither assumption has proven true. As Petitioners’ proposed complaint explains, the State remains in a state of emergency and the coronavirus continues to rage unimpeded across this State and much of the Nation. See Ex. A ¶¶ 9–38. Likewise, the window for meaningful legislative action has closed. On June 24, 2020, the House tabled two amendments that would have extended the same protections voters in the June statewide primary received to voters in November. Ex. A ¶¶ 84. House and Senate leadership claim they will not return until September (id. ¶¶ 85–87),
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which will be too late. See id. at Ex. 6 p. 4 (urging “immediate action”). So, while the Court might have reasonably assumed when it decided Bailey on May 27, 2020 that judicial intervention was unnecessary because legislative action would soon follow, that did not and will not happen.
Third, because elections are the vehicle through which the people call the political branches to account, the Court cannot ignore an existential threat to elections or free and open participation by individual voters in them. This distinction sets this claim apart from Bailey, where, for example, the Court could have simply (and reasonably) dispensed with the statutory construction claim by answering “no”—the disability exception does not include persons attempting to maintain physical distance during the pandemic—and left it to the legislature to decide what to do with that construction. But here the individual, constitutional right to free, open, and safe elections is what is at stake and current election procedures are at odds with that right. In Callison v. Peeples, 102 S.C. 256, 86 S.E. 635 (1915), the Court said requirements during elections must be “strictly followed” and rejected the contention that the General Assembly’s failure to make provisions for the disenfranchised electors relieved the Court from hearing the case:
The contention that the act of the General Assembly made no provision for electors situate as these were is not sufficient to warrant the court in dismissing their application for protection; for the General Assembly can no more deprive them of their constitutional rights than the proponents of the new county. It makes no difference how or why they were deprived of the right, unless, of course, they themselves were responsible for it. The fact that they were deprived of the right to vote goes to the legality of the election, and its validity depends upon the determination of what part of the electorate so deprived of the right would be necessary to render the election void. Id. at 256, 86 S.E. at 637. Likewise, current law disenfranchises voters like Petitioners; whether the General Assembly intended that be the case is immaterial to the Court’s obligation to vindicate this most important individual right. Indeed, because the right to vote is so fundamental it cannot be left abridged without disrupting our system of ordered liberty. Recently, the Court dismissed
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an original jurisdiction matter on standing grounds and encouraged the plaintiffs to seek relief through legislative and executive action and, if relief was not forthcoming, to seek it “at the ballot box.” Carnival Corp. v. Historic Ansonborough Neighborhood Ass’n, 407 S.C. 67, 81, 753 S.E.2d 846, 853 (2014). But the distinction drawn here, where the risk to sick and vulnerable voters refuses them the ballot itself, threatens voters’ ability to obtain redress and call the political branches to account. These barriers to the franchise frustrate the practice of ordinary politics as an available means to settle disagreements and place this action outside the scope of many others, like Carnival Corp., where the Court might otherwise reasonably defer. Thus, the better view is that this action is simply different in kind from the statutory construction claim in Bailey.
Fourth, if necessary, the Court should conclude Bailey was wrongly decided when it said that “[a]s for elections after July 1, 2020, we hold that whether any change should be made to the law is a political question for the Legislature likewise to answer.” Bailey, 2020 WL at *3. This conclusion misapprehends the political question doctrine. “[T]he action or inaction of the General Assembly does not determine whether a question is political, and therefore, nonjusticiable.” Bailey, 2020 WL at *5 (Hearn, J, dissenting). A true “political question” is not one that touches on some aspect of politics or elections, but a dispute where the resolution is left to another branch of government. For example, whether to punish or expel a member of the legislature is a political question. See S.C. CONST. art. III, § 12 (“Each house shall choose…”). Whether the Judicial Merit Selection Commission properly evaluated a judicial candidate is a political question. S.C. Pub. Interest Found. v. Judicial Merit Selection Comm’n, 369 S.C. 139, 632 S.E.2d 277 (2006). Thus, properly understood, “[t]he nonjusticiability of a political question is primarily a function of the separation of powers.” S.C. Pub. Interest Found. v. Judicial Merit Selection Comm’n, 369 S.C. 139, 142, 632 S.E.2d 277, 278 (2006) (citing Baker v. Carr, 369 U.S. 186, 210–11 (1962)); Segars-
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Andrews, 387 S.C. at 121, 691 S.E.2d at 460 (same). Applying this framework, the mere fact that legislative action has or could occur has no bearing on whether the Court should hear a case, nor does the fact that the underlying matter concerns politics or elections.
But that is precisely what the Court concluded in Bailey, which cannot be followed without causing irreparable harm to the Court’s power to declare the law. The novel doctrine announced in that case will be an endless source of mischief and confusion leading to repeated claims that the pendency of this bill or that bill in the legislature is suddenly cause for the Court to cede its obligation to declare what the law presently requires. This is not to say the General Assembly cannot abrogate a decision of the Court with legislation (provided doing so does not offend the Constitution); certainly, it can. But a rule that requires abstention based solely on the possibility of legislative action is not only an unworkable standard to apply but one that diminishes the Court’s power as a co-equal branch. Indeed, a better frame to explain the Court’s decision in Bailey is not the political question doctrine, but the simple exercise of comity to a co-equal branch. The Court explained its decision not to construe the absentee statute by stating:
Statutory interpretation is certainly a judicial question, but when the Legislature considers the very same question—knowing it is doing so at the very same time the Court considers the question—and answers the question with clarity, we cannot give a different answer through the judicial act of statutory interpretation. We may do so only by the political act of simply disagreeing. This Court will not do it. Bailey, 2020 WL at *3. This reasoning is correct to the extent it sought to afford the legislature the first opportunity to act. But comity is a matter of discretion, not jurisdiction. This claim seeks free and open elections secure from tumult as guaranteed under the Constitution. The Court is the ultimate guardian of that individual constitutional right. The political question doctrine is intended to preserve the separation of powers, not disrupt them. If the Court finds Bailey unavoidable here, it should not be followed as precedent.
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CONCLUSION Current election procedures will disenfranchise Petitioners alongside tens of thousands of other sick and vulnerable voters who are only eligible to cast an in-person ballot on election day in November. This will put tremendous, possibly insurmountable strain on an election system with too few workers and polls and inadequate procedures. No voter—sick or otherwise—should be forced to weigh their personal health and safety against exercise of the franchise. Nor should we accept the chaos that will ensue from the tragic maladministration caused by an overwhelmed election system unable to perform under the stresses and strains of the COVID-19 pandemic. Fortunately, there is still time to act and a clear roadmap for solving this problem that relies on the expertise of election officials. This petition for original jurisdiction should be granted along with leave to Petitioners to file their proposed complaint. The Court should shorten Defendants’ time to respond and expedite discovery (if necessary), briefing, and a decision. Declaratory and injunctive relief is warranted. The Court should hold current election procedures violate article I, § 5 and article II, § 1 of the South Carolina Constitution and then order the South Carolina Election Commission to pursue the nine remedial actions outlined in the executive director’s correspondence to Defendants (Ex. A at Ex. 6) along with any such further election procedures as are feasible, necessary, just, and proper to conduct a free, and open election secure from tumult.
[signature page follows]
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3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 109-4 Page 17 of 40 Duggins v. Lucas, No. 20-____ (S.C.) Petitioners’ proposed complaint
Exhibit A
(Petitioners’ proposed complaint)

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 109-4 Page 18 of 40

IN THE ORIGINAL JURISDICTION OF THE SOUTH CAROLINA SUPREME COURT

Regina Duggins and Chaunta R. Hamilton,
Plaintiffs, v.
Jay Lucas, in his capacity as Speaker of the House of Representatives and Harvey Peeler, in his capacity as President of the Senate,
Defendants,
And
South Carolina Election Commission,
Nominal Defendant.

No. _______________________
[PROPOSED] COMPLAINT

Plaintiffs Regina Duggins and Chaunta R. Hamilton are citizens and voters of this State with underlying health conditions that cause them to suffer a higher risk of catching a severe case of COVID-19. They are afraid to vote during the rapidly approaching general election based on existing election procedures. They bring this action under the South Carolina Constitution for a declaration that election procedures for the general election set for Tuesday, November 3, 2020, will disenfranchise them and deny them participation in a free and open election with provisions sufficient to ensure its integrity and to secure it from the tumult caused by the raging coronavirus pandemic that threatens both the conduct of the election and individual voters forced to choose between their personal health and safety and exercise of the franchise.
Repeated warnings from election officials like Nominal Defendant South Carolina Election Commission have gone unheeded and any further delay in resolving this matter will all but ensure elections fail come November. Time is of the essence.

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The first principle of this government is that all political power is vested in and derived from the people and the people have the right to change their government at all times. See S.C. CONST. art. I, § 1. As set forth more fully below, current election procedures threaten the very integrity of the November general election and promises that those procedures might change as a result of legislative action in September will be too little too late. Without intervention by the Court now there will be shortages of election workers unwilling to expose themselves to the coronavirus. Those shortages will cause election officials to consolidate precincts, thus forcing more voters into fewer polling locations, resulting in longer lines, and placing Plaintiffs and a large number of other South Carolina voters at even greater personal risk. Simply put, current law will not provide for a free and open election secure from tumult as guaranteed article I, § 5 and article II, § 1 of the South Carolina Constitution and the Court should enjoin current procedures and order a remedy to protect Petitioners’ rights. Plaintiffs would respectfully show this Honorable Court as follows:
JURISDICTION 1. The Court has subject matter jurisdiction under article V, § 5 of the South Carolina Constitution and personal jurisdiction over all Defendants.
PARTIES 2. Plaintiff Regina Duggins is a citizen of the State of South Carolina, a resident of Charleston County, and a registered voter. See Duggins Aff. ¶¶ 2, 5 (Exhibit 1). Duggins was diagnosed with asthma as a child. Id. ¶ 6. In 2018, she was hospitalized for Aspirin Exacerbated Respiratory Disease (AERD), which she treats with three different inhalers to aid her breathing. Id. Her weight also puts her at a higher risk to suffer from severe complications were she to contract COVID-19. Id. ¶ 6. She is just 43 years old and takes extraordinary daily measures to ensure she
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does not contract the virus. See id. ¶¶ 3, 7. She is fearful about participating in the November

general election. Id. ¶ 9.

3. Plaintiff Chaunta R. Hamilton is a citizen of the State of South Carolina, a resident of Berkeley County, and a registered voter. See Hamilton Aff. ¶¶ 2, 5 (Exhibit 2). Hamilton has

been diagnosed with End-Stage Renal Disease, which requires her to undergo dialysis treatment

three times per week until she receives a kidney transplant. Id. ¶ 6. Accordingly, she has taken

extraordinary precautions to avoid contracting COVID-19. See id. ¶ 7. Without expanded ballot

access for the November general election, she will be unable to vote for fear of contracting

COVID-19. See id. ¶ 9.

4. Defendant Jay Lucas is the Speaker of the House of Representatives.

5. Defendant Harvey Peeler is the President of the Senate.

6. Nominal Defendant South Carolina Election Commission (Election Commission)

is an agency of the State of South Carolina responsible for planning and executing elections and

assisting local election commissions in doing the same. The Election Commission has consistently

and repeatedly warned of the need to act to protect election workers and voters and ensure the

successful conduct of the general election during the COVID-19 pandemic. It is joined here as a

party necessary to grant complete relief.

FACTS

7. Generally speaking, South Carolina voters are required to cast a ballot at the polls

on election day unless they are absent from their county of residence or present but meet the criteria

in an enumerated list of categories. See S.C. Code Ann. § 7-15-320. Absentee voting procedures

permit either an early in-person ballot or a mail ballot. See id. § 7-15-330.

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8. South Carolina remains in a state of emergency because of the COVID-19

pandemic. Without relief here, it is certain to have a deleterious effect on the free, open, and safe

conduct of the November general election free of tumult by disrupting the State’s ability to conduct

a successful election and discouraging participation by voters concerned about lines and crowds.
The State of South Carolina and her citizens are in an escalating state of emergency due to the COVID-19 pandemic

9. COVID-19 is a highly

communicable respiratory disease

caused by a novel coronavirus called

SARS-CoV-2 that has spread across

the world, including in the United

States and South Carolina.

10. With few notable

exceptions, the virus has spread

unimpeded across the United States.

For example, on July 17, 2020, the

United States recorded a daily record

of more than 75,000 new cases.

Figure 1 - “Coronavirus Live Updates: U.S. Shatters Single-Day Caseload,” N.Y. TIMES website (July 17, 2020).

11. South Carolina is likewise posting record numbers of new cases.

12. According to the South Carolina Department of Health and Environmental Control

(DHEC), 82,071 South Carolinians have been infected with the virus and 1,452 have died as of July 28, 2020. See “SC Testing Data and Projections” SCDHEC website (July 28, 2020).1

1 Available at: https://scdhec.gov/infectious-diseases/viruses/coronavirus-disease-2019-covid19/sc-testing-data-projections-covid-19
4

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 109-4 Page 22 of 40 13. South Carolina’s daily and cumulative case load is growing largely unimpeded.
“SC Testing Data & Projections (COVID-19),” DHEC website (last accessed July 28, 2020).2 14. South Carolina deaths from COVID-19 have also sharply risen in recent weeks:
“COVID-19 Deaths in South Carolina by Date,” DHEC website (last accessed July 28, 2020).3 2 Available at: https://scdhec.gov/infectious-diseases/viruses/coronavirus-disease-2019-covid19/sc-testing-data-projections-covid-19 3 Available at: https://scdhec.gov/infectious-diseases/viruses/coronavirus-disease-2019-covid19/sc-testing-data-projections-covid-19
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15. Also concerning is the occupancy of South Carolina hospitals which, once overrun by coronavirus cases, will be unable to provide life-saving care to all patients in need, leading to increased death among citizens that might otherwise be saved through medical intervention. While DHEC’s current hospital occupancy report suggests an improved landscape, disclaimers on the recent July 25, 2020 report indicate the agency’s reporting capacity is still “transitioning” to a new federal system. The last available public report not subject to these accuracy disclaimers indicates highly populated counties with caseloads already exceeding 75% of available capacity:
“Total Hospital Bed Occupancy (COVID-19),” DHEC website (accessed July 17, 2020).4 The Executive and Judicial branches of State government have
exercised emergency powers to marshal a response to the COVID-19 pandemic 16. Beginning on March 13, 2020 and continuing uninterrupted through the present, Governor Henry McMaster has issued 31 executive orders, including nine emergency declarations
4 Available at: https://scdhec.gov/infectious-diseases/viruses/coronavirus-disease-2019-covid19/hospital-bed-capacity-covid-19
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citing an “imminent” threat to public health or other risks posted by COVID-19 and marshaling a response using the State’s Public Health Plan Emergency Committee and South Carolina Emergency Operations Plan.
17. For example, the March 13, 2020 executive order (Ex. Order 2020-08): a. Ordered DHEC to restrict visitation to nursing homes and assisted living facilities; b. Closed all public schools in Kershaw and Lancaster counties; c. Authorized jails and prisons to suspend visitation; d. Activated the South Carolina National Guard; e. Prohibited price gouging; and f. And suspended certain regulations for security contractors and commercial vehicle operators.
See Ex. Order 2020-08 (citing S.C. Code Ann. §§ 1-3-420; 25-1-440; 44-4-130 & -500). 18. On March 15, 2020, the Governor issued an executive order closing all public
schools for 14 days and postponing all March and April municipal elections. Ex. Order 2020-09. 19. On March 17, 2020, the Governor issued an executive order directing DHEC to use
its powers under the Emergency Health Powers Act—a law that grants the department power to (1) close and decontaminate any facility deemed to pose a risk to public health; (2) ration and manage services by any health care facility; (3) test, treat, vaccinate, isolate, or quarantine individuals or groups; and (4) commander the assistance of in-state health care workers, among other emergency powers—to prevent transmission of the COVID-19 virus. Ex. Order 2020-10, § 2. The executive order also suspended on-premises restaurant service and prohibited public gatherings of more than 50 persons. Id. §§ 4–5.
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20. March 19, 2020, the Governor issued an executive order directing non-essential State employees and staff to stay home and instructing the Department of Employment and Workforce (DEW) to prepare for and respond to the economic impact of the pandemic, among other measurers. See Ex. Order 2020-11, §§ 1–2.
21. On March 27, 2020, the Governor ordered that individuals entering South Carolina from high risk areas quarantine for 14 days. See Ex. Order 2020-14, § 1.
22. On March 28, 2020, the Governor issued another emergency declaration that closed schools through April, among other directives. See Ex. Order 2020-15, § 2.
23. On March 30, 2020, the Governor used executive power to close beaches and waterways to recreation. See Ex. Order 2020-16.
24. On March 31 and April 3, 2020, the Governor issued orders closing non-essential businesses. See Ex. Order 2020-17 & -18; see also Ex. Order 2020-19 (April 3, 2020) (prohibiting lodging rentals to persons from CDC hot zones).
25. On April 6, 2020, the Governor ordered South Carolinians to restrict movement to home or work, “limit social interaction”, and “practice ‘social distancing’ in accordance with CDC guidance[.]” See Ex. Order 2020-21; see also Ex. Order 2020-22 (April 7, 2020) (instructing DEW to prepare to administer unemployment insurance program to address economic impact).
26. On April 16 and 20, 2020, the Governor modified restrictions on use of public water to facilitate outdoor recreation and exercise, while reaffirming the mandate to maintain social distance and continuing the ban on groups of three or more people. See Ex. Order 2020-25; Ex. Order 2020-28.
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27. On May 3 and 8, 2020, the Governor modified the work-or-home order, rescheduled the postponed municipal elections, and lifted some of the restrictions on indoor restaurant service and boating. See Ex. Order 2020-31; Ex. Order 2020-33; Ex. Order 2020-34.
28. On May 12, 2020, the Governor issued a fifth emergency declaration and extended the closure of public schools. See Ex. Order 2020-35.
29. On May 15 and 21, 2020, the Governor lifted the close order on gyms, spas, salons, barber shops and entertainment venues while certain restrictions. See Ex. Order 2020-36; Ex. Order 2020-37.
30. On July 11, 2020, the Governor restricted the on-premises consumption of alcohol in bars and restaurants after 11:00 p.m. See Ex. Order 2020-45.
31. Starting on June 11, 2020 and again every two weeks thereafter, the Governor has issued new emergency declarations. See Ex. Order 2020-40 (sixth); Ex. Order 2020-42 (June 26, 2020) (seventh); Ex. Order 2020-44 (July 11, 2020) (eighth); Ex. Order 2020-48 (July 26, 2020) (ninth). There is no expectation the state of emergency will end anytime soon.
32. Likewise, the Judicial branch has used emergency powers to protect public health, issuing no less than 33 orders and memoranda since March 4, 2020 addressing various aspects of court operations during the pandemic. Many of these measures are specifically designed to limit the number of people gathering together indoors and out.
33. For example, on April 30, 2020, the Court lifted the moratorium on evictions and foreclosures but ordered that any in-person hearings “be staggered as not to create large gatherings of people.” In re Statewide Evictions and Foreclosures (Beatty, CJ). The Court also required “at least 30 minutes between the ending of a hearing and the beginning of another” in order to “reduce
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the number of people at the court and allow any necessary cleaning of the facility.” Id. (advising, “In-person hearings are the exception not the rule.”).
34. Likewise, jury trials remain continued until further notice while circuit judges are directed to conduct virtual hearing whenever possible. See In re Operation of the Trial Courts During the Coronavirus Emergency, No 2020-000447 (amended Apr. 22, 2020); Court Operations During the Six Week Period, May 4 – June 12, 2020 (mem), (Apr. 24, 2020) (Beatty, CJ).
35. The appellate courts remain under an Order authorizing virtual oral argument, restricting the handling of paper document, and extending deadlines. See Am. Order, No. 2020000447 (May 29, 2020).
36. On July 2, 2020, the Court issued an Order implementing mitigation measures for the South Carolina Bar Examination. Those mitigation measures, developed in consultation with DHEC, endeavor to make the indoor examination safer by (1) dramatically expanding the square footage of the facilities to ensure test takers are at least six feet apart; (2) separating test takers into four groups and staggering start and stop times; (3) ordering test takers to minimize contact and avoid public gatherings in the 14 days prior to the exam; (4) ordering test takers to wear a mask and social distance when in public; (5) ordering test takers traveling to South Carolina via plane, bus, or train to do so 14 days prior to the exam; (6) ordering test takers to wear a mask while taking the test or in common areas of the testing center; and ordering test takers to maintain social distance. In re COVID-19 Mitigation Measures for the July 2020 South Carolina Bar Examination.
37. The United States District Court for the District of South Carolina is under it third emergency order postponing jury trials, grand juries, and roster meetings. See Third Am. Standing Order, No. 3:20-mc-00326-RBH (D.S.C. July 24, 2020).
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38. South Carolina’s trajectory with COVID-19 is unlikely to materially change for the better in time for the November general election and could, in fact, be considerably worse.
The pandemic threatens the health and safety of a large number of South Carolina voters
39. The COVID-19 coronavirus affects public health in ways that directly impact the State’s ability to conduct a safe, free, and open election and the risk of harm to individual voters.
40. COVID-19 is a respiratory infection that is caused by a new coronavirus called SARS-CoV-2. Aff. E. Smith ¶ 4 (Exhibit 3). Symptoms range from mild to severe. Id. ¶ 6. The majority of people infected only experience a mild or moderate case, while an estimated one in five patients endure a severe case that may require hospitalization. Id.
41. The largest study to date of COVID-19 patients with severe cases admitted to an intensive care unit (ICU) in a United States hospital found that 39.5% of those patients died. Id. ¶ 7. Current estimates expect between 500–780 people per 100,000 to die from COVID-19 infections (compared to between 1 and 10 deaths per 100,000 seasonal flu infections). Id. ¶ 5.
42. Everyone is at risk of getting COVID-19, but certain people are at higher risk of severe complications if infected. Id. ¶ 8. Older adults face increased risk of severe complications, as do people with underlying medical conditions, including (1) Type 2 diabetes mellitus; (2) obesity (body mass index [BMI] of 30 or higher); (3) chronic kidney disease; (4) chronic obstructive pulmonary disease (COPD); (5) immunocompromised state (weakened immune system) from solid organ transplant; (6) serious heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies; and (7) sickle cell disease. Id.
43. CDC recommends special precautions for other populations including people who are pregnant, disabled, and belong to racial and ethnic minority groups. Id. ¶ 9.
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44. A significant portion of the population in South Carolina is at elevated risk for severe complications from COVID-19. Id. ¶ 10. According to 2017 data from DHEC, South Carolina has the fifth-highest prevalence of diabetes in the United States with more than 500,000 or 13.4% of the adult population afflicted. Id. ¶ 11. Of these, an estimated 127,000 people have diabetes but do not yet know it. Id.
45. According to CDC, more than one in three South Carolinians are obese. Id. ¶ 12. 46. According to recent data from the March of Dimes, nearly 1 million women of childbearing age (ages 15–44) live in South Carolina, and there are more than 57,000 births in the state each year. Id. ¶ 13. 47. COVID-19 is spread from persons to person in three ways: (1) droplet transmission, (2) aerosol transmission, and (3) fomite transmission. Id. ¶ 14. 48. Droplet transmission occurs when a sick person coughs or sneezes invisible, virusfilled droplets into the air and someone else inhales them. Id. 49. Aerosol transmission is virus spread through the air via saliva and mucus released during speech, coughing, or sneezing. Id. While droplets fall to the ground quickly, aerosol particles can travel farther in a room than larger droplets can and can float longer in the air. Id. A five-micron particle will travel more than 30 feet at typical indoor air velocity. Id. 50. Finally, fomite transmission occurs when droplets land on a surface and are transferred by touch to another person who then touches their mouth, nose, or eye, resulting in infection. Id. The virus can last from four to 24 hours on cardboard and up to three days on plastic and stainless-steel surfaces. Id. 51. There is clear evidence that persons infected with COVID-19 can spread the virus prior to showing symptoms—a phenomenon called pre-symptomatic transmission. Id. ¶ 15. Other
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infected persons spread the disease without ever showing symptoms—a phenomenon called asymptomatic transmission. Id. ¶ 16. Pre- and asymptomatic transmission by unwitting persons makes it difficult to stop the spread of COVID-19. Id. ¶ 17.
52. According to Emily Smith, SCD MPH—an epidemiologist, Assistant Professor at the George Washington University Milken Institute of Public Health, and researcher at the Harvard T.H. Chan School of Public Health—in-person voting “will increase the risk that poll workers and voters will contract COVID-19.” Id. ¶ 18.
53. As recent CDC guidance acknowledges, “Elections with only in-person voting on a single day are higher risk for COVID-19 spread because there will be larger crowds and longer wait times.” Id. ¶ 19. Accordingly, CDC recommends reducing direct contact, minimizing the number of people at polling locations, and considering alternatives to in-person voting. Id.
54. Other prophylaxes (like masks) are secondary to strategies that allow voters to maintain physical distance from one another. As Dr. Smith explains,
COVID-19 mainly spreads from person to person, and in the ways described above. So, although well-documented precautions-such as wearing face coverings, social distancing, disinfecting surfaces, and washing hands thoroughly and often are crucial, those precautions are secondary to avoiding crowds and unnecessary contact with others. Id. ¶ 20. 55. Whether an activity is high or low risk for COVID-19 transmission turns on four factors: people, place, time, and space. Id. ¶ 21. Dr. Smith explains, “[i]n-person voting is a highrisk activity for all people because it necessarily gathers strangers together, indoors, and for potentially long stretches of time.” Id. ¶ 22. 56. There is no short-term prospect for a vaccine that would inoculate the majority of the population or a therapy that reliably combats the virus.
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The pandemic threatens free and open elections secure from tumult 57. State election officials are alarmed by the prospect that the COVID-19 pandemic will have a severe adverse impact on the November general election and warn that unless remedial action is taken now there will be insufficient time to implement those changes for November. 58. On March 30, 2020, the Executive Director of the South Carolina Election Commission (Election Commission), Marci Andino, sent correspondence to Governor McMaster, President Peeler, and Speaker Lucas urging the General Assembly to act in response to the rapidly approaching June statewide primary elections. See Ltr. Andino to McMaster et al. (Exhibit 4). Director Andino warned that as the coronavirus continued to spread, the Commission was “concerned about the safe conduct of the June Primaries, November General Election and all other elections scheduled for 2020.” 59. Director Andino warned that current election laws required large numbers of people to congregate at polling locations and a “large percentage” of the state’s poll managers fall into high-risk categories, such that there was likely to be a deficit in the number managers needed to staff polling locations. Id. at 1–2. 60. Director Andino asked state leaders to implement emergency changes to election procedures and offered a menu of options designed to facilitate physical distancing. See id. at 2–4 (“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.”). 61. On April 6, 2020, the South Carolina Association of Registration and Election Officials, Inc. (SCARE) wrote the Governor and legislative leadership urging adoption of voteby-mail procedures as the best method given the threat posed by COVID-19, the need to protect
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voters and election workers, and the unavailability of sufficient polling locations and workers. See Ltr. K. Smith to H. McMaster et al. (Exhibit 5).
62. On May 12, 2020, the General Assembly passed Senate Bill 635, which extended no-excuse absentee voting to all South Carolina voters and provided funding to underwrite costs for protection of the health and safety of voters, poll workers, and county election officials. The legislature did not enact any remedy for the November general election.
63. The next day, the Governor signed the bill into law (Act 133) and statewide primary elections proceeded accordingly.
64. Meanwhile, two weeks prior to the June primaries, the United States District Court for the District of South Carolina suspended the witness requirement for mail-in absentee ballots for the primary and runoffs.
65. Together, these developments afforded all primary election voters the opportunity to cast a ballot while in self-isolation and quarantine.
66. On Tuesday, June 9, 2020, the State held the statewide primary election. Out of 3,329,755 registered voters, 767,187 voters cast primary ballots—a participation rate of 23 percent.
67. The election occurred in spite of an acute shortage of poll workers due principally to the fact that most poll workers are in an age or disease cohort most seriously at risk for a severe or fatal outcome were they to contract COVID-19 and were understandably unwilling willing to risk the exposure.
68. On July 17, 2020, Director Andino sent correspondence to President Peeler and Speaker Lucas again imploring action and “underscore[ing] serious concerns related to the safe and efficient conduct of the November General Election.” See Ltr. Andino to Peeler & Lucas (Exhibit 6).
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69. After reiterating her concerns that current election procedure require large numbers of people to congregate and that many poll managers in high-risk categories may decline to serve, Director Andino explained that county election officials are also struggling to find a sufficient number of available polling locations as owners and managers decline to open their facilities to the public due to concerns over the virus. Id. at 1.
70. The Election Commission has also identified other challenges to conducting the November general election that were either not present or not present to the same degree during the June statewide primary elections. For example, voter turnout and absentee voting during a general election are significantly higher than during a primary election. Director Andino explained, “[t]urnout in non-gubernatorial statewide primaries averages 18%, while turnout in presidential elections averages 71%.” Id. at 2. For a rough comparison, absentee voting in the June primaries increased 213% compared to the 2016 primaries (61,000 to 191,000), and absentee ballots cast by mail increased 370% (27,000 to 127,000). Id. “Prior to the pandemic, 27% of absentee voters voted by mail. In the 2020 Statewide Primaries, 66% voted by mail.” Id. Applying these numbers to the November general election would mean more than 1.6 million absentee ballots are likely to be cast in November with more than 1 million of these ballots cast by mail. Id.
71. Without changes now, this volume of mail-in ballots will overwhelm the State’s election infrastructure and cripple its ability to count votes within the statutory deadline to complete the count.
72. Based on these observations, the Election Commission raised the following concerns over the conduct of the November general election:
• The absentee-by-mail process will be overwhelmed and overrun if we have in place only the same rules and provisions in place in June. The opening and counting of absentee-by-mail ballots will require substantially more time to complete, and election results will be significantly delayed.
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• With significantly more voters at the polls in November, social distancing at polling places will become far more difficult, and in some places, will be impossible.
• Poll manager shortages are expected to be more extreme. More managers will be needed than in June, and with the spread of COVID-19, more managers will be unavailable to serve.
• Polling place availability may also be impacted due to the spread of COVID-19. • The resulting polling place consolidations will have a far greater impact on voter
wait times with the increase in turnout. • Increased wait times and fear of COVID-19 will cause unqualified voters to
flood the curbside voting process at polling places interfering with its intended purpose of helping voters with disabilities. Ex. 6 at 2–3. In short, “Poll manager shortages, inexperienced poll managers and lack of polling places leads to consolidation, crowding, long lines, confusion and errors on election day.” Id. at 1. 73. As she did in March, Director Andino offered a menu of procedures that could be implemented to ensure a safe and secure election. These proposals included (1) no-excuse absenteeism, (2) allowing absentee applications to be submitted online, (3) removing the witness requirement for absentee return envelopes, (4) permitting absentee return drop boxes, (5) granting additional time to count absentee ballots, (6) designating curbside voting locations, (7) expanding electronic ballot delivery (already used for military voters) to disabled voters and first responders, (8) enacting early voting, and (9) adopting vote-by-mail. See Ex. 6 at 3. 74. The director’s letter requested “immediate action” to ensure election officials have as much time as possible “to ensure we can rise to the greatest challenge to our election system our state has ever seen.” Id. at 4. 75. To facilitate expanded absentee balloting, the Election Commission has already committed to prepay postage for absentee ballot return envelopes. 76. But other work must happen quickly if it is going to prove efficacious, like training of poll workers, identifying new polling locations, and public education to inform the public of any changes to voting procedure.
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77. On or about July 28, 2020, SCARE sent letter correspondence to the Governor, Defendant Peeler, and Defendant Lucas on behalf of local election directors and officials in South Carolina with an “imperative” message urging that these officials “cannot overstate the devastating consequences if the state of South Carolina does not plan now for the November election. Ltr. Smith & Cramer to McMaster, et al. (undated) (Exhibit 7). Specifically, SCARE urged implementation of (1) no-excuse absentee voting, (2) removing the witness signature requirement, (3) allowing counties to begin processing absentee ballots the Friday before the election, and (4) use of absentee drop boxes. Id.
78. An independent election watchdog agrees with the recommendations of State and local election administrators. In April, the National Task Force on Election Crises issued an election guide with the goal of maximizing participation, safeguarding election integrity, and upholding public confidence in the November election. See “COVID-19 Election Guide,” National Task Force on Election Crises, p. 2, electiontaskforce.org (Apr. 17, 2020) (Exhibit 8). The task force recommended easing access to absentee ballots, implementing COVID-excuse absentee voting, recruiting additional temporary personnel, improving absentee ballot processing, extending deadlines to return absentee ballots, recruiting additional poll workers, expanding early voting, maximizing safe poll access, and other safe voting precautions. See id. at 4–9. These measures largely comport with the procedures requested by State and local election officials.
If the legislature acts act all, it will be too late 79. The legislative record indicates the General Assembly will not act in time to allow election officials to implement changes sufficient to make voting safe and the administration of the election successful.
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80. On April 22, 2020, an action styled Bailey v. South Carolina Election Commission, No. 2020-000642, was filed in the original jurisdiction urging the South Carolina Supreme Court to construe the right of persons with a “disability” to cast an absentee ballot under South Carolina Code § 7-15-320(B) to include voters attempting to maintain physical distance during the coronavirus pandemic.
81. On May 12, 2020, the same day the Court heard argument in Bailey, the legislature met and passed legislation extending absentee voting to all voters. See Bailey, 2020 WL 2745565 at *2 (S.C. May 27, 2020); see also Act No. 133, § 2A, 2020 S.C. Acts __. The General Assembly declined to extend those same protections to voters in November.
82. The Governor signed the bill the next day. 83. In late June, the General Assembly convened a brief session to pass a continuing resolution and appropriate coronavirus relief aid. 84. On June 24, 2020, the House of Representatives voted down two amendments that would extend the same protections afforded to voters during the June statewide primary to voters in the November general election. See S.C. House Journal (123rd Sess.) (June 24, 2020). Amendment No. 2A to H. 5202 proposed to permit a qualified elector to vote by absentee mail ballot without a witness during the 2020 general election. Amendment No. 6A proposed to allow any qualified elector to cast an absentee ballot, in person or by mail, during the 2020 general election. Both amendments were tabled. 85. At the time of the vote, a member of the South Carolina press corps reported that House leaders claimed they would consider the measures in September.
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86. Similarly, on July 27, 2020, the leader of the minority party in the Senate sent correspondence to President Peeler urging him to call the Senate back in response to Director Andino’s most recent letter.
87. On July 28, 2020, a member of the South Carolina press corps reported President Peeler was “sticking by” the plan to return in September.
88. This action followed. FOR A FIRST CAUSE OF ACTION (Declaratory Relief)
89. Each of the paragraphs above is incorporated here verbatim. 90. “All elections shall be free and open, and every inhabitant of this State possessing the qualifications provided for in th[e] Constitution shall have an equal right to elect officers and be elected to fill public office.” S.C. CONST. art. I, § 5. 91. Article II of the South Carolina Constitution guarantees South Carolina citizens of majority age the right of suffrage. 92. “The right of suffrage, as regulated in this Constitution, shall be protected by laws regulating elections and prohibiting, under adequate penalties, all undue influence from power, bribery, tumult, or improper conduct.” S.C. CONST. art. II, § 1 (emphasis added). 93. Accordingly, the Constitution tasks the General Assembly with regulating the time, place, and manner of elections and enacting other provisions necessary to the fulfillment and integrity of the election process. S.C. CONST. art. II, § 10. 94. Nevertheless, current election procedures are insufficient to secure the election from the tumult caused by the coronavirus pandemic or grant free and open access to the ballot to individual voters at the greatest risk of a severe case of COVID-19.
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95. Moreover, if sick and vulnerable persons like Plaintiffs are to be granted safe, free, and open access to the ballot through the implementation of remedial election procedures, those procedures must be ordered now to ensure election officials to have sufficient time to implement them in order to conduct a successful election.
96. The Constitution does not permit the State to simply allow elections to fail. 97. Pursuant to article V, § 5 of the Constitution and the Uniform Declaratory Judgment Act, S.C. Code Ann. §§ 15-53-10 et seq., the Court should declare:
a. Current election procedures are insufficient to provide for a safe, free, and open general election free of tumult;
b. Defendants have not implemented such procedures and will not do so in time to conduct a successful election in November;
c. Any further inaction will foreclose the possibility of any remedy by denying election officials an opportunity to plan and execute;
d. Plaintiffs and other sick and vulnerable voters will suffer a real, cognizable, and irreparable constitutional harm if forced to choose between their personal health and safety and the right to vote; and
e. Time is of the essence. 98. The Court should enter a final judgment declaring these rights in favor of Plaintiffs and against Defendants.
FOR A SECOND CAUSE OF ACTION (Injunctive Relief)
99. Each of the paragraphs above is incorporated here verbatim. 100. This Court is a co-equal branch of the South Carolina government charged with protecting the individual rights of the People.
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101. The right of suffrage is paramount and because “[a]ll political power is vested in and derived from the people only, therefore, they have the right at all times to modify their form of government.” S.C. CONST. art. I, § 1.
102. Accordingly, the Court should exercise its power under article V, § 5 of the Constitution and South Carolina Code § 15-53-120, and order election procedures that guarantee a free and open election secure from the tumult being caused by the pandemic.
103. Specifically, the Court should order the plan outlined by the South Carolina Election Commission (see Ex. 6) and order it to implement and execute the following procedures: (1) no-excuse absenteeism, (2) online absentee applications, (3) eliminating the absentee witness requirement for return envelopes, (4) drop box absentee returns, (5) additional time for election officials to count absentee ballots, (6) designated curbside voting polling locations, (7) electronic ballot delivery (like the one used for military voters) to disabled voters and first responders, (8) early voting, and (9) vote-by-mail.
104. The Court should also order any such further procedures as the South Carolina Election Commission may recommend as feasible to implement and necessary to safeguard election workers and voters and conduct an orderly general election in November.
PRAYER 105. Wherefore, after an expedited hearing, the Court should grant declaratory and injunctive relief as set forth above, retain jurisdiction to ensure its orders are followed, and grant such further relief as the Court deems just and proper.
[signature page follows]
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_____________, 2020 Columbia, South Carolina.

Respectfully submitted by,
_______________________________ Christopher P. Kenney (SC Bar No. 100147) RICHARD A. HARPOOTLIAN, P.A. 1410 Laurel Street (29201) Post Office Box 1090 Columbia, SC 29202 (803) 252-4848 (803) 252-4810 (facsimile) cpk@harpootlianlaw.com
Shaundra Young Scott (SC Bar No. 75374) SOUTH CAROLINA DEMOCRATIC PARTY 1929 Gadsden Street Columbia, SC 29201 (803) 799-7798 shaundra@scdp.org
ATTORNEYS FOR PLAINTIFFS REGINA DUGGINS AND CHAUNTA R. HAMILTON

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EXHIBIT E

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 109-5 Page 2 of 2

Brenda Chapman Williams, MD 7/24/2020

48 1 that person register to vote in wherever their home

2 state is; is that right?

3

A. That's right.

4

Q. Okay. You further say in the Complaint, In

5 recent years, The Family Unit members and constituents

6 have had absentee ballots rejected because of the

7 witness requirement.

8

How many times would you say that your

9 members and your constituents have had their absentee

10 ballots rejected because of the witness requirement?

11

A. There have been at least eight individuals

12 that have had their absentee ballots rejected on the

13 basis of the witness requirement.

14

Q. And why were they rejected?

15

A. Those absentee ballots were rejected because

16 of the absence of a witness signature.

17

Q. I got you.

18

A. And one ballot was rejected because the

19 address of the witness was not put on the voter's

20 envelope. The signature was there, but the witness

21 forgot to put her address, and subsequently, the

22 voter's ballot was discarded.

23

Q. Who does that? Who's rejecting the ballot?

24 That's the county election commission?

25

A. Yes.

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EXHIBIT F

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Brenda Murphy 7/27/2020

30 1 getting witnesses available to assist people in

2 signing their -- getting the votes signed?

3

A. That, because of COVID-19, would be an

4 issue. Because we would asking individuals to go

5 into homes that we don't know, the person may not

6 know if they've been exposed to COVID-19. The

7 individuals -- you know, there are carriers, you

8 know, people that don't know that they are carriers.

9 So the potential for exposure is significantly

10 increased.

11

Q. Let me go back, because I was just

12 asking generally about the "get out of the vote."

13

As a general rule, before COVID-19 --

14

A. Yes.

15

Q. -- did the "get out the vote" include

16 assisting individuals obtaining witness signatures?

17

A. No.

18

Q. So it is the NAACP's testimony that --

19

A. Now, what you're saying, if somebody

20 wanted to vote, do absentee balloting?

21

Q. Yes, ma'am.

22

A. Well, yes, it would be inclusive,

23 because all they needed to do is make a phone call

24 for somebody to come and sign off.

25

Q. Again, I'm asking prior to --

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EXHIBIT G

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 109-7 Page 2 of 2

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EXHIBIT H

3:20-cv-01552-JMC Date Filed 08/10/20 Entry Number 109-8 Page 2 of 3

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 3:20-cv-01552-JMC Date Filed 08/24/20 Entry Number 140 Page 1 of 13

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

Mary T. Thomas, Nea Richard, Jeremy )

Rutledge, The Family Unit, Inc., and

)

South Carolina State Conference of

)

the NAACP,

)

)

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, and Clifford J. Edler, )

Scott Moseley, JoAnne Day, and Linda )

McCall in their official capacities as

)

Members of the South Carolina State

)

Election Commission,

)

)

Defendants,

)

)

v.

)

)

South Carolina Republican Party,

)

)

Intervenor.

)

)

Civil Action No.: 3:20-cv-01552-JMC ORDER AND OPINION

Plaintiffs Mary T. Thomas, Nea Richard, Jeremy Rutledge, The Family Unit, Inc., and

South Carolina State Conference of the NAACP (collectively, “Plaintiffs”) filed this action seeking

declaratory and injunctive relief from certain voting requirements promulgated by the State of

South Carolina. (ECF No. 1 at 1-5 ¶¶ 1-12.)

Currently before the court are two separate Motions to Intervene: the first filed by South

Carolina House of Representatives Speaker Jay Lucas (“Speaker Lucas”), and the second filed by

South Carolina Senate President Harvey Peeler (“President Peeler”) (collectively, “Proposed

1

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Intervenors”). (ECF Nos. 115, 116.) Plaintiffs filed briefing in opposition to the Motions to Intervene (ECF No. 134), to which President Peeler filed a reply (ECF No 138).
For the reasons below, the court GRANTS both Motions to Intervene. (ECF Nos. 115, 116.) The court further ORDERS that Speaker Lucas and President Peeler are subject to the expedited scheduling order previously entered by the court (ECF No. 67) and ORDERS Speaker Lucas and President Peeler to submit any potential responsive briefing to currently pending motions (ECF Nos. 106, 108, 109) by 5:00 p.m. on August 26, 2020.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND “The COVID-19 pandemic, also known as the coronavirus pandemic, is an ongoing pandemic of coronavirus disease (‘COVID‑19’) caused by severe acute respiratory syndrome coronavirus 2 (SARS‑CoV‑2).” COVID-19 pandemic, https://en.wikipedia.org/wiki/COVID19_pandemic (last visited August 20, 2020). The COVID-19 virus is primarily spread by “direct, indirect (through contaminated objects or surfaces), or close contact with infected people via mouth and nose secretions. These include saliva, respiratory secretions or secretion droplets.” Q&A: How is COVID:19 transmitted?, WORLD HEALTH ORGANIZATION, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/question-and-answers-hub/qa-detail/q-a-how-is-covid-19-transmitted (last visited August 20, 2020). As of August 23, 2020, the United States had reported more than 5.6 million cases resulting in 175,651 deaths. Cases and Deaths in the U.S., CTRS. FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/us-cases-deaths.html (last visited August 20, 2023). On April 22, 2020, Plaintiffs filed a Complaint for Injunctive and Declaratory Relief against Defendants Marci Andino, John Wells, Clifford J. Edler, Scott Moseley, JoAnne Day, and
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Linda McCall (collectively, “Defendants”).1 (ECF Nos. 1, 76.) Primarily due to the COVID-19 pandemic, Plaintiffs challenge South Carolina’s current laws related to absentee voting, including the categories of individuals authorized to vote by absentee ballot and the requirement that another person witness and sign the absentee ballot envelope (“Challenged Provisions”). (ECF No. 76 at 1-6 ¶¶ 1-12.) Plaintiffs further allege the Challenged Provisions disproportionately impact South Carolina’s African-American population. (Id. at 3-4 ¶ 6.)
On August 12, 2020, Speaker Lucas and President Peeler filed their respective Motions to Intervene as a matter of right under Federal Rule of Civil Procedure 24(a), or alternatively with the court’s permission under Federal Rule of Civil Procedure 24(b)(1). (ECF Nos. 115, 116.) Speaker Lucas seeks to intervene “to defend the South Carolina statutes under examination or otherwise respond to the issues of public importance raised by this case.” (ECF No. 115 at 1.) President Peeler similarly requests intervention because of his “interest in upholding South Carolina’s constitutional structure, as well as its election laws . . . .” (ECF No. 116 at 4.) Plaintiffs responded in opposition to these motions on August 21, 2020. (ECF No. 134.) Neither Defendants nor Intervenor South Carolina Republican Party have stated a position as to the merits of the pending Motions to Intervene.
II. JURISDICTION The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Plaintiffs assert 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
1 Defendants JoAnne Day and Linda McCall were added by Amended Complaint on July 13, 2020. (ECF No. 76.) The court has also granted the South Carolina Republican Party’s request to intervene in this case. (ECF No. 39.)
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Constitution and laws.” Id. Specifically, Plaintiffs allege violations of their rights based on the First and Fourteenth Amendments of the United States Constitution; the Voting Rights Act of 1965, 52 U.S.C. § 10301; the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.; and 42 U.S.C. § 1983. (ECF No. 76 at 48, 49, 51).
III. LEGAL STANDARD Individuals or organizations may seek intervention under Rule 24 in two ways: by right or with the court’s permission. FED. R. CIV. P. 24(a)(2), (b)(1). Regardless of the type of intervention sought, a movant must initially show the application was filed in a timely manner. Alt v. U.S. E.P.A., 758 F.3d 588, 591 (4th Cir. 2014); see N.C. State Conference of NAACP v. Berger, No. 19-2273, 2020 WL 4727277, at *7 n.6 (4th Cir. Aug. 14, 2020). To intervene as a matter of right, the potential intervenor “must show that (1) [he] has an interest in the subject matter of the action, (2) disposition of the action may practically impair or impede the movant’s ability to protect that interest, and (3) that interest is not adequately represented by the existing parties.” N.C. State Conference of NAACP, 2020 WL 4727277, at *7 (citing Newport News Shipbuilding and Drydock Co. v. Peninsula Shipbuilders’ Ass’n, 646 F.2d 117, 120 (4th Cir. 1981)); FED. R. CIV. P. 24(a)(2); see Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999); cf. Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986) (noting that “liberal intervention is desirable to dispose of as much of a controversy involving as many apparently concerned persons as is compatible with efficiency and due process”) (citation and internal marks omitted). Failure to satisfy even one requirement results in the denial of intervention by right. See NAACP v. New York, 413 U.S. 345, 369 (1973). The party seeking to intervene “bears the burden of demonstrating . . . a right to intervene.” S.C. Coastal Conservation League v. Pruitt, No. 18CV-330-DCN, 2018 WL 2184395, at *3 (D.S.C. May 11, 2018) (citation omitted).
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Alternatively, the court may grant a movant’s request to intervene permissively. See FED. R. CIV. P. 24 (b)(1). The following factors are relevant when deciding a motion for permissive intervention: “[1] the presence of a common question of law or fact; and [2] whether the intervention will unduly delay or prejudice the original parties.” Savannah Riverkeeper v. U.S. Army Corps of Eng’rs, No. CV 9:12-610-RMG, 2012 WL 13008326, at *2 (D.S.C. Aug. 14, 2012) (citing Backus v. South Carolina, No. 3:11-cv-03120-HFF-MBS-PMD, 2012 WL 406860, at *2 (D.S.C. Feb. 8, 2012)); see N.C. State Conference of NAACP, 2020 WL 4727277, at *12; but see S.C. Coastal Conservation League, 2018 WL 2184395, at *3 (adding another prong that “there must be an independent ground of subject matter jurisdiction”) (citing Shanghai Meihao Elec., Inc. v. Leviton Mfg. Co., 223 F.R.D. 386, 387 (D. Md. 2004)). “Permissive intervention [under Rule 24(b)] is left to the broad discretion of the [c]ourt and should be construed liberally in favor of intervention.” Savannah Riverkeeper, 2012 WL 13008326, at *2.
IV. ANALYSIS Speaker Lucas and President Peeler argue they should be allowed to intervene by right, or instead through permissive intervention. (ECF Nos. 115 at 1-2; 116 at 2.) Plaintiffs counter that intervention is untimely and the Proposed Intervenors’ requests do not meet the requirements of intervention by right or permission. (ECF No. 134 at 1, 4-9.) For the following reasons, the court grants both Motions to Intervene. A. Timeliness The court begins by analyzing whether the Motions to Intervene are timely. The court must examine three factors to discern the timeliness of an application: “[1] how far the underlying suit has progressed; [2] the prejudice any resulting delay might cause the other parties; and [3] why the movant was tardy in filing its motion.” Alt, 758 F.3d at 591.
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The Proposed Intervenors insist their applications are timely by emphasizing this case was filed less than four months ago. Speaker Lucas further explains he did not seek intervention earlier because of his involvement with other related legal challenges to South Carolina’s laws on absentee voting (ECF No. 115 at 4-5), while President Peeler stresses intervention be allowed because no elected official is currently a party to the litigation (ECF No. 116 at 4). In opposition, Plaintiffs challenge each factor for timeliness. While Plaintiffs concede the case is only a few months old, they nonetheless claim the case has progressed to an advanced stage. (ECF No. 134 at 3.) Plaintiffs further warn that allowing the Proposed Intervenors to join the case at this stage would cause prejudicial delay. (Id. at 4.) Lastly, Plaintiffs observe neither Speaker Lucas nor President Peeler have offered a legitimate reason for their allegedly tardy motions. (Id. at 3.)
Here, the first timeliness factor weighs in favor of the Proposed Intervenors. Plaintiffs brought their initial Complaint on April 22, 2020, and the Proposed Intervenors filed their respective Motions to Intervene under four months later. There has indeed been a litany of activity in this case, yet the court believes litigation has not yet advanced so far as to render requests for intervention as untimely.
The second factor similarly favors the Proposed Intervenors. While it is true Plaintiffs (and the court) would be required to complete additional work after intervention, such delays are mitigatable. The Proposed Intervenors have agreed, and are now ordered, to follow the court’s expedited scheduling order. (ECF No. 67.) The dispositive motions deadline passed on August 10, 2020 (Id.), which forecloses any new dispositive motions potentially filed by the Proposed Intervenors. Discovery has likewise closed and will not be reopened. (Id.) Moreover, the court orders the Proposed Intervenors to submit briefing on any currently pending motions by 5:00 p.m. on Wednesday, August 26, 2020, thereby further reducing delay.
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Relatedly, any prejudicial delay stemming from the Proposed Intervenors’ participation at trial does not outweigh their right to be heard. Park v. McCabe Trotter & Beverly, P.C., No. 2:17CV-657-RMG, 2018 WL 3543526, at *3 (D.S.C. July 23, 2018) (explaining the prospect of having “to spend time and effort responding” to a potential intervenor did not outweigh the movant’s right to be heard). Plaintiffs fulminate that intervention “would present an enormous challenge in a trial that is already on a tight three-day schedule,” primarily due to “two more lawyers . . . examining every witness and presenting new evidence . . . .” (ECF No. 134 at 4.) The court finds such challenges do not amount to “irreparabl[e] prejudice[]” (Id.), and instead may be effectively managed within the current trial schedule without substantial difficulty.
The court observes it shall not continue the dispositive hearings motion set for August 31, 2020, or the trial set for September 22, 2020, due to intervention. The court issued an expedited scheduling order and set a September 2020 trial date in part because the case’s legal issues concern voting requirements for the impending November 3, 2020 South Carolina elections. (ECF No. 67.) Further narrowing the gap between trial and elections could negatively impact how efficiently the court’s potential rulings are implemented, in turn leading to inefficiencies in election administration and confusion among voters. Delaying the dispositive hearings motion would similarly compress an already tight timeline. Thus, despite intervention, the court shall not issue continuances on these matters.
Lastly, the third factor favors Plaintiffs. The Proposed Intervenors admit they seek intervention because of developments concerning other litigation and the voluntary dismissal of Governor Henry McMaster from this action. Specifically, President Peeler claims such developments created new “issues of federalism and abstention” that now require his intervention to be properly defended. (ECF No. 138 at 6.) But the court is not convinced. Instead, it seems the
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Proposed Intervenors could have sought to intervene at any prior time but made a strategic decision to wait. Alt, 758 F.3d at 591-92 (finding a “strategic decision not to devote . . . limited resources to [a] matter at an earlier stage” due to an expected dismissal did not excuse a tardy request to intervene).
Having considered the three factors, the court finds the Proposed Intervenors’ applications are timely. While the Proposed Intervenors could have sought intervention earlier, the case has not yet progressed to an advanced stage and the weight and type of possible prejudice is not so great as to bar intervention for untimeliness. Furthermore, the court has ordered the Proposed Interveners be subject to the court’s expedited scheduling order and submit any potential responsive briefing to pending motions by 5:00 p.m. on Wednesday, August 26, 2020. The court again notes no continuances shall be granted for the August 31, 2020 dispositive motions hearing date and September 22, 2020 trial date due to intervention.
B. Intervention as a Matter of Right The court next examines whether the Proposed Intervenors may intervene by right. The
Proposed Intervenors argue their interests in the case stem from their unique insights into, and desire to constitutionally uphold, the Challenged Provisions. (ECF Nos. 115 at 6; 116 at 4.) They claim their interests would be impaired without intervention because “the legislative branch of South Carolina government . . . is endowed with the responsibility of enacting the laws of the state” and they “will be unable to support the constitutionality of the provisions at issue” if not allowed to join. (ECF No. 115 at 7.) The Proposed Intervenors both note their interests are not adequately represented by the current parties, because entities who do not promulgate policies or laws have their “own separate and distinct interests in this litigation.” (Id. at 8.) President Peeler adds that “none [of the current parties] are charged with defending the constitutionality of state
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laws or the political judgments and processes of the South Carolina General Assembly.” (ECF No. 116 at 5-6.) Lastly, the Proposed Intervenors highlight a South Carolina statute purportedly authorizing their intervention in federal cases that challenge the constitutionality of a state statute. (ECF Nos. 115 at 6; 116 at 6.) They point to a North Carolina law for support, which the Fourth Circuit recently found impacted the analysis of intervention by right for North Carolina legislators.
In response, Plaintiffs argue “[t]he mere fact that legislation is challenged does not give legislators a right to intervene.” (ECF No. 134 at 5.) Plaintiffs further conclude the Proposed Intervenors have not met the “strong showing” required to prove the current parties are inadequate. (Id. at 7-8.) Lastly, Plaintiffs posit the South Carolina statute does not bestow a right to intervention upon state legislators. (Id. at 6.)
Here, the court finds the Proposed Intervenors have not met the requirements to intervene by right. In essence, the Proposed Intervenors seek intervention by right due to their status as legislators within South Carolina’s General Assembly. But such status alone does not meet the requirements to intervene as a matter of right. S.C. Elec. & Gas Co. v. Whitfield, No. 3:18-CV01795-JMC, 2018 WL 3470660, at *3 (D.S.C. July 18, 2018) (explaining Speaker Lucas’ interest in defending the constitutionality of a challenged state statute did not mandate intervention by right) (citing One Wis. Institute, Inc. v. Nichol, 310 F.R.D. 394, 397 (W.D. Wis. 2015)); Roe v. Casey, 464 F. Supp. 483, 486 (E.D. Pa. 1978) (similar); compare with Commack Self-Serv. Kosher Meats, Inc. v. Rubin, 170 F.R.D. 93, 105-06 (E.D.N.Y. 1996) (finding a legislator had an interest in upholding a state statute’s constitutionality, but denying intervention by right because the current parties adequately protected the legislator’s interest).
Moreover, while the Proposed Intervenors would have a stronger claim if the executive branch abandoned the defense of the Challenged Provisions, the executive has not done so:
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Defendants are employees of an executive agency and were sued in their official capacity. S.C. Elec. & Gas Co., 2018 WL 3470660, at *4 (stating “legislators have an interest in defending the constitutionality of legislation passed by the legislature when the executive declines to [defend the constitutionality of the legislation]”) (quoting Fisher-Borne v. Smith, 14 F. Supp. 3d 699, 703 (M.D.N.C. 2014) (internal quotation marks omitted)).
Additionally, the South Carolina statute cited by the Proposed Intervenors does not mandate intervention by right. The statute at issue explicitly bestows the Proposed Intervenors “an unconditional right to intervene . . . in a state court action” for, among other reasons, constitutional challenges to state law. Gen. Appropriations Bill for Fiscal Year 2019-2020, H. 4000, 123rd Sess. § 91.26 (2019) (emphasis added). However, for state constitutional challenges in federal court, “the Legislature may seek to intervene, to file an amicus brief, or to present argument in accordance with the federal rules of procedure.” Id. The phrase “may seek to intervene” in a federal action, in contrast to the preceding statutory language that creates an explicit right to intervene in state proceedings, convinces the court that the South Carolina General Assembly did not intend to create a wholly new right for state legislators to intervene in state constitutional challenges before a federal court.
South Carolina’s law is distinguishable from the North Carolina statutory language recently discussed by the Fourth Circuit. In N.C. State Conference of NAACP v. Berger, the Fourth Circuit examined how the language of N.C. Gen. Stat. 1-72.2 could impact the outcome of a North Carolina legislator’s request to intervene by right. 2020 WL 4727277, at *7-13. The Fourth Circuit found the North Carolina law expressed legislators’ subject-matter interest by explicitly naming
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legislators as agents of the State and granting standing2 for legislators to intervene in any judicial proceeding in which state law is constitutionally challenged. Id. at *8 (emphasis added); see N.C. Gen. Stat. § 1-72.2 (2017). The Fourth Circuit also discussed whether such an interest would be impaired without intervention and explained the statutory language at issue showed the legislature’s desire for legislators to intervene in constitutional challenges. N.C. State Conference of NAACP, 2020 WL 4727277, at *11-12. Implicit in that desire, the Fourth Circuit added, was the state’s belief it would not be adequately represented by the current parties. Id. at 12. Ultimately, the case was remanded for the lower court to specifically examine the statute in its analysis. Id.
Here, however, the South Carolina statute at issue differs in key respects. The South Carolina law does not outline a legislator’s subject-matter interest in defending state constitutional challenges in federal court, while the North Carolina law does so. Id. at *8; see N.C. Gen. Stat. § 1-72.2 (2017). The South Carolina law allows legislators to simply “seek” intervention under the federal rules; the North Carolina law overtly requests the presiding federal court “to allow both the legislative branch and the executive branch” to intervene. N.C. Gen. Stat. § 1-72.2. The South Carolina law’s permissive, less-authoritative language suggests a lower concern that legislators’ potential interests will not be adequately represented by the current parties; the North Carolina law’s more-imposing language suggests the opposite. Accordingly, the South Carolina’s statute is distinguishable from the statutory language analyzed in N.C. State Conference of NAACP and, as a consequence, is not as impactful on the court’s analysis of intervention by right.
2 The court notes a state legislature cannot “automatically establish[] Article III standing” because standing “is an issue for the federal courts to decide.” See N.C. State Conference of NAACP, 2020 WL 4727277, at *5.
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In short, after a thorough review, the court finds the Proposed Intervenors have not met the requirements to intervene as a matter of right. Their respective requests to intervene by right are therefore denied.
C. Permissive Intervention The court next turns to permissive intervention. The Proposed Intervenors essentially rely
on arguments made in support of intervening by right. As noted above, the Proposed Intervenors have agreed to follow the current scheduling order (ECF Nos. 115 at 9; 116 at 7) and the court has limited the Proposed Intervenors’ time to respond to pending motions. In response, Plaintiffs again present the Motions to Intervene as untimely and conclude, if granted, the Proposed Intervenors “would substantially prejudice Plaintiffs’ rights.” (ECF No. 134 at 8.)
Here, after carefully considering the relevant factors, the court allows the Proposed Intervenors to intervene permissively. The Proposed Intervenors’ interests in the constitutionality of the Challenged Provisions present questions of law or fact common to Plaintiffs’ Amended Complaint. Specifically, Plaintiffs seek declarative and injunctive relief that the Challenged Provisions are unconstitutional, while the Proposed Intervenors seek to prove the constitutionality of the Challenged Provisions. And as discussed above, intervention will not unduly delay or prejudice the original parties. Coupled with the liberal policy allowing intervention, the court thus finds the Proposed Intervenors should be allowed to permissively intervene in this case.3
V. CONCLUSION For the reasons stated above, the court GRANTS Speaker Lucas’ Motion to Intervene under Rule 24(b) (ECF No. 115) and GRANTS President Peeler’s Motion to Intervene under Rule
3 Lastly, although President Peeler did not attach a proposed pleading, the court declines to enforce strict compliance with Rule 24(c) in this instance. Cf. Park, 2018 WL 3543526, at *2 (citations omitted).
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24(b) (ECF No. 116). The court further ORDERS that Speaker Lucas and President Peeler are subject to the expedited scheduling order previously entered by the court (ECF No. 67) and ORDERS Speaker Lucas and President Peeler to submit any potential responsive briefing to currently pending motions (ECF Nos. 106, 108, 109) by 5:00 p.m. on August 26, 2020.
IT IS SO ORDERED.

August 24, 2020 Columbia, South Carolina

United States District Judge

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 3:20-cv-01552-JMC Date Filed 08/26/20 Entry Number 144 Page 1 of 18

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

Mary T. Thomas, Nea Richard, Jeremy

)

Rutledge, Trena Walker, The Family Unit, )

Inc., and the South Carolina State

)

Conference of the NAACP

)

)

Plaintiffs, )

)

vs.

)

)

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. )

)

Civil Action No. 3:20-cv-01552-JMC
PRESIDENT PEELER’S RESPONSE IN SUPPORT OF MOTIONS FOR SUMMARY JUDGMENT

INTRODUCTION

COVID-19 is a serious matter, and the South Carolina General Assembly is treating it as

such. But the existence of a global pandemic does not suddenly render long-established laws

governing the absentee-voting process constitutionally infirm. It does not make neutral laws

discriminatory. It does not re-assign legislative authority for the content of the South Carolina

Election Code to unspecified “public health officials.” And, with the greatest respect for the Court

and its role in the constitutional structure, it does not convert an Article III court into a state-level

legislature or policymaker.

But that is precisely what the Plaintiffs have asked this Court to do: step into the shoes of

the South Carolina General Assembly and rewrite the South Carolina Election Code to address an

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incredibly fluid, changes-by-the-minute situation. The federal judiciary should not be coopted to do work that is committed by the South Carolina Constitution to the General Assembly to address and resolve. S.C. Const. art. II, § 10.
This fundamental point of federalism and separation of powers is perfectly illustrated by the Plaintiffs’ requested declaratory relief. They ask the Court to take the extreme step of declaring the “Excuse Requirement” and the “Witness Requirement” (in the Plaintiffs’ pejorative phrasing) of South Carolina’s absentee-voting laws to be unconstitutional “while the risk of COVID-19 transmission in South Carolina remains.” (First Am. Compl. ¶ “Wherefore”(A)–(B) (Dkt. No. 76).)
Of course, in order to give the Plaintiffs the relief that they seek, the Court would first have to decide what level of “risk” is unacceptable for voters to vote in person. Is it a “risk” of illness? A “risk” of death? A “risk” of becoming an asymptomatic transmitter? What if the number of positive cases continues on its downward trajectory, as it is currently trending? If the number of cases is dropping, is there no longer a “risk” that would, under the Plaintiffs’ over-reaching theory, impair in-person voting? What metric could an Article III court possibly use to assess this “risk”?
The Court would also have to decide when this undefined “risk” still “remains” in the state. If even one person in the state returns a positive test for the virus, does that mean the risk “remains”? Should it be a county-by-county assessment, or city-by-city, or voting precinct-byprecinct assessment? What if someone from a neighboring state tests positive? What metric could an Article III court possibly use to assess when this undefined risk “remains” in South Carolina?
The federalism and separation-of-powers problems further reveal themselves in the Plaintiffs’ requested injunctive relief, which is to enjoin the “Excuse Requirement” and the “Witness Requirement” “while emergency orders concerning COVID-19 are in place and/or while
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public health officials continue to recommend social distancing practices due to risk of community transmission of COVID-19.” (First Am. Compl. ¶ “Wherefore”(C) (Dkt. No. 76).)
The Court would have to determine what “emergency orders” could control this supposedly constitutional analysis. An emergency order from Governor McMaster? What about from a county, or a municipality? What if the trajectory of COVID-19 continues sufficiently downward for Governor McMaster to modify or lift his existing emergency order, but Richland County or the City of Columbia disagrees and keeps one in place? Is the constitutional analysis of a statewide election law really dependent on how the state’s chief executive or a town council exercises political judgment when deciding to issue an emergency order?
And which of the often-competing recommendations from federal, state, or local “public health officials” should control such an analysis? Suppose Governor McMaster, relying on DHEC scientists, determines that it is safe for restaurants, parks, churches, arenas, and other places of public gatherings to reopen without restriction, but a dissenting scientist at DHEC suggests to continue wearing masks and staying six feet apart from others when visiting these facilities. Which of these amounts to a “recommendation” from a “public health official” sufficient to keep the Plaintiffs’ proposed injunction in place? Or what if there are no longer any emergency orders in place in South Carolina, such that everything returns to its pre-virus status, but the CDC continues to urge Americans to continue wearing masks? Is the constitutional analysis of a statewide election law really dependent on undefined “recommendations” of unidentified “public health officials”?
These are not questions that an Article III court can or should even attempt answer. These questions all require judgments by the elected officials who are constitutionally designated to address these issues: the South Carolina General Assembly. Put simply, though respectfully, it is not the job of a federal court to substitute its judgment for that of elected representatives.
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Accordingly, President Peeler respectfully urges the Court to dismiss this non-justiciable matter and abstain from considering it, just as the South Carolina Supreme Court did when presented with similar issues in June. Alternatively, the Court should grant the pending motions for summary judgment filed by the Election Commission and the State Republican Party, as the Plaintiffs lack standing to bring this case, and the two challenged provisions of the South Carolina Election Code easily pass muster.
ARGUMENT I. The Court should dismiss this case because determining how to conduct South
Carolina’s elections is a legislative function, not a judicial one. A. This case presents non-justiciable political questions because of how the
Plaintiffs have framed their requested relief. As noted above and in President Peeler’s intervention motion, the legal authority for altering (or choosing not to alter) South Carolina’s Election Code belongs exclusively to the General Assembly:
The General Assembly shall provide for the nomination of candidates, regulate the time, place and manner of elections, provide for the administration of elections and for absentee voting, insure secrecy of voting, establish procedures for contested elections, and enact other provisions necessary to the fulfillment and integrity of the election process. S.C. Const. art. II, § 10. The South Carolina Supreme Court recognized this authority when it dismissed a challenge to the state’s absentee voting laws as presenting a non-justiciable issue: If conditions in the Fall warrant another change in our election law, and if the will of the people as expressed through their legislative representatives is that such a change be made, the Legislature may change the law. This Court, however, will not. Bailey v. S.C. State Election Comm’n, 844 S.E.2d 390, ___, 2020 S.C. LEXIS 77, at *5–11 (S.C. May 27, 2020).
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This Court should follow the South Carolina Supreme Court’s lead and dismiss this matter to the extent it presents non-justiciable political questions. While it is certainly true that the Court generally has authority and even an obligation to resolve constitutional challenges, it should not be misled by the Plaintiffs’ attempt to frame their disagreement with the laws passed by the General Assembly as rising to constitutional proportions.
As detailed in the opening pages of this memorandum, the Plaintiffs have not identified a measurable or manageable standard for the Court to employ here. Instead, they ask the Court to rewrite state election law to reflect their subjective policy desires as long as any undefined “risk” of contracting COVID-19 “remains” in South Carolina, “and/or” when an “emergency order” is in place, “and/or” when “public health officials” have any “recommendation” regarding COVID-19. (First Am. Compl. ¶ “Wherefore” (Dkt. No. 76).)
At its core, this is a policy judgment that this Court is neither equipped nor authorized to make. Just last year, the United States Supreme Court explained that an issue—even when packaged as a constitutional claim—amounts to a non-justiciable political question when the case presents “a lack of judicially discoverable and manageable standards for resolving it.” Rucho v. Common Cause, 139 S. Ct. 2484, 2496 (2019) (quoting Baker v. Carr, 369 U.S. 186, 226 (1962)); see id. at 2498–2508 (vacating pursuant to the political question doctrine decisions of district courts in North Carolina and Maryland that evaluated those states’ congressional districting plans against numerous constitutional challenges).
This is just such a case. The Plaintiffs’ entire case is based on the idea that voting in person will allegedly increase the potential for transmission of COVID-19. But such a speculative evidentiary presentation begs the question: How much of an increase? And that begs an obvious follow-up: How much of an increase is too much for the Election Code to remain enforceable?
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The Plaintiffs cannot answer these questions. Neither can this Court. That’s because they are unanswerable as a legal matter. These are all policy questions that are, by law, committed to the South Carolina General Assembly to resolve. The way the Plaintiffs have framed their own case unavoidably triggers the political-question doctrine. Accordingly, the Court should dismiss at least the Plaintiffs’ constitutional claims as non-justiciable political questions. See, e.g., Coalition for Good Governance v. Raffensperger, Case No. 1:20-cv-1677-TCB, 2020 U.S. Dist. LEXIS 86996, at *6–10 (N.D. Ga. May 14, 2020) (dismissing claims regarding Georgia’s absentee-voter laws in light of COVID-19 because “they present a nonjusticiable political question” and “there are no judicially discoverable and manageable standards for resolving it”).
A handful of courts have ostensibly declined to apply the political-question doctrine to claims like those presented by the Plaintiffs here. But a closer examination of those cases reveals that those courts have, in fact, relied on the very same principles underlying the political-question doctrine when analyzing constitutional claims against various state-level absentee voting laws.
This is true of federal appellate courts. See, e.g., Tex. Democratic Party v. Abbott, 961 F.3d 389, 394, 403–08 (5th Cir. 2020) (applying the McDonald standard for evaluating a challenge to Texas’s absentee-voting laws, explaining that the Texas legislature’s decisions regarding the boundaries of absentee voting are entitled to the highest deference, and reiterating that “the spread of the Virus has not given ‘unelected federal jud[ges]’ a roving commission to rewrite state election codes” (quoting S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, (2020) (Roberts, C.J., concurring))).
It is true of federal district courts. See, e.g., Tully v. Okeson, Case No. 1:20-cv-01271-JPHDLP, 2020 U.S. Dist. LEXIS 151508, at *14–15 (S.D. Ind. Aug. 21, 2020) (rejecting a challenge to Indiana’s absentee voting procedures under the McDonald standard and summarizing that “[f]or
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the federal courts to step in and decide what measures are necessary would ‘allow[] a political question—whether a rule is beneficial, on balance—to be treated as a constitutional question and resolved by the courts rather than by legislators’” (quoting Luft v. Evers, 963 F.3d 665, 671 (7th Cir. 2020))); Democracy N.C. v. N.C. State Bd. of Elections, Case No. 1:20cv457, 2020 U.S. Dist. LEXIS 138492, at *72–129 (M.D.N.C. Aug. 4, 2020) (rejecting a challenge to North Carolina’s absentee voting laws in light of COVID-19 as not presenting “an unconstitutional burden created by the COVID-19 pandemic,” and concluding that “even if the court did share Plaintiffs’ concern, it is not for this court to undertake a wholesale revision of North Carolina’s election laws”).
And it is true of state courts. See, e.g., Fisher v. Hargett, Case No. M2020-00831-SCRDM-CV, 2020 Tenn. LEXIS 283, at *43–51 (Tenn. Aug. 5, 2020) (rejecting a challenge to Tennessee’s absentee voting laws in light of COVID-19, and concluding that the laws were constitutional—despite thinking the state’s justifications for them were not “persuasive”—because those were “policy choices” made by the Tennessee legislature, to which the Tennessee Constitution delegated authority to establish the state’s election laws).
In fact, as the Tennessee Supreme Court acknowledged three weeks ago: We, however, properly may not and will not judge the relative merits of them [i.e., the state’s rationale underlying its statutory protections concerning absentee voting], regardless of our own views. To do so would be to exceed the proper scope of our role as jurists.
Fisher, 2020 Tenn. LEXIS 283, at *51 (emphasis added). The General Assembly is scheduled to reconvene in September to address whether South
Carolina’s absentee voting laws require any modification to account for COVID-19 with respect to the upcoming election in November. It used the same authority and policy judgments to implement temporary measures for the June election, but nearly 80% of voters still voted in
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person—and there is not a single documented instance of the virus being transmitted by in-person voting during that election.
The importance of this undisputed fact cannot be overstated. The entirety of this lawsuit is premised on the notion that going to vote in person inevitably results in one contracting COVID19. It is a false premise in theory—with respect to transmitting COVID-19, going to vote is no different than any other outing that one has to make, and no one would plausibly suggest that going to the grocery store or gas station necessarily results in contracting the virus—and the only actual evidence in the record demonstrates that nearly 600,000 South Carolinians have voted in person during the pandemic with a 0.0% transmission rate.
Thus, the Court’s assumption in Footnote 20 of its preliminary injunction order that “it is relatively difficult to vote in person without risking the possibility of infection” is now directly contradicted by unrebutted, indisputable evidence. So, too, is the theoretical basis for the Plaintiffs’ entire case. Accordingly, the Court should defer to the judgment of the General Assembly with respect to the purported constitutional claims in this case and dismiss them as non-justiciable political questions.
B. The Court should abstain from considering this matter because there are parallel proceedings pending before the South Carolina Supreme Court that can resolve the issues presented here.
Even if the Court does not believe that this case presents a non-justiciable political question, it should still abstain from exercising jurisdiction in this matter as a matter of federal– state comity. All abstention doctrines stem from the same fundamental point: some matters are best left to the states for resolution, even if federal jurisdictional and justiciability criteria are met.1
1 For the reasons argued by the Election Commission and the State Republican Party in their respective motions for summary judgment, President Peeler also believes that the Court lacks
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A state interest will justify federal abstention when it speaks to “[f]unctions which make
our states self-governing sovereigns, rather than ‘mere political subdivisions’ or ‘regional offices’”
of the United States government. Harper v. PSC of W. Va., 396 F3d 348, 352 (4th Cir. 205)
(quoting New York v. United States, 505 U.S. 144, 148 (1992)). Voting procedures are undoubtedly
at the top of that list, as the United States Constitution leaves to each state the authority to establish
how elections should be run within its jurisdiction. Clingman v. Beaver, 544 U.S. 581, 586 (2005).
As the Fourth Circuit forcefully explained when vacating a ruling from this Court that
resisted abstention:
Although that doctrine [of abstention] has many different forks and prongs, its central idea has always been one of simple comity. Notwithstanding the overlapping obligations of state and federal courts with regard to both state and federal law, the federal judiciary has always maintained some modicum of respect for state public policies in areas of paramount state concern.
Federal courts should thus “exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy.” And the federal judiciary should accordingly abstain from deciding cases (1) that present “difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar” or (2) whose adjudication in a federal forum “would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.”
Johnson v. Collins Entm’t Co., 199 F.3d 710, 719 (4th Cir. 1999) (quoting Burford v. Sun Oil, 319
U.S. 315, 318 (1943), and New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350,
361 (1989)).
The Fourth Circuit further reinforced the purposes of abstention in terms that are
particularly applicable to this case and others like it nationally, where plaintiffs are attempting to
use the federal judiciary to rewrite state election laws on the eve of an upcoming election:
jurisdiction here because the plaintiffs all lack standing to present these claims, and he incorporates by reference and adopts those arguments and supporting evidence as if fully set forth herein.
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The Supreme Court has admonished the federal courts to respect the efforts of state governments to ensure uniform treatment of essentially local problems. Principles of federalism and comity require no less. Basic abstention doctrine requires federal courts to avoid interference with a state’s administration of its own affairs. Though “abstention from the exercise of federal jurisdiction is the exception, not the rule,” its importance in our system of dual sovereignty cannot be underestimated. It safeguards our federal system from the “delay, misunderstanding of local law, and needless conflict with a state policy” that inevitably result from federal judicial intrusions into areas of core state prerogative.
Id. (quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976), and
Burford, 319 U.S. at 327).
These federal–state comity concerns manifest themselves in all strains of abstention.
Pullman abstention, for instance, is proper when a federal court can avoid making a federal
constitutional ruling regarding a state law when other avenues for relief are available—such as the
Duggins case that is pending before the South Carolina Supreme Court, which also challenges the
state’s absentee voting procedures as a matter of state constitutional law. See, e.g., Smith v. Husted,
Case No. 2:16-cv-212, 2016 U.S. Dist. LEXIS 194805, at *12–16 (S.D. Ohio Mar. 11, 2016)
(abstaining pursuant to Pullman from resolving challenges under the Fourteenth and Twenty-Sixth
Amendments and Section 2 of the Voting Rights Act to an Ohio election law because a case involving similar issues, though different parties, was also pending before an Ohio trial court).2
Younger abstention is designed to avoid federal interference with pending state-level
proceedings—again, such as the Duggins matter before the South Carolina Supreme Court. See,
e.g., Family Found., Inc. v. Brown, 9 F.3d 1075, 1076–78 (4th Cir. 1993) (affirming a district
2 This is consistent with the Supreme Court’s directive that federal courts should render a constitutional ruling only as a last resort. See, e.g., Slack v. McDaniel, 529 U.S. 473, 485 (2000) (explaining that federal courts “will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of” (quoting Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring))).
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court’s dismissal pursuant to Younger abstention when plaintiffs challenged Virginia election laws as being in violation of the First and Fourteenth Amendments, but the issue could be addressed by the Virginia Supreme Court, and explaining that it was critical for the district court not to “interfere[] unnecessarily in the Commonwealth’s administration of its own election process, the integrity of which the state ‘indisputably has a compelling interest in preserving’ through the enforcement of its own election laws” (quoting Burson v. Freeman, 504 U.S. 191, 199 (1992))).
And Colorado River abstention, like Younger, directs federal courts to abstain as an exercise of “wise judicial administration” when parallel proceedings exist at the state level—once again, such as the Duggins matter. See, e.g., Thompson v. Moorman, 709 F.2d 1509 (Table Form), 1983 U.S. App. LEXIS 13152, at *6–8 (6th Cir. 1983) (affirming application of Colorado River abstention to federal suit brought to challenge Kentucky’s election procedures under the Fourteenth Amendment when another suit was also pending in the Kentucky state court).
Each of the above-listed doctrines supports abstention here. And the federal appellate courts have unmistakably sent that message to the district courts with respect to rulings concerning a state’s absentee-voting procedures. While perhaps not phrased through reference to the traditional abstention categories, the appellate system has repeatedly frozen district court orders that have attempted to rewrite state absentee-voting procedures in response to purported COVID19 concerns with a common theme: Stay out of these disputes. For instance:
Alabama: A district court issued a preliminary injunction that enjoined the state from enforcing its requirement that an absentee ballot be witnessed, as well as other aspects of the state’s voting law, due to COVID-19. People First of Ala. v. Merrill, Case No. 2:20-cv-619-AKK, 2020 U.S. Dist. LEXIS 104444, at *87 (N.D. Ala. June 15, 2020). The Eleventh Circuit refused to stay that injunction pending appeal. People First of Ala. v. Sec’y of State for Ala., Case No. 20-12184,
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2020 U.S. App. LEXIS 19850, at *2 (11th Cir. June 25, 2020). But the United States Supreme Court granted a stay one week later. Merrill v. People First of Ala., Case No. 19A1063, 2020 U.S. LEXIS 3541 (July 2, 2020).
Wisconsin: A district court issued a preliminary injunction that enjoined the state from enforcing certain absentee-voting laws because of COVID-19. Democratic Nat’l Comm. v. Bostelmann, Case No. 20-cv-249-wmc, 2020 U.S. Dist. LEXIS 57918, at *10 (W.D. Wis. Apr. 2, 2020). The very next day, the Seventh Circuit stayed a portion of that injunction. Democratic Nat’l Comm. v. Bostelmann, Case No. 20-1538, 2020 U.S. App. LEXIS 25831, at *8–10 (7th Cir. Apr. 3, 2020). The United States Supreme Court stayed the remainder of that injunction shortly thereafter and criticized the trial court for “judicially created confusion” by “alter[ing] the election rules on the eve of an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1206–07 (2020).
Texas: A district court issued a preliminary injunction that eliminated virtually all of the state’s safeguards with respect to absentee voting because of COVID-19. Tex. Democratic Party v. Abbott, Case No. SA-20-CA-438-FB, 2020 WL 2541971, at *5–7 (W.D. Tex. May 19, 2020). The Fifth Circuit temporarily stayed that injunction the very next day. Hinojosa v. Abbott, Case No. 20-50407, 2020 U.S. App. LEXIS 16713, at *2 (5th Cir. May 20, 2020). It issued a more fulsome opinion two weeks later that scolded the district court for “intervene[ing] just weeks before an election,” explained that federal judges are not at liberty to “rewrite state election codes,” and stayed the injunction pending the appeal. Tex. Democratic Party v. Abbott, 961 F.3d 389, 394 (5th Cir. 2020).
The Supreme Court has further extended this practice to other types of election disputes that have arisen during the pandemic. See Clarno v. People Not Politicians Or., Case No. 20A21,
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2020 U.S. LEXIS 3631, at *1 (Aug. 11, 2020) (staying a district court’s preliminary injunction regarding Oregon’s laws governing how state constitutional amendments are placed on a ballot); Little v. Reclaim Idaho, Case No. 20A18, 2020 U.S. LEXIS 3585, at *1 (July 30, 2020) (staying a district court’s preliminary injunction regarding Idaho’s laws governing collecting signatures for a ballot initiative).
The pattern revealed by these cases is unmistakable. When federal district courts have supplanted state-level decisions with respect to absentee-voting procedures during the pandemic, federal appellate courts have immediately suspended the district courts’ decisions and allowed the state’s procedures to remain in place.3 This clear deference to letting states take the lead in establishing the law governing absentee voting during COVID-19 is fully consistent with the principles underlying abstention: for purposes of federal–state comity, some matters are best left resolved by the states, even if a federal court otherwise has jurisdiction.
Accordingly, President Peeler respectfully requests that the Court abstain from considering this matter so that South Carolina may set its own absentee voting procedures without unwarranted federal interference. II. The challenged provisions of the South Carolina Election Code are lawful.
Assuming arguendo that jurisdiction is proper in this Court and the Court does not abstain, the Plaintiffs’ claims readily fail. President Peeler incorporates by reference and adopts the arguments and supporting evidence cited by the State Election Commission and the State
3 The only instance of which President Peeler is aware where this was not the case involved a challenge to Rhode Island’s absentee voting laws, where the state agreed with the suspension of those laws and entered a consent decree confirming the same. The Supreme Court refused a political party’s request to stay that injunction because, unlike “cases where a State defends its own law, here the state election officials support the challenged decree, and no state official has expressed opposition.” Republican Nat’l Comm. v. Common Cause R.I., Case No. 20A28, 2020 U.S. LEXIS 3632, at *1 (2020).
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Republican Party in their respective summary judgment motions on the merits of the Plaintiffs’ claims as a matter of constitutional law, the Voting Rights Act, and the Americans with Disabilities Act. Because President Peeler has a particular interest in upholding the constitutionality of the challenged laws, he respectfully supplements the arguments of the existing Defendants as follows.4
There is no national constitutional provision that creates a right to vote in whatever manner the voter chooses—in-person, absentee, curbside, online, or some other imaginable way. Instead, states are given considerable latitude when drawing up their own procedures for absentee voting. See, e.g., Griffin v. Roupas, 385 F.3d 1128, 1130–32 (7th Cir. 2004) (rejecting constitutional challenge to limitations on who is qualified to vote absentee in Illinois, explaining that voting fraud “is a serious problem” that is “facilitated by absentee voting,” surveying the various states’ procedures for absentee voting, and concluding that “the striking of the balance between discouraging fraud and other abuses and encouraging turnout is quint-essentially a legislative judgment with which we judges should not interfere unless strongly convinced that the legislative judgment is grossly awry”).
In South Carolina, in-person voting is the preferred method for casting a ballot, and absentee voting is a privilege extended by the General Assembly to help facilitate voting in limited circumstances. State ex rel. McLeod v. Ellisor, 259 S.C. 364, 369–70, 192 S.E.2d 188, 189–90 (1972).5 The statutory procedures and boundaries that govern absentee voting are, therefore,
4 President Peeler also incorporates by reference and adopts arguments that Speaker Lucas presents on the issues of this case to the extent they are not inconsistent with the arguments presented herein. 5 Ellisor involved construction of South Carolina’s absentee voting statutes in October with a general election looming the next month. The South Carolina Supreme Court specifically noted that it was considering the case with the expectation that the federal district court would abstain from considering a competing lawsuit pursuant to Pullman abstention. See 259 S.C. at 368, 192 S.E.2d at 189 (“The federal courts normally abstain from deciding federal questions which depend
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subject to rational-basis review. See McDonald v. Bd. of Elec. Comm’rs, 394 U.S. 802, 809 (1969)
(explaining that a challenge to Illinois’s absentee voting limitations “must bear some rational
relationship to a legitimate state end”); Texas Democratic Party, 961 F.3d at 403 & n.28 (holding
that McDonald’s rational-basis test governed a challenge to Texas’s absentee voting procedures
and commenting that the district court’s failure to apply McDonald was “[a]mazing[]”); Tully,
2020 U.S. Dist. LEXIS 151508, at *8–16 (applying McDonald’s rational-basis test to a challenge
to Indiana’s absentee voting procedures in light of COVID-19, but concluding that the challenge
would fail even under the Anderson-Burdick framework).6
There cannot be any legitimate dispute that there is a rational—even compelling, though
that is not the standard—basis for the limitations that South Carolina has placed on absentee voting
in this state. Ballot security is one such basis, as the state has previously experienced voting fraud
through absentee ballots, and the General Assembly is entitled, just as it has done, to stem such
fraud by limiting the availability of absentee voting in a nondiscriminatory fashion.7 See Griffin,
385 F.3d at 1131 (“In this respect, absentee voting is to voting in person as a take-home exam is
upon the interpretation of a state statue reasonably open to differing constructions until the state court has construed it.” (citing R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941))). 6 Even courts that have used the Anderson-Burdick framework have rejected claims similar to those presented by the Plaintiffs here. See, e.g., Democracy North Carolina, 2020 U.S. Dist. LEXIS 138492, at *72–129 (citing this Court’s preliminary injunction order as authority for applying the Anderson-Burdick framework to a challenge to North Carolina’s absentee voting laws in light of COVID-19, but rejecting those challenges as not presenting “an unconstitutional burden created by the COVID-19 pandemic”); Fisher, 2020 Tenn. LEXIS 283, at *43–51 (citing this Court’s preliminary injunction order as authority for applying the Anderson-Burdick framework to a challenge to Tennessee’s absentee voting laws in light of COVID-19, but concluding that the laws were constitutional because those were “policy choices” made by the Tennessee legislature). 7 The State Election Commission identifies prior criminal matters that have involved voting fraud using absentee ballots in South Carolina on Pages 15 and 16 of its motion for summary judgment (Dkt. No. 108-1). President Peeler is pleased that there are not more such examples and would point to this low number as proof that the General Assembly has exercised sound judgment in tailoring the availability of absentee voting.
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to a proctored one.”). The statutory requirement that a witness confirm an absentee ballot is a key to preserving this interest as well. (See Declaration of Lt. Pete Logan ¶¶ 3–7 (Dkt. No. 109-8) (explaining how law enforcement relies on witness requirement for absentee ballots when it investigates alleged voting fraud).)
Efficiency in election administration is also well-served by having nondiscriminatory limitations on absentee voting. The effort and resources that go into distributing, collecting, opening, counting, and (if necessary) recounting absentee ballots can be overwhelming, and also invites variables into the election process that in-person voting simply does not. The Middleton version of this case is proof positive of this concern, as those plaintiffs have asked the Court to wildly expand the absentee voting procedures in a manner that would throw the entire election process into chaos. Their requested relief includes permitting candidates and their staffs to bundle absentee ballots, to have absentee ballots be counted without any witness requirement, to make assumptions regarding the United States Post Office’s efficiency, and to hold elections open for ten days after Election Day itself. (Dkt. No. 69, at 41–42 in Middleton.) The General Assembly has a rational—even compelling—interest for wanting to maintain order with the state’s elections, and limiting the role of absentee voting clearly furthers that interest.
Moreover, in-person voting allows election officials to contemporaneously assist voters if they experience a problem with their ballot or confusion with some step in the voting process. This, too, is a rational, compelling basis for limiting availability of the state’s absentee-voting program. See Griffin, 385 F.3d at 1131 (“Absentee voters also are more prone to cast invalid ballots than voters who, being present at the polling place, may be able to get assistance from the election judges if they have a problem with the ballot.”).
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These significant state interests vastly overshadow the Plaintiffs’ purported harm. As discussed in the preceding sections, their claims in this case are fully dependent on the Court adopting their speculation that a voter who goes to a polling location on Election Day will contract COVID-19. The only actual evidence on the point—nearly 600,000 South Carolinians voted inperson in June without a single documented case of COVID-19 arising from that exercise— confirms that the opposite is true. The burdens on voting allegedly presented here are illusory; to the extent they are not illusory, they are significantly outweighed by the state’s interests, which the General Assembly is rationally furthering through nondiscriminatory limitations and procedures for absentee voting in South Carolina. The Court should enter summary judgment against the Plaintiffs accordingly.
CONCLUSION COVID-19 does not alter the balance of authority between the federal government and state government, nor does it tear down the barriers separating the various branches of government. The issues presented in this case do not lend themselves to judicial resolution, nor do they lend themselves to federal intervention in a matter that is constitutionally committed to the states. Accordingly, President Peeler respectfully requests that the Court dismiss this matter or, alternatively, abstain from considering it. To the extent the Court disagrees and believes that this case can properly be considered by an Article III court, President Peeler respectfully requests that the Court grant the motions for summary judgment filed by the State Election Commission and the State Republican Party.
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Respectfully submitted, WOMBLE BOND DICKINSON (US) LLP By: /s/ M. Todd Carroll Federal Bar No. 9742 todd.carroll@wbd-us.com Kevin A. Hall Federal Bar No. 5375 kevin.hall@wbd-us.com 1221 Main Street, Suite 1600 Columbia, South Carolina 29201 803-454-6504 Attorneys for Senator Harvey Peeler, in his capacity as President of the South Carolina Senate
August 26, 2020 Columbia, South Carolina
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 3:20-cv-01552-JMC Date Filed 09/22/20 Entry Number 182 Page 1 of 9

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

Mary T. Thomas, Nea Richard, Jeremy

)

Rutledge, The Family Unit, Inc., and the

)

South Carolina State Conference of the

)

NAACP

)

)

Plaintiffs, )

)

vs.

)

)

Marci Andino, as Executive Director of the )

State Election Commission, John Wells in )

his official capacity as Chair of SC State )

Election Commission, and Clifford J. Edler, )

Scott Moseley, JoAnne Day, and Linda

)

McCall in their official capacities as

)

Members of the South Carolina State

)

Election Commission,

)

)

Defendants, )

)

and

)

)

South Carolina Republican Party, James H. )

Lucas, in his official capacity as Speaker of )

the South Carolina House of

)

Representatives, and Harvey Peeler, in his )

official capacity as President of the South )

Carolina Senate,

)

)

Intervenor-Defendants. )

)

Civil Action No. 3:20-cv-01552-JMC
MOTION TO RECONSIDER AND LIFT STAY OR ENTER JUDGMENT IN
FAVOR OF THE DEFENDANTS AND INTERVENOR-DEFENDANTS

At the invitation of the South Carolina Democratic Party, the Democratic National

Committee, and the DCCC in the Middleton case, the Court has allowed the plaintiffs in this case

to achieve a political outcome which cannot and would not withstand scrutiny if this case proceeds

to trial as scheduled. The Court should reconsider its order staying this matter, lift the stay, and

either enter judgment in favor of the Defendants and Intervenor-Defendants or set the case for trial.

3:20-cv-01552-JMC Date Filed 09/22/20 Entry Number 182 Page 2 of 9
On June 15, 2020, the Court scheduled a trial on the merits of the Plaintiffs’ challenge to the “witness requirement” to begin on Tuesday, September 22, 2020. Discovery is complete, dispositive motions in favor of the defense are fully briefed, and the parties argued those motions to the Court weeks ago. But instead of resolving those motions or allowing the case to proceed to trial as scheduled, the Court issued a preliminary injunction in the Middleton case—where hardly any discovery has taken place, no evidentiary hearing has been held, and no trial is scheduled until 2021—at 7:34 pm on Friday, September 19th. Eleven minutes later, it stayed the trial in this case on grounds that the Middleton injunction resolved the issues to be tried in this case. (Dkt. No. 178.)
The Court erred in short-circuiting the Thomas case—in which an actual evidentiary record would be created to demonstrate the illusory nature of the plaintiffs’ claims—and effectively granting judgment in the plaintiffs’ favor without them ever having to carry their burden of proving their case. To be sure, this case will have no practical effect in six weeks after the General Election, meaning that by virtue of the Court’s eve-of-trial (and eve-of-election) injunction in Middleton, the Thomas plaintiffs get all of the relief they wanted without having to ever prove anything at all while the State is deprived of its right to defend its duly enacted voting requirement. This is unjust and an abuse of discretion.
Make no mistake: this case offered little prospect for the plaintiffs to prevail because having someone sign the exterior envelope of an absentee ballot before a voter mails it in is not a burden at all, much less a “severe burden.” See DNC v. Bostelmann, Case No. 20-cv-249-wmc, 2020 WL 5627186, at *18–20 (W.D. Wis. Sept. 21, 2020) (rejecting a claim that Wisconsin’s “witness requirement” is an unconstitutional burden under the Anderson-Burdick framework). Even as late as Friday, Mr. Rutledge withdrew as a plaintiff in this matter, acknowledging that he would have no problem finding a witness if he votes absentee. (Dkt. No. 175.)
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The remaining plaintiffs cannot prove that it is a “severe burden” for them to have someone witness an absentee ballot: Ms. Richards and the SC-NAACP’s representative testified that they actually voted in person during the June primaries, and all remaining plaintiffs are in face-to-face contact with others on a regular basis (including Ms. Thomas’s landlord, who is also her lawyer in this case). Simply put, the notion that it is burdensome for these plaintiffs to have someone witness an absentee ballot is flawed, nor is there admissible evidence to support this notion. This Court would have to overcome a significant hurdle to conclude that the “witness requirement” amounts to a “severe burden.”
The problem created by the absence of an evidentiary record is particularly acute with respect to the supposed burden here. The Court excused the Thomas plaintiffs from proving their case in deference to its preliminary determination in Middleton that the “witness requirement” was a “severe burden.” In Middleton, a single plaintiff alleged that the “witness requirement” arose to a “severe burden” of constitutional proportions. (See Am. Compl. ¶¶ 11–20 (identifying Ms. Moore as the sole plaintiff in that case challenging the “witness requirement”) (Dkt. No. 69 in Middleton).) But just yesterday, that same plaintiff did a media tour regarding this very litigation in which she sat unmasked, shoulder-to-shoulder on camera with her son:
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Federal Judge Says You Won’t Need a Witness Signature for Your Absentee Ballot this November, WIS-TV (Sept. 21, 2020), https://www.wistv.com/2020/09/21/federal-judge-says-you-wont-needwitness-signature-your-absentee-ballot-this-november/. Not only is Middleton an improper vehicle through which the Court should resolve the supposed constitutional issues here, it is questionable whether any Middleton plaintiff could show that getting a witness is burdensome.
Likewise, the State of South Carolina has an overwhelming interest in enforcing the “witness requirement.” As Lt. Logan has testified via a declaration, the “witness requirement” is the key tool that law enforcement uses to investigate claims of absentee voter fraud. (Dkt. No. 942, ¶¶ 3–7.) To date, the Court has appeared to give little weight, if any, to this critical state interest, despite the fact that courts agree that voting fraud “is a serious problem” that is “facilitated by absentee voting.” Griffin v. Roupas, 385 F.3d 1128, 1130–32 (7th Cir. 2004).
The Court’s Orders instead indicate that it is of the view that the State is required to prove the presence of pervasive voting fraud to demonstrate that it has any interest in the “witness requirement.” That is not the law. Putting aside burden-shifting concerns, courts around the country, including the Supreme Court itself, have recognized that election integrity is an important and compelling state interest, including the State’s interest in ensuring that the citizenry has confidence in the outcome of an election:
“A State indisputably has a compelling interest in preserving the integrity of its election process.” Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy. Voter fraud drives honest citizens out of the democratic process and breeds distrust of our government. Voters who fear their legitimate votes will be outweighed by fraudulent ones will feel disenfranchised. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (quoting Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 231 (1989)). Removing one of the State’s only tools for ensuring election integrity harms, not helps, the voting process in South Carolina.
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Accordingly, if the Plaintiffs’ claims survive summary judgment—they shouldn’t—the Defendants and Intervenor-Defendants are prepared to fully discuss and illustrate at trial the important role the “witness requirement” plays in ensuring the integrity of South Carolina’s elections. The attached proffer of Lt. Logan’s testimony demonstrates how essential this part of South Carolina’s absentee voting law is for the State to effectively deter election fraud, identify and investigate election fraud, reject unfounded allegations from sore losers, and promote confidence in election results. Likewise, the attached proffer of Dr. Salgado counters the plaintiffs’ suggestion that having someone stand six feet away from a voter while signing the exterior envelope of an absentee ballot somehow creates a “severe” risk of the voter contracting Covid-19.
But through its injunction in Middleton and companion stay order in this case, both filed on the eve of trial, the Court has not only relieved the Middleton and Thomas plaintiffs from carrying their burden of proving a constitutional violation, it has also deprived the State of a chance to make an actual evidentiary record on its interest in enforcing the “witness requirement.”
In so doing, the Court has discarded the near-unanimous voice of South Carolina’s elected representatives when it comes to establishing the State’s election laws in the face of Covid-19.1 It has also unilaterally eliminated the State’s primary tool for investigating (and either prosecuting or exonerating) claims of election fraud and ensuring integrity of the State’s elections. Secondguessing a policy decision made by the people’s representatives in the State House is not the role of the federal judiciary.
The Court’s current scheduling of this case and the Middleton matter will do nothing but invite absentee voter fraud that will be nearly impossible to detect, investigate, or prosecute. It will
1 R.149 passed unanimously in the South Carolina Senate, with a single dissenting vote in the South Carolina House, and was signed into law by the Governor. See generally H.5305 History, S.C. Legislature, https://www.scstatehouse.gov/billsearch.php.
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undermine confidence in the results of South Carolina’s upcoming elections.2 And if left unaltered, the plaintiffs will get the very relief they wanted without ever having to actually present admissible evidence to carry their burden of proof.
This is not how “cases and controversies” are to be resolved. The Court should reconsider its stay order and either grant the pending dispositive motions or give the State its day in court and hold the plaintiffs to their high burden a proof—a burden they assuredly will be unable to meet.
Signature Pages Attached
2 The Court’s order in Middleton also risks creating significant voter confusion. By ordering immediate publication of the Court’s injunction of the “witness requirement,” the Court risks contradictory messages being published on the eve of the election, if the Fourth Circuit or Supreme Court stays the Middleton injunction. Assuming that were to happen, the Election Commission would have to withdraw the notices and publish new ones. Pursuant to R.149, absentee voting begins in earnest on October 5th.
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Respectfully submitted, WOMBLE BOND DICKINSON (US) LLP By: /s/ M. Todd Carroll Federal Bar No. 9742 todd.carroll@wbd-us.com Kevin A. Hall Federal Bar No. 5375 kevin.hall@wbd-us.com 1221 Main Street, Suite 1600 Columbia, South Carolina 29201 803-454-6504 Attorneys for Senator Harvey Peeler, in his capacity as President of the South Carolina Senate NEXSEN PRUET, LLC By: /s/ Susan P. McWilliams Federal Bar No. 3351 smcwilliams@nexsenpruet.com Sara S. Svedberg Federal Bar No. 11628 ssvedberg@nexsenpruet.com Hamilton B. Barber Federal Bar No. 13306 hbarber@nexsenpruet.com 1230 Main Street, Suite 700 Columbia, SC 29201 803-253-8221 Attorneys for Representative James H. “Jay” Lucas, in his official capacity as Speaker of the South Carolina House of Representatives
7

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BURR & FORMAN LLP By:/s/ Wm. Grayson Lambert Federal Bar No. 11761 M. Elizabeth Crum Federal Bar No. 372 Jane W. Trinkley Federal Bar No. 4143 Post Office Box 11390 Columbia, SC 29211 803-799-9800
ROBERT BOLCHOZ LLC Robert Bolchoz P.O. Box 6989 Columbia, SC 29260 803-790-7474
BOWERS LAW OFFICE Karl S. Bowers, Jr. P.O. Box 50549 Columbia, SC 29250 803-753-1099
STATE ELECTION COMMISSION Harrison D. Brant 1122 Lady Street, Suite 500 Columbia, SC 29201 803-734-9063
Attorneys for the State Election Commission Defendants
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ROBINSON GRAY STEPP & LAFFITTE, LLC By:/s/ Robert E. Tyson, Jr. Federal Bar No. 7815 rtyson@robinsongray.com Robert E. Stepp Federal Bar No. 4302 rstepp@robinsongray.com Vordman Carlisle Traywick, III Federal Bar No. 12483 ltraywick@robinsongray.com 1310 Gadsden Sreet P.O. Box 11449 Columbia, SC 29201 803-929-1400
Attorneys for the South Carolina Republican Party September 22, 2020 Columbia, South Carolina
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BALLOTS HEREIN
EXHIBIT
I A

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NAME
ADDRESS

Voters Oath
I hereby swear (or affirm) that I am duly qualified to vote at this electio n according to the Constitution of the State of South Carolina; that I ha ve not voted durin g this elec tion ; and that the ballot or ballo ts with which this oath is enclosed is my ballot and that I have received no assistance in vo tin g my ballot that I would not have been entitled to recei ve had I voted in person.

Da ted th is

Signa lu re or Volcr
......... dny of ....................... . ..........• 20..

Signatu re of Witness
Ad dress or Witness

3:20-cv-01552-JMC Date Filed 09/22/20 Entry Number 182-2 Page 1 of 9

THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

Mary T. Thomas, et al., Plaintiffs,
v. Marci Andino, et al.,
Defendants.

No.: 3:20-cv-01552-JMC Offer of Proof--Declaration
Cassandra D. Salgado, M.D., M.S.

1. I am Cassandra D. Salgado, M.D., M.S. I live in Charleston, South Carolina and have lived here since July 2004 when I joined the faculty at the Medical University of South Carolina and began seeing patients at the MUSC Hospital (collectively “MUSC”).
2. MUSC is an academic medical center and operates hospitals in Charleston, Chester, Florence, Lancaster, and Marion counties (“Health System”).
3. I received my undergraduate degree in chemistry (cum laude) from West Virginia University, my medical degree from West Virginia University, and my M.S. in Health Evaluation Sciences and epidemiology from the University of Virginia.
4. My residencies and postdoctoral training include: a) West Virginia University Hospital (Internal Medicine and Pediatrics and Chief Resident, Internal Medicine); and b) University of Virginia Health System (Fellowship, Infectious Diseases).
5. My Specialty/Board Certifications include: a) Pediatrics, b) Internal Medicine, and c) Infectious Disease.
6. I am a licensed physician in South Carolina (license # 27310) and have practiced in South Carolina, treating the State’s patients since September 2004. I am a practicing infectious disease doctor and see patients for general infectious disease needs both in the hospital and in the outpatient clinic. I have hospital privileges at MUSC and the Ralph H. Johnson Veteran’s Administration Hospital.
7. I am a member of numerous national and state medically related societies, including, but not limited to the: Infectious Disease Society of America, Fellow; Society for Healthcare Epidemiology of America, Fellow; Association of Specialty Professors; and the South Carolina Infectious Disease Society.

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8. I serve as an ad hoc reviewer for a number of medical journals, including but not limited to: the New England Journal of Medicine, Journal of Infectious Diseases, Infection Control Hospital epidemiology, The Lancet, and International Journal of Infectious Disease. 9. I came to MUSC as an Assistant Professor of Medicine in the Department of Internal Medicine (2004-2008). I became an Associate Professor (2008-20013) and was awarded tenure and full faculty member status at the MUSC College of Graduate Studies in 2012. 10. In 2013 I became a Professor of Medicine in the Department of Medicine. In 2015, I became a Professor of Medicine in the Department of Public Health Sciences. 11. I have held or hold the following MUSC administrative appointments:
a. Program Director, Internal Medicine/Pediatrics Residency (2006-2009); b. Program Director, Infectious Diseases Fellowship (2008-2019); c. Department of Medicine Mentoring Program Champion Infections Disease
(2012-2013); d. Vice Chair for Quality Improvement (2012-2016); e. Interim Division Director, Infectious Disease (2015-2016); and f. Division Director, Infectious Diseases (2016-present). 12. I was appointed Medical Director of Infection Control, Hospital Epidemiologist, Pitt County Memorial Hospital, East Carolina University and served from 2003-2004. I was appointed Medical Director of Infection Control, Hospital Epidemiologist at MUSC in 2004 and continue to serve as such. 13. As the Division Director for Infectious Diseases, my duties include the day to day running of the division operations, recruitment of infectious disease doctors, and ensuring appropriate infectious diseases care for patients in the hospital and in the ambulatory setting. In my hospital leadership position, I am the Hospital Epidemiologist and Medical Director for Infection Prevention at MUSC. 14. SARS-CoV-2, commonly referred to as COVID-19, is an infectious disease and one that I, as the Hospital Epidemiologist and Medical Director for Infection Prevention, am charged with preventing transmission, both for patients and health care staff, in the Hospital and the Hospital System. If asked to describe my job as the Hospital Epidemiologist and Medical Director for Infection Prevention, simply put, I would testify that it is to ensure safety from infections for patients and the care team members that care for them.
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15. My research focuses on epidemiology in the health care setting. In order to understand the transmission (spread) of COVID-19 or other infectious diseases in the Hospital, it is imperative that I understand how it is spread in the community so, among other things, I can understand how the virus enters the hospital in the first place.
16. On a daily basis, I study the COVID-19 data provided by the South Carolina Department of Health and Environmental Control (DHEC) and data collected by MUSC from its Health System. This data includes information on patient tracing, testing, infection rate trending, underlying medical conditions and patient age, among other things. I use this data to present almost daily reports to MUSC administration in order for it better to position the Health System to manage COVID19 and to assist the State of South Carolina in conducting COVID-19 testing.
17. The State has provided MUSC with CARES funding and tasked it with testing people for COVID-19 infection. Overall, MUSC is currently conducting approximately thirty four percent (34%) more testing compared to DHEC, and at least 25% of all of the testing done in South Carolina.
18. Currently, MUSC is one of the hospitals participating in the Astra Zeneca COVID-19 Phase III vaccine trials. I am one of many MUSC physicians participating in the Phase III vaccine trial.
19. The proportion of the South Carolina population who identify as African American is approximately 30%. Based upon the DHEC data, as of September 18, 2020, 26.3% of South Carolinians who have been confirmed positive for COVID-19 identify as African American. Based on DHEC data as of September 18, 2020, 47.3% of South Carolinians who are hospitalized for COVID-19, identify as African Americans. Based on DHEC data as of September 18, 2020, 35 % of South Carolinians who have died from COVID-19, identified as African American. In my medical opinion and to a reasonable degree of medical certainty, African Americans have a higher incidences of uncontrolled comorbid conditions (such as diabetes and cardiovascular disease) that place them at a higher risk for poor outcomes if they contract COVID-19. These disparities may be the reason we are seeing the disproportionate number of African Americans affected by this epidemic.
20. Underlying medical conditions that increase the risk of a poor outcome for a COVID-19 positive patient include hypertension, diabetes, and cardiovascular disease. Persons over 65 (“elderly age group”) and African Americans are also at a higher risk of having a poor outcome if they contract COVID-19.
21. If asked whether in my medical opinion and to a reasonable degree of medical certainty, I believe the presence of underlying medical conditions and being in the elderly age group or African American increases the risk of a person with COVID-19 having a poor outcome, I would answer that, “in my medical opinion and to a
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reasonable degree of medical certainty, I believe the presence of underlying conditions and/or being in the elderly group or African American increases the risk for a poor outcome for a person with COVID-19.
22. To the contrary, if asked whether in my medical opinion and to a reasonable degree of medical certainty, I believe the presence of underlying medical conditions and/or being in the elderly age group or African American increases the risk of a person acquiring COVID-19, I would answer that, “in my medical opinion and to a reasonable degree of medical certainty, I believe the presence of underlying conditions and/or being in the elderly age group or African American does not increase the risk of a person acquiring COVID-19”.
23. In my medical opinion and to a reasonable degree of medical certainty, the length of time a person is exposed to a person infected with COVID is critical in determining the risk of transmission. The shorter the exposure the less the risk. The recent COVID-19 research data supports my medical opinion to a reasonable degree of medical certainty.
24. A recent study published in The Lancet (www.thelancet.com/microbe Vol 1 May 2020) inoculated a known amount of the virus onto different surfaces and found that “no infectious virus could be recovered from printing or tissue paper after a 3 hour incubation”. It is unclear whether or not they mean that the virus could be detected on paper for up to three hours or if they meant they allowed the cultures to incubate on the paper for three hours and could not find any recoverable virus on the paper. I have read expert opinions that support either of these statements. Under either interpretation of the study, the study suggests that the COVID-19 virus does not survive on paper longer than three (3) hours.
25. Following the CDC guidelines mitigates the risk of transmission and of an individual becoming infected. These CDC guidelines are:
1. Wash your hands often a. Wash your hands often with soap and water for at least 20
seconds especially after you have been in a public place, or after blowing your nose, coughing, or sneezing.
b. It’s especially important to wash: i. Before eating or preparing food ii. Before touching your face
iii. After using the restroom iv. After leaving a public place v. After blowing your nose, coughing, or sneezing vi. After handling your mask vii. After changing a diaper viii. After caring for someone sick ix. After touching animals or pets
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2. If soap and water are not readily available, use a hand sanitizer that contains at least 60% alcohol. Cover all surfaces of your hands and rub them together until they feel dry.

3. Avoid touching your eyes, nose, and mouth with unwashed hands.

4. Avoid close contact a. Inside your home: Avoid close contact with people who are sick.
◦If possible, maintain 6 feet between the person who is sick and other household members.
b. Outside your home: Put 6 feet of distance between yourself and people who don’t live in your household. ◦Remember that some people without symptoms may be able to spread virus.
c. Stay at least 6 feet (about 2 arms’ length) from other people. d. Keeping distance from others is especially important for people who are at higher risk of getting very sick.

5. Cover your mouth and nose with a mask when around others

a. You could spread COVID-19 to others even if you do not feel sick.

b. The mask is meant to protect other people in case you are infected.

c. Everyone should wear a mask in public settings and when around people who don’t live in your household, especially when other social distancing measures are difficult to maintain.

i.

Masks should not be placed on young children under age 2,

anyone who has trouble breathing, or is unconscious, incapacitated

or otherwise unable to remove the mask without assistance.

d. Do NOT use a mask meant for a healthcare worker. Currently, surgical masks and N95 respirators are critical supplies that should be reserved for healthcare workers and other first responders.

e. Continue to keep about 6 feet between yourself and others. The mask is not a substitute for social distancing.

5. Cover coughs and sneezes a. Always cover your mouth and nose with a tissue when you cough
or sneeze or use the inside of your elbow and do not spit. b. Throw used tissues in the trash.

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c. Immediately wash your hands with soap and water for at least 20 seconds. If soap and water are not readily available, clean your hands with a hand sanitizer that contains at least 60% alcohol.
6. Clean and disinfect a. Clean AND disinfect frequently touched surfaces daily. This
includes tables, doorknobs, light switches, countertops, handles, desks, phones, keyboards, toilets, faucets, and sinks.
b. If surfaces are dirty, clean them. Use detergent or soap and water prior to disinfection.
c. Then, use a household disinfectant. Most common EPAregistered household disinfectants will work.
7. Monitor Your Health Daily
a. Be alert for symptoms. Watch for fever, cough, shortness of breath, or other symptoms of COVID-19.
b. Especially important if you are running essential errands, going into the office or workplace, and in settings where it may be difficult to keep a physical distance of 6 feet.
c. Take your temperature if symptoms develop. ◦Don’t take your temperature within 30 minutes of exercising or after taking medications that could lower your temperature, like acetaminophen.
d. Follow CDC guidance if symptoms develop.
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html
26. I understand that in order for a South Carolina voter to vote by absentee mail, the voter has to obtain an absentee ballot, which she can either fill out or return in person or mail back to her County Board of Registration and Elections. In order to mail her ballot back to the County Board, the voter has to fill out the absentee ballot return envelope received from the County Board. The ballot return envelope requires the voter to sign the voter oath in front of a witness. The witness must then sign her signature and fill in her address on the envelope. I understand that unless the witness signs and provides her address, the vote will not be counted.
27. The oath of office on the ballot return envelope reads:
The oath shall be in the following form: "I hereby swear (or affirm) that I am duly qualified to vote at this election according to the Constitution of the State of South Carolina, that I have not voted during this election, that the ballot or ballots with which this oath is enclosed is my ballot and that I have received no
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assistance in voting my ballot that I would not have been entitled to receive had I voted in person at my voting precinct." ____________________________________ Signature of Voter Dated on this ______ day of ____________ 20 ___ ___________________ Signature of Witness ____________________ Address of Witness
28. Having reviewed the above statutory voter oath and witness signature form that is printed on the outside of the ballot return envelope, the entire voter oath execution and witness signature process can easily be completed in less than two (2) minutes and, in all probability, in less than one (1) minute, even employing the CDC guidelines.
29. In my medical opinion and to a reasonable degree of medical certainty, exposure to an individual who is not routinely around for the length of time necessary to execute the voter oath and witness signature, when practicing the CDC guidelines, is such a short length of time that it does not pose a greater risk of COVID-19 transmission than the voter’s normal daily activities, such as receiving groceries or having mail or medicine delivered.
30. Regarding a voter who lives alone and is thus not with someone she is regularly exposed to who can witness her absentee ballot envelope, the voter can take the following steps, consistent with the current recommended CDC guidelines, and obtain a ballot envelope witness signature without undue risk of COVID-19 infection. In my medical opinion and to a reasonable degree of medical certainty, the following are reasonable measures that are completely consistent with the CDC guidelines a voter can take, without adding another burden, to obtain a witness signature with a minimal risk to COVID-19 exposure.
a. The person comes to the home to witness the voter signing the return ballot envelope. The lowest risk of exposure would be if there is a barrier between the voter and the witness (like a glass door or a window) or if the witness and the voter are outside when the transaction occurs. In both circumstances, the voter and witness use the CDC guidelines as outlined in b through d below.
b. However, if this (use of a barrier) is not possible, the voter can ask the witness if she has any of the symptoms of COVID-19 and not let them in if they do. The witness and voter should be wearing masks/coverings and should social distance—staying at least six (6) feet apart risk at all times during the minute to two minutes the witness is in the home.
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c. The voter signs below the oath on the ballot return envelope, performing hand hygiene (washing or using hand sanitizer on ones hands) prior to signing the envelope. Voter signs the envelope with her pen (not sharing it with the witness) and places envelope on counter (or table or other surface) and moves away from the counter or table so the witness can move forward to sign the envelope after the voter has moved at least six (6) feet away.
d. The witness should perform hand hygiene prior to signing and use her own pen to sign and add her address to the ballot return envelope and place it back on counter, table etc. The witness should perform hand hygiene once again and leave the home immediately following this step.
e. The voter retrieves and mails the ballot return envelope. The voter either should not handle the envelope for three hours (based on the up to three hour life of the virus on paper) or pick up the envelope and mail it and then again performing hand hygiene immediately afterwards. Certainly, the voter could also ask the witness to take the envelope and drop it in the mail. I understand that no postage is required to return the ballot envelope by mail. Cleaning and disinfection of the counter (or other surface) should occur after mailing of the envelope.
31. I understand that Ms. Mary Thomas, a plaintiff in this case, is an 87 year old African American with underling medical conditions, including cardiovascular disease. Ms. Thomas lives alone and has been self-isolating since the out-break of COVID-19 in South Carolina. Ms. Thomas intends to vote absentee by mail.
32. Ms. Thomas testified in her deposition that she has a housekeeper, Ms. Wallace, that comes to her apartment once a week and sometimes twice a week and is there for approximately two (2) and one-half hours, and has continued to do so during Ms. Thomas’ quarantine. Ms. Wallace wears a mask the entire time she is in Ms. Thomas’ apartment. I understand that Ms. Thomas stays in a different part of her apartment when Ms. Wallace is cleaning, so that she and Ms. Wallace are not in the room at the same time.
33. Ms. Thomas also has groceries delivered to her house and has a neighbor in her apartment building, Mr. Morrison, who helps water her plants when she asks. Ms. Thomas’ landlady is Susan Dunn, who, during Ms. Thomas quarantine, has periodically visited Ms. Thomas in her home. According to Ms. Thomas’ deposition, Ms. Dunn is in Ms. Thomas’ apartment 15 minutes or more when she visits. Ms. Thomas has Ms. Dunn’s telephone number and can call her if she needs anything.
34. Ms. Thomas has not been out of her apartment once since the pandemic began, except for medical appointments, when she went to three separate establishments.
35. Ms. Thomas does not wear a mask based on her doctor’s advice.
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36. Ms. Thomas is already at risk of contracting COVID-19 through her weekly contact with Ms. Wallace, her contact with Mr. Morrison and Ms. Dunn and her shopping trip. In my medical opinion with a reasonably degree of certainty, Ms. Thomas can ask Ms. Wallace, Mr. Morrison, or Ms. Dunn to witness her absentee voting ballot oath envelope without increasing the risk of infection from COVID-19 which she is already exposed. 37. It is my medical opinion and to a reasonable degree of medical certainty that Ms. Thomas can have her absentee ballot envelope witnessed without increasing the risk of exposure she already has assumed and that risk does not create a substantial burden on Ms. Thomas beyond what she is already doing on a daily basis. 38. I understand that Nea Richard is a 22 year old African American who lives with her boyfriend and works in an office area with four (4) other individuals. She sees her family in Cross Hill, South Carolina and has been to a weekend party with four (4) girlfriends, where they stayed at an Air BNB. Ms. Richard wants to vote absentee to avoid exposure to COVID-19. 39. It is my medical opinion and to a reasonable degree of medical certainty that Ms. Thomas can have her absentee ballot return envelope witnessed without increasing the risk of exposure she already has from her current daily activities. 40. Ms. Richard is regularly exposed to her boyfriend with whom she is living and can simply ask him to be her witness without incurring an additional risk of exposure to COVID-19 infection. 41. Ms. Richard could also ask one of her co-workers or one of her friends to witness her signature and follow the CDC guidelines and those procedures outlined in paragraph 27 above. 42. Currently, I routinely treat patients that are infected with COVID-19. In doing so, I wear a full panoply of personal protective equipment (“PPE”). I keep the time I spend with each patient as short as possible and still perform the necessary medical services necessary. I am not in a higher risk category for a poor outcome; however, my risk of being infected with COVID-19 is significantly greater than that of Ms. Thomas or Ms. Richard in obtaining a witness for their respective absentee ballot envelope oaths.
I declare under penalty that the foregoing is true and correct. Executed on September 21, 2020
Cassandra D. Salgado, M.D.
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 3:20-cv-01552-JMC Date Filed 09/18/20 Entry Number 178 Page 1 of 5

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

Mary T. Thomas, Nea Richard, Jeremy )

Rutledge, The Family Unit, Inc., and

)

South Carolina State Conference of

)

the NAACP,

)

)

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, and Clifford J. Edler, )

Scott Moseley, JoAnne Day, and Linda )

McCall in their official capacities as

)

Members of the South Carolina State

)

Election Commission,

)

)

Defendants,

)

)

v.

)

)

South Carolina Republican Party, James )

H. Lucas in his capacity as Speaker of the )

South Carolina House of Representatives, )

and Harry Peeler in his capacity as

)

President of the South Carolina Senate, )

)

Intervenors.

)

)

Civil Action No.: 3:20-cv-01552-JMC ORDER AND OPINION

Plaintiffs Mary T. Thomas, Nea Richard, Jeremy Rutledge, The Family Unit, Inc., and

South Carolina State Conference of the NAACP (collectively, “Plaintiffs”) filed this action seeking

declaratory and injunctive relief from certain South Carolina voting requirements during the

ongoing COVID-19 pandemic. (ECF No. 76 at 1-6 ¶¶ 1-12.) Defendants in this matter include

Marci Andino, John Wells, Clifford J. Edler, Scott Moseley, JoAnne Day, and Linda McCall

(collectively, “Defendants”). Furthermore, the South Carolina Republican Party (“SCGOP”),

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Speaker of the South Carolina House of Representatives James H. Lucas (“Speaker Lucas”), and President of the South Carolina Senate Harvey Peeler (“President Peeler”) (collectively, “Intervenors”) have all intervened in the case.
For the reasons discussed below, the court sua sponte STAYS the instant proceedings, including trial, and holds in abeyance all pending motions, including Defendants’ Motion for Summary Judgment (ECF No. 108) and SCGOP’s Motion for Summary Judgment (ECF No. 109).
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND Plaintiffs challenge two provisions related to absentee voting in South Carolina, including: the requirement that only voters who fall into statutorily defined categories may vote absentee (“Excuse Requirement”); and the requirement that another individual must witness a voter’s signature on an absentee ballot envelope for the ballot to be counted (“Witness Requirement”) (collectively, “Challenged Provisions”). S.C. Code Ann. § 7-15-320 (2014); S.C. Code Ann. § 715-420 (2006). Plaintiffs allege the application of these provisions during the COVID-19 pandemic violates the United States Constitution and federal law, and seek relief “at least while emergency orders concerning COVID-19 are in place and/or while public health officials continue to recommend social distancing practices due to risk of community transmission of COVID-19.” (ECF No 76 at 55-56.) “The COVID-19 pandemic, also known as the coronavirus pandemic, is an ongoing pandemic of coronavirus disease (‘COVID‑19’) caused by severe acute respiratory syndrome coronavirus 2 (SARS‑CoV‑2).” COVID-19 pandemic, https://en.wikipedia.org/wiki/COVID19_pandemic (last visited Sept. 11, 2020). The COVID-19 virus is primarily spread by “direct, indirect (through contaminated objects or surfaces), or close contact with infected people via mouth and nose secretions. These include saliva, respiratory secretions or secretion droplets.”
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Q&A: How is COVID:19 transmitted?, https://www.who.int/emergencies/diseases/novelcoronavirus-2019/question-and-answers-hub/q-a-detail/q-a-how-is-covid-19-transmitted (last visited Sept. 16, 2020). As of September 18, 2020, the United States had reported more than 6.6 million cases resulting in 196,277 deaths. Cases and Deaths in the U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/us-cases-deaths.html (last visited Sept. 18, 2020).
On September 15, 2020, the South Carolina General Assembly passed legislation suspending the Excuse Requirement by allowing all qualified voters to vote by absentee ballot for the November 2020 General Election due to the current state of emergency. H.B. 5305, 123rd Gen. Assemb. (S.C. 2020). The next day, Governor McMaster signed H.B. 5305 into law. Id.
On September 18, 2020, the court in a separate case enjoined the Witness Requirement for all South Carolina voters in the upcoming November 2020 General Election. Middleton v. Andino, No. 3:20-CV-01730-JMC, ECF No. 109, at *70-71 (D.S.C. Sept. 18, 2020).
II. DISCUSSION Given the recent suspension of the Challenged Provisions for the November 2020 General Election, the court concludes the instant proceedings shall be stayed. “[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); Dominion Energy, Inc. v. City of Warren Police & Fire Ret. Sys., 928 F.3d 325, 335 (4th Cir. 2019). The court may raise the issue of a stay sua sponte. See Ashley v. Rushmore Loan Mgmt. Servs., LLC, No. 4:16-CV-01969-RBH, 2017 WL 1135294, at *4 (D.S.C. Mar. 27, 2017) (“Although the parties have not addressed the propriety of a stay, the [c]ourt may raise this issue
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sua sponte.”); Rice v. Astrue, No. 4:06-CV-02770-GRA, 2010 WL 3607474, at *2 (D.S.C. Sept. 9, 2010) (sua sponte holding motion for attorney fees in abeyance until an appellate court ruled on a related matter); Collins v. S.C. Pub. Serv. Auth., No. 2:05CV03494 PMD, 2006 WL 1851305, at *2 (D.S.C. June 30, 2006) (sua sponte holding motion in abeyance until the defendant’s appeal involving similar issues was resolved); Travelers Indem. Co. Of Ill. v. Hardwicke, 339 F. Supp. 2d 1127, 1134 (D. Colo. 2004) (sua sponte staying several counterclaims pending outcome of other counterclaims).
Whether a federal district court should issue a stay “calls for an exercise of judgment to balance the various factors relevant to the expeditious and comprehensive disposition of the causes of action on the court’s docket.” United States v. Ga. Pac. Corp., 562 F.2d 294, 296 (4th Cir. 1977) (citing Landis, 299 U.S. at 254). The court “must weigh competing interests and maintain an even balance.” Landis, 299 U.S. at 254-55 (citing Kan. City S. Ry. Co. v. United States, 282 U.S. 760, 763 (1931); Enelow v. N.Y. Life Ins. Co., 293 U.S. 379, 382 (1935)).
“A trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it[.]” Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 862 (9th Cir. 1979). Whether to grant a stay is within the “sound discretion” of the court. Ryan v. Gonzales, 568 U.S. 57, 74 (2013) (citation and internal marks omitted).
Here, the court stays the instant proceedings because, while Plaintiffs seek relief beyond the November 2020 General Election, their claims were principally tied to the upcoming election. The suspension of the Challenged Provisions for the November 2020 General Election has all but mooted Plaintiffs’ claims at this point, as future statewide elections in South Carolina have not yet been scheduled and the trajectory of the ongoing COVID-19 pandemic in the meantime is decidedly unclear. Ruling motions and conducting trial in the coming days—when the impact of
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3:20-cv-01552-JMC Date Filed 09/18/20 Entry Number 178 Page 5 of 5

COVID-19 on future South Carolina elections is too far removed and uncertain to be determined— would be unfair to Plaintiffs and an inefficient expenditure of judicial resources by the court.
Defendants and Intervenors do not appear burdened by this stay. Intervenors have previously argued the court should stay or decline to review this case based on various abstention doctrines and non-justiciable political questions, while simultaneously pointing to related matters pending before the General Assembly and South Carolina Supreme Court for support. (ECF Nos. 109 at 12-14; 144 at 1-17; 146 at 2-6.) Such arguments suggest no harm would result from the instant stay. Relatedly, Defendants and Intervenors may seek appellate relief in Middleton regarding the court’s decision to enjoin the Witness Requirement for the November 2020 General Election, as they are the defendants and intervenors in that suit as well. Furthermore, even if Defendants and Intervenors were burdened by this stay, it would be minimal when compared to the potential unfairness to Plaintiffs and inefficient use of judicial resources by the court.
III. CONCLUSION For the reasons stated above, the court STAYS the instant proceedings, including trial, and holds in abeyance all pending motions, including Defendants’ Motions for Summary Judgment (ECF No. 108) and SCGOP’s Motion for Summary Judgment (ECF No. 109). When the impact of the COVID-19 pandemic or future statewide elections in South Carolina are sufficiently determinable, it shall be incumbent on Plaintiffs’ counsel to notify the court of a request to lift the stay no later than three months before the next scheduled statewide election in South Carolina. IT IS SO ORDERED.

September 18, 2020 Columbia, South Carolina

United States District Judge 5