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S.C. Supreme Court holds historic Webex hearing

COLUMBIA (AP) — The South Carolina Supreme Court made history on May 12 after it held its first-ever oral arguments hearing via Webex regarding potential difficulties of voting in this year’s elections due to the coronavirus outbreak.

Hours later, state lawmakers made moves to open up absentee voting to all voters, without a given reason.

“This is our maiden voyage if you will, and thank you for participating,” Chief Justice Donald Beatty said to open the court’s session. “This court has been a bit of a hot bench over the years, but we’re going to cool it off a little bit.”

The court changed protocol and allowed each attorney five minutes to speak uninterrupted at the start of their arguments to avoid crosstalk. One of the attorneys, Rob Tyson of Robinson Gray in Columbia, called the move “significant,” as the justices on the court are very active in engaging attorneys with questions throughout their arguments.

“The Supreme Court provided good information for the attorneys before the hearing,” Tyson said. “We had a training session last week and tutorials, so I feel like I was fully prepared.

Arguments went relatively smoothly, with the occasional screen freezes due to connection glitches and the reminders familiar to many new to teleconferences to unmute themselves when taking a turn to speak. Clerk Dan Shearouse was dispatched to check on Justice John Kittredge after his feed cut out for a few minutes, and Kittredge later joined by phone.

Last month, two lawsuits were filed in state and federal courts asking judges to require South Carolina to relax rules on absentee voting for the June 9 statewide primary.

Absentee voters currently must fall under certain requirements such as being disabled, unable to get to the polls because of work, out of state, or over age 65. Ballots also must be signed by a witness. The lawsuits said absentee rules don’t include isolating from a pandemic, which also could be a problem with the witness requirement.

In the federal case, the Department of Justice has filed a brief arguing South Carolina’s absentee witness requirement doesn’t violate Section 201 of the Voting Rights Act–which prohibits the use of tests and devices in elections–because witnesses aren’t required to vouch for a voter’s qualifications or belong to a certain class.

In a March letter to state lawmakers and Gov. Henry McMaster, South Carolina Election Commission Executive Director Marci Andino backed no-excuse absentee voting and expressed safety concerns about in-person voting, noting that many poll managers fall into high-risk categories for COVID-19.

McMaster has said he has no plans to delay the primaries. Saying state lawmakers would need to agree to change absentee voting requirements, and McMaster has said he would support any such measure.

After hours of negotiations and legislative gymnastics on May 12, the House and Senate passed a bill to allow voters to obtain an absentee ballot without a reason, only for the June primary and runoffs.

Sen. Brad Hutto of Orangeburg told fellow Democrats that, instead of allowing the temporary bill to extend through the general election in November, they should be able to discuss with Republicans an overhaul of the state’s early-voting and absentee voting procedures in a mid-September special session.

The Senate passed the bill 37-0, while the House passed it 108-0.

In the state lawsuit, Bruce Spiva, attorney for the South Carolina Democratic Party and the national Democratic Congressional Campaign Committee, noted that his clients are seeking relief for the June primary, as well as the general election in November, unless there were to be some “drastic change” with regard to preventing or treating the virus.

“This election can’t be free and open, your honor, under the circumstances that we are living under today,” Spiva said.

Tyson, who represented the state Republican Party, said Democrats across the country were trying to use the pandemic as cover for an underlying desire to inappropriately expand voting laws.

“We respectfully request that the court deny their attempt to rewrite South Carolina laws,” Tyson said.

The court will issue its ruling later. Justice John Few opined as to why the court was considering the issue at all, given that state lawmakers—who could make changes to state law—were convening in Columbia as he spoke.

Other courts throughout the state have already been holding some proceedings via video conference during the outbreak. Beatty shut off public access to the Supreme Court building in mid-March and, by the end of that month, had canceled all oral arguments that were currently on the schedule.

There have been more than 7,900 cases of the coronavirus confirmed in South Carolina, and 355 deaths, according to the May 12 update from state public health officials.

Lawyers Weekly staff contributed to this story.

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