Elections – Absentee Voting – Mootness – Legislation – Political Question

Plaintiffs seek a ruling that South Carolina law permits all South Carolina registered voters to vote by absentee ballot in our upcoming primary and general elections. Recent legislation has rendered the question moot with respect to the primary. However, as to the general election in the fall, our reading of that same legislation reveals that our existing law does not allow all voters to vote by absentee ballot in the face of a pandemic, and we will not engage in the political act of disagreeing with the General Assembly on this question.

Plaintiffs’ complaint is dismissed.

Pursuant to S.C. Code Ann. § 7-15-320(B), allows voters to cast absentee ballots when they are not absent from their home county, but only if they fit into one of the listed categories of people eligible to vote by absentee ballot. One of these categories is “physically disabled persons.” § 7-15-320(B)(1). S.C. Code Ann. § 7-15-310(4) defines “physically disabled person” as “a person who, because of injury or illness, cannot be present in person at his voting place on election day.”

Plaintiffs ask the court to construe the term “physically disabled person” to include those practicing social distancing to avoid contracting or spreading the illness COVID-19. Plaintiffs contend these voters, “because of … illness, cannot be present in person” at the voting place on election day under § 7-15-310(4), and thus are “physically disabled persons” under § 7-15-320(B)(1). This construction of the term “physically disabled person,” plaintiffs argue, permits all registered voters to vote by absentee ballot if they choose.

On the day this court heard oral argument on plaintiffs’ request, our Legislature enacted legislation to temporarily change the law: “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 next day—May 13—the Governor signed the bill into law. Because the entire state is currently under a “state of emergency as declared by the Governor,” S.C. Exec. Order No. 20-35 at 9 (May 12, 2020), and “there are fewer than forty-six days” between now and the June primary, all South Carolina voters are permitted to vote in the primary by absentee ballot, if they choose. This action by our Legislature and Governor enacted into law the precise relief plaintiffs request—as to the primary election. By its terms, however, the legislation expires on July 1, 2020.

Plaintiffs’ claim that all voters should be permitted to vote by absentee ballot in the June 9 primary election is now moot.

However, the fact the Legislature changed the law to permit every voter to vote in the primary by absentee ballot is a clear indication that the absentee voting statutes did not already permit that. By providing the new law “expires,” the Legislature essentially reenacted the old law as of July 1. This makes clear the Legislature’s intent that—under the old law reenacted—all voters may not vote by absentee ballot in the face of a pandemic.

With respect to elections after July 1, 2020, whether any change should be made to the law is a political question for the Legislature to answer.

The General Assembly bears the constitutional obligation to ensure that elections are carried out in such a manner as to allow all citizens the right to vote. Pursuant to that constitutional obligation, the Legislature has determined that § 7-15-320(B)(1) does not permit all voters to vote absentee, and the Legislature has jointly resolved to return to session in September to consider whether that law should be changed—again—for the November election. There is no way for this court to grant plaintiffs the relief they seek without disagreeing with the Legislature on this political question.

Dismissed.

Dissent

(Hearn, J.) The General Assembly’s action in passing the temporary legislation does not necessarily resolve the issue of whether persons practicing social distancing to avoid contracting or spreading this serious, highly communicable disease are included within the plain and ordinary meaning of “physically disabled persons,” as defined in § 7-15-310(4) and allowed to vote by absentee ballot pursuant to § 7-15-320(B)(1). Indeed, the recent legislation did not actually amend § 7-15-310(4) or 7-15-320(B)(1) to temporarily allow all registered voters, in light of the COVID-19 pandemic, to vote by absentee ballot under the “physically disabled persons” provision. Accordingly, the legislation does not directly address the question of statutory interpretation before the court, and I would decline to dismiss the suit on this basis.

Instead, I would dismiss the complaint on the ground that the matter involving the general election is not yet ripe for judicial consideration, which would not foreclose a future suit requesting interpretation of the provision for the general election.

Bailey v. South Carolina State Election Commission (Lawyers Weekly No. 010-040-20, 11 pp.) (John Kittredge, John Few & George James, JJ.) (Kaye Hearn, J., joined by Donald Beatty, C.J., concurring in part & dissenting in part) Christopher James Bryant and Bruce Spiva for plaintiffs; William Grayson Lambert, Mary Elizabeth Crum, Karl Smith Bowers, J. Robert Chochoz and Harrison Brant for defendants; Robert Tyson and Vordman Carlisle Traywick for intervenors; Alan McCrory Wilson, J. Emory Smith and Harley Kirkland for amicus curiae. S.C. S. Ct.