“Just as a starting point, let’s be clear: any representation to this court that they only want to clarify the law but fails to mention their frontal assault on our state election laws is not an accurate portrayal of their position,” Tyson said.
“We believe the petitioners want to read the absentee ballot statute into oblivion.”
The hour-and-a-quarter-long hearing also touched on issues of whether it was appropriate to intervene in the midst of an election season, Center for Disease Control recommendations, and (referencing the Wisconsin example) how the possibility of fewer poll workers at South Carolina polls would impact wait lines at the polls.
Spiva asked the Court to provide an interpretation of high risk that would encompass a broad swath of the population, noting as a specific example “the vastly disproportionate rates of [COVID-19] infection and death among the African American population in South Carolina and elsewhere.”
A few days later, Professor Todd Shaw reflected on the arguments that were made during the hearing. Shaw, who works in USC’s Political Science Department alongside Professor Oldendick, has conducted significant research into the voting behavior of the African-American community.
This year, he has been following an increasingly competitive race for the U.S. Senate. South Carolina’s incumbent Republican Senator Lindsey Graham is facing a serious challenge from Democratic candidate Jaime Harrison, who is African-American.
Both Democrats and Republicans have a high-stakes interest in how easily South Carolinian voters can exercise their right to vote.
“Not being able to give some real safeguards during a pandemic, that will be a factor,” Shaw said.
In the end, it turned out that state legislators had met again in special session on the same day that the State Supreme Court hearing was being conducted. This time, both bodies of the General Assembly approved a temporary measure to allow no-excuse-needed absentee ballots for the June 9 primaries, and Governor McMaster signed the bill into law the next day.
As a result, the South Carolina Supreme Court dismissed Rhodes Bailey’s case – not, as the Court took pains to point out, on any of the grounds argued by the South Carolina GOP motion, but because the Legislature’s temporary provision for the primary election made the case’s claim no longer a “judiciable controversy.”
As for elections that would take place after the primary, the Court said, “It is the Legislature which bears the constitutional obligation to ensure that elections are carried out in such a manner as to allow all citizens the right to vote.”
As the original plaintiff, Bailey expressed a mix of disappointment and vindication.
“Let’s be clear about what happened here,” he said. “Our legislature had no plan to protect voters in June until we filed suit and shamed it into action…
“Unfortunately, the Supreme Court is now leaving it up to these same legislators to act in time to protect voters in November. So, we’ve still got some work to do, but nothing worth doing is ever easy.”