South Carolina and the Free and Open Elections Clause
March 28, 2022
By: Anna Miller
In May 2020, the Supreme Court of South Carolina was asked to rule on whether the COVID-19 pandemic constituted enough of a “physical disability” to allow all South Carolina voters to vote absentee in the 2020 election. Currently, South Carolina election law requires absentee voters to have an approved reason for casting an absentee ballot, including being unable to cast an in-person vote due to physical disability. South Carolina Code Section 7-15-310 defines physical disability as “a person who, because of injury or illness, cannot be present in person at his voting place on election day.”
In Bailey v. SEC, the South Carolina Democratic Party sued the South Carolina State Election Commission to reinterpret this provision in light of the global pandemic, which would allow every voter to vote absentee without changing South Carolina’s election laws. However, while this case was pending before the South Carolina Supreme Court, the South Carolina legislature made temporary changes to the election law allowing regions under a state of emergency declaration to vote absentee without a stated reason.
The entirety of South Carolina was under the required state of emergency at the time this case came before the Supreme Court, so the court decided to dismiss the case as moot for the current election cycle. However, the court went on to address future election cycles, when the Governor might relax or altogether eliminate the current state of emergency that allowed all voters to vote absentee. Instead of simply ruling that the issue was moot, given the legislature’s decision to change the law, the court reasoned that since the legislature took steps to change the law to allow all voters to vote absentee, the previous law must not have included the interpretation the plaintiffs were asking the court to read into the law. Therefore, the court reasoned that the case raised an impermissible political question best left to the legislature to solve.
As the dissent pointed out, the court seemingly left open the question of whether their interpretation of the statute violated the state constitution’s Free and Open Elections Clause, which requires that “all elections 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.” The dissent argued that the court should have considered this constitutional provision as soon as they decided the reading of the statute, as the court’s interpretation of the statute presents facial questions as to the free and open nature of an election that forces voters to risk contracting a grave illness to vote.
The South Carolina Supreme Court has never specifically held that an election law violated the Free and Open Elections Clause, and the court has very little jurisprudence to guide it regarding this clause. As the COVID-19 pandemic continues and the state’s COVID-19 temporary measures are set to expire, the court may have to finally resolve this question. Current legislation purporting to change South Carolina’s absentee ballot provisions to maintain and even expand the COVID-19 temporary measures are being considered but do not seem able to make it out of the Judiciary Committee’s deliberations. If a similar case arises again, the Supreme Court will thus likely be unable to avoid deciding the case through the mootness or political questions doctrines.