Author: Matthew Saltzman, Ph.D.

On Tuesday, October 13, the Supreme Court ruled that the Trump administration could end the door-to-door counting phase of the census on October 15, two weeks earlier than originally planned. The administration had originally extended the deadline for counting from the end of July to the end of October in response to the pandemic. Later, the administration announced that the count would end at the end of September instead. A lawsuit had blocked the early end, but the Supreme Court decision overruled that order.

Plaintiffs had argued that the early end would result in significant undercounts, primarily of urban residents and indigenous people, which would leave them underrepresented when political districts are drawn and federal funds are allocated to states.

The Trump administration is still pursuing a proposal to exclude undocumented immigrants from the count, despite the Constitution’s requirement that “the whole number of people in each state” be used to apportion representatives to states. The court will take up that dispute later this year.

South Carolina has long had a requirement for mail-in absentee ballots that the ballot envelope be signed by the voter and by a witness.

For the June primary, a federal judge struck down the witness requirement on the grounds that during the pandemic emergency, the requirement would place some voters in danger. The state election commission and the LWVSC advocated that the recent legislation allowing no-excuse absentee voting also remove the witness requirement for the November general election, but the legislature did not include that provision.

A lawsuit was filed in the same court and the same judge removed the requirement. On appeal, a three-judge panel reinstated the requirement, then the full appeals court reversed the panel decision. The appeals continued to the Supreme Court, which ruled that the requirement could stand while the lower-court proceedings continued. That ended the matter, at least through the election.

So where we stand now is, you need to get a witness signature. The witness needs to sign and provide an address. Anybody who can sign their name and write their address can be a witness. There is no age limit, no requirement that the witness be a voter, no need for a notary. Just make sure someone signs.

The SC legislature convened this month and among other actions being considered, they passed a bill that includes an expansion of the absentee voting criteria. As in the June primary, any voter can request an absentee ballot or vote early in person for the November, 2020 election without specifying one of the usual 17 permitted excuses. For paper ballots returned by mail or in person, a witness signature is still required. That requirement was waived in June by a federal judge. A similar case is still in process for November, but has not yet been decided.

The bill also permits election offices to begin opening absentee ballot envelopes on November 1, which should help speed counting. The South Carolina Association of Registration and Election Officials (SCARE) had also proposed expanded use of drop boxes, but that proposal was not included in the bill.

For information on absentee voting, visit https://scvotes.org.

[Guest post from Lynn Teague, LWVSC VP for Issues and Action]

No one should have to risk their health in order to vote. However, if nothing changes, that is what will be asked of the majority of voters in South Carolina on November 3. Current law requires most voters and the workers who assist them to congregate in large numbers in confined spaces on Election Day. Every reputable expert believes that the pandemic will continue to be a significant danger in November. Every voter should nevertheless be able to vote safely. It is contrary to good sense to compel voters to gather in polling places on one day, where maintaining social distancing will be very difficult and the potential for contagion high.

The Executive Director of the State Election Commission (SEC), Marci Andino, has warned South Carolina’s government leaders that major changes are urgently needed. The organization representing South Carolina’s local election officials, SCARE, also has warned that unless changes are made there will be “devastating consequences.” The League of Women Voters of South Carolina strongly supports these pleas for help from the people who help us vote. The General Assembly must act, and the Governor must support legislators in doing so. They must do so as soon as possible to give both election officials and voters time to plan and to carry out those plans. It is great that Senate President Peeler has recalled the Senate to work on these issues on September 2. However, the House remains scheduled not to return until mid-September, when they might or might not make the needed changes. That is very late to leave this great uncertainty about basic aspects of election process.

The impact of the November 2020 voting process will be felt far beyond the election itself. Retaining current high-risk procedures would represent a grave and unnecessary challenge to efforts to restore normalcy in South Carolina. Election Day could become a “super-spreader event” that would adversely affect businesses, schools, and other basic social functions.

The General Assembly needs to make these basic changes that are consistent with requests from our election officials:

• Reinstate the “state of emergency” reason for absentee voting, allowing every voter to choose to vote absentee-by-mail, early in person, or in person on election day.
• Allow voters to apply online for an absentee ballot.
• Remove the witness requirement for absentee ballot return envelopes.
• Allow use of secure drop boxes for return of absentee ballots at protected locations other than election offices, for example, public libraries or town halls.
• Provide election officials with more time (as much as possible ) to process absentee-by-mail ballots and extend the date by which counties must certify the results of the election.

Regrettably, voting issues are too often embroiled in partisan politics. That should not be the case here. Both of our country’s major national political parties are energetically encouraging their voters to vote early and even specifically to vote absentee by mail. Independent studies show no inherent partisan bias in voting methods. Reputable sources also show that instances of fraud from voting absentee-by-mail are extremely rare. All voting methods require security precautions, but South Carolina’s election officials have abundant experience ensuring the security of the absentee voting methods that are requested for our 2020 elections.

We hope that the General Assembly and the Governor will take action as soon as possible to make sound decisions in time for the November elections, as they did for the June primaries.

However, time is of the essence. In the absence of legislative action as of August 20, the League of Women Voters of South Carolina has filed an amicus brief in the case of Duggins v. Lucas, for which the South Carolina Supreme Court has granted original jurisdiction. We hope that the courts will act to do what the legislature has not.

Our November 2020 elections must be true to the best in our American beliefs and traditions – safe, secure, and accessible to all qualified citizens.

Lynn Shuler Teague, Vice President for Issue and Action

League of Women Voters of South Carolina

Since the process got underway, the Trump administration has tried to influence the conduct of the census in ways that appear designed to influence who gets counted, and hence, who gets more voting power under new district maps and more of the federal funds that are distributed based on census figures. Scroll back through the blog for references to the attempt last year to add a question about citizenship to this year’s census form, which was blocked by the Supreme Court. Many experts expressed concern at the time that the result would be a severe undercount of Hispanics and Latinos as well as other immigrant populations.

Two recent developments appear to substantiate those concerns. First, in July, the Trump administration issued an order to not count undocumented immigrants in the apportionment phase of redistricting. If it stands, the order would likely have an effect on the distribution of the 435 members of the House of Representatives among the states. For example, Texas could potentially pick up as many as three new representatives, which would be taken from other states, but the large number of undocumented residents of Texas could, if removed from the census count, reduce that gain. (It is projected that Texas, Florida, and California would gain one fewer seat each and Alabama, Ohio, and Minnesota would retain one additional sear if the order stands.) Again, it is worth noting that the affected populations are primarily Hispanic and Latino. The administration has been sued over the order by Common Cause and other government watchdog groups, by 20 states and several cities, and by the ACLU and immigrants’ rights groups, contending that the order is arbitrary, unconstitutional, and discriminatory. A number of experts agree that the order is likely to be found unconstitutional, as the 14^th amendment to the Constitution specifies that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” Of course, nothing is certain until the court’s ruling comes down. It is certainly possible that the case will go all the way to the Supreme Court and it’s not clear how that might affect the process of apportionment.

The second development is an announcement by the Census Bureau this week that the census counting process will be terminated a month earlier than previously set. In normal times, the census count generally wraps up in July and the reports are due to Congress by the end of the year. Once consequence of the COVID-19 pandemic was that the usual schedule was set back, with the counting process scheduled to end at the end of October but the deadline for providing counts to Congress was not moved. (Democrats in Congress support moving that deadline as well, but Republicans have resisted.) The announcement moves the end of the counting process up to the end of September. This is the phase of the count that involves actually knocking on doors, so if that process falls short due to the shortened time frame, it is likely that this action as well will result in an undercount of lower-income and minority residents, who are less likely to get counted by other methods.

Of course, if you haven’t filled out your census form, you should do so now, and advocate for others to do so as well. You can find the form online at https://my2020census.gov.

Since the COVID-19 emergency began in March, there hasn’t been much redistricting news in South Carolina. There wasn’t much movement on our House bill or any of the Senate bills following last February’s League Lobby Day. With the emergence of the virus, legislative action was significantly curtailed, and there is no expectation that those bills will move forward in time to affect the process of drawing maps after the current census.

As for the census, the national survey has been extended through October and final results are not expected until April, 2021. If you haven’t filled out your census forms, please do it now! Visit https://my2020census.gov/. Accurate counts are critical for drawing district maps and for getting our fair share of funds for a number of federal programs.

So the next phase of activity for redistricting will be spring of 2021. We will be back keeping you up to date on the League’s activities regarding the mapping process as we get closer to that time. Meanwhile, there is an election coming up on November 3, 2020 and there is a lot of news and a lot of League action under way related to that. The original plan for the blog was to focus on redistricting (while there was a chance to move the legislation), but now we plan to expand our focus to cover election-related matters. Those include voting safety and security, technology, how to get information, and more. So watch this space!

Recent Election Developments

In recent news:

• The state election commission announced that they would pay postage for absentee ballots returned by mail.
• The commission also wrote to the legislature requesting action to ensure that elections are safe in the face of the pandemic. They requested that the “state of emergency” excuse be reinstated for absentee voting, allowing drop boxes for absentee ballots, and to limit curbside voting to designated locations. They also requested adjustments to the absentee voting process to provide more time for counting the expected increased volume of absentee votes. The legislature will return in September to complete the budget, but it is not known if they will take up these questions.

We urge readers to write to your state representatives and senators to support these safety measures for the November election.

The League of Women Voters is working for sage, secure, and accessible elections through advocacy and voter services.

This week marks the 100th anniversary of the founding of the League of Women Voters. To commemorate the League’s creation, members of the South Carolina League will meet at the SC State House in Columbia on Wednesday, February 12 to lobby our senators and representatives in support of redistricting reform. Space is limited due to restrictions on the size of our organizing room, but there are still a few spaces left. Because of the space limitations, we do ask that you get tickets if you plan to attend. Details of the event and tickets are available here.

Below is a summary of our position.

Redistricting Reform Needed in South Carolina

• Legislative and Congressional district lines will be redrawn in 2021following the census, so that districts once again have equal numbers of people. Those maps will be in place until 2031.
• Legislators draw their own district lines in South Carolina. In states where parties and incumbents are allowed to draw district lines to their own advantage, the result can be uncompetitive elections and a polarized, more partisan legislature.
• 95% of 2018 legislative races in SC were either uncontested or were won by more than a 10% margin of victory! This is in part the result of where people live in our state, but district lines have made the problem of noncompetitive districts worse.
• Successful policy-making on important issues like public education funding and healthcare is hampered by gerrymandering. After districts have been drawn to favor an incumbent or particular political party, there is little incentive for legislators to listen to voters or compromise with their fellow legislators, because they have their next election sewn up!
• SC voters deserve an independent redistricting commission. House Bill 3054 (which has bipartisan support in the State House) would create this commission, which wouldn’t be able to use partisan or incumbent criteria when drawing maps..
• According to a 2018 Winthrop Poll, the majority of South Carolinians, regardless of party, want to end legislators drawing their own district lines.
• On Wednesday, we will be at the State House telling our legislators that elections should be decided in the voting booths, not the map room.We hope other concerned citizens will join in this Day of Action asking for H. 3054 to get a committee hearing. 

So come on out on Wednesday and support us if you can, and contact your state senators and representatives to support the cause. We need your voice!

[The following post is adapted from an article in the South Carolina Voter by Shayna Howell, Co-chair of the LWVSC Redistricting Working Group.]

Waiting for the Supreme Court’s decision on gerrymandering in Rucho v Common Cause (a case in which LWV was a co-plaintiff), many of us were crossing our fingers, but we were not holding our breath. While we waited, we planned. And when the disappointing ruling came down, LWVSC was prepared to double down on our efforts to ensure that voters choose their representatives, not the other way around.

In October, I traveled to Washington, DC for an LWVUS training for the nationwide People Powered Fair Maps initiative. All 50 state Leagues had a delegate in attendance, everyone with a different story to tell about gerrymandering in their state. Several state Leagues have successfully advocated for independent redistricting commissions already, and although we have an uphill battle, LWVSC is well-positioned to lead the charge for such a commission in SC.

At our annual convention in May, local Leagues voted to prioritize action on redistricting reform, and a Redistricting Workgroup was established. Matthew Saltzman and I, with the guidance of Lynn Teague, are leading this workgroup. Most of your local Leagues have already designated at least one liaison for the group; we are so appreciative of their time and energy and are excited to get to work!

We are also pleased to have new resources – including a grant and communications tools – to jumpstart our work.

We have an ambitious plan, and will need the help of every one of you to see it through. Every league will have access to tools and resources that will show their communities that:

• Gerrymandering makes our political system more polarized and hyperpartisan
• We need maps that benefit the voters, not political parties or incumbents
• Without redistricting reform, voters will continue to have less choices in the voting booth. Voters should choose their representatives, not the other way around.
• Having a gerrymandered legislature makes it hard to make progress on other issues we care about, such as a high quality public education system and protecting our natural resources (see above: hyperpartisanship and lack of choice in the voting booth.) We have to fix gerrymandering first!

Our plan includes more exciting news… For the first time in years, we are bringing back LWV Lobby Day! Members, mark your calendars for February 12. If you can be in Columbia then, contact shaynahowell@gmail.com for more information. We want to show up in large groups from across the state (on the week of our centennial anniversary!) to continue doing what we’ve been doing for 100 years – Making Democracy Work.

While there are several bills out there that would lead to improvements in the current process, we are lobbying for H. 3054 (establishing an independent redistricting commission and solid map-drawing criteria), which has bipartisan support and does not require a constitutional amendment. The bill did not make it out of subcommittee last year, so that will be our first task.

Although there is support for the bill in the legislature, there is also significant opposition, and they need to hear from the majority of South Carolinians who support redistricting reform.

We need you at Lobby Day, but we want to lay some groundwork first. There are many opportunities in coming days to have your voice heard leading up to LWV Lobby Day. They will include: testifying at legislative delegation meetings, writing letters to the editor, hosting or attending a People Powered Fair Maps Postcard Party (five times fast, anyone?) and reaching out to businesses and allied non-profits for their support. Look for these advocacy opportunities through your local League.

So… It’s All Hands On Deck! Gerrymandering has plagued South Carolina for decades, under both Democrat and Republican majorities. We are now looking ahead to the 2021 map drawing, and are concerned, since it will be the first since the Voting Rights Act in which South Carolina is no longer required to receive preclearance for their maps. This could leave the door open for substantial incumbent or partisan gerrymandering.

LWVUS has suggested this is our biggest fight since women’s suffrage. This time, we have the right to vote, now we want to make sure it counts.

By Shayna Howell
Co-Chair, LWVSC Redistricting Workgroup

shaynahowell@gmail.com

When the Supreme Court ruled last summer that political gerrymandering was not justiciable in federal court, Chief Justice Roberts proposed four alternative routes for pursuing fair maps:

• Voter initiatives
• State legislatures
• Congress
• State courts

The state court route was pursued in 2018 in Pennsylvania and, more recently, this past summer in North Carolina. In Pennsylvania, the state supreme court declared that the state’s Congressional district maps violated the state constitution’s requirement that elections be “free and fair.” New maps, drawn by a “special master” appointed by the courts and implemented in time for the 2018 elections resulted in nine Republican seats (44.75% of votes) and nine Democratic seats 55.03% of votes), compared to 13 Republican (53.91%) and five Democratic seats (45.70%) in the 2016 election.

The North Carolina case is still being pursued, but here’s a brief recap of developments from this past summer and fall. A state district court concluded that partisan gerrymandering violates the North Carolina’s constitution’s requirement that “[a]ll elections shall be free.” In September, the court found the state legislative and senate maps (drawn by the Republican-dominated legislature) unconstitutional and required the legislature and senate to redraw their maps in a manner that was open to public scrutiny. Those maps were redrawn in open sessions of the two houses and submitted for review in mid-September. At the end of October, the court finally accepted the revised legislative and senate maps but demanded new Congressional maps.

In North Carolina’s 2018 Congressional election, Republicans won 10 seats with 50.39% of the vote and Democrats won three with 48.35% of the vote. One Republican legislator famously opined that his proposed map produced 10 Republican and three Democratic seats because he did “not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

In November, the legislature passed a set of revised maps and submitted them for review by the court, but opponents expect to oppose the maps, claiming they still represent a Republican partisan gerrymander. A ruling is due December 2, and if the revised maps are not approved, the March primary election could be postponed.

In South Carolina, efforts are underway to get a legislative solution to the problem of partisan gerrymandering. There are now multiple bills that would implement some form of independent redistricting commission and/or set standards for fair maps. But the 2020 legislative session represents the last opportunity to implement a legislative solution before the 2020 Census results are published and new maps are drawn in 2021 that will stand for another decade. If the legislative effort fails, does South Carolina have a judicial recourse?

Article I, Section 5 of South Carolina’s constitution states

Elections, Free and Open

All 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.

South Carolina Constitution, Article I, Section 5

That language is similar to the language in other states that state courts have relied on in declaring partisan gerrymandering unconstitutional. Interpretation of the constitution is up to judges in each state, however. There is no certainty that South Carolina judges would follow other state courts’ precedents, although having multiple state courts in agreement would add weight to that interpretation. Even if the court agreed on the principle, it would then have to find that the actual maps were, in fact, gerrymandered. South Carolina’s current maps, drawn in 2010, were subject to “pre-clearance” under a provision of the Voting Rights Act that the Supreme Court voided in 2013. Because racial and partisan gerrymandering are often correlated, it is possible that the current maps would not appear to be as extreme as those in other states. The new maps will not be pre-cleared, so there’s no telling how they will turn out until the process runs its course.

LWVSC hopes to avoid the need to pursue this path. We will be looking to all of you to help out. Watch this space.

When the Supreme Court decided that partisan gerrymandering was non-justiciable in federal courts, Chief Justice Roberts proposed state courts as a possible remedy in some circumstances. The North Carolina judiciary is proving to be a model for implementing this remedy. We’ve been following the state court’s interventions regarding state legislative maps, and this week, the court weighed in on Congressional district maps.

It is North Carolina’s Congressional maps that we outside of North Carolina are most familiar with, from famously noncompact boundaries, the obvious cracking of Democratic-leaning Asheville (and the Gerrymandering 5k), and the recent special election in NC9 in response to the Republican campaign’s election fraud.

In our previous posts, we described the state court findings regarding state legislative districts. Last week, the court weighed in decisively on the state’s Congressional district map. The 2018 Congressional election in North Carolina resulted in Democrats winning three seats with over 70% of the vote and Republicans won the remaining ten with only one (unopposed) Republican winning more than 60%. Last week, a three-judge panel in Wake County Superior Court approved the revised legislative maps and threw out the current Congressional maps. The ruling includes a provision to postpone the 2020 primaries if fair maps are not submitted in timely fashion.

The plaintiff in this case is the National Redistricting Foundation, led by former Attorney General Eric Holder. As with other state judicial anti-gerrymandering efforts, this case relied on finding that gerrymandered maps violated the state constitution. The key in North Carolina’s 1868 constitution is a provision that “[a]ll elections shall be free.”

BREAKING: The Wake County Superior Court has lifted the confidentiality designation on over 100,000 documents from the Hofeller gerrymandering files pertaining to Arizona, Maryland, Mississippi, Missouri, North Carolina, Tennessee, Virginia, and Nassau County, Nueces County and Galveston in Texas. Additional files are still being reviewed.