Thoughtful lower federal court decisions struck down the witness requirement as an unconstitutional restriction on voting. These judges found that requiring a witness, particularly during the pandemic, placed an undue burden on voters who live alone, especially among the elderly. It forces vulnerable voters to make a tragic choice: Either risk your health by having someone observe your voting, or give up your right to vote. The judges concluded that South Carolina’s argument—that requiring a witness would help the state conduct investigations of fraudulent voting—was not sufficiently compelling to overcome the burden the law would place on certain voters. They pointed out that the South Carolina primary was recently conducted without a witness requirement and produced little or no fraud. Adding the requirement of a witness would not substantially decrease voter fraud, but it might substantially decrease the number of votes cast legitimately by voters who did not want to take the risk of contact with witnesses.
The Supreme Court reversed these lower courts, but ruled that unwitnessed mail-in votes that had already been cast could be counted. The Court’s three most conservative justices would have disallowed even votes that had legitimately been cast without witnesses pursuant to court decisions that allowed such voting. The majority ruled without rendering an opinion. Only Justice Brett Kavanaugh issued a brief concurring opinion explaining his views.
The Supreme Court’s decision was not a final one on the merits of the constitutional challenge but merely a reversal of the lower court’s preliminary injunction. But it surely sends a message about how a majority of the justices would likely decide similar cases. The message is that states are now free to impose restrictions on mail-in ballots, even if these restrictions would risk voters’ health or impede their fundamental right to vote. Other states are now free to impose similar, perhaps even greater, restrictions on the right to vote by mail.
The constitutional law regarding mail-in ballots is very much up in the air. Supporters of the Supreme Court’s decision will argue that states have the constitutional power to prohibit all mail-in ballots. They could, without violating the express terms of the Constitution, require all voters to appear in person, as was the rule at the time of the Framing of the Constitution. The Constitution simply says nothing about mail-in ballots. It only restricts the states from denying the right to vote based on race, gender, age and the inability to pay a poll tax. This does not, however, end the constitutional inquiry. If a state chooses to allow mail-in ballots, it may not violate equal protection of the law by imposing restrictions that discriminate in fact against vulnerable voters. The Supreme Court, in its 5-4 partisan decision in Bush v. Gore, has already applied the equal protection clause to state voting procedures. Although the justices went out of their way to say that that benighted decision should not serve as precedent for future cases, it surely will serve as a guide to the Court’s power.
The South Carolina decision will almost certainly encourage more judicial intervention into the 2020 presidential election, especially if mail-in ballots determine the outcome in battleground states. If one candidate were to win a majority of the in-person votes in a given battleground state, but lose because of mail-in ballots, that candidate will almost certainly claim that the ballots were infested with fraud. This will place the courts in the middle of an emotionally charged, hotly contested election. Ultimately the issues would make their way to the United States Supreme Court. If the deciding vote were cast by a justice newly nominated by one of the litigants, and confirmed along party lines, the legitimacy of the decision would be questioned by the loser and many of his supporters.
The Supreme Court has a proper role to play in our electoral system. But its role must not only be neutral and non-partisan, it must be seen to be neutral and non-partisan. The Supreme Court decision in the South Carolina case and the rush to confirm Judge Amy Coney Barrett will surely raise questions about the appearance of impartiality. Chief Justice John Roberts, who is the guardian of the Supreme Court’s integrity and reputation, must do everything in his power to make sure that the American people continue to regard the Supreme Court as the institution of last resort that deserves the respect of all Americans. A good beginning would be to resolve doubts in favor of maximizing the ability of all eligible voters to cast their ballots free of unnecessary encumbrances.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, 2019. He has a new podcast “The Dershow” on Spotify, Apple and Youtube.
The views expressed in this article are the writer’s own.
