Case: Bailey v. Andino

COVID-19 Summary: On April 22, 2020, two Democratic candidates, the South Carolina Democratic Party, and the Democratic Congressional Campaign Committee filed this lawsuit against the South Carolina State Election Commission. The petitioners sought declaratory relief that in the context of the COVID-19, all South Carolina voters are physically disabled persons within the meaning of the South Carolina statute and are eligible to vote absentee. The Supreme Court of South Carolina dismissed the case on May 27.

On April 22, 2020, two Democratic candidates, the South Carolina Democratic Party, and the Democratic Congressional Campaign Committee filed this lawsuit against the South Carolina State Election Commission at the South Carolina Supreme Court. The plaintiffs brought this lawsuit under South Carolina law, arguing that the existing statutes governing absentee voting permitted all South Carolina registered voters to vote by absentee ballot in the June 9 primary election and November 3 general election. Plaintiffs also implicitly contended that if existing law did not permit this, it should in light of COVID-19. The plaintiffs sought relief declaring that in the context of the COVID-19, all South Carolina voters practicing social distancing are physically disabled persons within the meaning of the South Carolina statute and are eligible to vote absentee if they did not wish to vote in person on election day because of COVID-19. The plaintiffs were represented by private attorneys and also sought attorney fees.

The South Carolina Republican Party intervened and filed a motion to dismiss, and the Attorney General submitted an amicus curiae memorandum.

On May 12, oral argument was held. During that time, both the House and the Senate enacted legislation to temporarily change the law, and the new bill allowing more liberal use of absentee ballots for the June primary election was signed by the Governor on May 13. Under the new bill, 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 was 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. However, this legislation expired on July 1, with legislative sessions to resume in September to decide whether a similar revision should be made for the November general election.

On May 27, the case was dismissed on the ground that it did not present a justiciable controversy. The Court noted that “the fact the Legislature changed the law to permit every voter to vote in the primary by absentee ballot is a clear indication the absentee voting statutes did not already permit that.” Therefore, while the Court recognized that statutory interpretation was a judicial question, the Legislature had already considered and answered the question with clarity, rendering no justiciable controversy.

Judge Kaye G. Hearn concurred in part and dissented in part, saying that the majority acted in haste to dismiss the allegations that the current election code may affect free and fair elections in the fall.