Thomas v. Andino

• Citation: 613 F.Supp.3d 926
• Docket Number: Civil Action No. 3:20-cv-01552-JMC, Civil Action No. 3:20-cv-01730-JMC
• Decision Date: 25 May 2020
• Parties: Mary T. THOMAS, Nea Richard, Jeremy Rutledge, Trena Walker, Dr. Brenda Williams, and The Family Unit, Inc., Plaintiffs, v. Marci ANDINO, as Executive Director of the State Election Commission, John Wells in his official capacity as Chair of SC State Election Commission, Clifford J. Edler and Scott Moseley in their official capacities as Members of the South Carolina State Election Commission, and Henry D. McMaster in his official capacity as Governor of South Carolina, Defendants. Kylon Middleton; Deon Tedder; Amos Wells; Carylye Dixon; Tonya Winbush; Ernestine Moore; South Carolina Democratic Party; DNC Services Corporation/Democratic National Committee and DCCC, Plaintiffs, v. Marci Andino, in her official capacity as Executive Director of the South Carolina State Election Commission, John Wells in his official capacity as Chair of South Carolina State Election Commission, and Clifford J. Edler and Scott Moseley, in their official capacities as members of the South Carolina State Election Commission, Defendants.
• Court: U.S. District Court — District of South Carolina

613 F.Supp.3d 926

Mary T. THOMAS, Nea Richard, Jeremy Rutledge, Trena Walker, Dr. Brenda Williams, and The Family Unit, Inc., Plaintiffs,

v.Marci ANDINO, as Executive Director of the State Election Commission, John Wells in his official capacity as Chair of SC State Election Commission, Clifford J. Edler and Scott Moseley in their official capacities as Members of the South Carolina State Election Commission, and Henry D. McMaster in his official capacity as Governor of South Carolina, Defendants.

Kylon Middleton; Deon Tedder; Amos Wells; Carylye Dixon; Tonya Winbush; Ernestine Moore; South Carolina Democratic Party; DNC Services Corporation/Democratic National Committee and DCCC, Plaintiffs,

v.Marci Andino, in her official capacity as Executive Director of the South Carolina State Election Commission, John Wells in his official capacity as Chair of South Carolina State Election Commission, and Clifford J. Edler and Scott Moseley, in their official capacities as members of the South Carolina State Election Commission, Defendants.

Civil Action No. 3:20-cv-01552-JMC

Civil Action No. 3:20-cv-01730-JMC

United States District Court, D. South Carolina, Columbia Division.

Signed May 25, 2020

Susan King Dunn, American Civil Liberties Union of SC Foundation, Charleston, SC, Adriel I. Cepeda Derieux, Pro Hac Vice, Dale Edwin Ho, Pro Hac Vice, Sophia Lin Lakin, Pro Hac Vice, Theresa Lee, Pro Hac Vice, American Civil Liberties Union Foundation, Deuel Ross, Pro Hac Vice, NAACP Legal Defense and Educational Fund, New York, NY, for Plaintiffs.

Jane W. Trinkley, Mary Elizabeth Crum, William Grayson Lambert, Burr and Forman LLP, Harrison David Brant, Office of the State Treasurer, Karl S. Bowers, Jr., Bowers Law Office, J. Robert Bolchoz, Columbia, SC, for Defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER AND OPINION GRANTING IN PART MOTION FOR PRELIMINARY INJUNCTION

J. MICHELLE CHILDS, United States District Judge

I. INTRODUCTION

In the first of two related actions, Plaintiffs Mary T. Thomas, Nea Richard, Jeremy Rutledge, Trena Walker, Dr. Brenda Williams, and The Family Unit, Inc. (collectively "Thomas Plaintiffs") filed a Complaint for Injunctive and Declaratory Relief against Defendants Marci Andino, John Wells, Clifford J. Edler, and Scott Moseley, in their official capacities as Commissioners of the South Carolina State Election Commission ("SCEC"), and Governor Henry D. McMaster of South Carolina (collectively "Defendants"), seeking to enjoin specified laws promulgated by the State of South Carolina regarding voting by absentee ballot. Thomas v. Andino , C/A No.: 3:20-cv-01552-JMC, 2020 WL 1941462, ECF No. 1 (D.S.C. Apr. 22, 2020) (hereinafter " Thomas "). Specifically, due to alleged vulnerabilities to COVID-19, Thomas Plaintiffs challenge (1) "the requirement setting forth exclusive categories of ‘[p]ersons qualified to vote by absentee ballot,’ in South Carolina (the ‘Excuse Requirement’)[,] S.C. Code Ann. § 7-15-320" (West 2020), and (2) South Carolina's requirement that a witness be present when a voter signs their ballot pursuant to S.C. Code Ann. § 7-15-380 (West 2020) (the "Witness Requirement"). (ECF No. 1 at 2 ¶ 3, 3 ¶ 4, 40 ¶ 104, 41 ¶ 107.)

In the second action, Plaintiffs Kylon Middleton, Deon Tedder, Amos Wells, Carylye Dixon, Tonya Winbush, Ernestine Moore, the South Carolina Democratic Party ("SCDP"), DNC Services Corporation/Democratic National Committee ("DNC"), and DCCC (collectively "Middleton Plaintiffs") filed a Complaint against Defendants Andino, Wells, Edler, and Moseley (grouped together as the "SCEC Defendants") also seeking to enjoin specified laws promulgated by the State of South Carolina regarding voting by absentee ballot. Middleton v. Andino , C/A No.: 3:20-cv-01730-JMC, ECF No. 29 at 4 (refencing ECF No. 1) (D.S.C. May 13, 2020) (hereinafter "Middleton "). Middleton Plaintiffs challenge the following: (1) the Witness Requirement; (2) that "South Carolina does not provide pre-paid postage on its mail-in absentee ballots, requiring voters to independently secure postage for their ballot to be counted (the ‘Postage Tax’)"; (3) that "South Carolina rejects all mail-in absentee ballots not received by the county by 7:00 p.m. on Election Day (the ‘Election Day Cutoff’)[,]" S.C. Code Ann. § 7-15-230 (West 2020) ; and (4) that "South Carolina makes it a felony for a candidate or paid campaign staff to assist voters with returning their voted absentee ballots to elections officials (the ‘Absentee Assistance Ban’)[,]" S.C. Code Ann. § 7-15-385 (West 2020). (ECF No. 1 at 3–4 ¶¶ 5–8 (Middleton ).)

This matter is before the court on separate Motions for Preliminary Injunction filed by Thomas Plaintiffs and Middleton Plaintiffs.¹ (ECF No. 7 (Thomas ); ECF No. 13 (Middleton ).) Thomas Plaintiffs’ Motion for Preliminary Injunction is centered on enjoining (1) the Excuse Requirement and (2) the Witness Requirement before the June 2020² primaries in South Carolina.³ (ECF No. 7 at 1 (Thomas ).) In their Motion for Preliminary Injunction, Middleton Plaintiffs focus on (1) "the categorical prohibition on all ages under 65 from casting a mail-in absentee ballot unless they fall into narrow and limited categories such as disabled or confined in jail (‘Absentee Ballot Age Restriction’), S.C. Code Ann. § 7-15-320(B)(8)"; (2) the Witness Requirement; and (3) the Election Day Cutoff. (ECF No. 13 at 7 (Middleton ).) For the reasons set forth below, the court GRANTS IN PART AND DENIES IN PART Thomas Plaintiffs’ Motion for Preliminary Injunction (ECF No. 7) and GRANTS IN PART AND DENIES IN PART Middleton Plaintiffs’ Motion for Preliminary Injunction (ECF No. 13).

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Coronavirus Pandemic and Highly Contagious Nature of COVID-19

i. The COVID-19 Virus Generally

1. "The COVID-19 pandemic, also known as the coronavirus pandemic, is an ongoing pandemic of coronavirus disease 2019 (‘COVID-19’) caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)." COVID-19 pandemic , https://en.wikipedia.org/wiki/COVID-19_pandemic#cite_note-auto-5 (last visited May 24, 2020).⁴

2. "COVID-19 is caused by a new coronavirus." CDC Coronavirus Disease 2019 (COVID-19) , https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html?CDCAA_refVal=https% 3A% 2F% 2Fwww.cdc.gov% 2Fcoronavirus% 2F2019-ncov% 2Fsummary.html (last visited May 24, 2020). "Coronaviruses are a large family of viruses that are common in people and many different species of animals, ...." Id. The new coronavirus causes illness ranging "from very mild (including some people with no reported symptoms) to severe, including illness resulting in death." CDC Coronavirus Disease 2019 (COVID-19) , https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html#severity (last visited May 24, 2020).⁵

3. Persons with COVID-19 may exhibit the following symptoms: cough

; shortness of breath or difficulty breathing; fever; chills; muscle pain; sore throat; new loss of taste or smell; nausea; vomiting; or diarrhea. Symptoms of Coronavirus , https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html?CDC_AA_refVal=https% 3A% 2F% 2Fwww.cdc.gov% 2Fcoronavirus% 2F2019-ncov% 2Fabout% 2Fsymptoms.html (last visited May 24, 2020).

4. The COVID-19 virus is primarily spread "from person to person through small droplets from the nose or mouth, which are expelled when a person with COVID-19 coughs

, sneezes, or speaks." WHO , https://www.who.int/emergencies/diseases/novel-coronavirus-2019/question-and-answers-hub/q-a-detail/q-a-coronaviruses (last visited May 24, 2020).

5. People may also become infected by touching a contaminated surface and then touching their eyes, nose, or mouth. Id.

6. The COVID-19 virus is most contagious "within the first 3 days from the onset of symptoms," although spread may be possible before symptoms appear⁶ and in later stages of the disease. Id. at https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200402-sitrep-73-covid-19.pdf?sfvrsn=5ae25bc7_4 (last visited May 24, 2020).

7. Research suggests that COVID-19 transmission "cannot be accounted for solely by transmission from symptomatic persons." CDC Emerging Infectious Diseases , https://wwwnc.cdc.gov/eid/article/26/7/20-1595_article (last visited May 24, 2020).

8. The Centers for Disease Control and Prevention ("CDC") has opined that "[b]ased on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19." CDC Coronavirus Disease 2019 (COVID-19) , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited May 24, 2020). The CDC further believes that the following persons are "at high-risk for severe illness from COVID-19":

People 65 years and older; People who live in a nursing home or long-term care facility; People of all ages with underlying medical conditions, particularly if not well controlled, including: People with chronic lung disease

or moderate to severe asthma ; People who have serious heart conditions; People who are immunocompromised; ... People with severe obesity (body mass index [BMI] of 40] or higher); People with diabetes ; People with chronic kidney disease undergoing dialysis; and People with liver disease.

Id.

9. The CDC has also determined that pregnant women, persons with disabilities, people experiencing homelessness, and racial and ethnic minority groups may be at a higher risk of infection or severe illness because of their underlying health condition, have an increased ability to develop respiratory conditions, may live in congregate settings, or are more affected by health disparities as a result of economic or social conditions. See id. at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/other-at-risk-populations.html (last visited May 24, 2020).

10. "The effects of COVID-19 on the health of racial...