This piece was originally printed in the Greenville News on Wednesday, April 14, 2021.
By Senator Shane Massey
South Carolina’s election laws are strong and fair. That was evident in 2020 with record turnout and statewide confidence in the results.
But there are major issues that must be addressed: the State Election Commission’s failure to defend our election laws, and Gov. Henry McMaster’s refusal to hold the commission accountable.
Last year our election laws were challenged five times in federal court and once in state court.
One lawsuit alleged that some counties were improperly verifying signatures on absentee ballots and inconsistently addressing signature discrepancies. In response to that suit, the House of Representatives passed legislation to give the State Election Commission “plenary authority,” meaning complete and absolute power, to ensure consistent application and enforcement of election laws.
But the problem is not that the commission lacks authority to enforce the law. Current law already requires the commission’s director to communicate with county offices, supervise their conduct, and ensure they comply with the law. If county officials refuse to comply, the commission can revoke local officials’ credentials and recommend they be fired.
The problem is not that the commission and its director cannot enforce state law. The problem is they don’t.
State law allows voters to return absentee ballots in person, but those ballots must be delivered to election officials to confirm the returner’s identity and must be stored in a locked box inside the office. This law combats ballot harvesting, and it’s why we do not allow drop boxes. The director knew state law prohibits drop boxes, and she knew some counties have used them in past elections anyway. She did not stop it.
In March 2020, about six weeks before last year’s statewide primaries, the director recommended that legislators remove the witness signature requirement for absentee ballots and allow all voters to vote by mail. She suggested preemptively mailing ballots to all registered voters and allowing voters to return their ballots at drop boxes. That letter was later used against South Carolina in federal court.
State law requiring absentee ballots to have a witness signature deters fraud and gives law enforcement tools to investigate fraud claims. The federal plaintiffs asked the court to eliminate that requirement for last year’s primaries.
The State Election Commission, clearly opposed to the law, put up a tepid defense. The court struck the witness requirement. The commission did not appeal. Consequently, absentee voters were not required to have a witness signature for the 2020 primaries.
In another federal suit, the plaintiffs claimed that requiring absentee voters to put a stamp on the return envelope was the equivalent of a poll tax. After receiving approval from McMaster’s office, the commission essentially conceded the point and agreed to provide postage-paid envelopes to all absentee voters.
In July 2020, the commission’s director sent a second letter to legislative leadership, again recommending that the legislature remove the witness requirement for absentee ballots, allow drop boxes, and establish a vote-by-mail program. That letter was used as the basis for a lawsuit filed in state court.
The federal plaintiffs then asked the court to eliminate the witness requirement for November’s general election. At that point, after the director’s letters and the commission’s lukewarm defense of state law, the president of the Senate and the Speaker of the House intervened.
When the federal district court again struck the witness requirement, President Harvey Peeler and Speaker Jay Lucas appealed to defend state law, and the United States Supreme Court upheld South Carolina’s witness requirement.
But that would not have happened if the commission had been allowed to continue its weak defense of state law.
So how do the commissioners and director get their jobs? Who supervises them?
Current law allows the governor to appoint and supervise all five commissioners. The commission selects the director. There is no other check.
Despite last year’s actions, McMaster has made no changes. All commissioners and the director still have their jobs.
The Senate recently passed legislation to require Senate advice and consent for all commission appointments and the executive director. McMaster called the Senate’s action a “power grab.”
But requiring advice and consent merely treats the commission and its director like nearly every state agency, an important part of the framers’ system of checks and balances. And it’s especially important when the governor is disengaged.
South Carolina’s election laws are strong. But those charged with enforcing and defending our laws have been weak. That’s the problem we all have to fix.
A. Shane Massey, a Republican from Edgefield, represents the 25th District in the South Carolina Senate. Massey became the Republican Majority Leader in 2016.