League of Women Voters of S.C. v. Andino

LEAGUE OF WOMEN VOTERS OF SOUTH CAROLINA; THE FAMILY UNIT, INC.;GEORGE HOPKINS; ALBERTUS CLEA, Plaintiffs - Appellees, v. MARCI ANDINO, in her official capacity as the ExecutiveDirector of the South Carolina State Election Commission;HOWARD M. KNAPP, in his official capacity as Director of Voter Servicesof the South Carolina State Election Commission;JOHN WELLS, in his official capacity as Chairof the South Carolina State Election Commission;JOANNE DAY, in her official capacity as member of the South Carolina State Election Commission;CLIFFORD J. EDLER, in his official capacityas member of the South Carolina State Election Commission;LINDA MCCALL, in her official capacity as member of the South Carolina State Election Commission;SCOTT MOSELEY, in his official capacity as member ofthe South Carolina State Election Commission, Defendants - Appellants,REPRESENTATIVE JAMES H. (JAY) LUCAS,in his capacity as Speaker of the South Carolina House of Representatives;SENATOR HARVEY PEELER, in his capacity as Presidentof the South Carolina Senate, Intervenors/Defendants - Appellants.

No. 20-2167

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: January 25, 2021

March 11, 2021

UNPUBLISHED

Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:20-cv-03537-RMG) Before KING, FLOYD, and QUATTLEBAUM, Circuit Judges.

Dismissed and remanded with instructions by unpublished per curiam opinion.

ARGUED: William Grayson Lambert, BURR & FORMAN LLP, Columbia, South Carolina; Kevin Hall, WOMBLE BOND DICKINSON (US) LLP, Columbia, South Carolina, for Appellants. Julianne J. Marley, DEBEVOISE & PLIMPTON LLP, New York, New York, for Appellees. ON BRIEF: M. Elizabeth Crum, Jane W. Trinkley, BURR & FORMAN LLP, Columbia, South Carolina, for Election Appellants. Susan P. McWilliams, Marc C. Moore, NEXSEN PRUET, LLC, Columbia, South Carolina, for James H. Lucas. M. Todd Carroll, WOMBLE BOND DICKINSON (US) LLP, Columbia, South Carolina, for Appellant Harvey Peeler. Susan K. Dunn, Shirene C. Hansotia, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTH CAROLINA, Charleston, South Carolina; Ezra Rosenberg, John Powers, LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington, D.C.; Catherine Amirfar, Rhianna Hoover, Anagha Sundararajan, Joshua Burger, DEBEVOISE & PLIMPTON LLP, New York, New York, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Prior to the 2020 presidential election, Plaintiffs-Appellees the League of Women Voters of South Carolina, The Family Unit, George Hopkins, and Albertus Clea (collectively, "the League") brought suit against South Carolina election officials to enjoin the rejection of absentee ballots with signature-based deficiencies. The district court entered a preliminary injunction on October 27, 2020, specifically prohibiting the use of signature matching by county election boards without adequate notice-and-cure procedures. Defendants-Appellants—various South Carolina State Election Commission officials and leaders of the state legislative branch (collectively, "the Officials")¹—appealed that injunction to this Court. On appeal, the Officials argue that the issue of signature matching became moot hours before the district court entered its injunction. Because the district court has not yet had the opportunity to rule on the question of mootness, we dismiss this appeal and remand to the district court to consider mootness in the first instance.

I.

A.

South Carolina law established both the South Carolina State Election Commission ("the Commission") and county election boards, which together manage elections in the state. See S.C. Code Ann. § 7-3-10 (establishing the Commission); id. § 7-5-10 (establishing county boards). County boards are responsible for, among other duties, verifying and counting absentee ballots. Id. § 7-15-420. The Commission, through its Executive Director Marci Andino, is responsible for supervising the administration of absentee voting by county boards. See id. § 7-3-20(c)(1). When Andino "determines that a county board . . . has failed to comply with applicable state or federal law . . . the State Election Commission, acting through [Andino] or other designee, must supervise . . . the county board to the extent necessary to . . . establish a plan to correct the failure[] and . . . implement the plan to correct the failure." Id. § 7-3-25(A). Andino's interpretation of state law controls over any differing interpretation by the county boards. Id. § 7-3-25(A)(3) ("In the event of a difference of policy or opinion between a county election official and the State Election Commission . . . the policy or opinion of the State Election Commission shall control.").

Typically, only certain South Carolina voters are eligible to vote absentee. See S.C. Code Ann. § 7-15-320. Eligible voters may request and receive from their county board an absentee ballot accompanied by printed instructions; a "ballot herein" envelope into which that ballot is placed; a separate, return-addressed envelope; and any other materials required to guarantee the ballot's validity. Id. §§ 7-15-330, 370. The return-addressedenvelope has printed on it an oath to be signed by the voter and a space for a witness signature. Id. § 7-15-380. State law requires county boards to reject absentee ballots that arrive in envelopes not "properly signed [by the voter] and witnessed." Id. § 7-15-420(B). Under the Commission's interpretation of state law, county boards must reject any unsigned ballot and may not provide any opportunity for a voter to correct the deficiency. The Commission therefore has instructed county boards that they may not allow voters to cure absentee ballots that do not comply with the signature requirement.

The ongoing health risks posed by COVID-19 led the state to greatly expand eligibility for absentee voting during the 2020 presidential election. See 2020 S.C. Acts 143. Anticipating a dramatic increase in the number of absentee ballots cast, the League filed suit on October 2, 2020, alleging that absentee voters risked rejection of their ballots for signature deficiencies in violation of procedural due process and the fundamental right to vote. Relevant to this appeal, the League alleged that some county boards were engaged in signature matching—a process whereby a county board compares the signature on an absentee ballot to that voter's signature in the voter registration database—to reject otherwise-valid absentee ballots.² The League contended that this practice, which was not provided for under South Carolina law, similarly violated voters' procedural due process rights and the fundamental right to vote.

B.

On October 9, 2020, the League moved for a preliminary injunction against the rejection of absentee ballots with signature deficiencies absent notice and the opportunity to cure the deficiency.³ As part of the Officials' response to this motion, Andino submitted a declaration averring that she was unaware of any signature matching by county boards; that the Commission never published any materials, provided any training, or tracked statistics on signature matching during her tenure as Commissioner; and that she knew of no state "statutes, regulations, rules, handbooks, memoranda, or other documents" concerning signature matching. J.A. 272. However, Andino acknowledged that the Charleston County Board had previously requested the Commission's permission to purchase signature-matching equipment.

In opposing the League's motion, the Officials represented that the use of signature matching to reject absentee ballots would violate state law. Following oral argument, the district court ordered Andino to survey the county boards to determine whether any boards were engaged in signature matching and if so, whether those boards had procedural safeguards in place for affected voters. In response to that survey, nine county boards responded that they were using or planning to use signature matching to reject otherwise-valid absentee ballots; five county boards declined to respond; one county board stated that it tried to use signature matching but could not keep pace with the number of ballotsreceived; and one county board indicated only that it would "follow SC Code of Laws Section 7-15-420." J.A. 281. Thirty county boards responded that they did not use signature matching to disqualify absentee ballots. Andino then filed a declaration attaching Directive No. 2020-001, which she had issued to all forty-six county boards. The Directive instructed county boards to cease signature matching because the practice was not permitted by South Carolina law.

Andino's declaration attaching Directive No. 2020-001 was filed on October 26, 2020. The next day, the district court entered an order granting in part and denying in part the League's motion for a preliminary injunction. The district court held, as to signature matching, that the League had satisfied the four-factor preliminary injunction test set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). In so holding, the court found that signature matching violated state law and that the Commission was "genuinely unaware that a minority of counties were engaged in unauthorized signature matching procedures." J.A. 313 n.4. The court preliminarily enjoined the use of signature matching by county boards unless they provided an adequate notice-and-cure procedure to the court. Importantly, the court's order did not consider what effect—if any—Directive No. 2020-01 had on the justiciability or the merits of the League's preliminary injunction motion.

The Officials timely appealed the district court's order, and the parties agreed to stay the portion of the court's injunction permitting county boards to submit notice-and-cure procedures for the court's approval. See League of Women Voters of S.C. v. Andino, No. 20-2167, 2020 U.S....