Middleton v. Andino

488 F.Supp.3d 261

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,

v.South Carolina Republican Party ; James H. Lucas, in his capacity as Speaker of the South Carolina House of Representatives; and Harvey Peeler, in his capacity as President of the South Carolina Senate, Intervenors.

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

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

Signed September 18, 2020

Christopher James Bryant, Bruce V. Spiva, Pro Hac Vice, K'Shaani Smith, Pro Hac Vice, Marc Erik Elias, Pro Hac Vice, Perkins Coie LLP, Washington, DC, Sopen B. Shah, Pro Hac Vice, Perkins Coie LLP, Madison, WI, for Plaintiffs.

Jane W. Trinkley, Mary Elizabeth Crum, William Grayson Lambert, Burr and Forman LLP-Cola, Harrison David Brant, Office of the State Treasurer, J Robert Bolchoz, Karl S. Bowers, Jr., Bowers Law Office, 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 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, "Plaintiffs") filed this action seeking declaratory and injunctive relief from certain voting requirements promulgated by the State of South Carolina. (ECF Nos. 1, 69.)

Currently before the court is Plaintiffs’ Motion for Preliminary Injunction. (ECF No. 77.) Defendants Marci Andino, John Wells, Clifford J. Edler, and Scott Moseley (collectively, "Defendants") filed a response in opposition to the Motion for Preliminary Injunction. (ECF No. 93.) Intervenors South Carolina Republican Party ("SCGOP"), Speaker of the South Carolina House of Representatives James H. Lucas ("Speaker Lucas"), and President of the South Carolina Senate Harvey Peeler ("President Peeler") (collectively, "Intervenors") also filed briefing in opposition to the Motion. (ECF Nos. 94, 100, 101.) Plaintiffs filed reply briefing to Defendants’ and Intervenors’ responses. (ECF Nos. 98, 104.)

For the reasons below, the court GRANTS IN PART AND DENIES IN PART the Motion for Preliminary Injunction. (ECF No. 77.)

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND¹

1. The instant Motion seeks to enjoin four provisions related to absentee voting in South Carolina. Plaintiffs allege that the application of three of these provisions during the COVID-19 pandemic violates the United States Constitution and federal law and seek injunctive relief solely for the upcoming November 2020 General Election. The three provisions at issue include: the requirement that another individual must witness a voter's signature on an absentee ballot envelope for the ballot to be counted ("Witness Requirement");² the requirement that absentee ballots must be received by 7:00 p.m. on Election Day to be counted ("Election Day Cutoff"); and the restriction that bars those under sixty-five from voting absentee without another qualifying excuse, while authorizing those sixty-five and over to vote absentee based solely on their age ("Absentee Age Restriction"). Plaintiffs bring a facial constitutional challenge against the fourth provision—which bans political candidates or paid campaign staff from collecting and returning completed absentee ballots ("Candidate Collection Ban")—and request injunctive relief on this provision beyond the November 2020 General Election.

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

2. "The COVID-19 pandemic, also known as the coronavirus pandemic, is an ongoing pandemic of coronavirus disease (‘COVID-19’) caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)." COVID-19 pandemic , https://en.wikipedia.org/wiki/COVID-19_pandemic (last visited Aug. 20, 2020).³

3. Persons with COVID-19 may exhibit the following symptoms: cough ; shortness of breath or difficulty breathing; fever; chills; muscle pain; fatigue; congestion or runny nose; 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 Aug. 28, 2020).⁴ "Anyone can have mild to severe symptoms." Id.

4. The COVID-19 virus is spread by "direct, indirect (through contaminated objects or surfaces), or close contact with infected people via mouth and nose secretions. These include saliva, respiratory secretions or secretion droplets." Q&A: How is COVID:19 transmitted? , https://www.who.int/emergencies/diseases/novel-coronavirus-2019/question-and-answers-hub/q-a-detail/q-a-how-is-covid-19-transmitted (last visited Aug. 20, 2020).

There have been reported outbreaks of COVID-19 in some closed settings, such as restaurants, nightclubs, places of worship or places of work where people may be shouting, talking, or singing. In these outbreaks, aerosol transmission, particularly in these indoor locations where there are crowded and inadequately ventilated spaces where infected persons spend long periods of time with others, cannot be ruled out. More studies are urgently needed to investigate such instances and assess their significance for transmission of COVID-19.

Id. Additionally, "[i]t may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes. This is not thought to be the main way the virus spreads, but we are still learning more about how this virus spreads." How COVID-19 Spreads , https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited Sept. 8, 2020).

5. Although it appears COVID-19 transmission primarily occurs through individuals who already exhibit symptoms, transmission can occur "just before they develop symptoms." Q&A: How is COVID:19 transmitted? , https://www.who.int/emergencies/diseases/novel-coronavirus-2019/question-and-answers-hub/q-a-detail/q-a-how-is-covid-19-transmitted (last visited Aug. 20, 2020). Transmission is also possible by individuals who become infected yet never develop symptoms. Id.

6. Individuals with an increased risk of severe illness due to COVID-19 include older adults, as well as people with medical conditions, disabilities, or developmental and behavioral disorders. People at Increased Risk , https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/index.html (last visited Sept. 17, 2020). "Severe illness means that the person with COVID-19 may require hospitalization, intensive care, or a ventilator to help them breathe, or they may even die." Id.

7. Racial and ethnic minority groups also appear to have an "increased risk of getting sick and dying from COVID-19." Health Equity Considerations and Racial and Ethnic Minority Groups , https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/race-ethnicity.html?CDC_AA_refVal=https% 3A% 2F% 2Fwww.cdc.gov% 2Fcoronavirus% 2F2019-cov% 2Fneed-extra-precautions% 2Fracial-ethnic-minorities.html (last visited Aug. 28, 2020). "There is increasing evidence that some racial and ethnic minority groups are being disproportionately affected by COVID-19. Inequities in the social determinants of health, such as poverty and healthcare access, affecting these groups are interrelated and influence a wide range of health and quality-of-life outcomes and risks." Id. (citations omitted).

8. In its suggestions for slowing the spread of COVID-19, the CDC recommends that people should: "[k]now how [COVID-19] spreads[,]" "[w]ash [their] hands often[,]" "[a]void close contact[,]" "[c]over [their] mouth and nose with a mask[,]" "[c]over coughs and sneezes[,]" "[c]lean [and] disinfect ... frequently touched surfaces daily[,]" and "[m]onitor [their] daily health." How to Protect Yourself & Others , https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last visited Aug. 28, 2020). The CDC notes that a "mask is not a substitute for social distancing." Id.

B. National/International Response

9. On January 30, 2020, the World Health Organization ("WHO") declared that an outbreak of COVID-19 was a Public Health Emergency of International Concern. Statement on the second meeting of the International Health Regulations (2005 Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV) , https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov) (last visited Sept. 8, 2020). It subsequently declared the outbreak a pandemic on March 11, 2020. WHO Director-General's opening remarks at the media briefing on COVID-19 , https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 (last visited Sept. 17, 2020).

10. On March 13, 2020, the President of the United States pronounced "the ongoing Coronavirus Disease 2019 (COVID-19) pandemic is of sufficient severity and magnitude to warrant an emergency declaration for all states, tribes, territories, and the District of Columbia, pursuant to section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 - 5207." FEMA COVID-19 Emergency Declaration , https://www.fema.gov/news-release/2020/03/13/covi...