Brett Kavanaugh Explains Why Supreme Court Is Allowing Mail-In Vote Restrictions in South Carolina

The U.S Supreme Court unanimously granted a Republican request to reinstate a restriction on mail-in voting in South Carolina on Monday night. The court ordered that mail-in ballots would have to have a witness signature, a requirement waived by a lower court.

In a brief order, the court said any ballots already mailed would not require a witness signature. Some 150,000 ballots have already been sent in the state. The Supreme Court ruled ballots sent "and received within two days of this order may not be rejected for failing to comply with the witness requirement."

There were no noted dissents from the justices and the court did not explain its reasoning, which is normal for emergency orders of this kind. However, Justice Brett Kavanaugh offered his own explanation for agreeing with the decision.

Kavanaugh, who was appointed to the court by President Donald Trump, said he was in agreement for "alternative and independent reasons." The other justices did not elaborate on their positions.

Writing for himself, Kavanaugh said that the courts should not second-guess "state legislature's decision either to keep or to make changes to election rules to address COVID-19."

The law requiring witness signatures was blocked by a federal judge on September 18 and the ruling was upheld by the full 4th U.S. Circuit Court of Appeals in Richmond, Virginia.

However, Kavanaugh argued that the federal courts should not interfere with states' voting rules too close to an election, citing precedent.

"By enjoining South Carolina's witness requirement shortly before the election, the district court defied that principle and this Court's precedents," Kavanaugh wrote.

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted the Republican application in full. This would have meant that votes already cast without witness signatures would be invalidated.

U.S. District Judge J. Michelle Childs had argued that the witness requirement exposed voters to greater risk of catching COVID-19 and because it was not in place during the South Carolina primaries, it would cause confusion among voters.

The president has harshly criticized mail-in voting over the course of the election and suggested that the vote could be "rigged" because vote-by-mail is susceptible to massive voter fraud.

Brett Kavanaugh and Neil Gorsuch at SOTU
Supreme Court Justice Neil Gorsuch (L) and Supreme Justice Brett Kavanaugh attend the State of the Union address in the chamber of the U.S. House of Representatives on February 04, 2020 in Washington, DC. President Trump delivers his third State of the Union to the nation the night before the U.S. Senate is set to vote in his impeachment trial. Kavanaugh gave his reasons for supporting restrictions on mail-in ballots in South Carolina. Mario Tama/Getty Images