Earlier this year, South Carolina’s state legislature passed a wave of new election restrictions in a state that was already one of the most difficult places to vote in the country.
Republicans in control of the legislature and governor’s office enacted S108 in May 2022. While it created a 12-day early voting period that hadn’t previously existed, it makes it more difficult to vote absentee and increases penalties for election workers who don’t adhere to their responsibilities and for voters who present a fake ID or impersonate a person in order to vote.
Instances of this kind of fraud happening are almost nonexistent in South Carolina and across the country. Voting rights advocates have called the over-criminalization of voting violations while creating ever more complicated rules for voting a disenfranchisement tactic.
This year’s changes in part reverse easing of absentee ballot restrictions temporarily made amid COVID-19 pandemic concerns in 2020.
South Carolina has a history of making it more difficult to vote, particularly for voters of color. The federal Voting Rights Act included South Carolina as one of seven states required to get preclearance from the federal government before changing election laws because of its history of discrimination.
After the U.S. Supreme Court struck down the Voting Rights Act’s preclearance clause in its 2013 Shelby v. Holder decision, South Carolina was free to pass disenfranchisement laws that would have never been allowed to go into effect previously.
Since then, the state has faced mounting legal challenges after enacting a restrictive voter ID law, not having a ballot curing process, and perpetuating racial gerrymandering in its new electoral maps.
“The last few years have been a mixed bag. In some ways 2020, because of the accommodations because of the pandemic, it was maybe a high water mark for voting access because of the availability to absentee ballots,” said Allen Chaney, legal director at the American Civil Liberties Union of South Carolina. “None of the restrictions are tethered to any evidence of voter fraud. None of them are tethered to an interest by the state, you know, to have full and fair elections, and so that sort of begs the question of why.”
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This project looks at the state of voting access, voting rights and inequities in political representation in all 50 states and Washington, D.C.
While South Carolina didn’t close a vast number of polling places in the immediate aftermath of the 2013, Shelby v. Holder Supreme Court case, that will change this year.
The legislature passed S236 in May, changing polling places requirements. Counties are now required to have one polling place per 3,000 voters, down from the previous requirement of one polling place per 500 voters.
Racial gerrymandering lawsuit
South Carolina has a decades-long history of racial gerrymandering aimed at diluting Black people’s voting power in the state.
After the 2020 census was released, South Carolina’s state legislature began redrawing electoral districts but suspended the process in fall 2021 with no stated plan for when they might resume.
In response, a half dozen civil rights organizations filed a lawsuit in October 2021 accusing the state legislature of stalling the redistricting process to thwart potential legal challenges over racial gerrymandering.
“In four out of the last five redistricting cycles, federal court intervention was necessary for South Carolina to have legally compliant maps,” the lawsuit said.
After new maps were signed into law in December, the same civil rights groups filed an amended complaint over racial gerrymandering stating the state’s process of redistricting violated the U.S. Constitution’s 14th Amendment.
The manner and rules in which the state house and congressional maps were created were not consistent, and the legislature’s methodology was not transparent to the public, said Curtis Askew, a data consultant for the NAACP Legal Defense Fund in the lawsuit. Charleston, which has the highest concentration of Black voters in the state, for example, was divided up between multiple districts.
Askew’s role in the lawsuit has been to create techniques for drawing maps around communities of interest to ensure they are not divided up.
“So the question that comes into play for me is at the time when what the people who have to live with the lines and the consequences of the lines, when they should be central to the process, they were shoved to the side, and the rules that were created were an abomination,” Askew said.
For redistricting of state legislative districts, an agreement was reached in May for part of the lawsuit to be dropped and some new districts drawn. But the new maps will not take effect until 2024.
The suit’s case against congressional districts will be argued this fall. Askew said even under the new state house maps, there are still issues. Many of the districts are drawn to ensure incumbents win their seats back and not in the interest of voters or the new changes in population, he said.
“It does not seem as if there was a lot of attention paid to communities of interest in terms of where they would be,” Askew said. “It was simply about the musical chairs and keeping the elected officials, Black and white.”
While a handful of states, including Oregon and Colorado, have passed legislation aimed at protecting election workers from harassment and false charges of fraud, South Carolina’s S108 calls for election officials to be charged with a felony for prematurely releasing absentee election results, publicly reporting ballot results before polls close or violating “any of their duties.”
Since the 2020 election, South Carolina is one of 12 states that have enacted harsher penalties against election workers and officials.
According to a Brennan Center of Justice survey published last year, one in three election workers feels unsafe in their job.
Chaney called it a symbolic gesture to the state Republican leaders’ base.
Absentee voting restrictions
During the 2020 election, South Carolina’s state legislature passed a law that allowed no-excuse-required absentee voting as people worried about exposure to COVID-19 if they had to physically go to the polls. Lawmakers then went back to the old system of allowing absentee voting for people who qualify under a limited number of circumstances.
In general, S108 has made absentee voting in the state a lot more difficult. In addition to the excuse requirement, in order to qualify for an absentee ballot the voter has to be away from the residence for the state’s entire 12-day early voting period leading up to Election Day. Absentee voters are also required on the ballot application to provide the last four digits of their Social Security number — which was previously only required for the online application — and their voter registration certificate number.
Once voters are ready to return their ballots, they can either do so by mail, which will require them to purchase their own postage, or drop it off in person at an election office during office hours. The ballot has to be received by 7 p.m. on Election Day to count.
If the voter chooses to return the ballot in person they have to present an approved photo ID or the election official does not have to accept the ballot.
S108 bans ballot drop boxes.
“It’s sort of a needless, baseless attempt to make it more difficult to vote, and there’s been no evidence that we have any more or any less voter fraud because of ballot drop boxes,” Chaney, of the ACLU, said.
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