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In Bailey v. South Carolina State Election Commission, the Supreme Court of South Carolina, accepting original jurisdiction, dismissed an action that sought to expand South Carolina’s absentee ballot provisions in light of the ongoing COVID-19 pandemic.[1]

The plaintiffs in Bailey were candidates in the South Carolina Democratic primary, the South Carolina Democratic Party, and the Democratic Congressional Campaign Committee (DCCC). They argued that the state’s absentee balloting laws, which permit absentee voting by “physically disabled persons,” encompass those practicing social distancing to avoid contracting or spreading COVID-19.[2] Such voters, plaintiffs argued, could not vote in person in the state’s June primary or November general elections “because of . . . illness” and were therefore “physically disabled persons” under South Carolina’s absentee balloting laws.[3] Carrying this argument to its ultimate conclusion, plaintiffs maintained that this construction would permit all registered voters to vote by absentee ballot for the duration of the COVID-19 pandemic.[4] Although all five justices of the state’s Supreme Court agreed that the claim should be dismissed, there was a split in reasoning.

The majority held that this case presented a nonjusticiable political question, and that it was not appropriate for the court to weigh in. As the court noted, on the same day it heard oral argument in Bailey, the South Carolina legislature met and approved temporary changes to the election law to allow all qualified electors to vote absentee if their place of residence or polling place was located within an area subject to a state of emergency declared by the governor and it was within 46 days of an election.[5] The next day, this legislation was signed into law. Because at the time there existed a declared state of emergency in South Carolina, and it was within 46 days of the June primary election, the Court recognized that the legislature had mooted the plaintiffs’ case with respect to the June election.[6] However, the new legislation expired on July 1, 2020, leaving the issue potent for the November general election.

Nonetheless, the majority considered the legislature’s action in changing the law as “a clear indication the absentee voting statutes did not already permit” any voter practicing social distancing to vote absentee.[7] Furthermore, the court said, by providing an expiration date in the new law, the legislature was reenacting the old law as of July 1.[8] As a result of this “legislative determination” of the plaintiffs’ challenge, the majority considered itself constrained by a construction of South Carolina’s absentee voting law “not based on its plain language or the canons of construction, but based on the Legislature’s political act of reenacting the subsection after temporarily changing the law.”[9] The legislature’s answer to the plaintiffs’ challenge “with absolute clarity” rendered the question—in the view of the majority—a “political question.” Accordingly, the court felt bound by separation of powers principles to abstain from reaching a different conclusion. “[W]hen the Legislature considers the very same question—knowing it is doing so at the very same time the Court considers the question—and answers the question with clarity, we cannot give a different answer through the judicial act of statutory interpretation.”[10]

The majority clarified, however, that the plaintiffs were not without potential relief—it just would not come from the court. The South Carolina legislature, by joint resolution, set September 15, 2020, to resume legislative session and consider, among other items, “legislation concerning COVID-19.”[11] At that time, it will be left to the legislature to “consider this political question.” After all, as the majority explained, it is “the Legislature which bears the constitutional obligation to ensure that elections are carried out in such a manner as to allow all citizens the right to vote.”[12] Accordingly, the legislature may still make a change in South Carolina’s absentee voting law for the November general election, but the court will not.

Although the dissent agreed with the decision to dismiss plaintiffs’ case, it would not have done so with the same finality as the majority.[13] Relying on the familiar doctrine from Marbury v. Madison that “it is emphatically the province and duty of the judicial department to say what the law is,” the dissent would have viewed the question as one of pure statutory interpretation, not a political question.[14] The dissent rejected the notion that “the action or inaction of the General Assembly . . . determine[s] whether a question is political, and therefore, nonjusticiable.”[15] Instead, it would have considered the “plain and ordinary meaning of ‘physically disabled persons,’ as defined” under South Carolina law.[16] Nonetheless, the dissent would have still dismissed the complaint “on the ground that the matter involving the general election is not yet ripe for judicial consideration, which would not foreclose a future suit.”[17]

As more cases arise and the November election approaches, the volume of state and federal litigation is expected to increase. The role of state courts in these political question and separation of powers cases will likely be tested in a number of state courts in the coming months.


Note from the Editor:

The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We do invite responses from our readers. To join the debate, please email us at [email protected].

[1] Bailey v. S.C. State Election Comm’n, No. 27975 (May 27, 2020), available at

[2] Id. (slip op. at 4).

[3] Id.; S.C. Code Ann. §§ 7-15-310(4) and 7-15-320(B)(1).

[4] Bailey, No. 27975 (slip op. at 4).

[5] Id.

[6] Id. (slip op. at 5); S.C. Exec. Order No. 2020-35 at 9 (May 12, 2020).

[7] Bailey, No. 27975 (slip op. at 5).

[8] Id.

[9] Id. (slip op. at 5-6).

[10] Id. (slip op. at 6).

[11] Id.

[12] Id.

[13] Id. (slip op. at 8) (Hearn, J., concurring in part, dissenting in part).

[14] Id. (quoting Marbury v. Madison, 5 U.S. 137, 177 (1803)).

[15] Id. (slip op. at 10).

[16] Id.

[17] Id. (slip op. at 11).