831 S.E.2d 429
S.C.2019Background
- McBee Town Council held an at-large election for two seats; five candidates ran, and four provisional ballots were challenged as to voter residency and set aside under S.C. Code § 7-13-830.
- Excluding the four sealed provisional ballots, vote totals left Odom in third place by one vote behind Green and two behind McLeod.
- Odom timely filed a written contest under S.C. Code § 5-15-130, alleging the four challenged voters were residents and their votes would affect the result.
- The Municipal Election Commission heard testimony, found the four voters were eligible, but instead of unsealing and counting the ballots, invalidated the election and ordered a new election.
- The circuit court reversed the Commission, ordered the ballots unsealed and counted (finding § 7-13-830 applicable and that § 5-15-130 did not compel invalidation), and this appeal followed.
Issues
| Issue | Plaintiff's Argument (Odom) | Defendant's Argument (Commission/Green) | Held |
|---|---|---|---|
| Whether the Commission must order a new election under § 5-15-130 when contested votes are found legal | Odom: § 5-15-130 requires the Commission to decide issues raised; here the votes were legal and must be counted rather than invalidate the election | Appellants: § 5-15-130 only authorizes the Commission to order a new election when contest affects outcome, so ordering a new election was proper | Held: Where sealed provisional ballots exist and are identifiable, § 5-15-130 does not mandate invalidation; the Commission must unseal and count the ballots before declaring results |
| Whether counting the four provisional ballots would constitute an "irregularity" requiring invalidation | Odom: Counting preserved provisional ballots cures any prior irregularity and prevents disenfranchisement | Appellants: Addition of four votes would change outcome and therefore renders election doubtful, requiring a new election | Held: Counting four legally cast, preserved ballots is not the kind of irregularity that requires invalidation where ballots are identifiable and available |
| Whether § 7-13-830 or § 5-15-130 governs the remedy for challenged provisional ballots | Odom: § 7-13-830 prescribes procedure to seal and later unseal and count ballots; that remedy should control | Appellants: Relief under § 5-15-130 is limited to ordering new election | Held: Court did not need to resolve a § 7-13-830/§ 5-15-130 conflict; under § 5-15-130 as applied here, the proper remedy is to count the preserved ballots first |
| Whether the circuit court could declare Odom winner without counting the ballots | Odom: Circuit court should declare him prevailing based on Commissions finding that the votes were for him | Appellants: Circuit court exceeded authority if it declared winner without full statutory process | Held: Court modified circuit order: Commission must first unseal and count the four votes; only then may results and prevailing candidates be declared |
Key Cases Cited
- Taylor v. Town of Atl. Beach Election Comm'n, 363 S.C. 8, 609 S.E.2d 500 (S.C. 2005) (in municipal election contests, courts review questions of law and enforce strict statutory procedures)
- Armstrong v. Atlantic Beach Municipal Election Commission, 380 S.C. 47, 668 S.E.2d 400 (S.C. 2008) (one-vote margin and denied voters rendered result doubtful; new election ordered)
- Gecy v. Bagwell, 372 S.C. 237, 642 S.E.2d 569 (S.C. 2007) (when disputed votes cannot be identified, results may be in doubt and a new election warranted)
- Broadhurst v. City of Myrtle Beach Election Comm'n, 342 S.C. 373, 537 S.E.2d 543 (S.C. 2000) (machine malfunction produced unidentified votes making outcome uncertain; new election ordered)
- Easler v. Blackwell, 195 S.C. 15, 10 S.E.2d 160 (S.C. 1940) (close tallies plus unidentified illegal votes required invalidation and new election)