Odom v. Town of McBee Election Comm'n , 427 S.C. 305 ( 2019 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Glenn Odom, Respondent,
v.
Town of McBee Election Commission and Shilon Green,
Appellants.
Appellate Case No. 2019-000147
Appeal from Chesterfield County
Roger E. Henderson, Circuit Court Judge
Opinion No. 27901
Heard May 29, 2019 – Filed July 24, 2019
AFFIRMED AS MODIFIED AND REMANDED
Martin S. Driggers, Jr., of Sweeny, Wingate & Barrow,
P.A., of Hartsville, Richard E. McLawhorn, Jr., of
Sweeny, Wingate & Barrow, P.A., of Columbia, and Karl
S. Bowers, Jr., of Bowers Law Office, LLC, of Columbia,
for Appellants.
Kathleen C. Barnes, of Barnes Law Firm, LLC, of
Hampton, John E. Parker and William F. Barnes, III, both
of Peters, Murdaugh, Parker, Eltzroth & Detrick, of
Hampton, for Respondent.
JUSTICE JAMES: This is an appeal arising from a McBee Town Council election
contest commenced by candidate Glenn Odom. The McBee Municipal Election
Commission ruled on the contest, and Odom appealed the Commission's decision to
the circuit court. The circuit court ruled in favor of Odom, and the Commission and
candidate Shilon Green (collectively, Appellants) appealed to this Court. We affirm
the circuit court as modified, remand to the Commission, and order the Commission
to proceed in accordance with our holding.
"In municipal election cases, we review the judgment of the circuit court only
to correct errors of law." Taylor v. Town of Atl. Beach Election Comm'n, 363 S.C.
8, 12, 609 S.E.2d 500, 502 (2005). "Our review does not extend to findings of fact
unless those findings are wholly unsupported by the evidence." Id.
"There was no right to contest an election under the common law." Id. at 14,
609 S.E.2d at 503. In South Carolina, the right to contest an election exists only
under our constitutional and statutory provisions, and "the procedure proscribed by
statute must be strictly followed." Taylor v. Roche, 271 S.C. 505, 509, 248 S.E.2d
580, 582 (1978); see also S.C. Const. art. II, § 10 ("The General Assembly
shall . . . establish procedures for contested elections, and enact other provisions
necessary to the fulfillment and integrity of the election process."). Statutes which
are in derogation of the common law must be strictly construed. See Doe v. Brown,
331 S.C. 491, 496, 489 S.E.2d 917, 920 (1997).
I.
On September 4,1 2018, the Town of McBee held an at-large election to fill
two seats on its Town Council. The five candidates for the two seats are Odom,
Kemp McLeod, Donald Robinson, Sim Tyner, and Appellant Green; the two
candidates with the most votes will fill the two seats. During the election, several
people attempting to vote were challenged as nonresidents of McBee. This appeal
centers upon votes cast by four of the challenged voters.
Section 7-13-830 of the South Carolina Code (2019) requires such challenged
votes to be received, placed in an envelope, set aside, and delivered to the authority
having control over the election (here, the Commission). This procedure was
followed in the instant case, and the four sealed votes remain in the possession of
the Commission. During a called meeting after the election, the Commission
1
Appellants state in their brief the election was held on Wednesday, September 5.
Odom states in his brief the election was held on Tuesday, September 4. The record
on appeal contains nothing definitive as to the true date of the election, but during
oral argument, counsel for the Commission stated the election was on September 4.
decided to not count these votes; the reasoning behind this decision is not in the
record but is irrelevant to the issues before us. Not including these four votes,
McLeod received 212 votes, Green received 209 votes, Odom received 208 votes,
Robinson received 182 votes, and Tyner received 8 votes.
On September 6, 2018, Odom delivered a letter to the Commission in which
he stated, "I would like to contest the official results" of the election. In the letter,
he stated the four voters resided in McBee and were therefore qualified to vote in
the election. In the letter, Odom also stated, "These contested votes will affect the
outcome of the election." The clear import of his letter was that the four votes should
be counted. Odom's contest letter was timely submitted pursuant to section 5-15-
130 of the South Carolina Code (2004), which requires the filing of a written contest
with the municipality's election commission. Section 5-15-130 further provides in
pertinent part:
[T]he Municipal Election Commission shall, after due
notice to the parties concerned, conduct a hearing on the
contest, decide the issues raised . . . and when the decision
invalidates the election the council shall order a new
election as to the parties concerned.
The Commission convened the required hearing on September 10, 2018; after
a recess that day, the hearing resumed and concluded on September 25. The
Commission heard testimony from Odom and the four challenged voters and heard
arguments from counsel. The four challenged voters testified they were McBee
residents at all appropriate times and further testified they voted for Odom. In its
written decision, the Commission found the four voters were eligible to vote in the
election. The Commission wrote: "Because adding the four votes to the total for
Glenn Odom would have changed the outcome of the election, the Municipal
Election Commission hereby invalidates the September 5, 2018 election and orders
a new election as is required under S.C. Code Ann. § 5-15-130."
Odom appealed the Commission's decision to the circuit court, arguing the
Commission erred in ordering a new election instead of simply counting the four
votes and declaring he was a prevailing candidate. Citing section 5-15-130, the
circuit court initially determined the only relief the Commission could grant was a
new election. Odom filed a motion for reconsideration, arguing the circuit court
erred in ordering a new election. He contended the circuit court should have
adjudicated the case under section 7-13-830 and should have ordered the
Commission to count the challenged votes and declare him one of the prevailing
candidates. In the alternative, Odom argued that even if section 5-15-130 solely
applied, the circuit court erred in interpreting this section to require a new election.
The circuit court granted Odom's motion for reconsideration and held the
Commission erred in invalidating the election and ordering a new election. The
circuit court concluded, "This case involves a vote challenge, which is specifically
provided for in Title 7 under § 7-13-830 and not Title 5." The circuit court ruled:
Section 7-13-830 provides the "Procedure when voter
challenged" and requires that "each ballot whose challenge
was decided in favor of the voter must be removed from
the envelope, mingled, and counted and the totals added
to the previously counted regular ballot total . . . ." § 7-
13-830 (emphasis added). This language applies to this
voter challenge case and dictates that the four votes the
Commission determined should have been counted are
added to the previously counted ballots. The result of
following this plain language is that Odom is the election
winner and the Commission erred in ordering a new
election rather than declaring him a winner.
To apply § 5-15-130 to invalidate an election and require
a new election when challenged votes are decided in favor
of the voter would render § 7-13-830 meaningless because
its remedy of counting the votes would never be used.
Consequently, the circuit court overturned the Commission and remanded the
proceedings to the Commission to count the challenged votes and announce Odom
as a prevailing candidate. Appellants appealed the circuit court's decision to this
Court. At this stage, all parties concede the four votes were legally cast, and the sole
issue is whether the four votes should now be unsealed and counted or whether the
election should be invalidated and a new election held.
II.
The cardinal rule of statutory construction is that the court ascertain and
effectuate the intent of the legislature. Greene v. S.C. Election Comm'n, 314 S.C.
449, 452, 445 S.E.2d 451, 453 (1994). However, we must first attempt to construe
a statute according to its plain language, and if the language of a statute is plain,
unambiguous, and conveys a clear meaning, "the rules of statutory interpretation are
not needed and the court has no right to impose another meaning." Hodges v. Rainey,
341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000). "The words of the statute must be
given their plain and ordinary meaning without resorting to subtle or forced
construction to limit or expand the statute's operation." Catawba Indian Tribe of
S.C. v. State, 372 S.C. 519, 525-26, 642 S.E.2d 751, 754 (2007).
After Odom filed his letter of contest, the plain language of section 5-15-130
required the Commission to convene a hearing and "decide the issues raised" in the
contest. Section 5-15-130 further plainly provides that "when the [Commission's]
decision invalidates the election the council2 shall order a new election as to the
parties concerned." The "issues raised" in Odom's contest were (1) whether the four
voters who cast the challenged votes were truly eligible to vote and, (2) if they were,
whether their votes should be counted. However, the Commission decided only the
first of those two issues when it determined the four voters were eligible to vote;
instead of then deciding whether it was feasible to count the four votes—which were
sealed, set aside, and available for counting—the Commission skipped that inquiry
and summarily concluded that adding the four votes to Odom's total "would have
changed the outcome of the election." The Commission then invalidated the election
and ordered a new election "as is required under [section 5-15-130]." As we will
now explain, under the facts of this case, section 5-15-130 and our case law do not
require the invalidation of the election and the holding of a new election.
III.
If an irregularity occurs during the course of an election, the election must be
invalidated and a new election held only if the irregularity was of the sort that renders
doubtful the result of the election. See Broadhurst v. City of Myrtle Beach Election
Comm'n, 342 S.C. 373, 381-82, 537 S.E.2d 543, 547 (2000); Easler v. Blackwell,
195 S.C. 15, 19, 10 S.E.2d 160, 162 (1940). Appellants contend that because the
outcome of the election would be changed by adding the four votes to Odom's total,
the Commission properly determined there was an irregularity requiring invalidation
of the election. While an irregularity might have occurred as a result of the
Commission's initial refusal to count the four provisional ballots, that irregularity
was cured when the Commission ultimately decided the votes were legally cast.
Under the facts of this case, we reject the notion that the Commission's decision that
2
Here, the Commission, not the McBee Town Council, is the body that ordered a
new election. The text of the statute indicates this was not the Commission's
decision to make. No party has raised this apparent irregularity. Therefore, we do
not address it.
these four votes were legally cast constituted an irregularity in the conduct of this
election. We also reject the notion that counting four legally cast votes would
constitute an irregularity under the facts of this case.
Even if we were to conclude there was an irregularity as urged by Appellants,
we hold the irregularity was not of the sort requiring invalidation of this particular
election. Our conclusion is compelled primarily by the simple fact that the four
provisional ballots were preserved and delivered to the Commission as required by
section 7-13-830, and the votes remain available for counting. "Voters who have
done all in their power to cast their ballots honestly and intelligently are not to be
disfranchised because of an irregularity, mistake, error, or even wrongful act, of the
officers charged with the duty of conducting the election, which does not prevent a
fair election and in some way affect the result." Taylor, 363 S.C. at 12-13, 609
S.E.2d at 502 (quoting Berry v. Spigner, 226 S.C. 183, 190, 84 S.E.2d 381, 384
(1954)).
In three cases, this Court has ordered a new election when the addition of
uncounted but legally cast votes or the subtraction of counted but illegally cast votes
cast doubt upon the results of an election. Our holdings in these cases were fact-
specific, and the facts of the instant case must guide our determination of whether
section 5-15-130 requires invalidation of this election. In Gecy v. Bagwell, we
invalidated a Simpsonville City Council election in which two candidates sought one
open seat. 372 S.C. 237, 239, 245, 642 S.E.2d 569, 570, 573 (2007). A total of 858
votes were cast. Id. at 239, 642 S.E.2d at 570. Of that sum, two votes were illegally
cast. Id. at 240, 642 S.E.2d at 570. The original winner received 430 votes, the
original second-place finisher received 427 votes, and one vote was cast for a write-
in candidate. Id. at 239, 642 S.E.2d at 570. The winner was required to receive a
majority of the votes cast to be elected. Id. at 240, 642 S.E.2d at 570. With the two
illegal votes being set aside, a total of 856 legal votes were cast, thereby requiring
the winner to have received at least 429 votes. Because the two illegal votes had not
been identified and separated from the legal votes, there was no way to tell for which
candidate(s) the two illegal votes had been cast; it was therefore possible the winner
received only 428 votes out of the 856 legal votes cast, which was exactly 50% and
not a majority. See id. Because this would have resulted in the top finisher not
receiving the required majority of the votes cast, we held the outcome of the election
was in doubt, invalidated the election, and ordered a new election. Id. at 242-43,
642 S.E.2d at 571-72.
In Easler v. Blackwell, we invalidated an election for school trustees in
Spartanburg County and ordered a new election. 195 S.C. at 23, 10 S.E.2d at 164.
Six candidates ran for three trusteeships. Id. at 18, 10 S.E.2d at 162. The candidate
with the most votes would serve for three years, the candidate with the second-most
votes would serve for two years, and the candidate with the third-most votes would
serve for one year. Id. at 19, 10 S.E.2d at 162-63. A total of 690 votes were cast;
the results were remarkably close, with the candidates receiving 347, 346, 346, 344,
339, and 336 votes, respectively. Id. at 18, 10 S.E.2d at 162. The board of
canvassers sustained the validity of the election of the top three finishers despite a
host of irregularities occurring during the election, including two people who were
allowed to vote despite not having paid their poll tax and more than 100 voters being
allowed to vote after the polls had closed. Id. at 17-18, 10 S.E.2d at 162. There was
no way to tell for which candidate(s) the illegal votes were cast. See id. at 19-21, 10
S.E.2d at 162-63. We considered the closeness of the vote tally and concluded that
because there was no way to determine for whom the illegal votes had been cast, the
election must be invalidated and a new election held. Id. at 19-23, 10 S.E.2d at 162-
64.
In Broadhurst v. City of Myrtle Beach Election Commission, three candidates
were in a runoff election for two seats on Myrtle Beach City Council. 342 S.C. at
378, 537 S.E.2d at 545. Voters were permitted to vote for two candidates in the
runoff. Id. Rachel Broadhurst finished third, 327 votes behind the first-place
finisher and 212 votes behind the second-place finisher. Id. However, an electronic
voting machine at a voting precinct malfunctioned, and it was determined that as
many as 231 votes were cast at that machine. Id. There was no way to tell for which
candidate(s) the 231 votes were cast. Id. There was no dispute that it was impossible
for Broadhurst to have finished in first place, even if all 231 votes had been cast for
her. See id. at 378, 537 S.E.2d at 545. We observed that while it was mathematically
unlikely that Broadhurst would have received enough votes to move into second
place, it was still possible. Id. at 382, 537 S.E.2d at 547. Therefore, we concluded
the results of the election were in doubt, invalidated the election, and ordered a new
city-wide runoff election including all three candidates. Id. at 387, 537 S.E.2d at
550.
Easler, Gecy, and Broadhurst are distinguishable from the instant case, as all
three of those cases involved elections in which there was no way to tell for whom
the disputed votes were cast; consequently, the only conceivable conclusion was that
the results of the election were in doubt, and the only remedy in those cases was a
new election. However, in the instant case, there is no dispute that the four voters
were allowed to cast provisional votes. The four votes were placed in envelopes, the
envelopes were sealed, and the envelopes were set aside and delivered to the
Commission. The four votes are available for counting.
Appellants rely upon Armstrong v. Atlantic Beach Municipal Election
Commission, 380 S.C. 47, 668 S.E.2d 400 (2008), for the proposition that the only
relief that may be ordered in this case pursuant to section 5-15-130 is a new election.
In Armstrong, there were two candidates for mayor of Atlantic Beach. Id. at 48, 668
S.E.2d at 401. Candidate Pierce won by one vote over candidate Armstrong. Id.
Armstrong filed a protest, and the municipal election commission ordered a new
election to be held after determining four voters who were not allowed to vote should
have been allowed to vote. Id. On appeal, the circuit court upheld the election
commission's order requiring a new election but ordered the filing period for
candidates to be reopened. Id. Only Pierce, the original winner, appealed to this
Court. Id. In affirming the circuit court's decision to order a new election, we held
the one-vote spread rendered the result of the election doubtful and required a new
election. Id. at 48-49, 668 S.E.2d at 401. Further, in reversing the circuit court's
directive that the filing period be re-opened, we stated, "The only relief the
Commission may order is 'a new election as to the parties concerned.' S.C. Code
Ann. § 5-15-130 (2004). The circuit court does not have the authority to order any
further relief." Id. at 49, 668 S.E.2d at 401. Appellants contend this statement makes
it clear that ordering a new election is the only remedy the Commission may grant
under section 5-15-130. We disagree.
Our statement that "[t]he only relief the Commission may order is 'a new
election as to the parties concerned'" was made in the context of explaining that
section 5-15-130 specifically provides that if a new election is ordered, the new
election is restricted solely to "the parties concerned." Naturally, "the parties
concerned" were the original candidates; therefore, reopening the filing period to
other candidates would have been in violation of the statute. Appellants have taken
the first half of the quoted passage from Armstrong ("[t]he only relief the
Commission may order is a new election") out of context and have attempted to turn
it into an unduly restrictive application of section 5-15-130.
As noted, we also held in Armstrong that the one-vote spread, coupled with
four voters not being allowed to vote rendered the result of the election doubtful and
required a new election. Some of the facts in Armstrong certainly resemble the facts
of the instant case; however, those facts are distinguishable on a key point: in
Armstrong, four voters "were denied the right to vote." 380 S.C. at 48, 668 S.E.2d
at 401. Consequently, there were no provisional ballots to be counted once it was
determined the voters should have been allowed to vote. However, in the instant
case, the four voters were allowed to cast provisional votes, which were set aside
and preserved and are available for counting. At the least, the issue raised by Odom
in the instant case—that the four challenged votes are identifiable and available for
counting—was not raised in Armstrong. This is a critical distinction between
Armstrong and the instant case; thus, we conclude our holding in Armstrong is
inapplicable to this case.
Appellants contend nothing in section 5-15-130 contemplates the counting of
the four votes that were sealed and set aside. We disagree. As we noted above,
section 5-15-130 plainly requires a new election only when the Commission's
decision "invalidates the election." The statute required the Commission to "decide
the issues raised," and one of the issues raised by Odom's contest was whether the
four votes should be counted. When the Commission decided the votes were legally
cast, the Commission should have decided the votes should be counted. There is no
evidence in the record and there is no provision of law to support the Commission's
conclusion that a decision to count the votes would "invalidate the election,"
especially since the four provisional votes are available to be counted; if anything,
the facts of this case, the law, and common sense all dictate the conclusion that the
counting of these votes would preserve the integrity of the election process and
propel the election to its legitimate end. These four voters did "all in their power to
cast their ballots honestly and intelligently" and should not be disfranchised. See
Taylor, 363 S.C. at 12-13, 609 S.E.2d at 502.
In drafting section 5-15-130 as it did, the General Assembly fulfilled its
constitutional duty to preserve the integrity of the voting process. See S.C. Const.
art. II, § 10 ("The General Assembly shall . . . establish procedures for contested
elections, and enact other provisions necessary to the fulfillment and integrity of the
election process."). A plain reading of the statute, as applied to the facts of this case,
compels us to hold the four votes must be counted and applied to the appropriate
candidate(s).
IV.
We have concluded that section 5-15-130, under the facts of this case, requires
the counting of the four provisional votes and does not require a new election;
therefore, we need not address Appellants' contention that the circuit court
misapplied the provisions of section 7-13-830. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999).
V.
We affirm the circuit court's decision to remand the proceedings to the
Commission. We modify the circuit court's order in two ways: first, we hold section
5-15-130, standing alone, requires the four votes to be counted; second, to the extent
that the circuit court's decision can be read to order the Commission to declare Odom
a prevailing candidate without the four votes first being counted, we hold the four
votes must first be counted before the results of the election can be determined. We
remand to the Commission and order it to unseal the four provisional votes and apply
those votes to the vote totals of the candidate(s) for whom the votes were cast, with
the results of the election to then be declared accordingly.
AFFIRMED AS MODIFIED AND REMANDED.
BEATTY, C.J., KITTREDGE, HEARN and FEW, JJ., concur.