Glenn Odom v. McBee Municipal Election Commission ( 2023 )

The Supreme Court of South Carolina
Glenn Odom, Respondent,
v.
McBee Municipal Election Commission, Charles Short,
Charles Sutton, and Hewitt Dixon, Appellants.
Appellate Case No. 2021-000165
ORDER
After careful consideration of the petition for rehearing, the Court is unable to
discover that any material fact or principle of law has been either overlooked or
disregarded, and hence, there is no basis for granting a rehearing. Accordingly, the
petition for rehearing is denied. However, we withdraw the original opinion and
substitute the attached opinion changing the original opinion only by adding text at
the end of footnote 3.
s/ Donald W. Beatty C.J.
s/ John Cannon Few J.
s/ George C. James, Jr. J.
We would grant rehearing:
s/ John W. Kittredge J.
s/ Kaye G. Hearn A.J.
August 30, 2023
Columbia, South Carolina
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Glenn Odom, Respondent,
v.
McBee Municipal Election Commission, Charles Short,
Charles Sutton, and Hewitt Dixon, Appellants.
Appellate Case No. 2021-000165
Appeal from Chesterfield County
Roger E. Henderson, Circuit Court Judge
Opinion No. 28133
Heard March 17, 2022 – Filed February 8, 2023
Re-filed August 30, 2023
AFFIRMED
Robert E. Tyson Jr. and Vordman Carlisle Traywick III,
of Robinson Gray Stepp & Laffitte, LLC, of Columbia;
Wallace H. Jordan Jr., of Wallace H. Jordan, Jr., P.C., of
Florence; and Karl Smith Bowers Jr., of Bowers Law
Office, of Columbia, all for Appellants Charles Short,
Charles Sutton, and Hewitt Dixon.
Richard Edward McLawhorn Jr., of Sweeny Wingate &
Barrow, PA, of Columbia; Martin S. Driggers Jr., of
Driggers Law Firm, of Hartsville, both for Appellant
McBee Municipal Election Commission.
John E. Parker and John Elliott Parker Jr., of Parker Law
Group, LLP, of Hampton for Respondent.
JUSTICE FEW: The Town of McBee1 Municipal Election Commission overturned
the results of the town's September 2020 mayoral and town council elections after
finding Sydney Baker violated a previous version of section 7-15-330 of the South
Carolina Code (Supp. 2021)2 by requesting applications to vote by absentee ballot
on behalf of other voters. The circuit court found there was no evidence to support
the election commission's decision and reversed. We affirm the circuit court.
I. Facts and Procedural History
Glenn Odom defeated Charles Short in the 2020 mayoral race by ten votes. James
Linton and Robert Liles defeated Hewitt Dixon and Charles Sutton in the town
council race by similar margins. The losing candidates from each race challenged
the election results based on the allegation Sydney Baker violated section 7-15-330.
After the election, at a hearing before the election commission, Baker testified she
"volunteered to help citizens" and used unpaid time off from work to "assist the
citizens in voting" if they wanted to vote. Baker testified her actions included calling
and going "door-to-door" to ask people if they "would like to vote absentee if they
were working or if they were over [sixty-five]." If someone said yes, Baker
explained, she "helped them obtain an absentee ballot." She testified she "assist[ed]
them in the application process." When specifically asked about what she did, Baker
testified "I had an iPad . . . and a printer in my truck. If they wish[ed] to [obtain the
1
McBee is a small town in Chesterfield County in the Pee Dee region of eastern
South Carolina. The town's residents, many descendants of its patriarch Colonel
"Bunch" McBee, and other students of correct pronunciation of local names will
appreciate the readers of this opinion observing that the correct pronunciation of the
word McBee is "MAK-bi." See Claude Neuffer & Irene Neuffer, Correct
Mispronunciations of Some South Carolina Names 113 (Univ. of S.C. Press 1983)
(including a short statement of the history of the town and noting, "The unknowing
often say mak-BEE . . .").
2
The General Assembly substantially rewrote section 7-15-330 in 2022. See Act
No. 150, 2022 S.C. Acts 1587, 1596-98; S.C. Code Ann. § 7-15-330 (Supp. 2022).
application], we did so right then. And if not, I moved on." The election commission
also heard testimony from voters whom Baker assisted, which we discuss below.
The election commission reversed the results of the election. It found Baker violated
section 7-15-330 by requesting absentee ballots for other voters, relying on its
determination Baker was not credible when she denied doing anything that violated
the statute.
The circuit court reversed the election commission. The circuit court found there
was no evidence Baker did "anything improper in assisting voters." The election
commission and the losing candidates appealed directly to this Court pursuant to
subsection 14-8-200(b)(5) of the South Carolina Code (2017) and Rule
203(d)(1)(A)(iv) of the South Carolina Appellate Court Rules.
II. Analysis
We begin with the text of the only provision of law applicable to this case: the
version of section 7-15-330 in effect for the 2020 election.3 The section provided
3
The losing candidates argue Baker also violated subsections 7-13-770(A) and 7-
15-380(A) of the South Carolina Code (2019) and those violations are a basis for
overturning the election. While violations of subsections 7-13-770(A) and 7-15-
380(A) were arguably raised to the election commission and circuit court, it is clear
neither ruled on either issue. Accordingly, these issues are not preserved for our
review. Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998). The
losing candidates argued additional grounds other than Baker's conduct for
overturning the election. The election commission rejected those arguments,
however, and overturned the election only on the basis of Baker violating section 7-
15-330.
In their petition for rehearing, the losing candidates argue they raised subsections
7-13-770(A) and 7-15-380(A) to the circuit court in a motion to alter or amend
pursuant to Rule 59(e), SCRCP, asking the circuit court to rule on the claims arising
from those subsections even though the court did not do so in its initial order. If that
were true, at least at the circuit court stage of the proceedings, the losing candidates
did not fail to preserve the issues for appeal. However, we have carefully reviewed
the text of the Rule 59(e) motion and cannot find any mention of the statutes
themselves or any argument related to the substance of the requirements they
impose. Thus, the issues are not preserved.
that "a qualified elector," a "member of his immediate family," or "the . . . elector's
authorized representative" may "request an application to vote by absentee ballot."
Because Baker does not fit into one of those categories as to any of the voters at
issue in this case, the section did not permit her to actually make the request for an
absentee ballot application on behalf of any of them. However, there is nothing in
section 7-15-330 that prohibits anyone—including Baker—from "assisting" a voter
in requesting an application for an absentee ballot.
The applicable law, therefore, is straightforward. The former version of section 7-
15-330 did not allow Baker to "request applications for absentee voting," but did not
prohibit her from assisting someone else in requesting an application. The question
before the election commission was whether Baker made the "request" for an
application to vote absentee on behalf of any voter.4 If she did, she violated section
7-15-330. On the other hand, if she merely assisted a voter in requesting an
application, she did not violate the section.
The commission made the factual finding that Baker requested an application to vote
by absentee ballot on behalf of "at least" ten voters.5 The sole question before this
Court is whether there is any evidence to support the election commission's finding.
Odom v. Town of McBee Election Comm'n, 427 S.C. 305, 307, 831 S.E.2d 429, 430
(2019). If there is any evidence that supports the commission's finding, we must
uphold the finding. Id.Baker's testimony before the election commission was, "I volunteered to help
citizens," "I helped [those who wanted to] obtain an absentee ballot," and "I help
them obtain a ballot." She denied she ever requested any ballot application herself.
In addition to Baker's testimony, the election commission heard from voters whom
she assisted. Elizabeth Murphy, for example, testified Baker helped her with the
4
The election commission addressed other issues not important to this appeal, such
as whether Baker was paid for her volunteer work and whether she worked for Odom
at the time of the election. While there was disputed evidence on both questions, it
does not matter whether she was a paid volunteer or worked for Odom. In either
circumstance, she was not permitted to request absentee ballot applications for
others. The sole question is whether she did that or merely assisted voters in
requesting them.
5
The commission wrote in its order, "Baker applied for at least 10 and up to 28
absentee ballots."
absentee process because Murphy did not use the internet. She stated "two young
people came to my house to assist with the registration and voting." Murphy did not
testify Baker made the actual request for the application to vote absentee. Rayshawn
Bracey testified he went to Baker's place of employment "to vote" so his "ballot
could be sent to [his] address," but he did not mention Baker and he did not testify
that anyone requested an application for him. Michael Williams testified he voted
and requested his own ballot. He did not mention Baker. June Wright—who cannot
read—testified he received an absentee ballot after he "sent for help."6 Wright
testified, "I asked them to help me . . . because I can't read," and "Sydney, she helped
me out." When asked specifically on cross-examination, "You didn't request it, she
did?," Wright answered—again—"No. She helped me, I asked her to help me to,
you know, vote."
Each witness who appeared before the commission—including Baker—testified
only that Baker assisted another person in requesting an application to vote by
absentee ballot. No witness presented any evidence Baker violated the statute by
making the request herself. Baker was asked numerous questions as to whether she
requested an application for other people, as opposed to simply assisting those
people in requesting ballots on their own. Each time, Baker gave an answer that was
the equivalent of "no." Thus, neither Baker nor any other witness provided the
commission with any evidence that Baker violated the statute. The commission
decided, however, it did not believe Baker's testimony. On the basis of no witness
providing any evidence of a violation and the election commission finding Baker's
denial of a violation not credible, the election commission found a violation. It does
not work that way. Baker's testimony that no violation occurred does not become
evidence that a violation did occur simply because the factfinder finds the testimony
not credible.
The dissent makes several points that warrant a response. First, it labels as "artificial
dichotomy" the distinction between actually making a request for an absentee ballot
for another person and assisting a person in making their own request. In
recognizing this distinction, however, we have simply interpreted the applicable
statute. In other words, we did not create the distinction; it is in the statute. Second,
6
Wright discussed an affidavit stating he received an unsolicited absentee ballot.
Wright testified he might have signed an affidavit, but was unsure. Wright also
testified he told a private investigator he received an unsolicited absentee ballot. In
his testimony before the election commission, however, he was clear that Baker
assisted him with the process of requesting an application.
as the dissent notes, June Wright and Elizabeth Murphy—who also testified on
behalf of her husband, Melvin Murphy—each testified only that Baker "assisted"
them in requesting a ballot. Rayshawn Bracey said nothing about Baker in his
testimony. Third, the dissent makes fun of our comment, "It does not work that
way." It is a serious comment. The losing candidates bore the factual burden of
proving Baker violated the statute. No witness testified Baker violated the statute
and Baker herself denied violating the statute. No factfinder may take the denial of
a fact, find the denial not credible, and treat its credibility finding as evidence of the
fact. Finally, the dissent attributes to us "a rather selective view of the facts."
However, the dissent has not recited a single piece of evidence that would support a
finding Baker requested an application for another voter. Under that circumstance,
our standard of review requires we reverse.
III. Conclusion
Because there is no evidence to support the election commission's finding that Baker
violated the statute, the circuit court was correct to reverse and reinstate the results
of the election.
AFFIRMED.
BEATTY, C.J., and JAMES, J., concur. Acting Justice Kaye G. Hearn
dissenting in a separate opinion in which KITTREDGE, J., concurs.
ACTING JUSTICE HEARN: Because I believe election commissions are
better equipped to determine an election's validity than this Court, and that
evidence supports the factual findings here, I dissent. The McBee Municipal
Election Commission ("Commission") invalidated the town's 2020 election
after hearing from witnesses and determining their credibility. That decision
was not made in a vacuum; rather, it was reached after a lengthy hearing
which resulted in credibility determinations, together with substantial
knowledge of Baker's relationship with Odom7 as well as the recent tortured
history of municipal elections in McBee. Sitting in its appellate capacity, the
circuit court determined there was "no evidence" to support the decision of
the Commission and reversed. Under a rather selective view of the facts, the
majority affirms the circuit court. I would honor our standard of review and
reinstate the decision of the Commission.
An appellate court's review of decisions of a municipal election
commission is very limited. "In municipal election cases, we review the
judgment of the circuit court only to correct errors of law." Taylor v. Town of
Atlantic Beach Election Comm'n, 363 S.C. 8, 12, 609 S.E.2d 500, 502 (2005).
Likewise, a circuit court will not invalidate an election commission because,
when "sitting in appellate capacity . . . it must accept the factual findings of
the commission unless they are wholly unsupported by the evidence." Id. at
14, 609 S.E.2d at 503. Further, in all trials, the trier of fact possesses the
fundamental authority to determine a witness is not credible when there is
reason for disbelief. See Crane v. Raber's Discount Tire Rack, 429 S.C. 636,
639, 842 S.E.2d 349, 350 (2020) ("Our courts have frequently held that when
the [workers compensation] commission makes a credibility determination
based on substantial evidence, the credibility finding itself is substantial
evidence, and factual findings properly based on the credibility finding are
binding on the [appellate] courts").
7
From the record, Baker's precise relationship with Odom is somewhat unclear.
While Odom claimed he was no longer affiliated with Alligator Water Co., and
therefore not Baker's co-coworker, the Commission disagreed with this assertion
after being presented with evidence that his name still appeared on the company
website on election day.
Today, the majority disregards our limited standard of review and holds
there is no evidence that Sydney Baker committed illegal activity. To bolster
this decision, the majority creates a distinction between mere "assistance" in
the ballot requesting process and the actual requesting of a ballot, one being
permissible and the other being impermissible.8 And in applying this artificial
dichotomy to the facts here, the majority, contrary to the Commission,
completely accepts Baker's version of her conduct. Finding that she only
assisted voters in requesting absentee ballots—not that she actually requested
them on their behalf—the majority finds no violation of our voting law. I do
not agree with supplanting the factual findings made by the Commission as to
Baker's credibility, and I would hold that Baker's actions in traveling about
the town in her van—armed with a computer and printer—requesting
absentee ballots for voters, required her to comply with section 7-15-330's
registry requirements.
The majority's version of the facts discounts the multiple witnesses
who, by their own admission, were incapable of requesting their own ballots.
For example, Rashawn Bracey testified he did not know how to go about
requesting a ballot on his own and therefore went to Alligator Water Co.—
Baker's place of employment—as he had in a previous election. Another
witness, June Wright, stated that he was illiterate and therefore incapable of
requesting his own ballot until Baker assisted him in doing so. Additionally,
there was Elizabeth Murphy who testified that she voted absentee for herself
and her husband after Baker came to her door and helped her request an
absentee ballot. Her husband, Melvin Murphy, had suffered a major "massive
heart attack stroke" and needed assistance in voting which both Baker and
Mrs. Murphy provided him.
While it is certainly true that individuals with conditions inhibiting
their ability to vote may receive assistance with the process, section 7-15-330
requires the volunteer to be registered as a qualified elector so that nefarious
conduct, such as that alleged here, does not taint the election process. See
8
Even the majority concedes that if Baker in fact requested ballots for individuals,
that would be illegal conduct as she was not registered with the state and not related
to the individuals involved.
S.C. Code Ann. § 7-15-330 (2019). Baker could have become registered
simply by complying with the law—by being a registered voter, abstaining
from paid campaign activity, and filing the requisite paperwork with the state.
Instead, the clear inference from her conduct in this election as well as in past
elections, was that she used her professional relationship with Odom and his
business to request absentee ballots for voters without complying with the
law.
I profoundly disagree with the majority's dismissal of the Commission's
findings stemming from its credibility determination of Baker's testimony,
particularly its statement that "this is not how it's supposed to work." The
credibility of the witnesses, including Sydney Baker, was crucial to the
resolution of this case, and was within the peculiar province of the
Commission as the fact-finder. I would not second-guess the credibility
findings of the Commission, which not only had the opportunity to view the
witnesses but possessed a wealth of historical knowledge about Baker's
relationship with Odom and her prior participation in municipal elections.
The Commission, in an exercise of its discretion, found that Baker's
testimony was less believable than other witnesses due to her bias and
previous pattern of conduct. This finding was peculiarly within the province
of the Commission, and, unlike the majority, I believe that is precisely how it
is supposed to work.
The Commission coupled this evidence of violations with Baker's name
appearing on up to 28 ballots. Similar to the Broadhurst case, scope is
assessed not by looking to individual ballots, but by considering whether the
election's outcome could be in doubt. See Broadhurst v. Myrtle Beach
Election Comm’n, 342 S.C. 373, 382, 537 S.E.2d 543, 547 (2000) ("[E]ven
though it may have been mathematically unlikely [the losing candidate]
would have received 212 of the 231 uncounted votes, the Court has
determined the best method to safeguard the purity of election is to add the
irregular votes to the losing side." (footnote omitted) (citation omitted)
(internal quotation marks omitted)). The Commission found that any ballot
which listed Baker's name was irregular and that the election was decided by
insufficient a margin to ignore the impact of this irregularity. I would hold
that this determination is supported by the evidence and would reinstate the
decision of Commission.
KITTREDGE, J., concurs.