STATEMENT OF THE CASE

The Appellants herein appeal the decision of the South Carolina State Election Commission issued on December 3, 2008 overturning the Beaufort County Board of Elections’ decision to hold a new election for the town of Bluffton.  The Respondents seek to have the decision of the South Carolina Election Commission affirmed.  The office of mayor and two council seats for the town of Bluffton were up for election on November 4, 2008.  Because the town of Bluffton had no board or commission of elections, it commissioned the Beaufort County Board of Elections and Voter Registration to conduct the November 4^th election for the town.  All appeals to the election were to be made to the South Carolina State Election Commission.

The November 4, 2008 election was held and Fred Hamilton, Jr., and Allyne Mitchell were elected to the town council positions.  No persons were prevented from voting.  On November 6, 2008, the Appellant Jeff Fulgham filed a protest letter with the Beaufort County Board of Elections alleging that a substantial number of voters were not allowed to vote in the election.  (Normand Thomas did not file any protest to the results.)  As a result, a protest hearing was held before the Beaufort County Board of Elections and Voter Registration on November 7, 2008.  No witnesses who testified alleged that they were not allowed to vote in the November 4, 2008 election.  Nonetheless, the board ordered a new election and scheduled it for November 18, 2009.

The Respondents requested a reconsideration of the board’s decision.  The executive director informed them that the board would not be meeting again before the date of the new election and that any redress would have to be made directly to the South Carolina State Election Commission.  The Respondents appealed the county board’s decision to order a new election to the South Carolina State Election Commission.  The appeal hearing was held before the commission on December 3, 2008.  At the conclusion of the hearing, the State Election Commission determined that the Appellants had failed to present sufficient evidence to the Beaufort County Election Commission’s warranting a new election.  The State Election Commission overturned the Beaufort County Election Commission’s decision, thus validating the results of the election.

The Appellant, Jeff Fulgham and Normand Thomas filed a Petition for Writ of Certiorari with the South Carolina Supreme Court on December 12, 2008.  The Beaufort County Board of Elections and Voter Registration did not file an appeal in this cause and are no longer parties to this petition.  The Court granted the Appellants’ petition on February 4, 2009. 

STATEMENT OF THE FACTS

This case involves a dispute concerning the results of the town of Bluffton election held on November 4, 2008.  The election was conducted by the Beaufort County Board of Elections and Voter Registration.  Fred Hamilton, Jr., was seeking re-election.  Allyne Mitchell, Jeff Fulgham and Norman Thomas were seeking election to these offices for the first time.  The two (2) candidates with the highest number of votes would be declared the winners.  Fred Hamilton, Jr., and Allyne Mitchell received the high number of votes.  Councilman Hamilton, received 1553 votes and Council member Allyne Mitchell received 1449 votes.  Hamilton and Mitchell were declared the winners.

On November 6, 2008, Appellant Jeff Fulgham drafted a letter to the Beaufort County Board of Elections seeking a new election.  The letter asserted that “a substantial number of voters were not allowed to vote.”  The letter asserted that there were “approximately 100 disenfranchised voters.”  As a result, a protest hearing was held before the Beaufort County Board of Elections and Voter Registration on November 7, 2008.  Mr. Jeff Fulgham testified.  The only witness that he presented was Charlie Wetmore, a candidate for mayor for the town of Bluffton.  Mr. Fulgham testified that he heard reports that between 100 to 200 voters were not allowed to vote in the town election because of a “labeling error or code error.”  Mr. Fulgham presented no witness who testified that they were not allowed to vote.

Charlie Wetmore testified that he received calls from people asserting that they were not allowed to vote.  Mr. Wetmore failed to identify or give the name of any of these alleged people.  None were called upon to testify.  In fact, although Mr. Whetmore was a candidate for mayor, he did not file a formal complaint because he said he had no idea of how many votes were affected.  Normand Thomas, one of the candidates for town council, also did not file a formal complaint and failed to present any witnesses who claim to have been disenfranchised.

Agnes Garvin, the executive director of the Beaufort County Board of Elections and Voter Registration, testified that there was a coding error in some of the precincts.  She did not testify that the error had any impact on the results of the election.  Nonetheless, the Beaufort County Board of Elections and Voter Registration voted to hold a new election for both the mayor and town council.  The date for a new election was set for November 18, 2008.

The Respondents Fred Hamilton, Jr., and Allyne Mitchell sought a reconsideration of the board’s decision.  Because the town of Bluffton commissioned the Beaufort County Board of Elections and Voter Registration to conduct its election, all protests and appeals were directed the South Carolina State Election Commission.  On November 12, 2008, the Respondents Fred Hamilton, Jr., and Allyne Mitchell filed a formal protest with the South Carolina State Election Commission.  A hearing was held before the South Carolina State Election Commission on December 3, 2008.  Normand Thomas made an appearance for the first time asserting that he and Jeff Fulgham were respondents to the appeal. 

At the hearing, the Commission reviewed the transcript from the Beaufort County Board of Elections’ hearing held on November 7, 2008 and entertained arguments from the parties’ attorneys.  The Commission determined that the evidence considered by the Beaufort County Board of Elections was insufficient to support grounds for a new election.  The Commission overturned the board’s decision.   The Appellants filed a Petition for a Writ of Certiorari.  The Respondents seek affirmation of the decision issued by the South Carolina State Election Commission.  Fred Hamilton, Jr., and Allyne Mitchell have since been sworn in as the duly elected council members for the town of Bluffton.

ARGUMENT

I. The State Election Commission had subject matter jurisdiction to consider the Respondents’ appeal from the Beaufort County Board of Election’s decision to order a new election

The Appellants assert that the South Carolina State Election Commission has no subject matter jurisdiction to consider appeals regarding municipal elections.  Subject matter jurisdiction is defined as “the power to hear and determine cases of the general class to which the proceedings in question belong.”  See Skinner v. Westinghouse Elec. Corp. 380 S.C. 91. 93-94, 668 S.E.2d 795, 796 (2008); Ward v. State, 343 S.C. 14, 17, 538 S.E.2d 245, 246 (2000).  It can hardly be argued that the South Carolina State Election Commission has no subject matter jurisdiction to consider appeals from elections.  Rather, the question is whether the state commission has subject matter jurisdiction over the results of the town of Bluffton’s election. 

The town of Bluffton has no board of elections or election commission.  The town commissioned the Beaufort County Board of Elections to conduct its election on November 4, 2008.  The method by which protest or appeals are taken from decisions of county boards of elections is to file such protests or appeals with the South Carolina State Election Commission.  The Appellants, now, for the first time, argue that the South Carolina State Election Commission should not have accepted appellant jurisdiction in this matter because the election was a municipal election rather than a countywide election. 

The Respondents assert that there are no specific statutes that govern jurisdiction in this particular case.  The town granted the Beaufort County Board of Elections the task of conducting the town’s election.  Likewise, the board was given authority to direct how appeals should be taken from its decisions.  The election was conducted according to the rules and regulations established by the board for its countywide elections.  The board directed the appeal of its decision to the South Carolina State Election Commission.   

The Appellants argument is based upon Section 5-15-140 of the South Carolina Code of Laws, 1976, as amended.  The statue allows any aggrieved party to appeal decisions from municipal election commissions to the court of common pleas.  However, in this case, there is no municipal election commission.  The county board of election was commissioned to conduct the election.  Furthermore, the statute states that the aggrieved party “may” appeal a decision to the court of common pleas.  The statute does not grant the court of common pleas exclusive jurisdiction over such matters. 

The Appellants raised no objection to the South Carolina State Election Commission asserting subject matter jurisdiction over the Respondents’ appeal.  A careful review of the transcript will reveal that the issue was never raised.  Because the county board of elections directed the Respondents to file their appeal with the South Carolina State Election Commission, the Respondent should not be prejudiced by the lack of clarity in the state statue.  The Respondents assert that the commission has subject matter jurisdiction and that its decision should be affirmed.

II. The Beaufort County Board of Election’s decision to order a new election was properly overturned by the South Carolina State Election Commission

The Appellants further assert that the South Carolina State Election Commission improperly over turned the Beaufort County Board of Elections’ decision to order a new trial.  The Respondents seek to have the decision affirmed.  The Appellants assert that they have established the two prerequisites for sustaining an election protest.  The Appellants assert that they provided notice of irregularities or illegalities as part of their protest and that such irregularities or illegalities rendered the results of the election doubtful.  The Appellants assert that the South Carolina State Election Commission had no authority to review the facts of this case and that its decision should be revered.

The Appellants assert that the South Carolina State Election Commission was bound by the facts as determined by the county board.  However, in this case, the county board determined no facts in reaching its decision.  A review of the transcript will reveal that at the conclusion of the evidence and testimony presented to the Beaufort County Board of Elections, a motion was made for the board members to go into executive session.  The motion was granted and board members met without the presence of the stenographer.  When the meeting reconvened, a motion to hold a new election was made by one of the council members.  The motion was seconded and put to a vote.  The motion was granted without further discussion or explanation.  The reason for the board’s decision was not placed in the transcript.  Thus, there was no “factual determination” made by the county board of elections. 

Because the transcript of the November 7^th hearing failed to provide any reason for the county board’s decision, the South Carolina State Board of Elections would have to speculate on the reason why the board ordered a new election.  However, had the State Commission relied on the transcript of the November 7^th hearing to examine facts allegedly made by the county board of elections, it would have had to disregard nearly all of the testimony of both Jeff Fulgham and Charles Wetmore.  Both witnesses relied on “hearsay” testimony which should not have been considered by the board.  Pursuant to Section 7-17-50 of the South Carolina Code of Laws, 1976, as amended, it directs that the board shall provide for and conduct hearings as nearly as possible in “accordance with the procedures and rules of evidence observed by the circuit court of this State.” 

The basis of the Appellant Fulgham’s protest was that he was told that voters were not allowed to vote.  Charles Wetmore testified that he too was told that voters were denied the right to vote.  Neither presented any witnesses who testified that they had been denied to vote.  Neither presented any witnesses who testified that they voted in the election and should not have voted.  As mentioned before, Normand Thomas played no part in the hearing and failed to give any testimony or present any witnesses.        

Nonetheless, the Appellants now argue that there were persons who were allowed to vote in the election who were not qualified to vote.  The Appellants could not identify whether or not any number of persons were denied the right to vote.  Likewise, the Appellants could not identify any number of persons who allegedly voted who had no legal right to vote in the town election.  The Appellants rely solely on conjecture and speculation to conclude that people were denied the right to vote. 

This Court has held that it will not nullify an election based on minor violations of technical requirements.  George v. Mun. Election Commission of City of Charleston, 335 S.C. 182, 186, 516 S.E.2d 206, 208 (1999).  Ms. Agnes Garvin, the executive director of the Beaufort County Board of Election, testified that some of the voters identified on the voter rolls were coded inside the town and some were coded outside the town.  She did not testify that any voters failed to adhere to statutory requirements for voter registration or that any of them tried to vote and were not allowed to do so.  Ms. Garvin could only say that there were “possible” irregularities but could not say how many people voted in the town election who were not properly coded.   

More importantly, the alleged discrepancies in the voter rolls could have been examined by the candidates before the election.  Had the Appellants reviewed the voter rolls before the election, they might have discovered that a small number of voters were not properly coded.  No voter made any challenge during the election.  Neither of the Appellants made any challenge until after the election was over.  In the matter of Hill vs. South Carolina Election Commission, 304 S.C. 150, 403 S.E.2d 309 (1991), a protestant to the results of an election asserted that more votes had been cast in a district than there were registered voters.  On appeal, the South Carolina Supreme Court determined that the discrepancies between the district where a voter actually resided and the district designation on the voter registration lists could have been discovered prior to the election.  The Court saw no reason why a challenge could not have been made at the time a voter was given a ballot for a different district than the one which appeared on the registration list. 

In Hill, the Court required that a contemporaneous challenge to a ballot was necessary so that the state board would not have to make assumptions about whether people voted in the wrong district.  Id., at 152.  The Hill decision is analogous to the case now before the Court.  The Appellants presented the county board with no evidence that anyone filed any challenge in their voting precincts during the election.  Neither Appellant filed any challenge during the election.  Appellant Fulgham offered the board only assumptions and speculations as a basis for his request for a new election.  In Hill, the Supreme Court determined that it was error for the State Board to order a new election where no challenge was made to the misidentified voters’ ballots until after the ballots were cast and counted.  Id, at 152.  Likewise, the South Carolina State Board of Election would have erred had it allowed the county board’s decision to order a new election to stand.  The State Board decision should be affirmed.

CONCLUSION

The South Carolina State Supreme Court has stated, repeatedly, that every reasonable presumption in favor of sustaining contested elections will be employed and irregularities or illegalities which do not appear to have affected the results of the election will not be allowed to overturn it.  To nullify the duly commissioned town of Bluffton election held on November 4, 2008 and have it substituted by a new election as ordered by the Beaufort County Board of Elections would, in deed, constitute a miscarriage of justice.  Such a result would disenfranchise all of the voters who voted on November 4^th and would violate the cardinal rule of elections that justice and fair play be the order of the day.  The Respondents respectfully pray that the decision of the South Carolina State Election Commission be affirmed.

Charleston, South Carolina
March ________, 2009