THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

The Supreme Court of South Carolina

Robert A. Mitchell, Petitioner,

v.

State Democratic Party Executive Committee, Respondent.

ON WRIT OF CERTIORARI

Appeal From State Executive Committee
of the South Carolina Democratic Party

Memorandum Opinion No. 2004-MO-048
Submitted August 18, 2004 - Filed August 25, 2004

REVERSED

Nancy Bloodgood, of Young, Clement, Rivers, LLP, of Charleston, for Petitioner.

Mark W. Hardee, of Columbia, for Respondent.

David Jennings and James A. Brourton, IV, of Rosen, Rosen & Hagood, LLC, of Charleston, for Interested Party (Karen Hollinshead-Brown).

PER CURIAM:� Petitioner seeks a writ of certiorari from the State Democratic Party Executive Committee�s (State Committee) reversal of the Charleston County Democratic Party Executive Committee�s (County Committee) decision to hold a new primary election for the Charleston Council District 4 seat (council seat).� We reverse and reinstate the decision of the County Committee.

The Democratic Primary Election was held on June 8, 2004.� Four candidates ran for the council seat: Edith Askins, Henry Darby, Karen Hollinshead-Brown, and petitioner.�

Following a recertified vote, the results of the race were as follows:� Darby, 401 votes; Hollinshead-Brown, 334 votes; petitioner, 332 votes; and Askins, 226 votes.� Pursuant to statute, a run off between the two candidates receiving the most votes was required.� S.C. Code Ann. � 17-13-50 (Supp. 2003).�

On Monday, June 14, petitioner filed a protest of the election results with the County Committee based on gross voting irregularities at the Bayside Manor precinct.� The County Committee had a meeting previously scheduled for Wednesday, June 16.� Accordingly, the County Committee scheduled petitioner�s protest hearing for the same day.� The other candidates were notified that petitioner filed a protest to the election results and that a meeting on the matter would take place on Wednesday, June 16 at 7:00 p.m.� All of the candidates were present except Darby.� Following the protest hearing, the County Committee voted unanimously to hold a new election for the council seat.�

On Friday, June 18, Darby filed a Notice of Appeal with the State Committee arguing that the County Committee�s decision to hold a new election should be reversed.� By a 23-1 vote, the decision of the County Committee was reversed because the hearing was held in violation of S.C. Code Ann. � 7-17-530 (Supp. 2003).

Did the State Committee err in reversing the decision of the County Committee to hold a new election?

It is well established that an issue must be raised to and ruled upon by the lower tribunal in order for that issue to be preserved for appellate review.� Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997).

It is uncontested that Darby received notice that a protest to the election results was filed as well as notice of the time and place the County Committee would convene a hearing on the matter.� Darby had ample opportunity to attend the protest hearing to raise any challenges or objections to the proceeding.� See Jenkins v. McCarey, 222 S.C. 426, 73 S.E.2d 446 (1952) (candidate entered special appearance before county election committee to challenge jurisdiction of the committee for lack of notice).� By electing not to attend the protest hearing, Darby waived his right to challenge the proceeding on appeal.� Accordingly, Darby�s appeal was not properly before the State Committee and should have been dismissed.

Moreover, the State Committee erred in finding that the decision to hold a new election was void as a result of the protest hearing being held a day prior to the time prescribed by Section 7-17-530.

In George v. Mun. Election Comm�n of City of Charleston, 335 S.C. 182, 516 S.E.2d 206 (1999), this Court found that the statutory provisions regulating the conduct of elections are numerous and detailed and that perfect compliance in every instance is unlikely.� To that end, courts have developed principles to determine whether such provisions are mandatory or directory.� Id.

As a general rule, provisions are mandatory in two instances: when the statute expressly declares that a particular act is essential to the validity of an election, or when enforcement is sought before an election in a direct proceeding.� Id.� However, after an election in which no fraud is alleged or proven, �when the Court seeks to uphold the result in order to avoid disenfranchising those who voted, such provisions are merely directory even though the Legislature used seemingly mandatory terms such as �shall� or �must� in establishing the provisions.�� Id. (emphasis added).

There was substantial evidence presented to the County Committee that gross voting irregularities took place at the Bayside Manor precinct.� Affirming the State Committee�s decision would, in effect, disenfranchise those voters in the Bayside Manor precinct from voting for their District Four representative.� This Court finds the rationale in George persuasive and finds that Section 7-17-530 is merely directory.� Accordingly, we reverse the State Committee�s decision and reinstate the County Committee�s decision to hold a new council seat election.

REVERSED