Elections Municipal – Provisional Ballots – Counting Required

Only one vote separated the respondent-candidate and the appellant-candidate in a town council election. Four voters’ residency was questioned, and their provisional ballots were sealed and set aside but remain available for counting. The town election commission should have counted the four provisional ballots rather than invalidating the election and ordering a new one.

We affirm the circuit court’s decision to remand the proceedings to the appellant-commission. 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.

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. 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 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, 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 S.C. Code Ann. § 7-13-830, and the votes remain available for counting.

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.

Affirmed as modified and remanded.

Odom v. McBee Election Commission (Lawyers Weekly No. 010-046-19, 10 pp.) (George James, J.) Appealed from the Circuit Court in Chesterfield County (Roger Henderson, J.) Martin Driggers, Richard McLawhorn and Karl Bowers for appellants; Kathleen Barnes, John Parker and William Barnes for respondent. S.C. S. Ct.