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Elections – Absentee Ballots – Requests vs. Assistance – Credibility

By: S.C. Lawyers Weekly staff//February 22, 2023

Elections – Absentee Ballots – Requests vs. Assistance – Credibility

By: S.C. Lawyers Weekly staff//February 22, 2023

The Town of McBee Municipal Election Commission did not believe Sydney Baker when she testified that she did not “request” absentee ballots for other voters; rather, she assisted other voters in requesting their own absentee ballots. Since there was no evidence that Baker requested absentee ballots for other voters, there was no evidence to support the election commission’s overturning of the results of the town’s September 2020 mayoral and town council elections.

We affirm the circuit court’s reversal of the election commission’s decision.

The version of S.C. Code Ann. § 7-15-330 in effect at the time of the 2020 election provided 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, the statute 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 § 7-15-330 that prohibits anyone—including Baker—from “assisting” a voter in requesting an application for an absentee ballot.

The question before the election commission was whether Baker made the “request” for an application to vote absentee on behalf of any voter. If she did, she violated § 7-15-330. On the other hand, if she merely assisted a voter in requesting an application, she did not violate the section.

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. 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.

The distinction between actually making a request for an absentee ballot for another person and assisting a person in making their own request is not our creation; it is in 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.



(Hearn, J.) 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 § 7-15-330’s registry requirements.

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 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.

Odom v. McBee Municipal Election Commission (Lawyers Weekly No. 010-009-23, 10 pp.) (John Few, J.) (Kaye Hearn, J., joined by John Kittredge, J., dissenting) Appealed from Chesterfield County Circuit Court (Roger Henderson, J.) Robert Tyson, Vordman Carlisle Traywick, Wallace Jordan, Karl Smith Bowers, Richard Edward McLawhorn and Martin Driggers for appellants; John Parker and John Elliott Parker Jr. for respondent. S.C. S. Ct.

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