The Election Process
Originally published in SC Lawyer (September 2016)
By Robert E. Tyson, Jr.
Legal issues surrounding elections have grown immensely in the recent past. With social media creating more attention on the process and the specific candidates, the process for elections must be solid. In Anderson v. South Carolina Election Commission, the supreme court held, “Integrity in elections is foundational.”[i] The Court further stated, “It is that recognition of the importance of the integrity of public elections that leads us to grant relief at this time.”[ii] This article describes the process for one to register to vote, the voting process, and post-election issues.
I. Voter Registration and Pre-Election Matters
A. Voter Registration
To vote in South Carolina, an individual must be at least eighteen years of age and a resident in the county and the polling precinct in which he or she intends to vote.[iii] For municipal elections, the voter must have lived in the municipality for at least thirty days prior to the municipal election.[iv] A person is disqualified from voting if deemed mentally incompetent, imprisoned, or convicted of a felony.[v]
A person seeking to register to vote must be found qualified by the county board of voter registration and elections (hereinafter “county board”) and must do so at least thirty days prior to an election.[vi] A person can register in person at the county office, by mail, or by electronic means via the State Election Commission website. For application electronically, a person must have a valid driver’s license or state registration card issued by the Department of Motor Vehicles.[vii] Prior to each political party primary election, the county board furnishes a list of the names of all voters and their respective precincts. South Carolina also has instituted a “motor voter” registration system.[viii] When a person applies for a driver’s license, including a renewal application, the application also serves as an application for the person’s voter registration.[ix] The General Assembly intends for registration applications to be readily available, including giving them to all high schools.
The State Election Commission (hereinafter “Election Commission”) issues voter registration cards. The Commission maintains a statewide voter registration database that must be continuously available to each county. Changes cannot be made to a person’s voter registration unless the voter confirms his or her residence has changed or the voter fails to respond to a notice issued by the county board. The Commission undertakes efforts to ensure the data base remains an accurate list of eligible voters.
B. Responsibilities of the Election Commission
The General Assembly has the obligation to establish the rules for the conduct of elections. The Election Commission has been delegated the authority to manage the election system in South Carolina. Specifically, the Election Commission supervises the conduct of county boards of elections, conducts audits of the county boards, maintains a master file of all qualified electors by county and by precincts, and ensures the federal laws concerning elections are administered.
C. Polling Places and Precincts
The General Assembly establishes the voting precincts in the state. A precinct can have multiple polling places, provided that voters have written notice of the location of the polling place.[x] When a polling place is changed, a written notice must be posted at the previous polling place of the location for the new polling place.[xi] Precinct changes generally are not made often, so when they are much attention is given to provide notice to all affected voters.
Each registered elector must be registered and shall vote at the designated polling place within the precinct of his residence.[xii] In some situations, the polling place in a precinct is not available for the election. If the polling place’s unavailability is known more than seven days before the election, the county legislative delegation must approve the alternative polling place.[xiii] If the polling place’s unavailability becomes known within seven days of the election, the entity conducting the election must give notice to the county legislative delegation of the alternative polling location.[xiv] The alternative polling place is not required to be within the precinct of the elector’s residence; however, if it is not within the precinct the entity conducting the election shall certify in writing to the Election Commission that no other location within the precinct is available for use as a polling place and that the selection of a polling place was made with consideration of the distance electors would have to travel to vote.[xv] Further, the entity conducting the election shall make every attempt to notify electors of the alternative polling place before the election and on the day of the election through the media and by posted notice at the designated polling place.[xvi]
For municipal elections, the electors shall vote at the voting place nearest their residence for aldermen or councilmen who are elected either by wards or by at-large within the municipality.[xvii]
When a registered elector moves from one precinct to another, the elector must notify the county board of his or her new residence and the county board shall provide notice to the voter of his or her new polling place. When a new voting precinct is established, the county board must update its list and must provide notice to the electors of the changes. This notification also applies when an area in the county is annexed into a municipality, thereby giving the voter notice of its new ward.[xviii]
The General Assembly has mandated at least one polling place be the Countywide Barrier-Free Voting Precinct and has encouraged the county board to make every precinct barrier free.[xix] Any physically handicapped elector, regardless of his place of residence in the county, may vote at the county’s designated polling place if the elector cannot ambulate without the use of assistance or has obtained the county board approval by applying in writing at least thirty days prior to the election. The county board may authorize the use of paper ballots at this precinct, and this precinct’s votes will be tabulated as a separate precinct.
II. Voting in Elections
A. Absentee Voting
South Carolina’s use of absentee ballots has increased recently. A person qualifies to vote by absentee ballot if the person is a member of the Armed Forces or the Merchant Marines; a member of the Red Cross or an employee of the federal government serving outside the country; or a citizen residing outside the United States, under certain circumstances.[xx] Other reasons for electors to vote absentee because they are absent on election day include persons who are students and persons on vacation.[xxi] Also, some qualified voters are permitted to vote by absentee ballot, whether or not they are absent on election day. Some, but not all, of the reasons are physically disabled persons, employment obligations, certified poll watchers, and persons over sixty-five years of age.[xxii]
When a person requests an absentee ballot, the county board must furnish the person the ballot, a copy of an oath, instructions on how to mark the ballot and sign the oath, and a return-addressed envelope.[xxiii] The General Assembly has established certain specifications for the envelope and the language for the oath verifying the voter’s qualifications to vote by absentee ballot.[xxiv] The absentee ballot is not to be counted if the oath is not signed or if the ballot is not returned by the date of the election.[xxv]
To obtain an absentee ballot, a person initially must request an application to vote by absentee ballot. The request can be made in person, by mail, or by phone. If the person requesting the application is an authorized representative of the elector, the authorized representative must come to the county board office to sign an oath affirming the representative meets the statutory definition of a representative.[xxvi] The application contains an oath swearing the elector is eligible to vote in this election and that this ballot will be the only vote cast.[xxvii]
The county board in each county must provide a sufficient number of absentee ballots not to exceed fifteen percent of the registered voters in the county. The applicant marks each ballot and places each ballot in the envelope marked “Ballot Herein,” then returns it to the county board. The county board records the date the envelope with the oath and ballot is received. The county board securely stores the envelope in case of future challenges.[xxviii]
In each county, an absentee voting precinct is established and is located at the county board. The county board tabulates and reports the ballots at the absentee voting precinct and must remain in the custody until all challenges have finished.
Prior to the election, the county board provides to the polling place a list of the registered voters in the precinct. The county board shall note on the lists the voters who voted absentee or received an absentee ballot. These voters will not be permitted to vote in person.[xxix]
B. Overseas Absentee Ballots
The South Carolina Uniform Military and Overseas Voters Act utilizes similar procedures as required by the Uniformed and Overseas Absentee Voting Act.[xxx] An overseas voter may apply for a special write-in absentee ballot; however, the voter may not apply any earlier than ninety days before the election.[xxxi] The voter may submit a federal postcard application form or one approved by the Election Commission.[xxxii] The form requires a covered voter to state why he or she is unable to vote by regular absentee ballot or in person. The Election Commission in coordination with the county boards may establish an electronic free-access system for voter registration and the elections. The application to vote by special absentee ballot as a manner in which to register to vote.
Once received, the special absentee ballot along with an absentee instant runoff ballot must be sent to the covered voter at least forty-five days prior to the primary election. For the runoff ballot, the covered voter ranks his preference for the candidates. The covered voter’s last place of residence is the assigned precinct. To be counted, the ballot must be returned the day before the election.[xxxiii]
C. Voting Issues
Prior to election day, the entity conducting the election must publish a notice indicating the date and time of the election, the last day to register to vote, and a list of the precincts involved in the upcoming election.[xxxiv]
On election day, the polls are open from seven in the morning until seven in the evening. The county board appoints managers for each of the precincts. These managers must go through a required training program and sign an oath affirming that they will fulfill their duties to conduct a fair and legal election.[xxxv]
If a constitutional amendment is on the ballot, each proposed change must be placed in a visible location at the precinct. The managers must ensure candidates do not infringe on the election process and campaign in areas prohibited by law.[xxxvi]
Each ballot must be plainly marked “Official Ballot”. The law also mandates the form of each ballot.[xxxvii] For each ballot style, the county board must submit to the Election Commission for approval prior to September 15.[xxxviii]
Each county board must provide voting machines for each precinct. Also, for each voting place, there must be a number of failsafe ballots in case problems arise on election day.
When a person comes to vote, he or she must present a valid form of identification. Included as an acceptable identification card are the following: a South Carolina driver’s license, a DMV identification card with a photograph, a passport, military identification card containing a photograph, or a South Carolina voter registration card containing a photograph.[xxxix] The manager then checks the registered voter list to check off this voter. The manager also looks at the picture to verify the photograph is of the voter seeking to vote. The voter signs his name on the poll list of persons who have voted. The signing of the poll list by the voter is deemed to be an affirmation of the oath of the voter.[xl]
If the elector cannot produce a form of identification in the list above, the elector may cast a provisional ballot which will be counted only if the voter brings a valid and current identification card to the county board prior to the votes being certified.[xli] If the elector does not produce a valid and current photograph and identification card due to a religious objection to being photographed, it may submit a provisional ballot along with an affidavit affirming its objection.[xlii] If the elector does not produce a valid and current photograph and identification card because the elector suffers from a reasonable affidavit to obtain a photograph identification, the elector may submit a provisional ballot along with an affidavit affirming its impediments.[xliii] If the provisional ballot is challenged, the county board shall find that the provisional ballot is valid, unless it has grounds to believe the affidavit is false.[xliv] The provisional ballot can be challenged on other grounds than the voter failed to have the requisite identification.[xlv]
Once the voter is checked off the poll list, he or she proceeds to the voting area to cast its ballot. Only one voter may be allowed in the booth at a time and the voter should not remain in the voting booth longer than five minutes.[xlvi]
If the manager at the precinct believes a person is voting illegally, the manager can refuse to allow a person to vote. However, others who suspect nefarious conduct, must notify the manager who then will make the appropriate decision, including requiring the voter to vote by a provisional ballot while that vote is challenged.
Candidates are allowed to appoint a watcher to observe voting at the polling place. The watcher must wear a visible identification of the candidate or cause for which it is connected. The watcher also cannot interfere in the conduct of the election.[xlvii]
For special elections, an election is not required to be conducted if fourteen days after the filing period has closed and only one person has filed for the office and no person has filed a declaration to be a write-in candidate.[xlviii] In such a case, the candidate who filed for the office is deemed elected and takes office the Monday following certification.[xlix] These provisions also apply to municipal general elections.[l] In 2003, the South Carolina Attorney General issued an opinion concluding this section “§ 7-13-190, which places severe restrictions on write-in voting, is constitutionally suspect.”[li] The opinion argued voting is a fundamental right; therefore, elections should be conducted.[lii]
III. Post-election Issues
A. Vote Tabulation
On election day, the county board begins tabulating the absentee ballots. Initially, the county board examines the envelope to verify the signature is properly witnessed and addressed. If not, the ballot is not counted. If the ballot is not discarded or challenged, the ballot is counted. If challenged, the absentee voter must be given notice. The county board receives the results of each precinct and tabulates the votes. After tabulation, the county board announces the unofficial results.
The county board of canvassers must organize and meet at the county seat on Friday, before one o’clock. The county board of canvassers must canvass the results and post its findings no later than noon on the Saturday next following the election.[liii]
A mandatory recount must occur whenever the difference of votes between the winning and losing candidate (including a candidate who did not qualify for a runoff election), is not more than one percent of the total votes case for that election.[liv]
B. Protests or Contests
Any protest or challenge must be filed by noon on Wednesday following the day of the declaration of the results of the election.[lv] Service may be perfected by serving the chairman or by serving the county Sheriff a copy of the protest with a copy for each candidate in the election. The protest must contain specific grounds for the challenge.
After providing notice to each candidate, the county canvassers must hear the protest on the Monday following the deadline for filing the protest or contest.[lvi] The protestant and each candidate has a right to attend the hearing, to be represented by counsel, to examine and cross-examine witnesses, and produce evidence relevant to the protest. The county canvassers must remain in session until it makes a decision.[lvii]
The decision of the county board of canvassers may be appealed to the state board of canvassers — i.e., the Election Commission. The appeal must be made by the Monday following the county canvasser’s decision.[lviii] Again, the appellant and other candidates have the right to be present, to have counsel and to argue the merits of the appeal.[lix] The state board of canvassers remains in session until its decision is made.[lx] A decision by the state board of canvassers shall be directly taken to the South Carolina Supreme Court.[lxi] A party that opposes an election protest who prevails at a hearing before the state board of canvassers may petition the circuit court for reasonable costs and attorney’s fees associated with the defense of the challenge if the losing party does not appeal to the Supreme Court.[lxii] Also, the Supreme Court may award reasonable costs and attorney’s fees to the party prevailing on appeal when the Supreme Court finds there were no reasonable grounds to appeal the decision of the state board.[lxiii]
The state board of canvassers hears protest or contest of elections for federal officers, state offices, State Senate and State House of Representatives, and offices involving more than one county. The process for filing protests or contests is similar to those made with county board of canvassers.[lxiv]
This primer on election law issues gives one the basic road map for voter registration, election day conduct, and post-election challenges. Given the democracy of our Nation that maintains our elected leaders are the persons who obtained the most votes, it is imperative for our election process to be solid and of integrity. With more and more attention on elections, these laws will be challenged and used like no other time in South Carolina history.
Rob Tyson is a member of Sowell Gray Stepp & Laffitte, LLC. He practices election law and has represented clients involved in all facets of election disputes. Follow Rob’s ELECT blog at sowellgray.com.
[i] 397 S.C. 551, 556 (2012).
[iii] South Carolina Constitution Article II, Section 4 and S.C. Code Ann. § 7-5-120.
[iv] S.C. Code Ann. § 7-5-610.
[v] S.C. Code Ann. § 7-5-120.
[vi] S.C. Code Ann. § 7-5-125 and -150.
[vii] S.C. Code Ann. §7-5-185.
[viii] S.C. Code § 7-5-320.
[ix] S.C. Code Ann. § 7-5-320.
[x] S.C. Code Ann. § 7-7-10.
[xi] S.C. Code Ann. § 7-7-15.
[xii] S.C. Code Ann. §7-7-910.
[xvii] S.C. Code Ann. § 7-7-920.
[xviii] S.C. Code Ann. § 7-7-960.
[xix] S.C. Code Ann. § 7-7-990.
[xx] S.C. Code Ann. § 7-15-110.
[xxi] S.C. Code Ann. § 7-15-320.
[xxiii] S.C. Code Ann. § 7-15-360.
[xxiv] S.C. Code Ann. § 7-15-375 and § 7-15-380.
[xxv] S.C. Code Ann. § 7-15-420.
[xxvi] S.C. Code Ann. § 7-15-330
[xxviii] S.C. Code Ann. § 7-15-385.
[xxix] S.C. Code Ann. § 7-15-430.
[xxx] 42 U.S.C. §1973ff, et seq.
[xxxi] S.C. Code Ann. § 7-15-630
[xxxiii] S.C. Code Ann. § 7-15-700.
[xxxiv] S.C. Code Ann. § 7-13-35.
[xxxv] S.C. Code Ann. § 7-13-72.
[xxxvi] S.C. Code Ann. § 7-13-140.
[xxxvii] S.C. Code Ann. § 7-13-330.
[xxxix] S.C. Code Ann. § 7-13-710.
[xl] On March 8, 2016, the South Carolina Attorney General issued an opinion indicating that a South Carolina Concealed Weapons Permit was an acceptable identification under existing South Carolina law.
[xli] S.C. Code Ann. § 7-13-710(C)(1).
[xlii] S.C. Code Ann. § 7-13-710(D)(1)(a).
[xliii] S.C. Code Ann. § 7-13-710(D)(1)(b).
[xliv] S.C. Code Ann. § 7-13-710(D)(2).
[xlv] S.C. Code Ann. § 7-13-710(D)(3).
[xlvi] S.C. Code Ann. § 7-13-740 and § 7-13-760.
[xlvii] S.C. Code Ann. § 7-13-860.
[xlviii] S.C. Code Ann. § 7-13-190.
[li] 2003 WL 22172230 (March 8, 2003).
[liii] S.C. Code Ann. § 7-17-20.
[liv] S.C. Code Ann. § 7-17-280.
[lv] S.C. Code Ann. § 7-17-30.
[lvi] S.C. Code Ann. § 7-17-50.
[lviii] S.C. Code Ann. § 7-17-60.
[lix] S.C. Code Ann. § 7-17-70.
[lxi] S.C. Code Ann. § 7-17-250.
[lxii] S.C. Code Ann. § 7-17-275.
[lxiv] S.C. Code Ann. § 7-17-260.