Town of McBee Election Lawsuit About Counting Provisional Votes or Ordering a New Election
The Supreme Court of South Carolina recently heard oral argument in a case involving the election of Town Council members in the Town of McBee. Odom v. Town of McBee Election Comm’n & Shiloh Green, No. 2019-000147 (S.C. Sup. Ct. 2019). Four candidates ran for two seats on town council. The results were very close with the second-place candidate being only one vote ahead of the third-place candidate. The third-place candidate protested the results of the election based on four votes that were not counted. South Carolina law requires that the votes be counted immediately after the polls close. Also, the municipal election commission must hold a hearing to determine the validity of any provisional ballot and to count absentee ballots. After the municipal election commission rules on these provisional ballots, the results are certified.
Within 48 hours after the polls have closed, a candidate can contest the reported election results. Upon the filing of a protest, South Carolina law requires a hearing to be held within 48 hours.
In this case, as noted above, a protest was filed by the third-place candidate contesting some of the provisional ballots. At the hearing, each of the four voters who had voted by provisional ballot testified they voted for the third-place candidate. Upon hearing this testimony, the municipal election commission ruled that, by adding the four provisional ballots, the outcome of the election would have changed. Therefore, the commission ordered a new election.
The third-place candidate appealed the municipal election commission’s decision to the circuit court. The court reversed the municipal election commission and remanded for the municipal election commission to not only count the four contested votes, but also to declare the third-place candidate the winner.
The second-place candidate appealed to the Supreme Court. At oral argument, the municipal election commission argued it had to follow state law and precedent and order a new election. The third-place candidate argued since the provisional votes had been allowed, these votes should have been counted and a winner declared.
Justices also asked questions about the interplay between Title 5, the municipal election title, and Title 7, the title governing elections. Other questions focused on who had the burden of proof in determining the validity of provisional ballots and for the protest challenge.
Each of the Justices asked questions on this case. The Court’s ruling will provide some clarity to who should be seated on the McBee Town Council.