STATE OF SOUTH CAROLINA
In The Supreme Court
APPEAL FROM A DECISION OF THE
SOUTH CAROLINA STATE ELECTION COMMISSION
IN RE: NOVEMBER 4, 2008 BLUFFTON TOWN COUNCIL ELECTION
Fred Hamilton, Jr., and Allyne Mitchell, Respondents,
Jeff Fulgham, Normand Thomas,
and the Beaufort
County Board of Elections and Voter Registration,
of whom Jeff Fulgham and Normand Thomas are Appellants.
REPLY BRIEF OF APPELLANTS
|NELSON MULLINS RILEY & SCARBOROUGH LLP|
|Attorneys for Appellants Jeff Fulgham and Normand Thomas|
Columbia, South Carolina
March 17, 2009
TABLE OF CONTENTS
|TABLE OF AUTHORITIES||ii|
|ARGUMENTS AND AUTHORITIES||2|
|I||The State Election Commission does not have subject matter jurisdiction over municipal elections, and respondents have not identified any legal or factual basis for the state agency to assert jurisdiction here||2|
|II||Appellants properly prosecuted the instant election protest||2|
|A.||Undisputed facts presented to the Beaufort County Election Commission render the results of the town council election doubtful||2|
|B.||The South Carolina Code does not require Appellants to examine the voting rolls before Election Day to identify all possible irregularities in order to prosecute their protest||2|
TABLE OF AUTHORITIES
|Atlanta Skin & Cancer Clinic, P.C. v. Hallmark Gen. Partners, 320 S.C. 113, 463 S.E.2d 600 (1995)||3|
|Dukes v. Redmond, 357 S.C. 454, 593 S.E.2d 606 (2004)||9|
|Gecy v. Bagwell, 372 S.C. 237, 642 S.E.2d 569 (2007)||9|
|Hill v. South Carolina Election Commission, 304 S.C. 150, 403 S.E.2d 309 (1991)||8|
|Holroyd v. Requa, 361 S.C. 43, 603 S.E.2d 417 (Ct. App. 2004)||6|
|Taylor v. Town of Atl. Beach Election Comm’n, 363 S.C. 8, 609 S.E.2d 500 (2005)||7|
|S.C. Code Ann. § 5-15-130||4|
|S.C. Code Ann. § 5-15-140||2, 4|
|S.C. Code Ann. § 7-13-810||8|
|S.C. Code Ann. § 7-17-30||2|
|S.C. Code Ann. § 7-17-60||2|
|S.C. Code Ann. § 7-17-70||8|
|Code of Ordinances, Beaufort County § 30-3||3|
|Code of Ordinances, Beaufort County § 30-3(a)||4|
|Code of Ordinances, Beaufort County § 30-3(b)||4|
|Code of Ordinances, Beaufort County § 30-3(c)||4|
This case presents two questions for the Court’s review: the first involves the South Carolina State Election Commission’s subject matter jurisdiction to hear appeals regarding municipal elections, and the second involves the propriety of the State Election Commission’s decision to overturn a local election commission’s rulings for fact-based reasons. As explained in Appellants’ initial brief, the State Election Commission has no authority to review a challenge to the November 4, 2008 election for two seats on the Bluffton Town Council. Br. of Appellants at 7–13. Further, the State Election Commission is statutorily prohibited from reassessing a case’s facts when sitting in its appellate capacity. Id. at 14–18. Accordingly, its ruling that the Beaufort County Board of Elections and Voter Registration’s (hereinafter referred to as the “Beaufort County Election Commission”) decision to order a new election for seats on the Bluffton Town Council was based on “insufficient evidence” was in error and should be reversed by this Court. (R. p. 96.)
In opposing this appeal, Respondents provide the Court with extensive discussions of their view of the facts, but do so without a single citation to anything in the Record on Appeal that would support their claims. Moreover, they do not identify any controlling statutory or case law that vests the State Election Commission with subject matter jurisdiction here, permits the State Election Commission to inquire into the facts of this case on appeal, or requires Appellants to take any further steps in order to prosecute their protest of the November 4th election. For these reasons, which are discussed more fully below, the Court should reverse the State Election Commission’s order and allow a new election to be held for two seats on the Bluffton Town Council.
ARGUMENTS AND AUTHORITIES
I. The State Election Commission does not have subject matter jurisdiction over municipal elections, and respondents have not identified any legal or factual basis for the state agency to assert jurisdiction here.
Appellants’ first argument in support of reversing the State Election Commission’s decision to uphold the results of the November 4th election is that the State Election Commission has no jurisdiction to consider matters involving municipal elections. As discussed in Appellants’ initial brief, Title 7 of the South Carolina Code vests the State Election Commission with appellate jurisdiction of “decision[s] of the county board.” S.C. Code Ann. § 7-17-60. The authority of county election commissions under Title 7, however, expressly excludes “primaries and municipal elections.” Id. § 7-17-30. Instead, municipal elections are regulated by Title 5 of the South Carolina Code, which directs appeals involving such elections to the local courts of common pleas. Id. § 5-15-140. Because the State Election Commission exceeded the boundaries of its subject matter jurisdiction here, its ruling should be set aside, and the decision of the local election commission ordering a new election for Bluffton Town Council should be upheld.
In response to Appellants’ jurisdictional arguments, Respondents do not identify any constitutional or statutory basis for the State Election Commission’s jurisdiction here. See Final Br. of Resp’ts at 7 (conceding that “there are no specific statutes that govern jurisdiction in this particular case”). Instead, Respondents claim that the Beaufort County Election Commission was somehow “given authority to direct how appeals should be taken from its decisions.” Id. In this regard, Respondents further assert that the local commission “directed the appeal of its decision to the South Carolina State Election Commission.” Id. Importantly, though, Respondents do not provide any basis—legal or factual—in support of these positions, nor can they.
First, it is well-settled that a state court’s subject matter jurisdiction is established by either the South Carolina Constitution or the South Carolina Code. See, e.g., Atlanta Skin & Cancer Clinic, P.C. v. Hallmark Gen. Partners, 320 S.C. 113, 121, 463 S.E.2d 600, 605 (1995) (“Subject matter jurisdiction of a court depends upon the authority granted to the court by the constitution and laws of the state.” (quoting Paschal v. Causey, 309 S.C. 206, 209, 420 S.E.2d 863, 865 (Ct. App. 1992))). Accordingly, it is straightforward that a county ordinance cannot vest a state court or agency with jurisdiction that is not otherwise provided by South Carolina law. This is especially true when, as here, the county’s own agency is a litigant. See id. (“It is axiomatic that subject matter jurisdiction cannot be waived or conferred by consent.”).
Second, even if Beaufort County actually had the ability to expand the State Election Commission’s subject matter jurisdiction to include appeals regarding municipal elections, it never passed any such ordinance. Beaufort County Ordinance § 30-3 governs the county’s “[a]uthority to conduct municipal elections for the Town of Bluffton.” That ordinance details the responsibilities that the Beaufort County Election Commission has with respect to Bluffton’s elections, which include:
[D]esignat[ing] all polling places, the inspection and visitation of polls during election day, the recruitment and assignment of poll managers, securing telephones for the polling precincts, the hearing of challenged ballots and ruling on any protests and/or complaints regarding the election or its procedures, and the certification of the election results.
Code of Ordinances, Beaufort County § 30-3(c). Contrary to Respondents’ assertions, nowhere does this ordinance indicate that appeals regarding Bluffton’s municipal elections should be taken to the State Election Commission. Respondents’ argument on this point should be rejected as a result.
Finally, Respondents’ contention that the local election commission “directed Respondents to file their appeal with the South Carolina State Election Commission” is without any factual basis at all. See Final Br. of Resp’ts at 8 (providing no citations to the Record on Appeal in support of this assertion). To the contrary, the Beaufort County Election Commission filed a lengthy brief with the State Election Commission in which the local agency argued that Respondents’ case “should be dismissed for lack of subject matter jurisdiction.” (R. p. 28.) As the local election commission put it: “Once the county commission renders a decision in a municipal election, an appeal should be made to the court of common pleas, as plainly stated in S.C. Code Ann. § 5-15-140.” (R. p. 31.) The Beaufort County Election Commission’s statements on this point entirely undercut Respondents’ claim that the local election commission directed them to bring this case before the State Election Commission. Accordingly, Respondents’ final argument regarding the state agency’s subject matter jurisdiction, like their others, should be rejected, and the State Election Commission’s decision in this case should be reversed for want of jurisdiction.II. Appellants properly prosecuted the instant election protest.
In addition to arguing that the State Election Commission had no jurisdiction to consider this matter, Appellants’ initial brief explained that (a) the state agency had no authority to review the facts of this case and (b) the state agency’s view of the facts was squarely contrary to undisputed testimony regarding the number of voting irregularities that occurred during the November 4th election. For these additional reasons, the State Election Commission’s ruling to uphold the results of the earlier election should be reversed.
In opposition, Respondents argue that reversal is not warranted here because, in their view, Appellants did not present sufficient evidence to the Beaufort County Election Commission to overturn the election’s results. Respondents also argue that Appellants should have reviewed the voter rolls prior to Election Day as a prerequisite to maintaining the instant protest. As discussed below, however, neither of these points is supported by the Record on Appeal or applicable case law. Respondents’ arguments should be rejected as a result.
A. Undisputed facts presented to the Beaufort County Election Commission render the results of the town council election doubtful.
The instant protest was based on the fact that voting rolls prepared by the Beaufort County Election Commission for Bluffton’s municipal races contained a substantial number of coding errors with respect to whether voters lived within the town’s limits: Some out-of-town voters were wrongly coded as living in Bluffton, while some in-town voters were wrongly coded as living outside the town’s limits. (R. pp. 8–9 (testimony of Agnes Garvin, Executive Director of the Beaufort County Election Commission).) During the hearing before the Beaufort County Election Commission, the agency’s Executive Director testified that she closely examined the voting rolls and identified the following voting irregularities for Bluffton’s elections:
Breakdown of Irregularities By Precinct
(R. p. 9 (testimony of Agnes Garvin).) A candidate for one of Bluffton’s other elective offices testified that he was aware of approximately 90 Bluffton residents who were wrongly denied the opportunity to vote in the town’s races due to coding problems in the voter rolls. (R. p. 4 (testimony of Charlie Wetmore, candidate for Town of Bluffton Mayor).) Based on this evidence, and because the margin of victory in the November 4th election was only 26 votes, the Beaufort County Election Commission ordered a new election to be held for both open town council seats. (R. pp. 19–20.)
Respondents did not present any testimony or other evidence during the proceedings before the Beaufort County Election Commission that rebutted or contradicted any of the facts above. Despite the absence of any evidence that rebuts Appellants’ position, Respondents now assert that “[t]he Appellants rely solely on conjecture and speculation to conclude that people were denied the right to vote.” Final Br. of Resp’ts at 10. In light of the undisputed evidence of voting irregularities, though, Respondents’ position on this issue is unfounded. In fact, the irregularities were so prevalent that Respondent Hamilton himself testified before the local commission that he was aware of several voters who were wrongly prevented from voting in the Town Council race. (See R. p. 16 (conceding that Respondent Hamilton “got a number of phone calls from people who lived in the Old Town of Bluffton that said when they went to vote my name was not on their ballots”) (testimony of Respondent Fred Hamilton, Jr., candidate for Bluffton Town Council).) Respondents’ argument that the evidentiary foundation presented to the local election commission was insufficient to require a new election should be rejected accordingly.
As a matter of law, the State Election Commission was statutorily bound to the Beaufort County Election Commission’s factual findings. See S.C. Code Ann. § 7-17-70 (“The state board is bound by the facts as determined by the county board.”). Although the state agency could have held a de novo hearing and accepted additional evidence, it specifically declined to do so. (See R. p. 96 (“Two members of the State Board did not call for an evidentiary hearing. Accordingly, the State Board heard the appeal in its appellate capacity.”).) As a result, the State Election Commission was barred from reviewing the facts here, and its failure to honor the statutory restriction on its appellate authority should be reversed.
B. The South Carolina Code does not require Appellants to examine the voting rolls before Election Day to identify all possible irregularities in order to prosecute their protest.
As a final attempt to sustain the specious results of the November 4th election, Respondents argue that “the alleged discrepancies in the voter rolls could have been examined by the candidates before the election.” Final Br. of Resp’ts at 11. In support of this position, Respondents rely exclusively on this Court’s decision in Hill v. South Carolina Election Commission, 304 S.C. 150, 152, 403 S.E.2d 309, 309–10 (1991), in which the Court required that certain challenges to an election’s results be made contemporaneously with the casting of an improper ballot. But as noted in Appellants’ Reply Brief in Support of their Petition for a Writ of Certiorari, that case has been statutorily overruled. See Reply Br. in Supp. of Pet. for Writ of Certiorari at 5 n.2.
A 1996 amendment to South Carolina Code § 7-13-810 allows candidates to protest an election “based in whole or in part on evidence discovered after the election.” The Court has recognized on several occasions that this statutory amendment was aimed at setting aside the Hill decision. See, e.g., Gecy v. Bagwell, 372 S.C. 237, 244 n.3, 642 S.E.2d 569, 573 n.3 (2007) (“The amended version of the statute allows for after-discovered evidence that was prohibited by Hill.”); Dukes v. Redmond, 357 S.C. 454, 457 & n.4, 593 S.E.2d 606, 608 & n.4 (2004) (holding that “[t]he evidence presented by [the protestant] that voters included on the voter registration list were not in fact city residents qualifies as after-discovered evidence” under Section 7-13-810 and noting that this statute was amended in response to the Hill decision). In Gecy, the Court further acknowledged the inapplicability of Hill to election protests when it expressly “decline[d] to require a candidate to review all registration books and match each registered voter with his current address before the election.” 372 S.C. at 245, 642 S.E.2d at 573. Respondents’ reliance on this lone case in support of their position that Appellants should have taken remedial measures before Election Day is misplaced, and the Court should reject their argument on this point accordingly.
For the reasons stated above, as well as those explained in Appellants’ initial brief, Appellants respectfully request that the Court reverse the decision of the State Election Commission and allow a new election to be held for two seats on the Bluffton Town Council, as ordered by the Beaufort County Election Commission.
NELSON MULLINS RILEY & SCARBOROUGH LLP
|Attorneys for Appellants Jeff Fulgham and Normand Thomas|
Columbia, South Carolina
March 17, 2009
 Notably, the Town of Bluffton still retains some responsibilities with respect to its elections. See Code of Ordinances, Beaufort County § 30-3(a) (noting that Bluffton is responsible for all costs associated with its elections); id. § 30-3(b) (providing that Bluffton is responsible for receiving and maintaining all candidate filings). Further, as discussed in Appellants’ initial brief, the Beaufort County Election Commission regulated the election for seats on the Bluffton Town Council pursuant to the standards governing municipal elections found in Title 5 of the South Carolina Code. See Br. of Appellants at 13 n.6 (explaining that the instant protest was adjudicated pursuant to the expedited procedures found in South Carolina Code § 5-15-130,rather than the protracted timeline set forth in Title 7).
 On appeal, Respondents argue that some of the evidence presented to the Beaufort County Election Commission should now be excluded based on the hearsay rules. Final Br. of Resp’ts at 9. However, Respondents made no such objection at the time that the evidence was presented. As a result, they have waived any ability to challenge this evidence on appeal. See, e.g., Holroyd v. Requa, 361 S.C. 43, 60, 603 S.E.2d 417, 426 (Ct. App. 2004) (“Failure to object to the introduction of evidence at the time the evidence is offered constitutes a waiver of the right to have the issue considered on appeal.”).
 Respondents assert that the “county board determined no facts in reaching its decision.” Final Br. of Resp’ts at 8–9. This argument, however, is baseless in light of the fact that no evidence was presented to the Beaufort County Election Commission in opposition to Appellants’ position. And as this Court recently recognized, the local election commission, unlike statewide agencies, was not required to issue a formal order listing specific findings of fact in this case. See Taylor v. Town of Atl. Beach Election Comm’n, 363 S.C. 8, 15, 609 S.E.2d 500, 503 (2005) (“The statute does not require a written order containing findings of fact or conclusions of law similar to those, e.g., required of tribunals in APA or family court proceedings.”).