Davis Adv. Sh. No. 33
In The Supreme Court
Eddie A. Butler, and the
Edgefield Branch of the
National Association for
the Advancement of
Colored People, Respondents,
The Town of Edgefield
and Charlotte Cheatham
in her Official Capacity
as Town Clerk, and The
and Aubrey Coleman,
John S. Timmerman,
and Willie Lewis in
their Official Capacities
as Municipal Election
Appeal From Edgefield County
Donald W. Beatty, Judge
Opinion No. 24717
Heard September 18,1997 - Filed December 1, 1997
REVERSED AND VACATED
James D. Nance and Kevin S. Little, of Aiken, for
BUTLER, et al., v. EDGEFIELD, et al.
Brenda Reddix-Smalls and Eleazer R. Carter, of
Columbia, for respondents.
TOAL,, A.J.: This case concerns a contest of the May 3, 1994 municipal
election held in the Town of Edgefield. Appellant Town appeals the circuit
court's order that the election results for the Ward 3 council seat be vacated
and Respondent Eddie Butler be afforded a new election. We reverse the
circuit court's holding and vacate its order.
On May 3, 1994, Town conducted municipal elections for mayor and
council seats for Wards 1, 3, and 5. Butler was a candidate in the election
and received votes for mayor and councilman in Ward 3. The official results
for the Ward 3 council seat were as follows:
William B. Jackson, 34 votes
Eddie Butler, 33 votes
Jerry Butler, 1 vote
Eddie Butler, Jr., I vote
No persons with the name Jerry Butler or Eddie Butler, Jr. were
candidates in the election. Additionally, one vote for Respondent Eddie
Butler was disqualified due to an error indicated by the voting machine.
The votes were counted by the Edgefield Election Commission ("Election
Commission") in the office of the Town Clerk, Charlotte Cheatham, in
Edgefield's Town Hall. After counting the votes once, Election Commission
conducted a recount. During the recount of the votes for Ward 3, the door
to Cheatham's office was closed for approximately ten minutes. At trial,
Cheatham testified that the door was closed due to noise in an adjoining hall.
Butler testified that he attempted to enter the room during the recount, but
was denied entrance.
On May 5, 1994, Butler delivered a hand-written letter to Election
Commission. The letter protested the results of the election and demanded
a recount. That same day, Election Commission notified Butler that a
recount of the May 3 election would be held on May 6, 1994, at 12:00 p.m.
A recount subsequently occurred on this date. Election Commission did not
conduct a hearing. The recount verified the results of the May 3 election.
On May 13, 1994, Butler filed an appeal in circuit court pursuant to
S.C. Code Ann. § 5-15-140 (1977). He argued that Election Commission
violated S.C. Code Ann. § 5-15-130 (1977) by not affording him a hearing on
his election contest. Butler also asserted a claim under the Federal Voting
Rights Act and alleged that Election Commission secretly counted votes in
violation of S.C. Code Ann. § 5-15-120 (1977). Finally, Butler argues to this
Court that he properly amended his complaint in circuit court to include a
claim under 42 U.S.C. § 1983.
The circuit court made three conclusions of law: (1) Town violated
section 5-15-130 by not affording Butler a hearing; (2) Town violated section
5-15-120 by not publicly counting the votes; and (3) the defendants were
acting in their official capacities and under color of state law. The trial judge
allowed voter Alice Miles to testify that the Eddie Butler, Jr. vote was hers,
and that she intended to cast it for Eddie Butler. As a result, the circuit
court found that Election Commission improperly declined to count the Eddie
Butler, Jr. vote as a vote for Eddie Butler. It also observed that a vote cast
for Eddie Butler was disqualified due to an error indicated by the voting
machine. Consequently, the circuit court vacated the results of the May 3
election for the Ward 3 council seat and ordered a new election to be held in
compliance with the law.
Town appeals, raising the following questions:
(A) Should Butler have been afforded a hearing on his election contest
pursuant to section 5-15-130?
(B) Did Election Commission secretly count votes in violation of section
(C) Should the disqualified vote and the vote for Eddie A. Butler, Jr.,
have been counted for Butler?
(D) Should the circuit court have considered the testimony of Alice
Miles concerning her vote for Eddie A. Butler, Jr.?
(E) Did Butler properly amend his complaint to include a claim under
42 U.S.C. § 1983?
A. Statutory Hearing Requirement
Town argues that the circuit court erred in finding that Butler properly
gave written notice of his election contest pursuant to section 5-15-130,
thereby invoking his right to a hearing. We agree.
S.C. Code Ann. § 5-15-130 provides:
Within forty-eight hours after the closing of the polls, any
candidate may contest the result of the election as reported by
the managers by filing a written notice of such contest together
with a concise statement of the grounds therefor with the
Municipal Election Commission. Within forty-eight hours after
the filing of such notice, the Municipal Election Commission
shall, after due notice to the parties concerned, conduct a hearing
on the contest, decide the issues raised, file its report together
with all recorded testimony and exhibits with the clerk of court
of the county in which the municipality is situated, notify the
parties concerned of the decisions made, and when the decision
invalidates the election the council shall order a new election as
to the parties concerned.
(emphasis added). Butler delivered his written contest notice to Edgefield's
Town Hall on May 5, 1994. The notice stated:
I was a write-in candidate in the Edgefield May City Council
election. I am protesting and requesting a recount of the votes
cast. I am also requesting a poll watcher during the recount.
The first time I noticed the election advertisement was in the
Edgefield County Citizen News on April 7, 1997. The wards [sic]
numbers were reversed.
I am asking the United States Justice Department, the Attorney
General, Janet Reno, the F.B.I. Director Louis Freeth [sic] and
the NAACP to look into the reasons why it would take several
hours to count votes for an election.
Mayor 155 votes
Ward I 17 votes
Ward III 67 votes
Ward 11 17 votes
I am also asking for the sign-in signature sheet of the poll list
and a total of votes received by the Mayor in each ward.
Town contends that Butler did not properly follow the procedure
provided in section 5-15-130 because he failed to provide a "concise statement
of the grounds" for his contest. In Taylor v. Roche, 271 S.C. 505, 248 S.E.2d
580 (1978), we held, "Under the common law there is no right to contest an
election. The right to contest an election exists only under the [state]
constitutional and statutory provisions, and the procedure prescribed by
statute must be strictly followed." Id. at 509, 248 S.E.2d at 582; S.C. Const.
art. II, § 10 ("The General Assembly shall . . . establish procedures for
contested elections, and enact other provisions necessary to the fulfillment
and integrity of the election process."). The notice in an election contest
"should briefly state facts or a combination of facts sufficient to apprise the
contestee of the cause for which his election is contested, it being insufficient
to allege generally that fraud was committed, or to allege mere conclusions
of the pleader." 26 Am. Jur.2d Elections § 434 (1996). The purpose of the
notice requirement is to adequately inform the contestee as to the nature of'
the contest. Section 5-15-130 codifies this by requiring a "concise statement
of the grounds."
Butler argues that he provided two concise grounds in his May 5
protest letter: (1) the misleading election advertisement; and (2) the amount
of time it took to count the votes. First, with regard to election notices, S.C.
Code Ann. § 5-15-50 (1977) requires that "public notice of the elections
[within the municipality] shall be given at least sixty days prior to such
elections." In this case, official notice of the Edgefield elections appeared in
the Edgefield newspaper, the Citizen News, on March 3 and April 28, 1994.
The election was held on May 3, 1994. Thus, the March 3 notice satisfied
section 5-15-50 by appearing in the local newspaper sixty-one days before the
election. More importantly, Butler did not challenge these official notices in
his May 5 protest letter. Instead, Butler challenged an article written by a
Citizen News reporter about the election. This article appeared in the
Citizen News in April 1994. Butler nevertheless argues that this was an
adequate ground for his contest, thereby triggering the hearing requirements
in section 5-15-130.
There are two prerequisites to maintaining an election contest in South
Carolina: (1) the contest notice must allege irregularities or illegalities; and
(2) the alleged irregularities or illegalities must have changed or rendered
doubtful the result of the election in the absence of fraud, a constitutional
violation, and a statute providing that such irregularity or illegality shall
invalidate the election. See Yonce v. Lybrand, 254 S.C. 14, 18, 173 S.E.2d
148, 150 (1970); Harrell v. City of Columbia, 216 S.C. 346, 355, 58 S.E.2d
91, 96 (1950); State ex rel. Welsh v. Jennings, 79 S.C. 246, 248, 60 S.E. 699,
700 (1908); State ex rel. Birchmore v. Board of Canvassers, 78 S.C. 461, 467,
59 S.E. 145, 146-47 (1907). In this case, the newspaper advertisement
challenged by Butler was not an official notice given by Town. As noted
above, Butler never challenged the official election notices. While the article
may have been irregular in the sense that it contained false information,1 it
had nothing to do with functions performed by Election Commission or any
other governmental entity. We therefore hold that Butler's reference to the
newspaper article in his contest letter was not a ground for protest under
section 5-15-130 because it failed to allege an election irregularity or
Butler contends that while the challenge to the article may have been
without merit, Election Commission should have conducted a formal hearing
to properly inform him of that determination. The ability to contest elections
is a privilege bestowed by state law. There is no common law or federal
constitutional right to be afforded a hearing in an election contest.
Consequently, we do not believe an election commission should have to
initiate the time consuming formalities of a hearing when the contestant has
failed, at the threshold, to allege an election irregularity or illegality.
The other point raised in Butler's May 5 letter was the time it took to
count the votes. Butler simply asked, "why it would take several hours to
count votes for the election?" Butler did not specify what he believed may
have occurred during those several hours. At best, his question implied
generally that fraud had been committed. A general allegation of fraud is
insufficient to notify the contestee as to the cause for the contest. See
McClendon v. McKeown, 323 S.W.2d 542, 544 (Ark. 1959) (stating that "the
pleadings, in an election contest case, should be sufficiently specific to give
reasonable information as to the grounds for the contest."); 26 Am. Jur. 2d
Elections § 434. In State ex rel. Davis v. State Board of Canvassers, 86 S.C.
451, 68 S.E. 676 (1910), we held that "while . . . technical precision in
pleading should not be required [for election contests], still reason and justice
require that the grounds relied upon should be stated plainly and clearly that
from Ward 2. Councilman Jackson actually came from Ward 3.
the contestee may prepare to meet them without unnecessary labor or
expense." Id. at 458-59, 68 S.E. at 679. Therefore, Butler's reference to the
time it took to count the votes was not a ground for contest under section 5-
15-130 because it amounted to nothing more than a general allegation of
The circuit court concluded that the vote recount was an improper
substitution for the hearing requirement under section 5-15-130. However,
since Butler did not provide concise grounds in his May 5 protest letter, a
hearing was not required, and the recount was proper. We therefore reverse
the circuit court on this point.
B. Secret Vote Count
Town argues that the circuit court erred in holding that the vote count
was conducted in secret thereby violating section 5-15-120. It is not
necessary to reach the merits of this claim because it was not timely raised
to Election Commission.
The only issue Butler could have raised on appeal to the circuit court
was whether Election Commission should have afforded him a hearing based
on his May 5 letter. Butler did not include the secret vote count claim in his
protest letter. Section 5-15-140 does not provide the circuit court with
express or implied authority to conduct a full hearing when one is denied by
the municipal election commission. The circuit court, in this situation, is by
statute an appellate court. It is axiomatic that "one cannot present and try
his case on one theory and thereafter advocate another theory on appeal."
White v. Livingston, 231 S.C. 301, 306, 98 S.E.2d 534, 537 (1957); see also
Indigo Associates v. Ryan Investment Co., 314 S.C. 519, 523, 431 S.E.2d 271,
273 (1993) (holding, "The circuit court, acting as an appellate court in a case
heard by the magistrate, cannot consider questions that have not been
presented to the magistrate."). We hold that the circuit court had no
authority to consider the secret vote count allegation because Butler never
raised it to Election Commission.
C. Eddie Butler, Jr. Vote & Disqualified Vote
Butler also failed to challenge the Eddie Butler, Jr. vote and the
disqualified vote in his May 5 letter. Consequently, for the same reasons
discussed above, Butler could not subsequently raise these issues in his
appeal to the circuit court.
D. Voter Alice Miles
As noted above, the Eddie Butler, Jr. vote was improperly before the
circuit court because it was not timely raised to Election Commission. For
this reason alone, the testimony of voter Alice Miles concerning her vote for
Eddie Butler., Jr. was not properly taken. However, even if this issue was
timely raised to Election Commission, it would never be appropriate for the
circuit court, functioning as an appellate court, to consider testimony de novo.
Moreover, voter testimony of this kind would not even be admissible
before an election commission. It is well settled that "the ballots themselves
constitute the highest and best evidence of the will of the electors." Redfearn
v. Board of State Canvassers, 234 S.C. 113, 120, 107 S.E.2d 10, 14 (1959).
Voter testimony is never admissible for the purpose of showing that the
intention of the voter was in any way different from what plainly appears on
the face of the ballot. 26 Am. Jur.2d Elections § 339. In this case, the write-
in vote for Eddie Butler, Jr. was clear and unambiguous.
E. Federal Claims
Town argues that Butler did not properly amend his complaint at trial
to include a claim under 42 U.S.C. § 1983. We find that none of Butler's
federal claims were properly before the circuit court.
Butler raised the following federal causes of action for the first time on
appeal to the circuit court: (1) violation of the Fifth and Fourteenth
Amendments to the U.S. Constitution; and (2) violation of Section 2 of the
Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. In addition to these
claims, Butler argues that he properly amended his complaint in circuit court
to include a claim under 42 U.S.C. § 1983.
As discussed above, the circuit court serves an appellate function for
municipal election contests pursuant to section 5-15-140. Consequently, it
was improper for the circuit court to have considered Butler's federal claims.
However, even assuming Butler's claims were properly before the circuit
court, we find that no federal laws were violated in this case.
1. Voting Rights Claim
Under 42 U.S.C. § 1973(a), "No voting qualification or prerequisite to
voting or standard, practice, or procedure shall be imposed or applied by any
State or political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to vote on
account of race or color . . . ." In Roberts v. Wamser, 883 F.2d 617 (8th Cir.
1989), the Eighth Circuit held "that an unsuccessful candidate attempting to
challenge election results does not have standing under the Voting Rights
Act." Id. at 621. The court observed that the contestant was "not an
aggrieved voter suing to protect his right to vote." Id. The contestant had
instead alleged as an injury the loss of votes he should have received in the
election. This was precisely the situation here. Butler did not sue to protect
his own right to vote; nor did he sue to protect the rights of others. The only
injury alleged by Butler was the loss of votes for the Ward 3 council seat.
We therefore hold that Butler did not have standing under the Voting Rights
2. Section 1983 & 14th Amendment Claims
The prerequisites to an action under 42 U.S.C. § 1983 are that there
be a deprivation of a right, privilege, or immunity secured by the
Constitution or laws of the United States and that such act of deprivation
occur under color of state law. We hold that Butler was not deprived of any
federally protected right, privilege, or immunity.
Butler argues that Election Commission's refusal to provide a hearing
violated the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. In Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397, 88 L.
Ed. 497 (1944), the United States Supreme Court held that "an unlawful
denial by state action of a right to state- political office is not a denial of a
right of property or of liberty secured by the due process clause." Id. at 7,
64 S. Ct. at 401, 88 L. Ed. at 502. Consequently, the denial of a hearing in
this case was not violative of the due process clause because Butler was not
deprived of any property or liberty interest contemplated by the Fourteenth
Snowden is also determinative of Butler's claim that the Equal
Protection Clause of the Fourteenth Amendment was violated. In Snowden,
the Court held, "The unlawful administration by state officers of a state
[election] statute fair on its face, resulting in its unequal application to those
who are entitled to be treated alike, is not a denial of equal protection unless
there is shown to be present in it an element of intentional or purposeful
discrimination." Snowden, 321 U.S. at 8, 64 S. Ct. at 401, 88 L. Ed. at 503.
In Sylvia Development Corporation v. Calvert County, MD., 48 F.3d 810 (4th
Cir. 1995), the Fourth Circuit followed Snowden when it held, "To prove that
a statute has been administered or enforced discriminatorily, more must be
shown than the fact that a benefit was denied to one person while conferred
on another." Id. at 819. Butler did not allege or set forth any facts which
could establish purposeful or intentional discrimination on the part of the
For the foregoing reasons, the decision of the circuit court is
REVERSED and its order VACATED.
MOORE, WALLER, and BURNETT, AJ., concur.