THE STATE OF SOUTH CAROLINA
In The Supreme Court
G. Robert George, Steve
M. Kearse, Mary Ellen
Warner, Dorothy M.
Humphries, Barbara H.
Miller, and the City of
Commission of the City
of Charleston, Respondent.
Appeal From Charleston County
A. Victor Rawl, Circuit Court Judge
Opinion No. 24941
Heard April 20, 1999 - Filed May 3, 1999
Samuel W. Howell, IV, and Edward M. Whelan, of
Haynsworth, Marion, McKay & Guerard, LLP,
Charleston, for appellants.
William B. Regan and Frances I. Cantwell of Regan
& Cantwell, Charleston, for respondent.
WALLER, A.J.: G. Robert George, the City of Charleston
Republican Party, and others (Appellants) contested the results of a special
municipal election in Charleston. The three-member Municipal Election
Commission of the City of Charleston (Commission) voted unanimously to
uphold the results of the election. The circuit court affirmed Commission's
decision. We reverse.1
Commission learned in September 1998 that it had to organize a
special election to be held November 3, 1998, the same day as the general
election. Voters would decide whether the city's elections would be changed
from partisan to nonpartisan. Commission traditionally had worked with
Charleston County officials during elections, using the county's electronic voting
machines and getting help from county precinct workers. This time, county
election officials were unable to assist Commission due to the length and
complexity of the ballots in county, state, and national races, although the
county did provide some poll managers in the city election.
On Election Day, city voters signed in at their polling places and
cast their ballots in county, state, and national races on the county's electronic
voting machines. The machines were contained in separate booths that ensured
voters' privacy. City voters then walked to a nearby table six to eight feet in
length. They signed in again and were given a punch-card ballot to vote on the
city referendum. After voting, they dropped the ballots in a sealed cardboard
box on the table. Commission officials instructed poll managers to allow voters
who desired more privacy to step away from the table, turn around, or shield
appeal. See Rule 234(b), SCACR. 1999 is a general election year in the City of
Charleston, including elections for mayor and six council seats. Prospective
candidates must file a petition with Commission no later than May 20, 1999, in
order to compete in the primary election August 3, 1999. Thus, it is important
to know whether the 1998 referendum, which changed city elections from
partisan to nonpartisan, was a valid election.
their ballot by holding it behind the ballot box while completing it.2
Commission held a hearing November 9, 1998, after appellants
contested the results. All parties and Commission stipulated that (1)
Commission did not provide voting booths in any city precincts, and the
majority of voters in the city election did not vote in a voting booth; and (2)
punch-card ballots used in the city election were not designed to be folded
because they were counted by a computer, and the majority of voters did not
fold the ballots.
Appellants presented no evidence or witnesses at the hearing, but
grounded their arguments in the stipulations. Appellants conceded no one
testified he or she saw the vote made by another person, no one testified he or
she refused to vote due to the method of voting, and no one testified he or she
was confused or intimidated during the process.
Candidate Paul E. Tinkler, one of Tinkler's poll watchers, and two
voters called by the Committee for Nonpartisan Elections testified they believed
the method of voting sufficiently protected their right to cast a secret ballot.
They simply cupped their ballots in one hand, punched the desired slot, and
dropped them in the box. Other voters usually were standing in nearby lines
when voters completed the city ballots.
City residents voted to change municipal elections in the city of
Charleston from partisan to nonpartisan by a vote of 8,929 to 6,310. Appellants
contend the circuit court erred in affirming Commission's decision to uphold the
Did the total absence of voting booths and the use of
punch-card ballots that were not designed to be folded
violate the state constitution or statutes?
District 9. Appellants initially challenged Tinkler's election, but stipulated to
the dismissal of that appeal before the circuit court. Consequently, Tinkler's
election to the District 9 seat is not affected by our decision.
Appellants contend the state constitution and statutes required
Commission to provide voting booths and ballots that may be folded in order to
ensure each voter's right to cast a secret ballot. They argue the Court should
nullify the referendum results due to the total lack of booths and foldable
ballots. We agree.
In municipal election cases, this Court reviews the judgment of the
circuit court upholding or overturning the decision of a municipal election
commission only to correct errors of law. The review does not extend to findings
of fact unless those findings are wholly unsupported by the evidence. Knight
v. State Bd. of Canvassers, 297 S.C. 55, 374 S.E.2d 685 (1988); May v. Wilson,
199 S.C. 354) 19 S.E.2d 467 (1942). The Court will employ every reasonable
presumption to sustain a contested election, and will not set aside an election
due to mere irregularities or illegalities unless the result is changed or rendered
doubtful. Sims v. Ham, 275 S.C. 3691 271 S.E.2d 316 (1980); May v. Wilson,
The statutory provisions regulating the conduct of elections are
numerous and detailed. S.C. Code Ann. §§ 7-13-10 to -2220 (1976 & Supp.
1998); S.C. Const. art. II, § 10. This Court, like many others, recognizes that
perfect compliance in every instance is unlikely, and the Court is loathe to
nullify an election based on minor violations of technical requirements. To that
end, courts have developed principles to determine whether such provisions are
mandatory or directory.
As a general rule, such provisions are mandatory in two instances:
when the statute expressly declares that a particular act is essential to the
validity of an election, or when enforcement is sought before an election in a
direct proceeding. After an election in which no fraud is alleged or proven,
when the Court seeks to uphold, the result in order to avoid disenfranchising
those who voted, such provisions are merely directory even though the
Legislature used seemingly mandatory terms such as "shall" or "must" in
establishing the provisions. "Courts justly consider the main purpose of such
laws, namely, the obtaining of a fair election and an honest return, as
paramount in importance to the minor requirements which prescribe the formal
steps to reach that end, and, in order not to defeat the general design, are
frequently led to ignore such innocent irregularities of election officers as are
free of fraud, and have not interfered with a full and fair expression of the
voter's choice." State ex rel. Parler v. State Bd. of Canvassers, 79 S.C. 414, 419,
60 S.E. 9672 968-69 (1908); accord Laney v. Baskin, 201 S.C. 246,253,22 S.E.2d
722, 725 (1942); Smoak v. Rhodes, 201 S.C. 237, 241, 22 S.E.2d 685, 686 (1942);
Killingsworth v. State Executive Comm. of Democratic Party, 125 S.C. 487,
492) 118 S.E. 822, 824 (1921); State ex rel. Davis v. State Bd. of Canvassers, 86
S.C. 451, 460, 68 S.E. 676, 680 (1910).
The Court still may deem such provisions to be mandatory after an
election - and thus capable of nullifying the results - when the provisions
substantially affect the free and intelligent casting of a vote, the determination
of the results, an essential element of the election, or the fundamental integrity
of the election. Zbinden v. Bond County Community Unit School Dist. No. 2,
117 N.E.2d 765, 767 (Ill. 1954); Lewis v. Griffith, 664 So.2d 177, 186 (Miss.
1995); O'Neal v. Simpson, 350 So.2d 998, 1005-09 (Miss. 1977); Mittelstadt v.
Bender, 210 N.W.2d 89, 94 (N.D. 1973). Furthermore, "where there is a total
disregard of the statute, it cannot be treated as an irregularity, but it must be
held and adjudicated to be cause for declaring the election void and illegal."
Moon v. Seymour, 186 S.E. 744,745 (Ga. 1936); accord Lewis v. Griffith, supra.
"The Court . . . will not sanction practices which circumvent the plain purposes
of the law and open the door to fraud." May v. Wilson, 199 S.C. at 360, 19 S.E.
With those principles in mind, we turn to the provisions at issue in
"All elections by the people shall be by secret ballot . . . S. C.
Const. art. II, § 1.3 Secret ballots have been required since at least 1907, when
the Court interpreted a provision in the original 1895 constitution for voting "by
ballot" to mean voting by secret ballot. State ex rel. Birchmore v. State Bd. of
All elections by the people shall be by secret ballot, but the ballots
shall not be counted in secret. The right of suffrage, as regulated
in this Constitution, shall be protected by laws regulating elections
and prohibiting, under adequate penalties, all undue influence from
power, bribery, tumult, or improper conduct.
Canvassers, 78 S.C. 461,468-69,59 S.E. 145,147 (1907); see also State v. Shaw,
9 S.C. 94) 132-45 (1877) (plainly indicating, while interpreting 1868 state
constitution, that voting "by ballot" impliedly means by secret ballot). Section
1 of Article II was amended in 1971 to include the term "secret ballot." Act No.
277, 1971 Acts 319.
The Legislature explicitly has declared "[t1he right to vote of each
person so entitled and the secrecy of the ballot shall be preserved at all times."
S.C. Code Ann. § 7-13-130 (1976). That legislative goal is evident in several
statutory provisions. See S.C. Code Ann. § 7-13-1830 (1976) (after helping a
voter understand how to use a voting machine, the poll managers "shall, before
the voter has voted, retire and such voter shall cast his ballot in secret"); S.C.
Code Ann. § 7-13-771(D) (Supp. 1998) (after an elderly or handicapped person
votes in his or her vehicle outside a polling place, the voter "must fold [the
ballot] so that the secrecy of the ballot is preserved and return it to the
managers waiting outside the vehicle. The managers shall carry the ballot to
the ballot box, taking care not to violate the secrecy of the ballot, and after
detaching the stub, deposit the ballot in the ballot box"); S.C. Code Ann. § 7-13
1380 (1976) ("The State Election Commission in specifying the form of the ballot
shall provide for ballot secrecy in connection with write-in votes").
History demonstrates the importance of the secret ballot. In the
early years of our nation, voters expressed their preferences orally or by a
showing of hands. With the advent of paper ballots in the late 1700s,
individuals prepared their own handwritten ballots at home, marked them, and
took them to the polling place. Later, political parties and candidates printed
their own specially colored or designed paper ballots for voters to use. None of
the methods was secret and all were open to widespread intimidation of voters,
fraud, and violence. Burson v. Freeman, 504 U.S. 191, 200-206, 112 S.Ct. 1846,
i852-54,119 L.Ed.2d 5, 15-19 (1992) (upholding Tennessee statute prohibiting
solicitation of votes and display of campaign materials within 100 feet of
entrance to polling place); G.H. Utter and R.A. Strickland, Campaign and
Election Reform: A Reference Handbook, 8-9 (1997); Wright and Graham,
Federal Practice and Procedure: Evidence, § 5632 (1992) (discussing history of
secret ballot in connection with rejected rule of evidence on voter's privilege).
Polling places on Election Day, unlike today's typical experience of
waiting quietly in line, often were "scenes of battle, murder, and sudden death."
In addition to real violence, sham battles were staged to frighten away elderly
and timid voters. Burson v. Freeman, 504 U.S. at 202-04, 112 S.Ct. at 1853-54,
119 L.Ed.2d at 16-17. One writer described Election Day in 1856, for example,
as a "knock-down, dragged-out fight" in many areas of the country. Thugs
forced voters at the polls to reveal their voting ticket, then beat or shot them
and forcibly tore up the opposing party's ticket if they refused to vote as
ordered. Sheriffs were unable to find men willing to risk their lives to control
the violent mobs. In his 1931 autobiography, journalist Lincoln Steffens,
commenting on a more peaceable form of vote solicitation, observed that the
going rate for a vote in his Connecticut hometown was $2.50 to $2.75. J.
Mitchell, How to Get Elected: An Anecdotal History of Mud-Slinging, Red
Baiting, Vote-Stealing and Dirty Tricks in American Politics, 45-46, 88 (1992).
To combat violence and corruption, most states adopted the secret
ballot - sometimes called the Australian ballot system because it was first used
in that country - and other measures in the 1880s and 1890s. Burson v.
Freeman, supra; Utter & Strickland, at 42-46. When explaining the importance
of the secret ballot to our system of representative democracy, the reasons most
often given are to reduce or eliminate the potential intimidation of voters, to
reduce or eliminate the chance for voters who are willing to sell their votes to
prove they have "delivered the goods" by allowing someone to watch them cast
their ballot, and to ensure the overall integrity of the electoral process. State
ex rel. Edwards v. Abrams, 270 S.C. 87, 92, 240 S.E.2d 643, 645-46 (1978);
Peterson v. City of San Diego, 666 P.2d 9752 976 (Cal. 1983); Moon v. Seymour,
186 S.E. at 745; Clark v. Quick, 36 N.E.2d 563, 566 (Ill. 1941); Evans v. Reiser,
2 P.2d 615, 625 (Utah 1931), superseded by statute on other grounds as stated
in Mosier v. Gilmore, 635 P.2d 55 (Utah 1981); Sims v. Atwell, 556 S.W.2d 929)
933 (Ky. Ct. App. 1977); 26 Am.Jur.2d Elections §§ 299, 328 (1996).
This Court has held that secrecy of the ballot was violated when a
husband and wife were allowed to enter the voting booth together and discuss
their vote, Edwards v. Abrams, 270 S.C. at 91-93, 240 S.E.2d at 645-46; when
the numbering system for ballots and voter sign-in lists could be used to identify
a particular voter's ballot, Corn v. Blackwell, 191 S.C. 183, 4 S.E.2d 254 (1939);
and when voters were required to place their ballots in "for" and "against" boxes
that plainly revealed their choice, Birchmore v. State Bd., 78 S.C. at 471-72, 59
S.E. at 148. Although the records in those cases revealed no actual proof of
intimidation or fraud, the procedures substantially affected an essential
element of the election (secrecy of the ballot), as well as the fundamental
integrity of the election. "While in this particular instance it is possible that no
evil results followed from the mode in which the election was conducted, yet we
cannot be unmindful of the fact that we must be guided by those general
principles of law and policy that will enable us to determine future litigations,
under the election laws of the state consistently." Birchmore v. State Bd., 78
S.C. at 472, 59 S.E. at 148 (nullifying election results).
A. THE VOTING BOOTH
Municipal elections must be conducted pursuant to the South
Carolina Election Law contained in Title 7, with any necessary changes in
points of det ail. S.C. Code Ann. § 5-15-10 (1976). The Legislature has
established explicit requirements for voting booths.
There must be provided at each polling precinct at
least one booth. At least one booth must be provided
for each two hundred and fifty registered electors or a
major fraction thereof of the precinct. The booths must
be made of wood, sheet metal, or other suitable
substance; must not be less than thirty-two inches
wide, thirty-two inches deep, and six feet six inches
high; must have a curtain hanging from the top in
front to within three feet of the floor; and must have a
suitable shelf on which the voter can prepare his ballot.
In primary, general, and special elections, the booths
must be provided by the commissioners of election or
other electoral board. Only one voter shall be allowed
to enter a booth at a time, and no one except as
provided herein is allowed to speak to a voter while in
the booth preparing his ballot.
S.C. Code Ann. § 7-13-740 (Supp. 1998).
The Court has indicated that minor variations in the design of a
voting booth are not likely to prompt it to void an election. Smoak v. Rhodes,
201 S.C. at 241, 22 S.E.2d at 686 ("It will not be contended that a few inches one
way or the other in these matters [size of booth or length of curtain screening
booth] would vitiate an election"); Killingsworth v. State Executive Comm. of
Democratic Party, 125 S.C. at 492, 118 S.E. at 824 (same). The Court has not,
however, decided a case in which voters were not provided with any voting
booths at all.
Courts that have considered the issue disagree on it. The Georgia
Supreme Court has held that a statute requiring election officials~to provide
booths is mandatory, and nullified an election in which election officials totally
disregarded the statute by providing no booths. Moon v. Seymour, 186 S.E. at
745; see also Cox v. Williams, 117 S.E.2d 899 (Ga. 1961) (nullifying referendum
results due to numerous irregularities, including the lack of screened voting
booths). The North Dakota Supreme Court has taken the opposite view,
holding that secrecy was adequately ensured in a school bond election by
allowing voters to use three large tables in a large room. The court emphasized
it did not intend to minimize the importance of voting booths. Mittelstadt v.
Bender, 210 N.W.2d 89, 95-96 (N.D. 1973).
In a similar case, the Missouri Supreme Court refused to nullify a
school bond election based on the lack of voting booths because the one-question
ballot was easily concealed while marking it. Lake v. Riutcel, 249 S.W.2d 450,
451 (Mo. 1952); see also Cashen v. Bd. of Education, 119 N.E.2d 823, 824-25 (Ill.
Ct. App. 1954) (upholding results in school board election where no booths were
provided; no statute required the use of booths in such elections).
In this case, it is undisputed that Commission did not provide any
voting booths, and that the record contains no actual proof of voter intimidation
or fraud. We acknowledge that Commission's decision to proceed without
booths is understandable, given the hasty preparations and the inability of
Charleston County officials to provide their traditional assistance. Nothing in
the record suggests Commission failed to appreciate the importance of its
Absent the several statutes that address the secret ballot
requirement of Article II, Section 1, we would be less constrained in deciding
whether Commission met the constitutional requirement in this case. However,
we are guided both by the constitution and the Legislature's explicit
instructions on how to ensure the right to a secret ballot.
We conclude this election challenge is not one in which we are faced
with minor violations of technical requirements. The history of the secret
ballot, our precedent, and the statutes persuade us that the voting booth is an
essential element of the electoral process. The lack of any evidence of voter
intimidation or fraud is not dispositive because the total absence of booths
affects the fundamental integrity of the election. See Edwards v. Abrams,
supra; Corn v. Blackwell, supra; Birchmore v. State Bd., supra. We cannot
condone the method of voting employed by Commission because it would
unwisely sanction a practice that "circumvent[s] the plain purposes of the law
and open [s] the door to fraud" and intimidation. May v. Wilson, 199 S.C. at 360,
19 S.E. at 470.
Accordingly, we choose to follow the view espoused in Moon v.
Seymour, supra, and hold that the statutory provision for voting booths is
mandatory in these circumstances. Therefore, the total absence of voting booths
violates the constitutional and statutory right to a secret ballot.
B. THE BALLOT
The Legislature has required that election officials prepare ballots
which are designed to be folded. After signing in to vote, the
voter shall immediately go to the booth and mark his
ballot preparatory to depositing it in the ballot box.
After the voter has marked his ballot, he shall fold it so
as to leave the stub remaining attached thereto visible
in such position that it can be detached without
unfolding. When the ballot is returned, one of the
managers shall detach and retain the stub, and the
voter shall then deposit his folded ballot in the box.
S.C. Code Ann. § 7-13-730 (1976); see also S.C. Code Ann. § 7-13-611 (Supp.
1998) (ballot form containing instructions for voter to fold the ballot). Punch
card ballots used in vote tabulating machines must have serially numbered
stubs and strips, which "shall be attached to each ballot card in a manner and
form similar to that prescribed by law for paper ballots." S.C. Code Ann. § 7-13
1370 (1976). Regulations promulgated by the State Election Commission
require punch-card ballots either to be placed in an envelope by the voter or be
foldable to ensure secrecy of the ballot. 24 S.C. Code Ann. Reg. 45-5 (1976).
The purpose of folding the ballot is to ensure secrecy. Gardner v.
Blackwell, 167 S.C. 313, 322, 166 S.E. 338, 341 (1932); Hyde v. Logan, 113 S.C.
64, 81, 101 S.E: 41, 46 (1919). In Smoak v. Rhodes, the Court refused to nullify
an election in which the record contained no proof that ballots were not folded
or that the secrecy of the ballot was violated. Id., 201 S.C. at 243-44, 22 S.E.2d
at 687-88. In this case, however, it is undisputed that voters were specifically
instructed not to fold the ballots.
We hold that the use of ballots that were not designed to be folded
violates the constitutional and statutory right to a secret ballot. We do so for
the same reasons expressed in connection with the absence of the voting booth.
The provision for foldable ballots is mandatory because it affects an essential
element of the election and the fundamental integrity of the electoral process.
We reverse the circuit court's order and nullify the referendum
results because the total absence of voting booths and foldable ballots violates
the statutory and constitutional right to a secret ballot.
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.