THE STATE OF SOUTH CAROLINA
In The Supreme Court
In re: Bamberg Ehrhardt
School Board Election
(District l, Seat 2) held
April 13, 1999
Evelyn W. Singleton, Petitioner,
Betty Kilgus, Dorothy
Lee, James M. George,
Verlene Baucham, and
Patty G. Blume,
Members of the
and/or Bamberg County
Board of Canvassers;
Andrew M. Carter and
Sheri S. Seigler; and
Samuel W. Howell, IV,
Dr. Walter C. Robinson,
Martha C. Edens, Dr.
Deborah B. Cureton and
Vernon F. Dunbar,
Members of the State
Board of Canvassers
and/or South Carolina
ON WRIT OF CERTIORARI
Opinion No. 25030
Heard October 20, 1999 - Filed December 6, 1999
Russell Brown, of Charleston, for petitioner.
Norma A.T. Jett, of Early & Ness, of Bamberg, for
respondents Bamberg County Registration and
Election Commission and Bamberg County Board of
Attorney General Charles M. Condom Deputy Attorney
General Treva Ashworth and Senior Assistant Attorney
General C. Havird Jones, Jr., all of Columbia, for respondent
South Carolina State Election Commission.
Andrew M. Carter, pro se, of Ehrhardt.
Sheri S. Seigler, pro se, of Ehrhardt.
MOORE, A.J.: We granted a writ of certiorari to review the
decision of the South Carolina State Election Commission (State
Commission) regarding a local school board election in Bamberg County. We
Petitioner Singleton was a candidate in an election held April 13,
1999, for Seat 2 of the Bamberg Ehrhardt School Board, District 1. On
Thursday, April 15, the Bamberg County Board of Canvassers (County
Board) certified petitioner as the winner. The results of the election
indicated petitioner received 127 votes, Sherri Seigler received 75 votes, and
Andrew Carter received 74 votes.
It was subsequently discovered that the candidates were not
listed in alphabetical order on the paper totals retrieved from the machines
after the election. A malfunction of the voting machines was suspected.
The County Board contacted the State Commission. On April 20, the State
Commission sent a data coordinator, Shaek Abraham, to do a total
machine retrieval. With several people present, Abraham unsealed the machines. A
total machine retrieval was performed by comparing the actual ballots with a
blank ballot to determine how the votes were actually cast.
Abraham determined that the software for the machines had
been incorrectly programmed to rotate the candidates' names on the paper
totals but not the number of votes cast for each candidate. As a result, the
outcome indicated on the paper totals was incorrect. The correct result
obtained from the total machine retrieval indicated Seigler, and not
petitioner, was the winner. Petitioner received 96 votes, Seigler 147, and
The next day, Wednesday, April 21, Seigler filed a protest with
the County Board. A hearing was held April 26. Based on the total machine
retrieval, the County Board certified Seigler the winner. Petitioner appealed
to the State Commission alleging the total machine retrieval did not comply
with statutorily mandated procedures, including failure to obtain a court
order before the machines were opened as required under S.C. Code Ann. §
The State Commission found no fraud was alleged or proven but
agreed the statutory procedure was not followed. It reversed the County
Board's certification of Seigler as the winner and remanded the matter for a
total machine retrieval to be conducted in compliance with § 7-13-1890.
Petitioner sought review in this Court.
1. Does the record indicate Seigler's protest was not timely filed?
2. Do statutory violations require this election be set aside?
1. Timeliness of protest
Petitioner contends Seigler's protest to the County Board was not
timely filed as required by S.C. Code Ann. § 7-17-30 (Supp. 1999) which
Any protest or contest must be filed in writing with
the chairman of the [county] board . . . by noon
Wednesday following the day of the declaration by
the board of the result of the election.
This issue is without merit.
First, petitioner never raised this time-bar issue below.
Although a protest that is not timely is barred, Sims v. Ham, 275 S.C. 369,
271 S.E.2d 316 (1980), a time bar does not raise the issue of subject matter
jurisdiction and is waived by the failure to raise it. McLendon v. South
Carolina Dept. of Highways, 313 S.C. 525, 443 S.E.2d 539 (1994) (statute of
limitations defense). Since this issue was not raised or ruled on below, it is
not preserved on appeal to this Court. Mullinax v. J.M. Brown Amusement
Co., 333 S.C. 89, 508 S.E.2d 848 (1998).
In any event, petitioner cannot prevail on the merits. She
contends the time for Seigler to file a protest began running on the night of
the election when Seigler saw a print-out of the election results posted at the
polls. This is incorrect. The time to file a protest commences running when
the County Board canvasses the votes and transmits them to the State
Commission as required under S.C. Code Ann. § 7-1-20 (1976). Sims v. Ham,
supra. The order of the State Commission states the County Board
"certified" the election results on Thursday, April 15. This is the only
indication in the record of any action by the County Board in compliance
with § 7-17-20. Accordingly, Seigler's protest was timely filed on Wednesday,
April 21, which was the first Wednesday after the County Board's action on
Petitioner contends in the alternative there is no evidence in the
record that Seigler's protest was filed before noon on Wednesday, April 21, as
required under § 7-13-30. As the appellant in this case, however, petitioner
has the burden of showing the protest was not filed before noon. She has
failed to meet this burden. Germain v. Nichol, 299 S.C. 335, 278 S.E.2d 508
(1983) (appellant has burden of providing this Court with sufficient record).
2. Statutory violations
Petitioner contends the failure to comply with statutory
requirements in conducting the total machine retrieval requires that the
original election results be reinstated or the entire election be invalidated.
First, there is absolutely no support for reinstating the original
election results since the only evidence in the record indicates those results
were incorrectly tabulated. The only question is whether the failure to
comply with statutory provisions requires the election to be invalidated
rather than conducting a new total machine retrieval as ordered by the State
Commission. Petitioner alleges the following statutory violations.
S.C. Code Ann. § 7-17-40 (1976): This section requires that the
poll list shall accompany the voter tabulation in any proceeding involving a
protest. Petitioner complains the poll list was not made a part of the record
before the County Board. This complaint was not addressed below and
therefore it is not preserved on appeal. Mullinax, supra. Moreover, mere
irregularities that do not affect the result of the election will not be allowed
to overturn it. Burgess v. Easley Municipal Election Comm'n, 325 S.C. 6,
478 S.E.2d 680 (1996); Greene v. South Carolina Election Comm'n, 314 S.C.
449, 445 S.E.2d 451 (1994); Fielding v. South Carolina Election Comm'n, 305
S.C. 313, 408 S.E.2d 232 (1991).
S.C. Code Ann. § 7-13-1910 (1976): This section provides that
an "unauthorized person" found in possession of a voting machine key shall
be guilty of a misdemeanor. This violation was not addressed below and is
not preserved on appeal. Mullinax, supra. In any event, Abraham was
directed to open the voting machines by the State Commission.
S.C. Code Ann. § 7-13-1920 (1976): This section provides that
any person who tampers with a locked voting machine "with the intent to
destroy or change the record of votes" shall be guilty of a misdemeanor. This
violation was not addressed below and is not preserved on appeal. Mullinax,
supra. In any event, there is no evidence Abraham opened the machines
with any intent to change or destroy the record of votes.
S.C. Code Ann. § 7-13-1890 (1976): This section requires that
voting machines remain locked for at least thirty days after an election
except to prepare for another election or "except that they may be opened
and all data examined upon the order of a court of competent jurisdiction."
The State Commission found the failure to get a court order before
conducting the recount was an irregularity remedied by ordering a remand
for a new total machine retrieval upon obtaining a court order. We agree.
There is no evidence the recount contaminated the actual
election results which still remain in the machines. The failure to obtain a
court order before conducting the recount was therefore a mere irregularity
that did not affect the results of the election. Such an irregularity will not
set aside the election unless there is fraud, a constitutional violation, or it is
specifically provided by statute that the irregularity shall invalidate the
election. Butler v. Town of Edgefield, 328 S.C. 238, 493 S.E.2d 838 (1997);
Yonce v. Lybrand, 254 S.C. 14, 173 S.E.2d 148 (1970). Here, there is no
fraud, no constitutional violation, and no specific statutory remedy requiring
the election be invalidated for failure to get a court order before opening the
locked machines. See also Knight v. State Bd. of Canvassers, 297 S.C. 55,
374 S.E.2d 685 (1988) (election not set aside for failure to count absentee
ballots without interruption in violation of statute); Berry v. Spigner, 226
S.C. 183, 84 S.E.2d 381 (1954) (election not set aside where poll managers
entered voting booths in violation of statute); cf. George v. Municipal
Election Comm'n, 335 S.C. 182, 516 S.E.2d 206 (1999) (election set aside for
constitutional violation and total disregard of statutory scheme protecting
secrecy of ballot).
We hold the failure to obtain a court order before opening the
locked machines was a mere irregularity that is cured by the remand for a
new total machine retrieval upon obtaining a court order as directed by the
State Commission. Any challenges to the recount procedure may be raised
at that time.
Finney, C.J., Toal, Waller and Burnett, JJ. concur.