THE STATE OF SOUTH CAROLINA
In The Supreme Court
City of Myrtle Beach
Wilson Cain, and
of whom Wilson Cain is
Appeal From Horry County
J. Stanton Cross, Jr., Special Circuit Court Judge
Opinion No. 25191
Heard August 2, 2000 - Filed August 28, 2000
AFFIRMED IN PART; REVERSED IN PART.
Alan D. Clemmons, of McCracken, Barnett,
Richardson & Clemmons, of Myrtle Beach, and
Charles L. A. Terreni, of Columbia, for
Gene McCain Connell, Jr., of Kelaher, Connell &
Connor, P.A., of Surfside Beach, for
John M. Leiter, of Leiter & Snook,.of Myrtle Beach,
for Respondent Michael Chestnut.
Michael W. Battle, of Battle & Vaught, of Conway,
for Respondent City of Myrtle Beach Election
JUSTICE BURNETT: This is an appeal from an election
protest. Respondent City of Myrtle Beach Election Commission (Election
Commission) denied the protest. The circuit court reversed, granting the
protest and ordering a new election on a limited basis. We affirm in part and
reverse in part.
Appellant/Respondent Broadhurst (Broadhurst),
Respondent/Appellant Cain (Cain), and Respondent Chestnut (Chestnut)
were candidates in a three-way runoff election for two seats on the Myrtle
Beach City Council. At the November 16, 1999, election, voters were
permitted to vote for two candidates. 1 After the election, the Election
Commission certified the following results: Chestnut - 1720 votes; Cain -
1605 votes; Broadhurst - 1393 votes. The Election Commission declared
Chestnut and Cain the winners.
Broadhurst filed a timely protest contesting the election. Among
other claims, she alleged the failure of one of the two voting machines at the
Dunes I precinct to record any votes should void the election.
At the hearing before the Election Commission, witnesses
testified 413 voters signed the poll list at the Dunes I precinct. 2 One
hundred and eighty-two voters voted in the machine which functioned
properly. The Election Commission found 213, 217, or 231 voters voted on
the machine which malfunctioned. There was no record of which voters
voted on which machine. Applying a proportionate number of votes received
by each candidate from the functioning machine, the Election Commission
concluded it was improbable the "lost" votes, if counted, would have changed
2 Four voters voted curbside and signed a separate poll list.
the outcome of the election. Broadhurst appealed.
Concluding 231 uncounted votes could have changed or rendered
doubtful the results of the runoff election, the circuit court reversed. The
circuit court determined "the appropriate remedy is to reconstruct the
election in the Dunes I precinct by allowing the voters who voted in the
Dunes I precinct run off election to vote again." Although it affirmed
Chestnut the winner of one of the seats, the court ordered all three
candidates' names to be placed on the ballot. 3 Broadhurst and Cain
I. Did the circuit court err by holding the voting machine
malfunction changed or rendered doubtful the election results?
II. If the circuit court properly held the election results were
rendered doubtful, did it err by ordering A) a new election
between the three candidates in the Dunes I precinct open to
voters who had previously voted in' the runoff election and B)
affirming the certification of Chestnut as winner?
Standard of Review
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. George v. Municipal Election Comm'n of Charleston, 335 S.C. 182,
516 S.E.2d 206 (1999); 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
issues were dismissed by separate order of the circuit court and have not
election, and will not set aside an election due to mere irregularities or
illegalities unless the result is changed or rendered doubtful. George, supra;
Sims v. Ham, 275 S.C. 369, 271 S.E.2d 316 (1980); May, supra.
Cain argues the circuit court erred in reversing the Election
Commission. He contends the circuit court failed to apply S.C. Code Ann. §
7-13-1120 (1976) which, he argues, provides that when a voter's choice
cannot be determined, the vote shall not be counted.
Agreeing with Cain, the Election Commission asserts § 7-13-
1120 applies in two situations. First, it applies when the voter manually
marks more names than there are persons to be elected on the ballot.
Second, it applies to any errors made in exercising a voter's choice, including
mechanical errors made by a voting machine. We disagree.
Section 7-13-1120 provides:
Disposition of improperly marked ballots.
If a voter marks more names than there are persons to be elected
or nominated to an office or if for any reason it is impossible to
determine the voter's choice for any; office to be filled, his ballot
shall not be counted for such office; but this shall not vitiate the
ballot, so far as properly marked . . . .
All rules of statutory construction are subservient to the one that
the legislative intent must prevail if it can be reasonably discovered in the
language used, and that language must be construed in the light of the
intended purpose of the statute. Kiriakides v. United Artists
Communications, Inc., 312 S.C. 271, 440 S.E.2d 364 (1994). However plain
the ordinary meaning of the words used in a statute may be, the courts will
reject that meaning when to accept it would lead to a result so plainly absurd
that it could not possibly have been intended by the Legislature or would
defeat the plain legislative intention. Id. If possible, the court will construe
the statute so as to escape the absurdity and carry the intention into effect.
Id. The purpose of an election is to express the will of the electorate.
Redfearn v. Bd. of Canvassers of S.C., 234 S.C. 113, 107 S.E.2d 10 (1959).
While the language "if for any reason it is impossible to
determine the voter's choice for any office to be filled" is comprehensive in
scope, we find the legislature could not have intended to require election
personnel to disregard votes which were intelligibly cast but cannot be read
due to mechanical failure. Such an interpretation would effectively
disenfranchise a voter through no fault of his own. See Greene v. South
Carolina Election Comm'n, 314 S.C. 449, 445 S.E.2d 451 (1994) (while
recognizing mandatory language of statute requiring issuance of challenge
ballot to every voter who questioned voting district, Court determined
legislature could not have intended this result). Instead, we conclude § 7-13-
1120 applies to manual ballots where either 1) the voter selects more names
than are persons to be elected or 2) because of the nature of the voter's
markings, it is unclear for whom the voter intended to vote. This
interpretation is supported by the title of the statute, "Disposition of
improperly marked ballots," which could not apply to ballots cast by voting
machine as ballots cast by voting machine are not marked and, furthermore,
cannot be improperly marked. 4 Garner v. Houck, 312 S.C. 481, 486, 435
S.E.2d 847, 849 (1993) ("[f]or interpretative purposes, the title of a statute
and heading of a section are of use only when they shed light on some
ambiguous word or phrase and as tools available for resolution of doubt, but
they cannot undo or limit what the text makes plain."). Similarly, this
interpretation is consistent with the function of an election: to declare the
will of the electorate. Redfearn, 234 S.C. 113, 107 S.E.2d 10.
Cain further argues the circuit court improperly added the 231
uncounted votes to Broadhurst's total to conclude the votes could have
affected the outcome of the election. He asserts 1) it is improbable
Broadhurst would have received 212 of the 231 uncounted votes, 2) the
precedent of adding votes to the losing candidate's total to determine if the
alleged irregularity affects the outcome of the election only applies when
votes have been cast illegally or fraudulently, and, 3) if the Court considers
voting machine is a mechanical method of registering votes that allows the
voter to pull a tab over the name of the candidate of his choice.").
the vote count at all, the appropriate method is to subtract half of the
uncounted votes from Chestnut's and Cain's total votes. We disagree.
In the absence of fraud, a constitutional violation, or a statute
providing an irregularity or illegality invalidates an election, the Court will
not set aside an election for a mere irregularity. Irregularities or illegalities
which do not appear to have affected the result of the election will not be
allowed to overturn it. See In re Bamberg Ehrhardt School Bd. Election, 337
S.C. 561, 524 S.E.2d 400 (1999); George, 335 S.C. 182, 516 S.E.2d 206; Butler
v. Town of Edgefield, 328 S.C. 238, 493 S.E.2d 838 (1997); Greene, 314 S.C.
449, 445 S.E.2d 451; Fielding v. South Carolina Election Comm'n, 305 S.C.
313, 408 S.E.2d 232 (1991); Bolt v. Cobb, 225 S.C. 408, 82 S.E.2d 789 (1954);
Harrell v. City of Columbia, 216 S.C. 346; 58 S.E.2d 91 (1950). In
determining whether an irregularity in the conduct of an election is
sufficient to render the result doubtful, "the rule deducible from the decisions
is that all illegally cast ballots shall be deducted from the total number
counted for the declared winning candidate, and that all rejected
(uncounted), legal ballots shall be added to the total number counted for the
declared losing candidate." Easler v. Blackwell, 195 S.C. 15, 19, 10 S.E.2d
160, 162 (1940). The Court has rejected the principle of "proportionate
withdrawal" (i.e., deducting from the winter's total the same percentage of
illegally cast votes as votes cast for the winner in the relative precinct).
Creamer v. City of Anderson, 240 S.C. 118, 124 S.E.2d 788 (1962).
The circuit court properly added the 231 uncounted votes to
Broadhurst's total in order to determine whether the uncounted votes could
have affected the election. Contrary to Cain's argument, adding uncounted
votes to the losing candidate's total applies when the votes have been cast
legally as well as illegally. Easler, 195 S.C. 15, 19, 10 S.E.2d 160, 162 (". . .
[a]ll rejected (uncounted), legal ballots shall be added to the total number
counted for the declared losing candidate."). Moreover, even though it may
be mathematically unlikely Broadhurst would have received 212 of the 231
uncounted votes, 5 the Court has determined the best method to "safeguard
the purity of election" is to add the irregular votes to the losing side.
operable voting machine in Dunes I, it is unlikely she would have received
91% of the 231 uncounted votes from the malfunctioning voting machine.
Creamer, 240 S.C. 118, 125, 124 S.E.2d 788, 791. Subtracting half of the 231
votes from both Chestnut's and Cain's totals to determine if the uncounted
votes could have affected the outcome of the election, as suggested by Cain,
does not comply with this Court's longstanding method of determining
whether an irregularity has affected the outcome of an election. That portion
of the circuit court's order finding the failure of the voting machine to count
the votes in the Dunes I precinct rendered doubtful the results of the
November 16, 1999, runoff election is affirmed.
Relying on S.C. Code Ann. § 7-13-1140 (1976), Cain asserts the
circuit court applied the appropriate remedy by limiting the new election to
those voters who had voted in the Dunes I precinct on November 16, 1999.
Broadhurst disagrees, asserting § 5-15-130 mandates an entirely new
election between all three runoff candidates open to all qualified voters in all
Under the common law, there was no right to contest an election.
Butler, 328 S.C. 238, 493 S.E.2d 838 (1997); Taylor v. Roche, 271 S.C. 505,
248 S.E.2d 580 (1978). "The right to contest an election exists only under the
[state] constitutional and statutory provisions, and the procedure proscribed
by statute must be strictly followed." Id. at 509, S.E.2d at 582; see S.C.
Const. art. II, § 10 ("The General Assembly shall . . . establish procedures for
contested elections, and enact other provisions necessary to the fulfillment of
and integrity of the election process.").
"The elemental and cardinal rule of statutory construction is that
the Court `ascertain and effectuate actual intent of the legislature'." Greene,
314 S.C. 449, 445 S.E.2d 451, 453, citing Horn v. Davis Elec. Constructors.
Inc., 307 S.C. 559, 563, 416 S.E.2d 634, 636 (1992). In construing a statute,
its words must be given their plain and ordinary meaning without resort to
subtle or forced construction to limit or expand the statute's operation. Rowe
to all registered voters in the Dunes I precinct.
v. Hyatt, 321 S.C. 366, 468 S.E.2d 649 (1996). Statutes which are in
derogation of common law must be strictly construed. See Doe v. Brown, 331
S.C. 491, 489 S.E.2d 917 (1997).
In relevant part, § 7-13-1140, cited by Cain as authorizing a
second election limited to the voters who signed the Dunes I poll list,
If the number of votes cast by any type ballot or on machines in
any polling place exceeds the number listed on the polling list by
ten percent or more, the county executive committee or the
county election commission, as the case may be, shall order a
new primary or election at the polling place concerned if the
outcome of the election could be affected. Only those who signed
the poll list shall be permitted to vote in any such new primary
or election. 7
By its very language § 7-13-1140 only permits a new election at
the polling place concerned and by the voters who signed the poll list when
the votes cast exceed the number on the poll list by at least ten percent. It
does not apply where, as here, less votes are accounted for than the number
on the poll list. Doe, supra (statutes in derogation of common law must be
Section 5-15-130, which applies to elections for municipal offices,
provides as follows:
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
5-10 (municipal elections shall be conducted pursuant to Title 7 unless
otherwise provided in the municipal elections statute).
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.
The circuit court did not have the statutory authority to order an
election limited to those voters who had voted in the Dunes I precinct on
November 16, 1999. In authorizing a "new election" pursuant to § 5-15-130,
we conclude the General Assembly intended to provide the electorate with a
second opportunity to express its will through an election once a municipal
election commission invalidates the original election. We reach this
conclusion for several reasons. First, § 5-15-130 refers to a "new" election
after the original election is declared invalid. If an election is invalid, it is
invalid citywide, not simply in a particular precinct. Second, the legislature
chose to limit the second election only to the "parties concerned," not to the
precinct(s) affected, the voters who had signed the poll list(s), or some other
term qualifying the new election. See Byrd v. Irmo High School, 321 S.C.
426, 468 S.E.2d 861 (1996) (where a statute expressly enumerates the
requirements on which it is to operate, additional requirements are not to be
implied). Third, while the General Assembly could have authorized the
municipal election commission to order an election limited to the precinct in
which the irregularity occurred and to the voters who had previously voted
as it expressly did in § 7-13-1140, it did not do so. See Hainer v. American
Med. Intl Inc., 328 S.C. 128, 492 S.E.2d 103 (1997) (if legislature had
intended certain result in statute, it would have said so); see also Roche v.
Young Bros., Inc., of Florence, 332 S.C. 75, 504 S.E.2d 311 (1998) (statutes
are to be construed with reference to the whole system of law of which they
form a part). 8
on citywide basis voters were incorrectly allowed to vote for two candidates
for three school board seats, federal court reversed state board of election's
order that new election be limited to those voters who had participated in
Cain relies on Buonanno v. DiStefano, 430 A.2d 765 (R.I. 1981),
as support for a remedy authorizing a new election limited to the Dunes I
precinct voters who had voted in the November 16, 1999, runoff election. In
Buonanno, two voting machines failed to accurately record the vote totals of
a candidate. The Rhode Island Supreme Court affirmed the State Board of
Elections' action ordering a new election in those precincts where the
machines had malfunctioned. In affirming the order, the court recognized
the Rhode Island legislature had not expressly authorized the election board
to conduct a new election and, instead, provided the board with non
exclusive enumerated powers. Unlike the powers granted the election board
in Rhode Island, municipal election boards in South Carolina are only
authorized to order a new election and do not have unlimited powers.
Accordingly, Buonanno is inapplicable.
Broadhurst and Cain contend the circuit court erred by ordering
Chestnut's name on the ballot while also declaring him the winner of the
election. 9 Chestnut maintains the circuit court properly declared him the
winner of the election and asserts his name should not be included on the
ballot for the new election. He contends he is not a "party concerned" as
referenced in § 5-15-130 because even with the addition of the 231 uncounted
votes to Broadhurst's and Cain's totals, he would have come in second after
Cain, thereby winning a seat on the Myrtle Beach City Council. 10
As noted above, the circuit court properly determined the results
of the election were rendered doubtful as a result of the malfunctioning
voting machine. Since § 5-15-130 only authorizes a new election, Chestnut is
clearly a "party concerned." In order to be elected to one of the two seats on
|Candidate||Actual Votes Counted||Uncounted Votes||Total|
the Myrtle Beach City Council, he must participate in the new election.
Even if we found § 5-15-130 authorized a "reconstructed" election
limited to the voters in the Dunes I precinct who had signed the poll list on
November 16, 1999, the circuit court erred in affirming the Election
Commission's certification declaring Chestnut a winner. Allowing those
Dunes I voters whose votes were counted to vote a second time dilutes the
votes of the Myrtle Beach electors who voted in the November 16, 1999,
election, but who do not have the opportunity to vote again and the votes of those voters
in the Dunes I precinct who participated in the original election but whose
votes were not counted by the malfunctioning voting machine. Accordingly,
to prevent vote dilution, it is necessary to subtract the votes tallied by the
operable voting machine in the Dunes I precinct from the candidates' total
votes. Thereafter, if the 413 eligible Duns I voters voted solely for
Broadhurst and Cain in the "reconstructed" election, Chestnut would lose. 11
Accordingly, it was error for the circuit court to declare Chestnut a winner.
It is unfortunate a voting machine failed to operate properly in
the November 16, 1999, runoff election. In conducting a new election, we
recognize additional expense will be incurred by the candidates, Election
Commission, and, ultimately, the Myrtle Beach taxpayers. Nonetheless, in
order to preserve the integrity of the election process, the General Assembly
has declared the necessity of a new election. In compliance with the
statutory mandate, a new election between all three candidates open to all
qualified voters shall be conducted in accordance with this opinion.
Affirmed in part, reversed in part.
MOORE, A.C.J., WALLER, PLEICONES, JJ., and Acting
Justice Jasper M. Cureton, concur.