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25191 - Broadhurst v. City of Myrtle Beach Election Commission et al.
Broadhurst v. City of Myrtle Beach Election Commission et al.,


Shearouse Adv. Sh. No.
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court



Rachel Broadhurst,

Appellant/Respondent,



v.



City of Myrtle Beach

Election Commission,

Wilson Cain, and

Michael Chestnut,



Respondents,



of whom Wilson Cain is

Respondent/Appellant.







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

appellant/respondent.



Gene McCain Connell, Jr., of Kelaher, Connell &

Connor, P.A., of Surfside Beach, for

respondent/appellant.



John M. Leiter, of Leiter & Snook,.of Myrtle Beach,

for Respondent Michael Chestnut.



p.543


Broadhurst v. City of Myrtle Beach Election Comm'n, et al.







Michael W. Battle, of Battle & Vaught, of Conway,

for Respondent City of Myrtle Beach Election

Commission.







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.







FACTS



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




1 See S.C. Code Ann. § 5-15-62 (Supp1999).





2 Four voters voted curbside and signed a separate poll list.



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Broadhurst v. City of Myrtle Beach Election Comm'n, et al.





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

appealed.









ISSUES



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?







DISCUSSION



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




3 Broadhurst had appealed other issues to the circuit court. These

issues were dismissed by separate order of the circuit court and have not

been appealed.



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Broadhurst v. City of Myrtle Beach Election Comm'n, et al.





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.







I.



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 . . . .



(Underline added).







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.



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Broadhurst v. City of Myrtle Beach Election Comm'n, et al.





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




4 See 17 South Carolina Jurisprudence Elections § 66 (1993) ("[t]he

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.").



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Broadhurst v. City of Myrtle Beach Election Comm'n, et al.





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.




5 Cain asserts since Broadhurst received 31% of the votes cast in the

operable voting machine in Dunes I, it is unlikely she would have received

91% of the 231 uncounted votes from the malfunctioning voting machine.



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Broadhurst v. City of Myrtle Beach Election Comm'n, et al.





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.







II.



A.



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

precincts. 6







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




6 Neither Broadhurst nor Cain suggest the new election should be open

to all registered voters in the Dunes I precinct.



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Broadhurst v. City of Myrtle Beach Election Comm'n, et al.





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,

provides:



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

strictly construed).







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




7 Section 7-13-1140 applies to municipal elections. S.C. Code Ann. § 5

5-10 (municipal elections shall be conducted pursuant to Title 7 unless

otherwise provided in the municipal elections statute).



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Broadhurst v. City of Myrtle Beach Election Comm'n, et al.





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.



(Underline added).









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




8 See Ayers-Schaffner v. DiStefano, 37 F.3d 726 (1St Cir. 1994) (where

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

original balloting).



p.551


Broadhurst v. City of Myrtle Beach Election Comm'n, et al.





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.







B.



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




9 The Election Commission agrees with Broadhurst and Cain on this

issue.







10

Candidate Actual Votes Counted Uncounted Votes Total
Cain 1,605 231 1,836
Chestnut 1,720 0 1,720
Broadhurst 1,393 231 1,624



p.552


Broadhurst v. City of Myrtle Beach Election Comm'n, et al.





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.







CONCLUSION



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.




11
Candidate Total Votes

Received

Dunes 1

Votes

Votes before

2nd Election

Votes in

2nd Election

Total
Cain 1,605 114 1,491 413 1,904
Broadhurst 1,393 114 1,279 413 1,682
Chestnut 1,720 97 1,623 0 1,623



p.553