Butler v. Town of Edgefield

• Decision Date: 18 September 1997
• Docket Number: No. 24717,24717
• Citation: 493 S.E.2d 838,328 S.C. 238
• Court: South Carolina Supreme Court
• Parties: Eddie A. BUTLER, and the Edgefield Branch of the National Association for the Advancement of Colored People, Respondents, v. The TOWN of Edgefield and Charlotte Cheatham in her Official Capacity as Town Clerk, and The Edgefield Municipal Election Commission and Aubrey Coleman, John S. Timmerman, and Willie Lewis in their Official Capacities as Municipal Election Commissioners, Appellants. . Heard

Page 838

493 S.E.2d 838

328 S.C. 238

Eddie A. BUTLER, and the Edgefield Branch of the National Association for the Advancement of Colored People Respondents, v. The TOWN of Edgefield and Charlotte Cheatham in her Official Capacity as Town Clerk, and The Edgefield Municipal Election Commission and Aubrey Coleman, John S. Timmerman, and Willie Lewis in their Official Capacities as Municipal Election Commissioners, Appellants.

No. 24717.

Supreme Court of South Carolina.

Heard Sept. 18, 1997.

Decided Dec. 1, 1997.

James D. Nance and Kevin S. Little, Aiken, for appellants.

Brenda Reddix-Smalls and Eleazer R. Carter, Columbia, for respondents.

TOAL, Justice:

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.

FACTUAL/PROCEDURAL BACKGROUND

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., 1 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 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.

attempted to enter the room during the recount, but was denied entrance.

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 5-15-120?

(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?

LAW/ANALYSIS

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 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.

News on April 7, 1997. The wards [sic] numbers were reversed.

Mayor 155 votes

Ward I 17 votes

Ward III 67 votes

Ward II 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. State 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...