Broadhurst v. CITY OF MYRTLE BEACH ELECT.

• Decision Date: 28 August 2000
• Docket Number: No. 25191.,25191.
• Citation: 537 S.E.2d 543,342 S.C. 373
• Parties: Rachel BROADHURST, Appellant/Respondent, v. CITY OF MYRTLE BEACH ELECTION COMMISSION, Wilson Cain, and Michael Chestnut, Respondents, of whom Wilson Cain is Respondent/Appellant.
• Court: South Carolina Supreme Court

342 S.C. 373

537 S.E.2d 543

Rachel BROADHURST, Appellant/Respondent, v. CITY OF MYRTLE BEACH ELECTION COMMISSION, Wilson Cain, and Michael Chestnut, Respondents, of whom Wilson Cain is Respondent/Appellant.

No. 25191.

Supreme Court of South Carolina.

Heard August 2, 2000.

Decided August 28, 2000.

Rehearing Denied September 20, 2000.

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.

Michael W. Battle, of Battle & Vaught, of Conway, for respondent City of Myrtle Beach Election Commission.

BURNETT, Justice:

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 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 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. 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.⁴Garner 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 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." Easier 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 winner'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...