Douan v. Charleston County Council, 25707.

• Decision Date: 25 August 2003
• Docket Number: No. 25707.,25707.
• Court: South Carolina Supreme Court
• Parties: W.J. DOUAN, Petitioner, v. CHARLESTON COUNTY COUNCIL and Charleston County Election Commission, Respondents. and Wallace B. Scarborough, as an individual South Carolina Representative, G. Robert George, Larry D. Shirley, Henry B. Fishburne, Jr., as individual City of Charleston Councilmen, Lawrence A. Carr, as an individual Town of Mount Pleasant Councilman, Mary G. Clark, individually as Mayor of the Town of James Island, Joe Qualey, Bill Wilder, Parris Williams, Bill Woolsey, as individual Town of James Island Councilmen, A.C. Mitchum, individually as a City of North Charleston Councilman, Eugene Platt, individually as a James Island Public Service District Commissioner, Bob Linville, individually as a City of Folly Beach Councilman, Ann G.H. Rounds, Jaroslaw Burbello, Warwick Jones, and Patricia Jones, as individual voters, Petitioners, v. Charleston County Election Commission, Respondent.

357 S.C. 601

594 S.E.2d 261

W.J. DOUAN, Petitioner, v. CHARLESTON COUNTY COUNCIL and Charleston County Election Commission, Respondents. and Wallace B. Scarborough, as an individual South Carolina Representative, G. Robert George, Larry D. Shirley, Henry B. Fishburne, Jr., as individual City of Charleston Councilmen, Lawrence A. Carr, as an individual Town of Mount Pleasant Councilman, Mary G. Clark, individually as Mayor of the Town of James Island, Joe Qualey, Bill Wilder, Parris Williams, Bill Woolsey, as individual Town of James Island Councilmen, A.C. Mitchum, individually as a City of North Charleston Councilman, Eugene Platt, individually as a James Island Public Service District Commissioner, Bob Linville, individually as a City of Folly Beach Councilman, Ann G.H. Rounds, Jaroslaw Burbello, Warwick Jones, and Patricia Jones, as individual voters, Petitioners, v. Charleston County Election Commission, Respondent.

No. 25707.

Supreme Court of South Carolina.

Heard June 10, 2003.

Decided August 25, 2003.

Rehearing Denied December 17, 2003.

Thomas R. Goldstein, of Belk, Cobb, Infinger & Goldstein, P.A., of Charleston, for Petitioner Douan; Trent M. Kernodle and Christine Companion Varnado, of Kernodle, Taylor & Root, of Charleston, for Petitioner Scarborough, et al.

Mikell Ross Scarborough, of Charleston, for Respondent Charleston County Election Commission.

Joseph Dawson, III, Bernard E. Ferrerra, Jr., and W. Kurt Taylor, of Charleston, for Respondent-Intervenor Charleston County Council.

Charlton deSaussure, Jr., John P. Linton, and Sarah P. Spruill, of Haynsworth Sinkler Boyd, P.A., of Charleston, for City of Charleston and CARTA, Amicus Curiae.

J. Brady Hair, of North Charleston, for City of North Charleston, Amicus Curiae.

R. Allen Young, of Mt. Pleasant, for Town of Mt. Pleasant, Amicus Curiae.

Chief Justice TOAL.

W.J. Douan et al. ("Petitioners") challenge the State Election Commission's decision to uphold the election results for the Sales and Use Tax Referendum ("Referendum") presented to voters during the 2002 general election in Charleston County.

FACTUAL/PROCEDURAL BACKGROUND

In 1995, the General Assembly enacted S.C.Code Ann. §§ 4-37-10 et seq. (Supp.2002) to provide counties with an optional method of financing transportation facilities. Section 4-37-30 empowers counties to impose a sales and use tax in order to raise revenue for transportation related projects. Section 4-37-30 provides, in relevant part,

(A) Subject to the requirements of this section, the governing body of a county may impose by ordinance a sales and use tax in an amount not to exceed one percent within its jurisdiction for a single project or multiple projects and for a specific period of time to collect a limited amount of money.

(1) The governing body of a county may vote to impose the tax authorized by this section, subject to a referendum, by enacting an ordinance. The ordinance must specify:

(a) the project or projects and a description of the project or projects for which the proceeds of the tax are to be used, which may include projects located within or without, or both within or without, the boundaries of the county imposing the tax and which may include:

(i) highways, roads, streets, bridges, mass transit systems, greenbelts, and other transportation-related projects facilities including, but not limited to, drainage facilities relating to the highways, roads, streets, bridges, and other transportation related projects;

S.C.Code Ann. § 4-37-30(A) (Supp.2002). After the County has enacted an ordinance pursuant to this section, and it is submitted to the county election commission, the county election commission is required to conduct a referendum for approval of the optional sales and use tax. S.C.Code Ann. § 4-37-30(A)(2).

In July 2002, the Charleston County Council ("County Council") enacted an ordinance to impose a one-half percent sales and use tax, and submitted it to the Charleston County Election Commission ("County Election Commission"). Upon receipt of the request to hold a referendum on the proposed tax, the County Election Commission noted that the proposed Ballot question and instructions did not appear neutral, and so advised County Council to change them. Initially, County Council agreed to change the language, but subsequently called a special meeting during which they voted to resubmit the original language. Upon receipt of this news, the County Election Commission voted unanimously that the instructions on the Ballot advocating the tax's passage should be eliminated. County Council objected, claiming that the County Election Commission had no authority to alter the language submitted. The State Election Commission agreed, and, as a result, the County Election Commission printed the Ballot for the November 2002 general election as it was originally submitted by County Council. The Ballot contained the following instructions to the voters:¹

All qualified electors desiring to vote in favor of the traffic congestion relief, safe roads, and clean water sales tax, for the stated purposes shall vote "YES."

All qualified electors opposed to the traffic congestion relief, safe roads, and clean water sales tax for the stated purposes shall vote "NO."

Apparently at the County Election Commission's request, County Council printed handouts for distribution by poll workers on election day. The Ballot appeared verbatim on one side of the yellow handout, and the projects to be funded by the tax were listed on the opposite side of the handout. There is some confusion concerning who authored the handout, but it appears staff for County Council produced the handout and included the list of projects to be funded by the tax in addition to the Ballot question.

The tax passed by a narrow margin of 865 votes.² Petitioner Douan filed a timely protest to the election results on November 13, 2002. In addition, state Representative Wallace Scarborough and numerous other public officials filed a timely protest against the election results. The County Election Commission held a hearing on November 18, 2002, and upheld the election results. Petitioners (both groups) appealed to the State Election Commission. After considering the transcript of the proceeding below, arguments of counsel, and various exhibits, one member of the Commission made a motion to void the results of the election. Two members of the State Election Commission voted to void the results, but the other two members voted to uphold the election. The fifth seat on the Commission was vacant, and the motion to void the election failed for lack of a majority.³ This Court granted certiorari to review the following issues raised in the election protests:

I. Did the County and State Election Commissions err in refusing to void the results of the 2002 Referendum to adopt the Sales and Use Tax in Charleston County?

A. Did the non-neutral language of the Ballot violate the fundamental integrity of the election?

B. Did the Handout distributed by the County Election Commission at the polls constitute unlawful campaign literature?

II. Should the County and State Election Commissions have recused themselves from hearing the appeals below?

LAW/ANALYSIS

I. Election Results

Petitioners argue that the results of the Referendum must be voided because the language of the Ballot violated mandatory statutory requirements and the fundamental integrity of the election, and that the handout constituted campaign literature, distributed in violation of S.C.Code Ann. § 7-25-180 (Supp.2002).

The scope of appellate review of the State Election Commission's order is limited to corrections of errors of law; findings of fact will not be overturned unless wholly unsupported by the evidence. Fielding v. South Carolina Election Com'n, 305 S.C. 313, 408 S.E.2d 232 (1991). "The Court will employ every presumption to sustain a contested election and will not set aside an election due to mere irregularities unless the result is changed or rendered doubtful." George v. Municipal Election Com'n of City of Charleston, 335 S.C. 182, 186, 516 S.E.2d 206, 208 (1999) (citations omitted). We have consistently recognized that perfect compliance with the numerous statutes regulating elections is unlikely, and have been loathe to nullify an election based on minor violations of technical requirements. Id.

This Court will overturn the results of an election, however, when mandatory statutory provisions have been violated and those violations interfere with a full and fair expression of the voter's choice. Id. (citing State ex rel. Parler v. Jennings, 79 S.C. 414, 60 S.E. 967 (1908); accord Laney v. Baskin, 201 S.C. 246, 22 S.E.2d 722 (1942); Smoak v. Rhodes, 201 S.C. 237, 22 S.E.2d 685 (1942); Killingsworth v. State Exec. Comm. Democratic Party, 125 S.C. 487, 118 S.E. 822 (1921); State ex rel. Davis v. State Bd. of Canvassers, 86 S.C. 451, 68 S.E. 676 (1910)). We "may deem such provisions to be mandatory [even] after an election—and thus capable of nullifying the results—when the provisions substantially affect the free and intelligent casting of a vote, the determination of the results, an essential element of the election, or the fundamental integrity of the election." George, 335 S.C. at 187, 516 S.E.2d at 208.

In George, the Court made it clear that total disregard of a statute cannot be treated as an irregularity, but must be held to be a cause for declaring the election void and illegal. Id. In short, this Court "`will not sanction practices which circumvent the plain purposes of the law and open the door to fraud.'" Id. at 187, 516 S.E.2d at 209 (quoting May v. Wilson, 199 S.C. 354, 19 S.E.2d 467 (1942)).

A. Ballot Language

Petitioners argue that the language of the Ballot is not neutral and, in fact, advocates passage of the Referendum. As such, Petitioners argue the ballot language violates the mandate of two statutory sections—S.C.Code Ann. §§ 4-37-30(A)(3) and 7-13-400...