George v. MUNICIPAL ELECTION COM'N

• Decision Date: 03 May 1999
• Docket Number: No. 24941.,24941.
• Citation: 335 S.C. 182,516 S.E.2d 206
• Parties: G. Robert GEORGE, Steve M. Kearse, Mary Ellen Warner, Dorothy M. Humphries, Barbara H. Miller, and the City of Charleston Republican Party, Appellants, v. MUNICIPAL ELECTION COMMISSION OF THE CITY OF CHARLESTON, Respondent.
• Court: South Carolina Supreme Court

335 S.C. 182

516 S.E.2d 206

G. Robert GEORGE, Steve M. Kearse, Mary Ellen Warner, Dorothy M. Humphries, Barbara H. Miller, and the City of Charleston Republican Party, Appellants, v. MUNICIPAL ELECTION COMMISSION OF THE CITY OF CHARLESTON, Respondent.

No. 24941.

Supreme Court of South Carolina.

Heard April 20, 1999.

Decided May 3, 1999.

Samuel W. Howell, IV, and Edward M. Whelan, of Haynsworth, Marion, McKay & Guerard, LLP, Charleston, for appellants.

William B. Regan and Frances I. Cantwell of Regan & Cantwell, Charleston, for respondent.

WALLER, Justice:

G. Robert George, the City of Charleston Republican Party, and others (Appellants) contested the results of a special municipal election in Charleston. The three-member Municipal Election Commission of the City of Charleston (Commission) voted unanimously to uphold the results of the election. The circuit court affirmed Commission's decision. We reverse.¹

FACTS

Commission learned in September 1998 that it had to organize a special election to be held November 3, 1998, the same day as the general election. Voters would decide whether the city's elections would be changed from partisan to nonpartisan. Commission traditionally had worked with Charleston County officials during elections, using the county's electronic voting machines and getting help from county precinct workers. This time, county election officials were unable to assist Commission due to the length and complexity of the ballots in county, state, and national races, although the county did provide some poll managers in the city election.

On Election Day, city voters signed in at their polling places and cast their ballots in county, state, and national races on the county's electronic voting machines. The machines were contained in separate booths that ensured voters' privacy. City voters then walked to a nearby table six to eight feet in length. They signed in again and were given a punch-card ballot to vote on the city referendum. After voting, they dropped the ballots in a sealed cardboard box on the table. Commission officials instructed poll managers to allow voters who desired more privacy to step away from the table, turn around, or shield their ballot by holding it behind the ballot box while completing it.² Commission held a hearing November 9, 1998, after appellants contested the results. All parties and Commission stipulated that (1) Commission did not provide voting booths in any city precincts, and the majority of voters in the city election did not vote in a voting booth; and (2) punch-card ballots used in the city election were not designed to be folded because they were counted by a computer, and the majority of voters did not fold the ballots.

Appellants presented no evidence or witnesses at the hearing, but grounded their arguments in the stipulations. Appellants conceded no one testified he or she saw the vote made by another person, no one testified he or she refused to vote due to the method of voting, and no one testified he or she was confused or intimidated during the process.

Candidate Paul E. Tinkler, one of Tinkler's poll watchers, and two voters called by the Committee for Nonpartisan Elections testified they believed the method of voting sufficiently protected their right to cast a secret ballot. They simply cupped their ballots in one hand, punched the desired slot, and dropped them in the box. Other voters usually were standing in nearby lines when voters completed the city ballots.

City residents voted to change municipal elections in the city of Charleston from partisan to nonpartisan by a vote of 8,929 to 6,310. Appellants contend the circuit court erred in affirming Commission's decision to uphold the election results.

ISSUE

Did the total absence of voting booths and the use of punch-card ballots that were not designed to be folded violate the state constitution or statutes?

DISCUSSION

Appellants contend the state constitution and statutes required Commission to provide voting booths and ballots that may be folded in order to ensure each voter's right to cast a secret ballot. They argue the Court should nullify the referendum results due to the total lack of booths and foldable ballots. We agree. 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. 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. Sims v. Ham, 275 S.C. 369, 271 S.E.2d 316 (1980); May v. Wilson, supra.

The statutory provisions regulating the conduct of elections are numerous and detailed. S.C.Code Ann. §§ 7-13-10 to -2220 (1976 & Supp.1998); S.C. Const. art. II, § 10. This Court, like many others, recognizes that perfect compliance in every instance is unlikely, and the Court is loathe to nullify an election based on minor violations of technical requirements. To that end, courts have developed principles to determine whether such provisions are mandatory or directory.

As a general rule, such provisions are mandatory in two instances: when the statute expressly declares that a particular act is essential to the validity of an election, or when enforcement is sought before an election in a direct proceeding. After an election in which no fraud is alleged or proven, when the Court seeks to uphold the result in order to avoid disenfranchising those who voted, such provisions are merely directory even though the Legislature used seemingly mandatory terms such as "shall" or "must" in establishing the provisions. "Courts justly consider the main purpose of such laws, namely, the obtaining of a fair election and an honest return, as paramount in importance to the minor requirements which prescribe the formal steps to reach that end, and, in order not to defeat the general design, are frequently led to ignore such innocent irregularities of election officers as are free of fraud, and have not interfered with a full and fair expression of the voter's choice." State ex rel. Parler v. Jennings, 79 S.C. 414, 419, 60 S.E. 967, 968-69 (1908); accord Laney v. Baskin, 201 S.C. 246, 253, 22 S.E.2d 722, 725 (1942); Smoak v. Rhodes, 201 S.C. 237, 241, 22 S.E.2d 685, 686 (1942); Killingsworth v. State Executive Comm. of Democratic Party, 125 S.C. 487, 492, 118 S.E. 822, 824 (1921); State ex rel. Davis v. State Bd. of Canvassers, 86 S.C. 451, 460, 68 S.E. 676, 680 (1910).

The Court still may deem such provisions to be mandatory 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. Zbinden v. Bond County Community Unit School Dist. No. 2, 2 Ill.2d 232, 117 N.E.2d 765, 767 (1954); Lewis v. Griffith, 664 So.2d 177, 186 (Miss.1995); O'Neal v. Simpson, 350 So.2d 998, 1005-09 (Miss.1977); Mittelstadt v. Bender, 210 N.W.2d 89, 94 (N.D.1973). Furthermore, "where there is a total disregard of the statute, it cannot be treated as an irregularity, but it must be held and adjudicated to be cause for declaring the election void and illegal." Moon v. Seymour, 182 Ga. 702, 186 S.E. 744, 745 (1936); accord Lewis v. Griffith, supra. "The Court ... will not sanction practices which circumvent the plain purposes of the law and open the door to fraud." May v. Wilson, 199 S.C. at 360, 19 S.E.2d at 470.

With those principles in mind, we turn to the provisions at issue in this case.

"All elections by the people shall be by secret ballot...." S.C. Const. art. II, § 1.³ Secret ballots have been required since at least 1907, when the Court interpreted a provision in the original 1895 constitution for voting "by ballot" to mean voting by secret ballot. State ex rel. Birchmore v. State Bd. of Canvassers, 78 S.C. 461, 468-69, 59 S.E. 145, 147 (1907); see also State v. Shaw, 9 S.C. 94, 132-45 (1877) (plainly indicating, while interpreting 1868 state constitution, that voting "by ballot" impliedly means by secret ballot). Section 1 of Article II was amended in 1971 to include the term "secret ballot." Act No. 277, 1971 Acts 319.

The Legislature explicitly has declared "[t]he right to vote of each person so entitled and the secrecy of the ballot shall be preserved at all times." S.C.Code Ann. § 7-13-130 (1976). That legislative goal is evident in several statutory provisions. See S.C.Code Ann. § 7-13-1830 (1976) (after helping a voter understand how to use a voting machine, the poll managers "shall, before the voter has voted, retire and such voter shall cast his ballot in secret"); S.C.Code Ann. § 7-13-771(D) (Supp.1998) (after an elderly or handicapped person votes in his or her vehicle outside a polling place, the voter "must fold [the ballot] so that the secrecy of the ballot is preserved and return it to the managers waiting outside the vehicle. The managers shall carry the ballot to the ballot box, taking care not to violate the secrecy of the ballot, and after detaching the stub, deposit the ballot in the ballot box"); S.C.Code Ann. 7-13-1380 (1976) ("The State Election Commission in specifying the form of the ballot shall provide for ballot secrecy in connection with write-in votes").

History demonstrates the importance of the secret ballot. In the early years of our nation, voters expressed their preferences orally or by a showing of hands. With the advent of paper ballots in the late 1700s, individuals prepared their own handwritten ballots at home, marked them, and took them to the...