Gregory v. South Carolina Democratic Executive Committee

• Decision Date: 12 September 1978
• Docket Number: No. 20763,20763
• Citation: 271 S.C. 364,247 S.E.2d 439
• Court: South Carolina Supreme Court
• Parties: George W. GREGORY, Jr., Petitioner, v. The SOUTH CAROLINA DEMOCRATIC EXECUTIVE COMMITTEE, Donald Fowler, Chairman and Jean L. Harris, Respondents.

Page 439

247 S.E.2d 439

271 S.C. 364

George W. GREGORY, Jr., Petitioner, v. The SOUTH CAROLINA DEMOCRATIC EXECUTIVE COMMITTEE, Donald Fowler, Chairman and Jean L. Harris, Respondents.

No. 20763.

Supreme Court of South Carolina.

Sept. 12, 1978.

John I. Rogers, III, Bennettsville, for petitioner.

C. Anthony Harris, Cheraw, John C. Lindsay, Bennettsville and H. F. Bell, Chesterfield, for respondent Jean L. Harris.

James B. Richardson, Jr., of Ham & Richardson, Columbia, for respondents The Democratic Executive Committee and Donald Fowler, Chairman.

PER CURIAM:

This is a proceeding under a writ of certiorari wherein Petitioner, George W. Gregory, Jr., is contesting the action of the Respondent South Carolina Democratic Executive Committee (State Committee) in declaring his primary opponent, Respondent Jean L. Harris, the Democratic Nominee for District 54 of the South Carolina House of Representatives. House District 54 lies solely within the County of Chesterfield. We find the return to the writ sufficient and the petition is dismissed.

The following sequence of events gives rise to this controversy. Local party officials began counting ballots on primary election night, June 13, 1978, and reassembled on the following day to tabulate the absentee ballots. However, due to numerous and time consuming challenges, the chairman of the Chesterfield County Executive Committee (County Committee) chose to terminate the challenge process prior to its completion and to include all absentee ballots in the count.

In accordance with the statutory directive of § 7-17-510, S.C.Code of Laws (1976), the County Committee then assembled on Thursday, June 15, 1978, for the purpose of tabulating returns and declaring primary results. At this point, Petitioner Gregory protested the chairman's refusal on the day before to entertain all of his challenges to the absentee ballots. He also protested two ballots from the Patrick precinct in which a husband and wife had entered the same booth to vote. Harris likewise protested and urged the County Committee not to count nine ballots which had originated from Cheraw # 3 precinct enclosed in an envelope with a question mark penciled on the outside. The County Committee then retired into executive session and returned to declare that neither candidate would be certified and that a new primary would be held on June 27th because of "irregularities involving the absentee voting box, (and) the challenged ballots from the Patrick and Cheraw # 2 precincts." ¹ Although the County Committee explicitly refused to certify either candidate as the nominee of the party, it did publish, through its Secretary, the following result of the race: George W. Gregory, Jr., 2916; Jean L. Harris, 2924.

Respondent Harris immediately petitioned the State Committee asking that it take jurisdiction of the Primary for House District # 54 on the grounds that the County Committee had failed to properly comply with its statutory duty to "declare the results of the primary" and had acted without authority in ordering another primary. The State Committee heard the petition on June 19th and, after voting to assume jurisdiction, used the totals from the County Committee to declare Harris the nominee. ² In compliance with a candidate's mandatory right to a recount in the event that the winning margin is less than one (1) percent, § 7-17-280, S.C.Code of Laws (1976), the State Committee appointed a five man subcommittee to retabulate the ballots and to hear and rule upon all challenges asserted. The recount was conducted on June 21st in accordance with the above procedure and Harris was reported the winner.

The full State Committee reassembled on June 29th and received protests from the subcommittee's findings. Gregory protested the subcommittee's decisions: (1) to count the two ballots for Harris by husband and wife in the Patrick precinct; and (2) not to count three of the absentee ballots for Gregory when the voter's identity was disputed. These contentions by Gregory were sustained. However, the State Committee denied his protests directed to the subcommittee's decisions: (1) in counting an absentee ballot where the voter had incorrectly categorized her reason for absence; (2) in not counting ten votes from Cheraw # 1 precinct in a cardboard box which were first presented for counting on Saturday, June 17th; (3) in not counting nine ballots for Gregory in Cheraw # 3 which were found in an envelope with a question mark penciled on the front; and (4) in not counting 6 absentee ballots for Gregory which were not properly witnessed. These actions resulted in the State Committee's declaration of Harris as the nominee by a vote of 2918 to 2908.

The petition initially asserts that the State Committee exceeded its authority in setting aside the County Committee's order for a new primary and assuming jurisdiction to declare the nominee, conduct a recount of ballots, and resolve challenges regarding disputed votes. Petitioner argues that the County Committee's act of ordering another primary was not inconsistent with its statutory authority in determining elections and, even if such action were error, the State Committee in its role as an appellate body should have remanded the disputed election to the County Committee for a recount and consideration of protests and challenges. The Respondents contend that a candidate's only viable remedy was to appeal to the State Committee since not only was the County order for a rerun illegal but the Committee had also failed to perform its statutory duty "to tabulate the returns and declare the results of the primary." The Respondents further contend that a remand by the State Committee to the County Committee would have constituted a futile and time consuming gesture in light of the definitive action already taken by the County Committee.

Thus, the basic issue before us is whether the State Committee acted lawfully in assuming jurisdiction of this election under the unusual state of facts here presented. It is strenuously argued by Respondents that the County Committee abdicated its duty by failing to comply with the directive embodied in § 7-17-510. Their position is amply supported by the plain mandate of that statute which requires that:

The county committees shall assemble at their respective courthouses on the morning of the second day after the election at eleven in the forenoon to tabulate the returns and declare the results of the primary, . . . .

This section unequivocally imposed the duty of declaring primary results for House District # 54 upon the Chesterfield County Committee. This it did not do. It did, however, order another primary election for which action it had no semblance of authority.

The County Committee's refusal to declare a nominee and its accompanying order to set aside the primary because of alleged irregularities short-circuited the South Carolina statutory process pertaining to primary elections. Article 5, Chapter 17, Title 7 of the South Carolina Code of Laws (1976) entitled "Provisions Applicable to Primary Elections" provides the framework within which a candidate must contest or appeal a primary election. Section 7-17-510, which provides for declaration of results by the County Committee, is the first section set out in this article and it is the foundation upon which subsequent sections relating to the appellate process are predicated. The declaration of a nominee as required in § 7-17-510, is an absolutely essential action without which the further appellate remedies, §§ 7-17-520, Et seq., cannot be energized in accordance with the statutory scheme. The refusal by the County Committee to certify either candidate created a void in the South Carolina primary election process which, as a practical matter, not only prevented Respondent Harris from addressing her further protests to that Committee in accordance with § 7-17-520, but also deprived her of a finding from which a normal appeal to the State Committee would lie. Indeed, the County Committee's act in setting aside the entire election left both candidates without any results to be utilized as a basis for appeal.

Because of the County Committee's refusal to declare a nominee and its unauthorized action in setting aside the primary election, we are convinced that the State Committee correctly assumed jurisdiction to consider Respondent's petition under the factual exigencies here present. It is not in the public interest to permit the election machinery of this State to be rendered ineffectual due to the failure of a County Committee to fulfill its statutory obligations.

In voting to assume jurisdiction over the primary election, the State Committee initially declared the nominee based on the uncertified count made public by the County Committee which showed Respondent Harris with 2924 votes and Petitioner Gregory with 2916. It further reserved all rights for a candidate to protest challenged ballots. Accompanying its declaration of candidate Harris as nominee was the Committee's decision to appoint a special subcommittee to conduct a recount of the ballots and to provide a hearing for protests and appeals arising from the subcommittee's action. Petitioner argues that the question of a recount or of any protest was not before the State Committee at its June 19th hearing because the only action in issue was the County Committee's order for a new primary election. However, in the prayer of her appeal to the State Committee, Respondent Harris specifically asks that the Committee "take jurisdiction of the matter of canvassing and declaring the results of the Primary Election." It seems obvious that the recount and protest hearing ordered by the State Committee were necessary adjuncts to the State Committee's responsibility to declare election results since these further procedures were...