Redfearn v. Board of State Canvassers of S. C., 17497

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtLEGGE; STUKES
Citation234 S.C. 113,107 S.E.2d 10
PartiesW. E. REDFEARN, Petitioner, v. BOARD OF STATE CANVASSERS OF SOUTH CAROLINA and Margie E. Pusser, Respondents.
Docket NumberNo. 17497,17497
Decision Date06 February 1959

James P. Mozingo, III, Benny R. Greer, Archie L. Chandler, Darlington, for petitioner.

T. C. Callison, Atty. Gen., James S. Verner and Daniel R. McLeod, Asst. Atty. Gen., Spruill & Harris, Cheraw, for respondents.

LEGGE, Justice.

The Democratic primary election held in Chesterfield County in June, 1958, resulted in the nomination of W. E. (Bill) Redfearn as the party candidate for the office of Judge of Probate of that county. Among his opponents in that election was Mrs. Margie E. Pusser. In the general election of November 4, 1958, Mrs. Pusser, as a 'write-in' candidate, received a plurality of the votes cast; and over Mr. Redfearn's protest the Board of County Canvassers, and later the Board of State Canvassers, declared her elected. He then petitioned this court for a writ of certiorari to review the action of the latter Board, and the matter is now before us on that petition and the returns of the Board and of Mrs. Pusser pursuant to the rule to show cause issued thereon.

Petitioner contends, at the outset, that Mrs. Pusser was ineligible to oppose him in the general election because of the pledge (Code, 1952, Section 23-373) taken by her as a candidate in the primary 'to abide by the results of said primary and to support in the next general election all candidates nominated in said primary.'

We are not here concerned with whether Mrs. Pusser's position, as a 'write-in' candidate in the general election, should or should not be considered as morally or ethically improper. Our function is to determine her eligibility as a matter of law.

Article I, Section 10 of the Constitution of 1895 declares that 'every inhabitant of this State possessing the qualifications provided for in this Constitution shall have an equal right to elect officers and to be elected to fill public office.' That Mrs. Pusser possessed the qualifications prescribed by the Constitution is not questioned.

We need not undertake to inquire whether, since probate courts (except in Charleston County) derive their existence not from the Constitution, but from legislative enactment, Bradford v. Richardson, 111 S.C. 205, 97 S.E. 58, the legislature may require qualifications or impose disqualifications, other than those prescribed by the Constitution, for election to the office here in controversy. Cf. McLure v. McElroy, 211 S.C. 106, 44 S.E.2d 101, and Lee v. Clark, 224 S.C. 138, 77 S.E.2d 485. It has not attempted to do so.

Petitioner also contends that persons who had voted in the primary, having then taken oath (Code, 1952, Section 23-379) to 'support the nominees of this primary election in the general election next ensuing', were thereby disqualified to vote against him in the general election. Assuming that such votes could be identified, petitioner's claim of disqualification is as untenable as his similar charge against his opponent, and for like reason, viz.: that neither by the Constitution nor by statute is the voter disqualified in such case.

We turn now to petitioner's contention that the Board erred in allowing certain ballots to be counted for Mrs. Pusser. Uncontroverted are the following facts apparent from the Board's return to the rule, and from photostatic copies of the questioned ballots:

In the general election the name 'W. E. (Bill) Redfearn' appeared on the ballots as the Democratic nominee for the office of Judge of Probate. Many voters wrote in, on their ballots, the names of other persons for this office, the total vote for said office (excluding two precincts all ballots in which were rejected on Mr. Redfearn's protest) being found by the Board of County Canvassers to be as follows: Pusser 1353, of which Redfearn protested 119; Redfearn 1236, of which Pusser protested 15; others 1231; void 156.

Redfearn contends that the 119 votes protested by him should have been either: (1) counted as votes for him, of (2) thrown out. It is apparent, therefore, that:

(a) Counting the votes protested by Redfearn as votes for him, and rejecting the Pusser protest in toto, the result would be: Redfearn 1355, Pusser 1234; and

(b) Throwing out the votes protested by Redfearn, and rejecting the Pusser protest in toto, the result would be: Redfearn 1236, Pusser 1234.

The ballots with which we are concerned conformed to the plan outlined in Section 23-310 of the Code, as follows (caption omitted):

Instructions--To vote a straight party ticket, make a cross (x) in the circle (O) under the name of your party. Nothing further need or should be done. To vote a mixed ticket, or in other words for candidates of different parties, omit making a cross (x) mark in the party circle at the top and make a cross (x) mark in the voting square () opposite the name of each candidate on the ballot for whom you wish to vote. If you wish to vote for a candidate not on any ticket, write or place the name of such candidate on your ticket opposite the name of the office. Before leaving the booth, fold the ballot so that the initials of the manager may be seen on the outside.

                OFFICE                      DEMOCRAT O
                SENATE                      -- Paul M. Arant
                House of Representatives    -- D. H. Douglass, Sr
                                            -- J. A. Spruill, Jr
                Probate Judge               -- W. E.  (Bill) Redfearn
                Sheriff                     -- Don D. Hill
                Commissioner Central Dist.  --  Wade H. Miles
                Commissioner Eastern Dist.  --  Callie C. Anderson
                Commissioner Western Dist.  --  Robert A. Raley

On each of the 119 ballots protested by Redfearn, the voter had made a cross or check mark in the circle under the word 'Democrat'. On 97 of them the name 'W. E. (Bill) Redfearn' had been scratched out and in the column to the right of it, opposite the name of the office, had been written:

On 93, either 'Mrs. Margie Pusser' or 'Margie Pusser' or 'Mrs. Marjorie Pusser' or 'Mrs. M. Pusser' or 'Mrs. Pusser' or 'Pusser';

On 1, 'Margie P.'; and

On 3, 'James McRae'.

On 1, the name 'Margie Pusser' had been written directly under the erased name, and still opposite the name of the office.

On each of the other 21, the name 'W. E. (Bill) Redfearn' had not been stricken, but there had been written, opposite the name of the office:

On 18, the name of Mrs. Pusser;

On 2, the name 'Billy'; and

On 1, 'Jr.'

(In regard to the 3 last mentioned, it is noted that Mr. Redfearn, Sr., the petitioner, had for several years been Judge of Probate, his term expiring in 1958, and that his son, W. E. Redfearn, Jr., also known as Billy Redfearn, had been employed by him as clerk in that office until the summer of 1958.)

Petitioner contends here, as he did before the Board of State Canvassers, that each of the 119 ballots above mentioned:

(1) should have been counted in his favor because the marking of the party circle indicated a vote for the Democratic nominees and therefore, as to the office of Probate Judge, for him; or, failing that,

(2) should have been thrown out, as a vote for two persons for that office, viz.: himself as the party nominee, and the 'write-in' candidate.

The Board, rejecting both contentions, held that each of the ballots in question clearly evidenced intention on the part of the voter to vote not for Mr. Redfearn, but for the person whose name the voter had written in. Accordingly, it ruled that the said ballots...

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