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Odom v. Town of McBee Election Commission

Supreme Court of South Carolina

July 24, 2019

Glenn Odom, Respondent,
v.
Town of McBee Election Commission and Shilon Green, Appellants. Appellate Case No. 2019-000147

          Heard May 29, 2019

          Appeal from Chesterfield County Roger E. Henderson, Circuit Court Judge.

          Martin S. Driggers, Jr., of Sweeny, Wingate & Barrow, P.A., of Hartsville, Richard E. McLawhorn, Jr., of Sweeny, Wingate & Barrow, P.A., of Columbia, and Karl S. Bowers, Jr., of Bowers Law Office, LLC, of Columbia, for Appellants.

          Kathleen C. Barnes, of Barnes Law Firm, LLC, of Hampton, John E. Parker and William F. Barnes, III, both of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Hampton, for Respondent.

          JAMES JUSTICE.

         This is an appeal arising from a McBee Town Council election contest commenced by candidate Glenn Odom. The McBee Municipal Election Commission ruled on the contest, and Odom appealed the Commission's decision to the circuit court. The circuit court ruled in favor of Odom, and the Commission and candidate Shilon Green (collectively, Appellants) appealed to this Court. We affirm the circuit court as modified, remand to the Commission, and order the Commission to proceed in accordance with our holding.

         "In municipal election cases, we review the judgment of the circuit court only to correct errors of law." Taylor v. Town of Atl. Beach Election Comm'n, 363 S.C. 8, 12, 609 S.E.2d 500, 502 (2005). "Our review does not extend to findings of fact unless those findings are wholly unsupported by the evidence." Id.

         "There was no right to contest an election under the common law." Id. at 14, 609 S.E.2d at 503. In South Carolina, the right to contest an election exists only under our constitutional and statutory provisions, and "the procedure proscribed by statute must be strictly followed." Taylor v. Roche, 271 S.C. 505, 509, 248 S.E.2d 580, 582 (1978); see also S.C. Const. art. II, § 10 ("The General Assembly shall . . . establish procedures for contested elections, and enact other provisions necessary to the fulfillment and integrity of the election process."). Statutes which are in derogation of the common law must be strictly construed. See Doe v. Brown, 331 S.C. 491, 496, 489 S.E.2d 917, 920 (1997).

         I.

         On September 4, [1] 2018, the Town of McBee held an at-large election to fill two seats on its Town Council. The five candidates for the two seats are Odom, Kemp McLeod, Donald Robinson, Sim Tyner, and Appellant Green; the two candidates with the most votes will fill the two seats. During the election, several people attempting to vote were challenged as nonresidents of McBee. This appeal centers upon votes cast by four of the challenged voters.

         Section 7-13-830 of the South Carolina Code (2019) requires such challenged votes to be received, placed in an envelope, set aside, and delivered to the authority having control over the election (here, the Commission). This procedure was followed in the instant case, and the four sealed votes remain in the possession of the Commission. During a called meeting after the election, the Commission decided to not count these votes; the reasoning behind this decision is not in the record but is irrelevant to the issues before us. Not including these four votes, McLeod received 212 votes, Green received 209 votes, Odom received 208 votes, Robinson received 182 votes, and Tyner received 8 votes.

         On September 6, 2018, Odom delivered a letter to the Commission in which he stated, "I would like to contest the official results" of the election. In the letter, he stated the four voters resided in McBee and were therefore qualified to vote in the election. In the letter, Odom also stated, "These contested votes will affect the outcome of the election." The clear import of his letter was that the four votes should be counted. Odom's contest letter was timely submitted pursuant to section 5-15-130 of the South Carolina Code (2004), which requires the filing of a written contest with the municipality's election commission. Section 5-15-130 further provides in pertinent part:

[T]he Municipal Election Commission shall, after due notice to the parties concerned, conduct a hearing on the contest, decide the issues raised . . . and when the decision invalidates the election the council shall order a new election as to the parties concerned.

         The Commission convened the required hearing on September 10, 2018; after a recess that day, the hearing resumed and concluded on September 25. The Commission heard testimony from Odom and the four challenged voters and heard arguments from counsel. The four challenged voters testified they were McBee residents at all appropriate times and further testified they voted for Odom. In its written decision, the Commission found the four voters were eligible to vote in the election. The Commission wrote: "Because adding the four votes to the total for Glenn Odom would have changed the outcome of the election, the ...


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