May 29, 2019
from Chesterfield County Roger E. Henderson, Circuit Court
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
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.
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.
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).
September 4,  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.
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.
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
[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.
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 ...