Opinion
20762
September 11, 1978.
A. Camden Lewis of Barnes, Austin Lightsey, Columbia and A. Parker Barnes, Jr. of Howell Barnes, Beaufort, for petitioner.
James H. Moss of Moss, Carter, Branton Bailey, Beaufort, for respondent Jenkins, and Elliott D. Thompson, Columbia and Theo W. Mitchell of Mitchell Joe, Greenville, for respondents The South Carolina Democratic Executive Committee and Donald L. Fowler as Chairman of The South Carolina Democratic Party.
September 11, 1978.
This is a proceeding, under a writ of certiorari, to review the decision of the Executive Committee of the Democratic Party of South Carolina [State Committee] affirming the actions of the Executive Committee of the Democratic Party of Beaufort County [County Committee] in refusing to declare petitioner Bruce A. Drawdy the party nominee for sheriff of Beaufort County and in ordering a new run-off primary election.
The issue is whether enough improper votes were cast to affect the outcome of the election. We hold that the decision to conduct a new election is not supported by the evidence and reverse.
The purpose of our review of the actions of the State Committee is to determine whether any errors of law were committed by the State Committee, and if so, to correct them. We may not review the facts except to determine whether the actions of the State Committee are wholly unsupported by the evidence. Laney v. Baskin, 201 S.C. 246, 22 S.E.2d 722 (1942).
Since the State Committee did no more than simply affirm the actions of the County Committee, our review will focus on the findings and order of the County Committee.
We will employ every reasonable presumption to sustain the contested election. Berry v. Spigner, 226 S.C. 183, 84 S.E.2d 381 (1954).
On June 13, 1978 a Democratic Party primary election was held in Beaufort County. No candidate for sheriff of Beaufort County received a majority of the votes cast in the primary election and a run-off election for sheriff was held on June 27, 1978. Bruce A. Drawdy won the run-off election and defeated his opponent Robert "Bobby" Jenkins by a margin of 101 votes.
A protest to the run-off election was timely filed by Jenkins and a hearing on the protest was conducted by the County Committee on July 6, 1978. The County Committee determined that 137 illegal votes were cast in the run-off election; rescinded their certification of Drawdy as the party nominee for Beaufort County sheriff; and ordered a new election.
Drawdy appealed to the State Committee and after a hearing on July 13, 1978 the State Committee voted to affirm the actions of the County Committee.
On July 20, 1978 this Court granted a writ of certiorari to review the actions of the State Committee and issued a temporary restraining order enjoining the holding of any further primary election for the office of sheriff of Beaufort County.
The County Committee's decision to conduct a new election was based on its finding that 137 electors improperly voted in the run-off election. The County Committee found that 78 electors who voted in the run-off election on June 27, 1978 also voted in the Republican primary election on June 13, 1978; and that 59 electors who voted in the run-off election participated in the organization of the Beaufort County Republican Precinct Clubs. Each of these 137 electors was determined by the County Committee to have violated the electors' oath that each voter takes when he signs the poll list. That oath, which is prescribed by Section 7-13-1010, 1976 Code of Laws of South Carolina, reads as follows:
The managers at each box shall require every voter to take the following additional oath and pledge: "I do solemnly swear or affirm that I am duly qualified to vote at this primary election and that I have not voted before at this primary election or in any other party's primary election or officially participated in the nominating conviction for any vacancy for which this primary is being held."
The list of 78 electors who allegedly voted in both the Republican primary and the Democratic run-off appears at Appendix A to this opinion. We have compared the Republican primary voter registration computer print-out sheets and signed poll lists with the Democratic run-off voter registration computer print-out sheets and signed poll lists and have determined that the County Committee's finding that 78 electors voted in both the Republican primary and the Democratic run-off is wholly unsupported by the evidence. The record will only support the finding that 65 of the list of 78 voted in both elections. The record will not support the finding that 13 of the list of 78 voted in both elections. The names of these 13 electors appear at Appendix B to this opinion.
The list of 59 electors who allegedly voted in the Democratic run-off and participated in the organization of the Beaufort County Republican Precinct Clubs appears at Appendix C to this opinion. This list of electors could be held ineligible to vote in the Democratic run-off only if each elector violated Section 7-13-1010 by officially participating in the Republican Party's nominating convention.
The name of each of these 59 electors appears on a Republican Precinct Certification Form, commonly referred to as a P-1 list. Each of the 59 is designated as a member of a particular Republican Precinct Club. The membership list, or P-1 list, for each Republican Precinct Club was filed with the Beaufort County Clerk of Court as required by Section 7-9-30, 1976 Code.
The Chairman of the Beaufort County Republican Party, John M. Finn, testified that the P-1 lists contain the names of individuals who participated in the precinct club organizational meetings. He further testified that an "X" beside an individual's name on a P-1 list indicated an elected delegate to the county Republican convention; and that a checkmark by an individual's name indicated an elected alternate to the county Republican convention. Mr. Finn stated the Republican Party did not have a list of those individuals who participated in the county Republican convention.
Fifteen names on the list of 59 appear with an "X" indicating their election as a delegate to the county convention. Six names on the list of 59 appear with a checkmark indicating their election as an alternate to the county convention. The remaining 38 names on the list of 59 appear without either an "X" or a check-mark.
The County Committee invalidated the votes of each elector whose name appears on the list of 59:
The committee feels that these fifty-nine (59) persons could possibly have participated in the nominating convention either because participation at the precinct level is deemed to be participation in the nominating convention or because all of these persons did in fact participate in the nominating convention itself.
In addition, however, it was established that of these fifty-nine (59) names fifteen (15) were delegates and six (6) were alternates . . . . While it was not possible to determine if these persons actually attended the nominating convention, it is reasonably probable that a significant number of persons did attend and participated in the Republic Nominating Convention to affect the outcome of this election.
The question presented by this proceeding is whether participation by an elector in the precinct club organizational meeting of one political party, without more, gives rise to the reasonable inference that the elector has "officially participated" in that party's nominating convention within the meaning of Section 7-13-1010.
We are of the view that the only reasonable inference that can be drawn from participation in a political party's precinct club organizational meeting is membership in that political party.
Our election laws do not preclude a member of one political party from voting in either the primary or run-off election conducted by a different political party. This privilege is restricted, however, by Section 7-13-1010 which prevents an elector who has voted in one political party's primary or officially participated in that party's nominating convention from crossing over and voting in the primary or run-off election conducted by a different political party.
Each elector whose name appears on the list of 59 swore an oath when he voted in the Democratic run-off that he had not "officially participated" in the Republican Party's nominating convention. Membership in the Republican Party does not constitute a violation of this oath and would not bar these 59 electors from voting in the Democratic run-off election.
Twenty-one electors on the list of 59 were elected at the precinct organizational meetings as either delegates or alternates to the county Republican nominating convention. Nothing in the record indicates that any of these electors actually participated in or even attended the county Republican nominating convention. Since we are required to indulge all reasonable presumptions in favor of the validity of the contested election, in the absence of evidence to the contrary we will presume that none of the 21 delegates and alternates officially participated in the Republican nominating convention.
The successful candidate for the Democratic nominee for sheriff of Beaufort County won the Democratic run-off election by a majority of 101 votes. The unsuccessful candidate contested 137 votes, but the record before us will only support the invalidity of 65 of the 137 contested votes. If all of these 65 votes were given to the unsuccessful candidate, the result of the election would remain unaffected.
It is settled that an election will not be overturned by errors that do not appear to have affected the result of the election. Jenkins v. McCarey, 222 S.C. 426, 73 S.E.2d 446 (1952).
Accordingly, the order of the State Committee affirming the County Committee's actions in refusing to declare petitioner Bruce P. Drawdy the Democratic nominee for sheriff of Beaufort County and in ordering a new run-off primary election is reversed.
Reversed.
Appendices to follow.
APPENDIX A
The County Committee found that the following 78 electors voted in both the Republican primary and the Democratic run-off:
Beaufort No. 1B Hilton Head No. 2 — ContinuedBeaufort No. 3 Burton No. 2Chechessee Hilton Head No. 1 Hilton Head No. 3 Hilton Head No. 4 Hilton Head No. 5 Hilton Head No. 2 Ladys Island No. 1A St. Helena No. 2
1. Virginia Lentz Hucks 40. Maud W. Gaines 41. Arthur H. Gerhard 42. Eugenia C. Graff 2. Katie Mae Jones 43. Margie W. Guss 3. Marion D. Jones 44. William F. Guss 45. Ada F. Keep 46. Lyndall E. Littell 4. Angus F. Trask 47. Mildred B. McDowell 48. Theodore N. McDowell 49. Isabelle C. Miles 5. Helen B. White 50. William H. Mulledy 51. Harry J.W. Nethery 52. Williamina F. Nethery 6. Jacqueline S. Ballantyne 53. George G.L. Palmer 7. James W. Ballantyne, Jr. 54. Daniel Winant, Jr. 8. James E. Bryan 55. Jayne M. Winant 9. Miriam M. Bryan 56. Andrew F. Wray 10. Anita M. Carroll 11. Clifford R. Chapman 12. Helen E.H. Chapman 57. Robert B. Arthur 13. Joan F. Chesnut 58. Lyda Johston Blair 14. John F. Farnsworth 59. Deborah E. Herz 15. James F. Graves 60. Ethel M. McClure 16. Mary M. Graves 61. Ralph C. McClure 17. Dorothy S. Haggerty 62. Helen C. Palmer 18. Charlton M. Happ 63. Ennis T. Phillips, Jr. 19. Sara L. Happ 20. Elizabeth B. Haring 21. Charles C. Hewitt 64. John W. Dobson 22. Nancy C. Hewitt 65. John W. Gorn 23. Jeanne A. Hiles 66. Martha J. Gorn 24. Nancy B. Kerr 67. Josephine Hillegas 25. Helen Lambright 68. R. Wayne Hillegas, Jr. 26. Nancy F. Paddock 69. Donald W. Leeper 27. Ellin L. Quinn 70. Dorothy B. List 28. Catherine B. Scott 71. Ethel M. North 29. Nancy C. Somers 72. Elinore P. Simpson 30. E. Romney Wheeler 73. Wanda M. Taylor 31. Wayne L. Whiteman 32. Edward P. Woodward 74. Dorothy R. Geib 75. Wayne A. Geib 33. Gordon J. Berry, Sr. 34. Vivian F. Brush 35. Christine T. Carroll 76. Paul R. Jernigan 36. David E. Carroll 77. Mildred D. Rich 37. Jack W. Davis 38. Virginia M. Davis 39. Betsy E. Doughtie 78. Shirley P. SuttonAPPENDIX B
The record does not support the County Committee's finding that the following 13 electors voted in both the Republican primary and the Democratic run-off:
Beaufort No. 3
1. Marion D. Jones: The record indicates that Marion D. Jones voted in the Democratic run-off and that Marion D. Jones, Jr., voted in the Republican primary.
Burton No. 2
2. Angus F. Trask: The record does not support the finding that Angus F. Trask voted in the Republican primary.
Hilton Head No. 1
3. Anita Carroll: The record does not support the finding that Anita Carroll voted in the Republican primary.
4. Joan F. Chesnut: The record does not support the finding that Joan F. Chesnut voted in the Republican primary.
5. Dorothy S. Haggerty: The record does not support the finding that Dorothy S. Haggerty voted in the Republican primary.
Hilton Head No. 2
6. Gordon J. Berry, Sr.: The record does not support the finding that Gordon S. Berry, Sr. voted in either the Republican primary or the Democratic run-off.
7. Betsy E. Doughtie: The record does not support the finding that Betsy E. Doughtie voted in the Democratic run-off.
8. Arthur H. Gerhard: The record does not support the finding that Arthur H. Gerhard voted in the Republican primary.
9. Lyndall E. Littell: The record does not support the finding that Lyndall E. Littell voted in the Democratic run-off.
10. George G.L. Palmer: The record indicates that George G.L. Palmer voted in both the Republican primary and the Democratic run-off, but that his vote in the Republican primary was voided.
11. Andrew F. Wray: The record does not support the finding that Andrew F. Wray voted in the Democratic run-off.
Ladys Island 1A
12. Paul R. Jernigan: The record does not support the finding that Paul R. Jernigan voted in the Democratic run-off.
13. Mildred D. Rich: The record indicates that Mildred D. Rich voted in the Democratic run-off and that Ruth W. Rich voted in the Republican primary.
APPENDIX C
The County Committee found that the following 59 electors officially participated in the Beaufort County Republican nominating convention and voted in the Democratic run-off: Beaufort No. 1A Ladys Island No. 1A Beaufort No. 2 Ladys Island No. 1B Beaufort No. 3 Mossy Oaks No. 2 Port Royal Bluffton Burton No. 2 Hilton Head No. 1Sheldon Hilton Head No. 2 St. Helena No. 1B Hilton Head No. 3 Hilton Head No. 4 St. Helena No. 2
30. Charles Rousek 1. Gene N. Grace 31. Henrietta A. Sebring 2. William Davis Trask 32. Cud T. Baird, III 3. Elizabeth F. Bond 33. Ruth B. Baird 4. Robert H. Folk 34. Lee M. Stockell 5. Katrena M. Kinsey 6. Mary J. Matthews 35. Edgar C. Glenn, Jr. 36. Catherine C. Harley 7. Mary P. Easterling 37. Russell A. Harley 8. Wayne B. Flietner 38. Jane S. Pratt 9. Artie M. Heape 10. Merle W. Jeter 11. Frederic F. Moore 39. John Henry Edwards 12. Juanita L. Moore 40. William F. Huff 13. Maryjo Price 41. Joy G. Boston 14. Nancy H. Roe 42. Leona J. Hector 43. Melvin G. Hector 44. Denise M. Kent 15. Floyd K. Hill 45. Marvin H. Olinghouse 16. Benjamin E. Pinckeny 46. Catherine A. Phinney 17. Anne H. Pinckeny 47. Waldo A. Phinney 18. Margaret P. Savage 48. William J. Shelzer 19. Mary V. Jordan 49. William A. Campbell, Jr. 20. Michael L.M. Jordan 50. Sumner Pingree 51. Emmett L. Priester 21. Esther B. Dickey 22. John T. Logan 52. Owen K. Hand 53. Francis H. Rutherford 54. Edward R. Sanders 23. Richard C. Chase 55. Gail K. Sanders 56. Kenneth M. Sifritt 57. Virginia Sifritt 24. Edward J. Doyle 25. Mary W. Grimwade 26. Donald A. Lacoss 58. Annie M. Smith 27. Louise Emlaw Lacoss 59. Roy Grant Smith. 28. Elizabeth K. Olson 29. Elmer W. Olson