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Davis Adv. Sh. No. 33
S.E. 2d

In The Supreme Court

Eddie A. Butler, and the

Edgefield Branch of the

National Association for

the Advancement of

Colored People, Respondents,

v.

The Town of Edgefield

and Charlotte Cheatham

in her Official Capacity

as Town Clerk, and The

Edgefield Municipal

Election Commission

and Aubrey Coleman,

John S. Timmerman,

and Willie Lewis in

their Official Capacities

as Municipal Election

Conunissioners, Appellants.

Appeal From Edgefield County

Donald W. Beatty, Judge

Opinion No. 24717

Heard September 18,1997 - Filed December 1, 1997

REVERSED AND VACATED

James D. Nance and Kevin S. Little, of Aiken, for

appellants.

BUTLER, et al., v. EDGEFIELD, et al.

Brenda Reddix-Smalls and Eleazer R. Carter, of

Columbia, for respondents.

TOAL,, A.J.: This case concerns a contest of the May 3, 1994 municipal

election held in the Town of Edgefield. Appellant Town appeals the circuit

court's order that the election results for the Ward 3 council seat be vacated

and Respondent Eddie Butler be afforded a new election. We reverse the

circuit court's holding and vacate its order.

FACTUAL/PROCEDURAL BACKGROUND

On May 3, 1994, Town conducted municipal elections for mayor and

council seats for Wards 1, 3, and 5. Butler was a candidate in the election

and received votes for mayor and councilman in Ward 3. The official results

for the Ward 3 council seat were as follows:

William B. Jackson, 34 votes

Eddie Butler, 33 votes

Jerry Butler, 1 vote

Eddie Butler, Jr., I vote

No persons with the name Jerry Butler or Eddie Butler, Jr. were

candidates in the election. Additionally, one vote for Respondent Eddie

Butler was disqualified due to an error indicated by the voting machine.

The votes were counted by the Edgefield Election Commission ("Election

Commission") in the office of the Town Clerk, Charlotte Cheatham, in

Edgefield's Town Hall. After counting the votes once, Election Commission

conducted a recount. During the recount of the votes for Ward 3, the door

to Cheatham's office was closed for approximately ten minutes. At trial,

Cheatham testified that the door was closed due to noise in an adjoining hall.

Butler testified that he attempted to enter the room during the recount, but

was denied entrance.

On May 5, 1994, Butler delivered a hand-written letter to Election

Commission. The letter protested the results of the election and demanded

a recount. That same day, Election Commission notified Butler that a

recount of the May 3 election would be held on May 6, 1994, at 12:00 p.m.

A recount subsequently occurred on this date. Election Commission did not

conduct a hearing. The recount verified the results of the May 3 election.

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On May 13, 1994, Butler filed an appeal in circuit court pursuant to

S.C. Code Ann. § 5-15-140 (1977). He argued that Election Commission

violated S.C. Code Ann. § 5-15-130 (1977) by not affording him a hearing on

his election contest. Butler also asserted a claim under the Federal Voting

Rights Act and alleged that Election Commission secretly counted votes in

violation of S.C. Code Ann. § 5-15-120 (1977). Finally, Butler argues to this

Court that he properly amended his complaint in circuit court to include a

claim under 42 U.S.C. § 1983.

The circuit court made three conclusions of law: (1) Town violated

section 5-15-130 by not affording Butler a hearing; (2) Town violated section

5-15-120 by not publicly counting the votes; and (3) the defendants were

acting in their official capacities and under color of state law. The trial judge

allowed voter Alice Miles to testify that the Eddie Butler, Jr. vote was hers,

and that she intended to cast it for Eddie Butler. As a result, the circuit

court found that Election Commission improperly declined to count the Eddie

Butler, Jr. vote as a vote for Eddie Butler. It also observed that a vote cast

for Eddie Butler was disqualified due to an error indicated by the voting

machine. Consequently, the circuit court vacated the results of the May 3

election for the Ward 3 council seat and ordered a new election to be held in

compliance with the law.

Town appeals, raising the following questions:

(A) Should Butler have been afforded a hearing on his election contest

pursuant to section 5-15-130?

(B) Did Election Commission secretly count votes in violation of section

5-15-120?

(C) Should the disqualified vote and the vote for Eddie A. Butler, Jr.,

have been counted for Butler?

(D) Should the circuit court have considered the testimony of Alice

Miles concerning her vote for Eddie A. Butler, Jr.?

(E) Did Butler properly amend his complaint to include a claim under

42 U.S.C. § 1983?

p. 5

LAW/ANALYSIS

A. Statutory Hearing Requirement

Town argues that the circuit court erred in finding that Butler properly

gave written notice of his election contest pursuant to section 5-15-130,

thereby invoking his right to a hearing. We agree.

S.C. Code Ann. § 5-15-130 provides:

Within forty-eight hours after the closing of the polls, any

candidate may contest the result of the election as reported by

the managers by filing a written notice of such contest together

with a concise statement of the grounds therefor with the

Municipal Election Commission. Within forty-eight hours after

the filing of such notice, the Municipal Election Commission

shall, after due notice to the parties concerned, conduct a hearing

on the contest, decide the issues raised, file its report together

with all recorded testimony and exhibits with the clerk of court

of the county in which the municipality is situated, notify the

parties concerned of the decisions made, and when the decision

invalidates the election the council shall order a new election as

to the parties concerned.

(emphasis added). Butler delivered his written contest notice to Edgefield's

Town Hall on May 5, 1994. The notice stated:

I was a write-in candidate in the Edgefield May City Council

election. I am protesting and requesting a recount of the votes

cast. I am also requesting a poll watcher during the recount.

The first time I noticed the election advertisement was in the

Edgefield County Citizen News on April 7, 1997. The wards [sic]

numbers were reversed.

I am asking the United States Justice Department, the Attorney

General, Janet Reno, the F.B.I. Director Louis Freeth [sic] and

the NAACP to look into the reasons why it would take several

hours to count votes for an election.

Mayor 155 votes

Ward I 17 votes

p. 6

Ward III 67 votes

Ward 11 17 votes

I am also asking for the sign-in signature sheet of the poll list

and a total of votes received by the Mayor in each ward.

Town contends that Butler did not properly follow the procedure

provided in section 5-15-130 because he failed to provide a "concise statement

of the grounds" for his contest. In Taylor v. Roche, 271 S.C. 505, 248 S.E.2d

580 (1978), we held, "Under the common law there is no right to contest an

election. The right to contest an election exists only under the [state]

constitutional and statutory provisions, and the procedure prescribed by

statute must be strictly followed." Id. at 509, 248 S.E.2d at 582; 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."). The notice in an election contest

"should briefly state facts or a combination of facts sufficient to apprise the

contestee of the cause for which his election is contested, it being insufficient

to allege generally that fraud was committed, or to allege mere conclusions

of the pleader." 26 Am. Jur.2d Elections § 434 (1996). The purpose of the

notice requirement is to adequately inform the contestee as to the nature of'

the contest. Section 5-15-130 codifies this by requiring a "concise statement

of the grounds."

Butler argues that he provided two concise grounds in his May 5

protest letter: (1) the misleading election advertisement; and (2) the amount

of time it took to count the votes. First, with regard to election notices, S.C.

Code Ann. § 5-15-50 (1977) requires that "public notice of the elections

[within the municipality] shall be given at least sixty days prior to such

elections." In this case, official notice of the Edgefield elections appeared in

the Edgefield newspaper, the Citizen News, on March 3 and April 28, 1994.

The election was held on May 3, 1994. Thus, the March 3 notice satisfied

section 5-15-50 by appearing in the local newspaper sixty-one days before the

election. More importantly, Butler did not challenge these official notices in

his May 5 protest letter. Instead, Butler challenged an article written by a

Citizen News reporter about the election. This article appeared in the

Citizen News in April 1994. Butler nevertheless argues that this was an

adequate ground for his contest, thereby triggering the hearing requirements

in section 5-15-130.

There are two prerequisites to maintaining an election contest in South

Carolina: (1) the contest notice must allege irregularities or illegalities; and

p. 7

(2) the alleged irregularities or illegalities must have changed or rendered

doubtful the result of the election in the absence of fraud, a constitutional

violation, and a statute providing that such irregularity or illegality shall

invalidate the election. See Yonce v. Lybrand, 254 S.C. 14, 18, 173 S.E.2d

148, 150 (1970); Harrell v. City of Columbia, 216 S.C. 346, 355, 58 S.E.2d

91, 96 (1950); State ex rel. Welsh v. Jennings, 79 S.C. 246, 248, 60 S.E. 699,

700 (1908); State ex rel. Birchmore v. Board of Canvassers, 78 S.C. 461, 467,

59 S.E. 145, 146-47 (1907). In this case, the newspaper advertisement

challenged by Butler was not an official notice given by Town. As noted

above, Butler never challenged the official election notices. While the article

may have been irregular in the sense that it contained false information,1 it

had nothing to do with functions performed by Election Commission or any

other governmental entity. We therefore hold that Butler's reference to the

newspaper article in his contest letter was not a ground for protest under

section 5-15-130 because it failed to allege an election irregularity or

illegality.

Butler contends that while the challenge to the article may have been

without merit, Election Commission should have conducted a formal hearing

to properly inform him of that determination. The ability to contest elections

is a privilege bestowed by state law. There is no common law or federal

constitutional right to be afforded a hearing in an election contest.

Consequently, we do not believe an election commission should have to

initiate the time consuming formalities of a hearing when the contestant has

failed, at the threshold, to allege an election irregularity or illegality.

The other point raised in Butler's May 5 letter was the time it took to

count the votes. Butler simply asked, "why it would take several hours to

count votes for the election?" Butler did not specify what he believed may

have occurred during those several hours. At best, his question implied

generally that fraud had been committed. A general allegation of fraud is

insufficient to notify the contestee as to the cause for the contest. See

McClendon v. McKeown, 323 S.W.2d 542, 544 (Ark. 1959) (stating that "the

pleadings, in an election contest case, should be sufficiently specific to give

reasonable information as to the grounds for the contest."); 26 Am. Jur. 2d

Elections § 434. In State ex rel. Davis v. State Board of Canvassers, 86 S.C.

451, 68 S.E. 676 (1910), we held that "while . . . technical precision in

pleading should not be required [for election contests], still reason and justice

require that the grounds relied upon should be stated plainly and clearly that

from Ward 2. Councilman Jackson actually came from Ward 3.

p. 8

the contestee may prepare to meet them without unnecessary labor or

expense." Id. at 458-59, 68 S.E. at 679. Therefore, Butler's reference to the

time it took to count the votes was not a ground for contest under section 5-

15-130 because it amounted to nothing more than a general allegation of

fraud.

The circuit court concluded that the vote recount was an improper

substitution for the hearing requirement under section 5-15-130. However,

since Butler did not provide concise grounds in his May 5 protest letter, a

hearing was not required, and the recount was proper. We therefore reverse

the circuit court on this point.

B. Secret Vote Count

Town argues that the circuit court erred in holding that the vote count

was conducted in secret thereby violating section 5-15-120. It is not

necessary to reach the merits of this claim because it was not timely raised

to Election Commission.

The only issue Butler could have raised on appeal to the circuit court

was whether Election Commission should have afforded him a hearing based

on his May 5 letter. Butler did not include the secret vote count claim in his

protest letter. Section 5-15-140 does not provide the circuit court with

express or implied authority to conduct a full hearing when one is denied by

the municipal election commission. The circuit court, in this situation, is by

statute an appellate court. It is axiomatic that "one cannot present and try

his case on one theory and thereafter advocate another theory on appeal."

White v. Livingston, 231 S.C. 301, 306, 98 S.E.2d 534, 537 (1957); see also

Indigo Associates v. Ryan Investment Co., 314 S.C. 519, 523, 431 S.E.2d 271,

273 (1993) (holding, "The circuit court, acting as an appellate court in a case

heard by the magistrate, cannot consider questions that have not been

presented to the magistrate."). We hold that the circuit court had no

authority to consider the secret vote count allegation because Butler never

raised it to Election Commission.

C. Eddie Butler, Jr. Vote & Disqualified Vote

Butler also failed to challenge the Eddie Butler, Jr. vote and the

disqualified vote in his May 5 letter. Consequently, for the same reasons

discussed above, Butler could not subsequently raise these issues in his

appeal to the circuit court.

p. 9

D. Voter Alice Miles

As noted above, the Eddie Butler, Jr. vote was improperly before the

circuit court because it was not timely raised to Election Commission. For

this reason alone, the testimony of voter Alice Miles concerning her vote for

Eddie Butler., Jr. was not properly taken. However, even if this issue was

timely raised to Election Commission, it would never be appropriate for the

circuit court, functioning as an appellate court, to consider testimony de novo.

Moreover, voter testimony of this kind would not even be admissible

before an election commission. It is well settled that "the ballots themselves

constitute the highest and best evidence of the will of the electors." Redfearn

v. Board of State Canvassers, 234 S.C. 113, 120, 107 S.E.2d 10, 14 (1959).

Voter testimony is never admissible for the purpose of showing that the

intention of the voter was in any way different from what plainly appears on

the face of the ballot. 26 Am. Jur.2d Elections § 339. In this case, the write-

in vote for Eddie Butler, Jr. was clear and unambiguous.

E. Federal Claims

Town argues that Butler did not properly amend his complaint at trial

to include a claim under 42 U.S.C. § 1983. We find that none of Butler's

federal claims were properly before the circuit court.

Butler raised the following federal causes of action for the first time on

appeal to the circuit court: (1) violation of the Fifth and Fourteenth

Amendments to the U.S. Constitution; and (2) violation of Section 2 of the

Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. In addition to these

claims, Butler argues that he properly amended his complaint in circuit court

to include a claim under 42 U.S.C. § 1983.

As discussed above, the circuit court serves an appellate function for

municipal election contests pursuant to section 5-15-140. Consequently, it

was improper for the circuit court to have considered Butler's federal claims.

However, even assuming Butler's claims were properly before the circuit

court, we find that no federal laws were violated in this case.

1. Voting Rights Claim

Under 42 U.S.C. § 1973(a), "No voting qualification or prerequisite to

voting or standard, practice, or procedure shall be imposed or applied by any

State or political subdivision in a manner which results in a denial or

p. 10

abridgement of the right of any citizen of the United States to vote on

account of race or color . . . ." In Roberts v. Wamser, 883 F.2d 617 (8th Cir.

1989), the Eighth Circuit held "that an unsuccessful candidate attempting to

challenge election results does not have standing under the Voting Rights

Act." Id. at 621. The court observed that the contestant was "not an

aggrieved voter suing to protect his right to vote." Id. The contestant had

instead alleged as an injury the loss of votes he should have received in the

election. This was precisely the situation here. Butler did not sue to protect

his own right to vote; nor did he sue to protect the rights of others. The only

injury alleged by Butler was the loss of votes for the Ward 3 council seat.

We therefore hold that Butler did not have standing under the Voting Rights

Act.

2. Section 1983 & 14th Amendment Claims

The prerequisites to an action under 42 U.S.C. § 1983 are that there

be a deprivation of a right, privilege, or immunity secured by the

Constitution or laws of the United States and that such act of deprivation

occur under color of state law. We hold that Butler was not deprived of any

federally protected right, privilege, or immunity.

Butler argues that Election Commission's refusal to provide a hearing

violated the Due Process Clause of the Fourteenth Amendment to the United

States Constitution. In Snowden v. Hughes, 321 U.S. 1, 64 S. Ct. 397, 88 L.

Ed. 497 (1944), the United States Supreme Court held that "an unlawful

denial by state action of a right to state- political office is not a denial of a

right of property or of liberty secured by the due process clause." Id. at 7,

64 S. Ct. at 401, 88 L. Ed. at 502. Consequently, the denial of a hearing in

this case was not violative of the due process clause because Butler was not

deprived of any property or liberty interest contemplated by the Fourteenth

Amendment.

Snowden is also determinative of Butler's claim that the Equal

Protection Clause of the Fourteenth Amendment was violated. In Snowden,

the Court held, "The unlawful administration by state officers of a state

[election] statute fair on its face, resulting in its unequal application to those

who are entitled to be treated alike, is not a denial of equal protection unless

there is shown to be present in it an element of intentional or purposeful

discrimination." Snowden, 321 U.S. at 8, 64 S. Ct. at 401, 88 L. Ed. at 503.

In Sylvia Development Corporation v. Calvert County, MD., 48 F.3d 810 (4th

Cir. 1995), the Fourth Circuit followed Snowden when it held, "To prove that

a statute has been administered or enforced discriminatorily, more must be

p. 11

shown than the fact that a benefit was denied to one person while conferred

on another." Id. at 819. Butler did not allege or set forth any facts which

could establish purposeful or intentional discrimination on the part of the

defendants.

CONCLUSION

For the foregoing reasons, the decision of the circuit court is

REVERSED and its order VACATED.

MOORE, WALLER, and BURNETT, AJ., concur.

p. 12