THE STATE OF SOUTH CAROLINA

In The Supreme Court

Scott Elliott, individually

and as Chairman of the

Richland County

Republican Party, Appellant,

v.

Richland County, Richland

County Election

Commission and the

Richland County

Democratic Party, Respondents.

Opinion No. 24666

Heard July 23, 1997 - Filed August 6, 1997

AFFIRMED

Charles L. A. Terreni; John F. Hardaway; and Dalton

Oldham, all of Columbia, for Appellant,

Danny C. Crowe, of Turner, Padget, Graham & Laney, of

Columbia, for Respondent Richland County Council; Larry

Cornell Smith, of Columbia, for Respondent Richland

County Election Commission; and Joseph M. McCulloch,

Jr., of Columbia, for Respondent Richland County

Democratic Party.

FINNEY C.J.: Appellant commenced this action to enjoin Richland

County Council from implementing a reapportionment ordinance (Plan 3) and

seeking a declaratory judgement declaring Plan 3 invalid pursuant to S.C. Code Ann.

§ 4-9-90 (1986 and Supp. 1996). The circuit court held that Plan 3 did not violate

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SCOTT ELLIOTT, etc. v. RICHLAND COUNTY, et al.

state law and denied appellant's request for an injunction regarding the validity of

the ordinance. Meanwhile, elections were held in 1994 pursuant to Plan 3. On

appeal, this Court declared Plan 3 invalid and held Plan 1 as amended by Plan 2

(Plan 2) was the valid plan. Elliot v. Richland County, _ S.C. _, 472 S.E.2d

256 (1996). (Elliott I) We reversed and remanded back to the circuit, court for

further proceedings. Id.

On remand, Judge Beatty ordered elections be held conditioned upon

preclearance from the Department of Justice pursuant to Section 5 of the Voting

Rights Act of 1965, 42 U.S.C.A. § 1973 (1994). In the subsequent amended order,

the circuit court ordered that elections be held in 1997 for Districts 2,3,7,8,9 and

10 according to Plan 2, for a three-year term expiring in 2000. The election

schedule will coincide with the special elections scheduled for the State House of

Representative. Elections for the remaining five Districts, 1,4,5,6 and 11, will be

held in 1998 for a four-year term. The circuit court's order received Justice

Department preclearance after the scheduled filing date set forth in the order.1

Appellant appeals the circuit court order, seeking immediate elections in all eleven

districts.

ISSUES

1. Did the circuit court arbitrarily alter the plan of elections?

2. Did the circuit court deny appellant and those similarly situated the right

to vote for an additional two years?

DISCUSSION

In Elliott I this Court stated that Plan 3 was enacted in violation of

,state law because there was a valid reapportionment ordinance already in place,

i.e., Plan 2. The circuit court was directed on remand to determine "what, if any,

action is necessary in order to assure that future elections are held under Plan .

. . 2." Elliott 1, supra.

The circuit judge construed the above language to mean the Court did

not void or vacate the seats held under Plan 3 and interpreted the reference to

future elections as meaning prospective effect should be given to the scheduling of

elections under Plan 2. The circuit court's rationale for determining which district

seats would be up for election in 1997 was based on those incumbents who were

elected in 1992 and whose terms would have expired in 1996. The election in 1998 ____________________________

1According to correspondence received from the United States Department

of Justice dated June 24, 1997 and July 22, 1997, preclearance of the redistricting

plan has been given, however, the revised special election schedule has not been

precleared.

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SCOTT ELLIOTT, etc. v. RICHLAND COUNTY, et al.

will be for the incumbents who were elected in 1994. Once elections are held in

1998, Plan 2 will be fully implemented.

Appellant contends the circuit court altered the plan of elections by not

taking into consideration that some electors have been denied the opportunity to

vote for a council representative for eight years, and argues the scheduled order of

elections may keep them from electing a council person for ten years. We disagree.

The trial judge fashioned the least disruptive method of implementing

Plan 2 by staggering the elections into two cycles. The problem arises in that the

District boundaries under Plans 1, 2, and 3 do not coincide. Accordingly, current

Council membership is in the posture of having incumbents elected under two

different plains, Plans 1 and 3. No elections have been held under Plan 2.

Richland County Council will continue to have members elected under two different

plans until the 1998 election. It is futile to compare district seats between the

Plans because there is marked dissimilarity between both the location and

numerical identification of the districts. For example, the area designated as

District 6 under Plan 3 is now largely encompassed in District 2 under Plan 2.

The incumbents are the only consistent element between Plans 1, 2, and 3.

Therefore, it was not arbitrary for the circuit court to reference the election dates

of incumbents to determine which seats would be up for election first.

Appellant asserts the only way to resolve such long term

disenfranchisement of affected voters is to open the elections for all eleven seats,

despite the possibility of lack of continuity on council. The 1988 United States

District Court order required Richland County Council to move from an at large

plan to a single-member district plan. The order set forth a plan whereby elections

were held initially for six (6) seats in 1988 with terms expiring in 1992. Elections

for the remaining five (5) seats were held in 1990. The District Court noted that

its order served the public interest in continuity in county government. Here, the

circuit court adhered to the overriding principle that emerged from the 1988

Federal Consent Order, the public interest in continuity, in maintaining staggered

elections in two cycles.

None of the reapportionment ordinances enacted by County Council,

Elliott I, nor the Federal Consent Order provide for the simultaneous election of all

eleven seats. To require simultaneous elections in all eleven districts would

effectively create a new election plan depriving the public of continuity in county

government. A schedule other than a staggering of two cycles would be contrary

to the expressed consent of the parties in the 1988 Federal litigation.

On appeal, this Court is presented with the question whether the

circuit court abused its discretion. An abuse of discretion arises in cases where: (1)

the judge issuing the order was controlled by some error of law; or (2) the order,

based upon factual, as distinguished from legal, conclusions, is without evidentiary

support. Boland v. S.C. Public Service Authority, 281 S.C. 293, 315 S.E.2d 143

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SCOTT ELLIOTT, etc. v. RICHLAND COUNTY, et al.

(1984). Appellant has the burden of showing the trial judge's order was arbitrary.

Appellant has not done so. Accordingly, we hold the trial judge did not abuse his

discretion in scheduling elections to assure that future elections are held under

Plan 2. The trial judge's order included an election schedule which can no longer

be met. Therefore, we direct the appropriate election officials to schedule elections

subject only to the time periods imposed by law and conditioned upon preclearance

from the Department of Justice.

AFFIRMED.

MOORE, WALLER and BURNETT, JJ., and Acting Associate

Justice George T. Gregory, Jr., concur.

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