THE STATE OF SOUTH CAROLINA

In The Supreme Court

In re: Bamberg Ehrhardt

School Board Election

(District l, Seat 2) held

April 13, 1999

Evelyn W. Singleton, Petitioner,

v.

Betty Kilgus, Dorothy

Lee, James M. George,

Verlene Baucham, and

Patty G. Blume,

Members of the

Bamberg County

Registration and

Election Commission

and/or Bamberg County

Board of Canvassers;

Andrew M. Carter and

Sheri S. Seigler; and

Samuel W. Howell, IV,

Dr. Walter C. Robinson,

Martha C. Edens, Dr.

Deborah B. Cureton and

Vernon F. Dunbar,

Members of the State

Board of Canvassers

and/or South Carolina

State Election

Commission, Respondents.

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ON WRIT OF CERTIORARI

Opinion No. 25030

Heard October 20, 1999 - Filed December 6, 1999

AFFIRMED

Russell Brown, of Charleston, for petitioner.

Norma A.T. Jett, of Early & Ness, of Bamberg, for

respondents Bamberg County Registration and

Election Commission and Bamberg County Board of

Canvassers.

Attorney General Charles M. Condom Deputy Attorney

General Treva Ashworth and Senior Assistant Attorney

General C. Havird Jones, Jr., all of Columbia, for respondent

South Carolina State Election Commission.

Andrew M. Carter, pro se, of Ehrhardt.

Sheri S. Seigler, pro se, of Ehrhardt.

MOORE, A.J.: We granted a writ of certiorari to review the

decision of the South Carolina State Election Commission (State

Commission) regarding a local school board election in Bamberg County. We

affirm.

FACTS

Petitioner Singleton was a candidate in an election held April 13,

1999, for Seat 2 of the Bamberg Ehrhardt School Board, District 1. On

Thursday, April 15, the Bamberg County Board of Canvassers (County

Board) certified petitioner as the winner. The results of the election

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indicated petitioner received 127 votes, Sherri Seigler received 75 votes, and

Andrew Carter received 74 votes.

It was subsequently discovered that the candidates were not

listed in alphabetical order on the paper totals retrieved from the machines

after the election. A malfunction of the voting machines was suspected.

The County Board contacted the State Commission. On April 20, the State

Commission sent a data coordinator, Shaek Abraham, to do a total

machine retrieval. With several people present, Abraham unsealed the machines. A

total machine retrieval was performed by comparing the actual ballots with a

blank ballot to determine how the votes were actually cast.

Abraham determined that the software for the machines had

been incorrectly programmed to rotate the candidates' names on the paper

totals but not the number of votes cast for each candidate. As a result, the

outcome indicated on the paper totals was incorrect. The correct result

obtained from the total machine retrieval indicated Seigler, and not

petitioner, was the winner. Petitioner received 96 votes, Seigler 147, and

Carter 33.

The next day, Wednesday, April 21, Seigler filed a protest with

the County Board. A hearing was held April 26. Based on the total machine

retrieval, the County Board certified Seigler the winner. Petitioner appealed

to the State Commission alleging the total machine retrieval did not comply

with statutorily mandated procedures, including failure to obtain a court

order before the machines were opened as required under S.C. Code Ann. §

7-13-1890 (1976).

The State Commission found no fraud was alleged or proven but

agreed the statutory procedure was not followed. It reversed the County

Board's certification of Seigler as the winner and remanded the matter for a

total machine retrieval to be conducted in compliance with § 7-13-1890.

Petitioner sought review in this Court.

ISSUES

1. Does the record indicate Seigler's protest was not timely filed?

2. Do statutory violations require this election be set aside?

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DISCUSSION

1. Timeliness of protest

Petitioner contends Seigler's protest to the County Board was not

timely filed as required by S.C. Code Ann. § 7-17-30 (Supp. 1999) which

provides:

Any protest or contest must be filed in writing with

the chairman of the [county] board . . . by noon

Wednesday following the day of the declaration by

the board of the result of the election.

This issue is without merit.

First, petitioner never raised this time-bar issue below.

Although a protest that is not timely is barred, Sims v. Ham, 275 S.C. 369,

271 S.E.2d 316 (1980), a time bar does not raise the issue of subject matter

jurisdiction and is waived by the failure to raise it. McLendon v. South

Carolina Dept. of Highways, 313 S.C. 525, 443 S.E.2d 539 (1994) (statute of

limitations defense). Since this issue was not raised or ruled on below, it is

not preserved on appeal to this Court. Mullinax v. J.M. Brown Amusement

Co., 333 S.C. 89, 508 S.E.2d 848 (1998).

In any event, petitioner cannot prevail on the merits. She

contends the time for Seigler to file a protest began running on the night of

the election when Seigler saw a print-out of the election results posted at the

polls. This is incorrect. The time to file a protest commences running when

the County Board canvasses the votes and transmits them to the State

Commission as required under S.C. Code Ann. § 7-1-20 (1976). Sims v. Ham,

supra. The order of the State Commission states the County Board

"certified" the election results on Thursday, April 15. This is the only

indication in the record of any action by the County Board in compliance

with § 7-17-20. Accordingly, Seigler's protest was timely filed on Wednesday,

April 21, which was the first Wednesday after the County Board's action on

April 15.

Petitioner contends in the alternative there is no evidence in the

record that Seigler's protest was filed before noon on Wednesday, April 21, as

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required under § 7-13-30. As the appellant in this case, however, petitioner

has the burden of showing the protest was not filed before noon. She has

failed to meet this burden. Germain v. Nichol, 299 S.C. 335, 278 S.E.2d 508

(1983) (appellant has burden of providing this Court with sufficient record).

2. Statutory violations

Petitioner contends the failure to comply with statutory

requirements in conducting the total machine retrieval requires that the

original election results be reinstated or the entire election be invalidated.

First, there is absolutely no support for reinstating the original

election results since the only evidence in the record indicates those results

were incorrectly tabulated. The only question is whether the failure to

comply with statutory provisions requires the election to be invalidated

rather than conducting a new total machine retrieval as ordered by the State

Commission. Petitioner alleges the following statutory violations.

S.C. Code Ann. § 7-17-40 (1976): This section requires that the

poll list shall accompany the voter tabulation in any proceeding involving a

protest. Petitioner complains the poll list was not made a part of the record

before the County Board. This complaint was not addressed below and

therefore it is not preserved on appeal. Mullinax, supra. Moreover, mere

irregularities that do not affect the result of the election will not be allowed

to overturn it. Burgess v. Easley Municipal Election Comm'n, 325 S.C. 6,

478 S.E.2d 680 (1996); Greene v. South Carolina Election Comm'n, 314 S.C.

449, 445 S.E.2d 451 (1994); Fielding v. South Carolina Election Comm'n, 305

S.C. 313, 408 S.E.2d 232 (1991).

S.C. Code Ann. § 7-13-1910 (1976): This section provides that

an "unauthorized person" found in possession of a voting machine key shall

be guilty of a misdemeanor. This violation was not addressed below and is

not preserved on appeal. Mullinax, supra. In any event, Abraham was

directed to open the voting machines by the State Commission.

S.C. Code Ann. § 7-13-1920 (1976): This section provides that

any person who tampers with a locked voting machine "with the intent to

destroy or change the record of votes" shall be guilty of a misdemeanor. This

violation was not addressed below and is not preserved on appeal. Mullinax,

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supra. In any event, there is no evidence Abraham opened the machines

with any intent to change or destroy the record of votes.

S.C. Code Ann. § 7-13-1890 (1976): This section requires that

voting machines remain locked for at least thirty days after an election

except to prepare for another election or "except that they may be opened

and all data examined upon the order of a court of competent jurisdiction."

The State Commission found the failure to get a court order before

conducting the recount was an irregularity remedied by ordering a remand

for a new total machine retrieval upon obtaining a court order. We agree.

There is no evidence the recount contaminated the actual

election results which still remain in the machines. The failure to obtain a

court order before conducting the recount was therefore a mere irregularity

that did not affect the results of the election. Such an irregularity will not

set aside the election unless there is fraud, a constitutional violation, or it is

specifically provided by statute that the irregularity shall invalidate the

election. Butler v. Town of Edgefield, 328 S.C. 238, 493 S.E.2d 838 (1997);

Yonce v. Lybrand, 254 S.C. 14, 173 S.E.2d 148 (1970). Here, there is no

fraud, no constitutional violation, and no specific statutory remedy requiring

the election be invalidated for failure to get a court order before opening the

locked machines. See also Knight v. State Bd. of Canvassers, 297 S.C. 55,

374 S.E.2d 685 (1988) (election not set aside for failure to count absentee

ballots without interruption in violation of statute); Berry v. Spigner, 226

S.C. 183, 84 S.E.2d 381 (1954) (election not set aside where poll managers

entered voting booths in violation of statute); cf. George v. Municipal

Election Comm'n, 335 S.C. 182, 516 S.E.2d 206 (1999) (election set aside for

constitutional violation and total disregard of statutory scheme protecting

secrecy of ballot).

We hold the failure to obtain a court order before opening the

locked machines was a mere irregularity that is cured by the remand for a

new total machine retrieval upon obtaining a court order as directed by the

State Commission. Any challenges to the recount procedure may be raised

at that time.

AFFIRMED.

Finney, C.J., Toal, Waller and Burnett, JJ. concur.

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