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    Governor's Office For Atlantic Beach Election

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    ABC15 News
    The Governor's Chief Legal Counsel responded to a request from the Town of Atlantic Beach's counsel to direct the State Election Commission to take over administration of the town's November 2023 municipal election due to irregularities. The letter explained that the Governor does not have legal authority to intervene or direct the SEC, as the election was held and no court has declared it void. It also noted pending litigation over the election results. The Counsel declined the request to avoid interfering with the judicial process or usurping the courts' authority over the election dispute.

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    Governor's Office For Atlantic Beach Election

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    ABC15 News
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    The Governor's Chief Legal Counsel responded to a request from the Town of Atlantic Beach's counsel to direct the State Election Commission to take over administration of the town's November 2023 municipal election due to irregularities. The letter explained that the Governor does not have legal authority to intervene or direct the SEC, as the election was held and no court has declared it void. It also noted pending litigation over the election results. The Counsel declined the request to avoid interfering with the judicial process or usurping the courts' authority over the election dispute.

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    The Governor’s Office sent a response to the Atlantic Beach Municipal Election matter.

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    Governor's Office for Atlantic Beach Election

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    The Governor's Chief Legal Counsel responded to a request from the Town of Atlantic Beach's counsel to direct the State Election Commission to take over administration of the town's November 2023 municipal election due to irregularities. The letter explained that the Governor does not have legal authority to intervene or direct the SEC, as the election was held and no court has declared it void. It also noted pending litigation over the election results. The Counsel declined the request to avoid interfering with the judicial process or usurping the courts' authority over the election dispute.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    1K views3 pages

    Governor's Office For Atlantic Beach Election

    Uploaded by

    ABC15 News
    The Governor's Chief Legal Counsel responded to a request from the Town of Atlantic Beach's counsel to direct the State Election Commission to take over administration of the town's November 2023 municipal election due to irregularities. The letter explained that the Governor does not have legal authority to intervene or direct the SEC, as the election was held and no court has declared it void. It also noted pending litigation over the election results. The Counsel declined the request to avoid interfering with the judicial process or usurping the courts' authority over the election dispute.

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    © All Rights Reserved
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    of 3

    OFFICE OF THE GOVERNOR

    THOMAS A. LIMEHOUSE, JR.


    CHIEF LEGAL COUNSEL

    January 10, 2024 WM. GRAYSON LAMBERT


    CHIEF DEPUTY LEGAL COUNSEL
    SENIOR LITIGATION COUNSEL

    VIA EMAIL ONLY


    ERICA W. SHEDD
    Joseph D. Dickey, Jr., Esquire DEPUTY LEGAL COUNSEL
    Richardson Plowden & Robinson, P.A.
    1900 Barnwell Street
    Columbia, South Carolina 29201
    jdickey@richardsonplowden.com

    RE: November 7, 2023 Town of Atlantic Beach Municipal Election

    Dear Mr. Dickey:

    On behalf of the Office of the Governor (“Office”), thank you for your January 5, 2024
    letter, in your capacity as counsel for the Town of Atlantic Beach (“Town”), requesting that
    Governor McMaster take certain action in connection with the above-referenced matter. Please
    allow this correspondence to serve as the Office’s response to your letter and the Town’s request.

    Based on a review of your recent letter, the Town is requesting, with the consent of counsel
    for the two mayoral candidates, that Governor McMaster direct the State Election Commission
    (“SEC”) “to take over the administration of the November 7, 2023 Town of Atlantic Beach
    Municipal Election proceedings,” based on “irregularities that have occurred leading up to the
    November 7, 2023 Municipal Elections, and continuing to date.” According to your letter, “[t]hese
    irregularities include, but are not limited to, allegations of voter fraud, alleged illegal and improper
    conduct by a municipal election official, and various legal actions that are now pending before the
    Supreme Court of South Carolina.” Your letter notes that “[a]ll of these issues have impacted the
    perceived integrity of the election process and the Town only seeks to move forward ethically,
    legally, and without reasonable doubt.” To that stated end, your letter submits that “it is the Town
    and interested parties’ collective opinion that having the SEC intervene to administer the
    certification of the November 7, 2023 Municipal Election and all subsequent proceedings related
    to that election will provide assurance and confidence to the Town, the candidates, and the citizens
    that election integrity will be maintained and that the Town of Atlantic Beach can continue to be
    Joseph D. Dickey, Jr., Esquire
    Page 2
    January 10, 2024

    committed to fair, honest, and legitimate operations moving forward.”

    As an initial matter, the Town of Atlantic Beach’s complicated history with conducting
    municipal elections is, unfortunately, well documented. See, e.g., Cole v. Town of Atl. Beach
    Election Comm’n, 393 S.C. 264, 267 & n.1, 712 S.E.2d 440, 442 & n.1 (2011) (“This Court has
    unfortunately become familiar with the Town of Atlantic Beach’s municipal elections, and the
    disputes that inevitably accompany them.” (collecting cases)); Exec. Order No. 2012-03 (Mar. 16,
    2012) (“These controversies have highlighted problems in the Town’s electoral process . . . .”).
    The Town’s repeated inability to conduct such elections in compliance with South Carolina law is
    equal parts embarrassing and inexcusable. Notwithstanding the foregoing, for the distinct reasons
    detailed below, the Governor cannot direct the SEC to “take over the administration” of this
    election or otherwise intervene in the ongoing election dispute at this time.

    First, neither the South Carolina Constitution nor the South Carolina Code of Laws
    authorizes the Governor to intervene in (or direct the SEC to assume control of) an uncertified
    municipal election. Indeed, your recent letter does not suggest otherwise or cite any legal authority
    to justify the stated request for gubernatorial action. The closest provision is section 7-13-1170 of
    the South Carolina Code of Laws, but that section grants the Governor the authority to “order an
    election or a new election to be held” only when: (1) “any election official of any political
    subdivision of this State charged with ordering, providing for, or holding an election has neglected,
    failed, or refused to order, provide for, or hold the election at the time appointed” or (2) “if for any
    reason the election is declared void by competent authority.” S.C. Code Ann. § 7-13-1170. Only
    in those specified circumstances, when such “facts are made to appear to the satisfaction of the
    Governor, he shall, should the law not otherwise provide for this contingency, order an election or
    a new election to be held.” Id.; see also Att’y Gen. Op., 2018 WL 5096184, at *5 (S.C.A.G. Oct.
    4, 2018) (“With respect to Section 7-13-1170, . . . it must be determined whether there was
    ‘neglect’ or ‘refusal’ in failing to hold the election . . . or there must have been a declaration ‘for
    any reason’ that any election was declared ‘void’ by ‘competent authority.’”); Att’y Gen. Op., 1979
    WL 43260, at *2 (S.C.A.G. Oct. 16, 1979) (“Therefore, there has been no refusal or failure to hold
    an election that would authorize the Governor to call an election pursuant to § 7-13-1170.”). Based
    on the information provided to the Office, neither statutory prerequisite to gubernatorial action
    applies with respect to the Town’s November 7, 2023 election. The Town held an election, and
    no competent authority has declared it void. Absent additional information or subsequent
    developments, for the Governor to direct the SEC to intervene at this stage would violate his
    constitutional duty to faithfully execute the laws of this State. See S.C. Const. art. IV, § 15.

    Second, it is the Office’s understanding that one of the mayoral candidates recently filed a
    petition for original jurisdiction and motion for emergency relief, which asked the South Carolina
    Supreme Court to address the Town’s November 7, 2023 municipal election. See David v. Town
    of Atl. Beach, No. 2023-001778 (S.C.). Although the South Carolina Supreme Court apparently
    declined to exercise original jurisdiction and review this matter in the first instance—denying the
    petition and motion in a brief order earlier today—one or more of the parties may file the same or
    similar lawsuit in circuit court (if they haven’t already done so) or contest a future decision by the
    Town’s municipal elections commission. See Rule 245(a), SCACR (“The Supreme Court will not
    entertain matters in its original jurisdiction when the matter can be determined in a lower court in
    Joseph D. Dickey, Jr., Esquire
    Page 3
    January 10, 2024

    the first instance, without material prejudice to the rights of the parties.”). In view of the respect
    due a coequal branch of government and the constitutionally mandated separation of powers, see
    S.C. Const. art. I, § 8, the Governor will not usurp the Judicial Branch’s authority or interfere with
    pending or anticipated proceedings involving an election dispute. Just as the Governor does not
    have the authority to order a new election, the Governor does not have the authority to assume a
    judicial role and effectively decide (or direct the SEC to assume control of) a contested matter that
    is the subject of ongoing litigation.

    I understand and appreciate your client’s apparent desire to resolve the outstanding issues
    and lingering uncertainty associated with the Town of Atlantic Beach’s recent municipal election.
    I trust you will understand, however, that the Office cannot accommodate your request for
    Governor McMaster to end this embarrassing episode (and litigation related to the same) by
    resorting to a procedure that is not authorized by state law. The Office will continue to monitor
    any relevant judicial proceedings. If and when gubernatorial action is necessary and appropriate,
    Governor McMaster will promptly consider the same. Regardless, going forward, absent the
    General Assembly addressing this issue on a statewide level, the Town should transfer the
    authority for conducting municipal elections to the Horry County Board of Voter Registration and
    Elections pursuant to section 5-5-145 of the South Carolina Code of Laws. The residents of
    Atlantic Beach should have confidence in the Town’s ability to conduct municipal elections, and
    unfortunately, the Town has not been able to provide it.

    Very truly yours,

    Thomas A. Limehouse, Jr.


    Chief Legal Counsel

    cc: Mr. Howard Knapp, Executive Director


    State Election Commission

    Thomas Nicholson, Esquire, General Counsel


    State Election Commission

    Kenneth Davis, Esquire


    Counsel for Mayoral Candidate Josephine Isom

    Ian Duggan, Esquire


    Counsel for Mayoral Candidate John David

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