School Board District 7 Protest Hearing Decision
Alice Hendricks Vander Linden, Protestant, vs. Philip Healy, Respondent,
In Re: November 6, 2018 Election, Pickens County School Board Seat 7
This matter came before the Board of Voter Registration and Elections of Pickens County (acting per statute as the County Board of Canvassers) upon Protest filed by Alice Hendricks Vander Linden, the unsuccessful candidate in the November 6, 2018 General Election for Seat 7 on the Pickens County School Board (“Seat 7”). The Protest, which was timely filed, set forth five grounds for requesting a new election: 1) paper ballots were used that did not include Seat 7 as a choice, 2) some voting machines did not include Seat 7 as a choice, 3) voting machines malfunctioned, 4) not all voting machine results were tallied, and 5) South Carolina law and regulations were not followed in the conduct of the Seat 7 election.
A Protest Hearing was held by the Board on November 19, 2018 with Sheree L. Chapman, Chair, presiding. In addition to the Chair, board members Jane Goolsby Weeks, June Bowers, Gretchen Campbell, Geneva Robinson, and Herb Thompson were in attendance. The Protestant appeared, being represented by legal counsel, Les Hendricks, Esq. of Easley, South Carolina. The Respondent, Philip Healy, the successful candidate in the November 18, 2018 general election, appeared pro se.
The evidence presented at the hearing centered on the first of Protestant’s five protest grounds. No substantial evidence was presented by either party to establish any of the remaining grounds. The Protestant called only one witness to testify, Rodney W. Allen, Director of the Board of Registration and Elections of Pickens County. Mr. Allen testified that incorrectly programmed Personal Electronic Ballot (PEB) devices led to a delay in several precincts at the outset of the November 18, 2018 General Election. These PEBs are necessary to render a voting machine active and ready to receive votes. In many of these precincts, the poll managers switched to paper emergency ballots until proper PEBs could be delivered. In three precincts (Dacusville, Nine Forks, and Crossroads) the poll managers resorted to failsafe ballots when the supply of emergency ballots was exhausted.
Mr. Allen explained that failsafe ballots are designed to allow a person who has recently moved his or her domicile to vote for those offices that appear on the ballot countywide. Failsafe ballots are not intended as a substitute for emergency ballots because, according to Mr. Allen, they do not include local races where different district lines are implicated to determine eligibility for voting within the county, such as Seat 7 on the Pickens County School Board.
In all, 148 failsafe ballots were used in these three precincts as emergency ballots to qualified School Board District 7 electors (these are not split precincts, all registered voters in these precincts were eligible to vote for School Board District 7). In eleven (11) instances the school board office was manually added to the failsafe ballot by hand. Seven (7) of these modified failsafe ballots reflected votes for the Seat 7 race. Director Allen confirmed that 137 failsafe ballots were ultimately cast in these precincts where no Seat 7 choice was available to the voter. During direct examination, Mr. Allen agreed that the use of failsafe ballots in this manner was a “significant problem” in determining the outcome of the Seat 7 election given that the margin between the presumptive winner and the unsuccessful candidate was only 21 votes.
In addition to the testimony of Mr. Allen, the Protestant offered 4 items of evidence for the Board’s consideration: 1) an email dated November 13, 2018 from Mr. Allen which outlined the failsafe ballot usage in the precincts in question, 2) the original failsafe ballots cast in Crossroads Precinct, 3) the original failsafe ballots cast in Nineforks Precinct, and 4) the original failsafe ballots cast in Dacusville Precincts. All items were admitted into evidence without objection from the Respondent.
Respondent called no witnesses and offered no evidence.
At the conclusion of the hearing, and after deliberation, the Board voted unanimously that the Protestant established sufficient facts to prove the first of the grounds set forth in her Protest, specifically that failsafe paper ballots were used inappropriately in numerous instances in three precincts, that this inappropriate use of failsafe ballots prevented the will of the electorate from being fairly expressed as no Seat 7 election was listed on these failsafe ballots.
Accordingly, the Protest of Alice Hendricks Vander Linden is hereby UPHELD AND GRANTED as requested, and this matter is referred to the State officials for further action as is appropriate, to include the scheduling of a new election for Seat 7, Pickens County School Board.
IT IS SO ORDERED.
By Board of Voter Registration & Elections of Pickens County
- Sheree L .Chapman, Chairperson
- Jane Goolsby Weeks
- June Bowers
- Gretchen Campbell
- Herb Thompson
November 20, 2018