January 11, 2009

January 11, 2009 | Commentary on Legal Issues

Will S.C. House Keep Elections Legal?

The results of the Minnesota Senate recount are still in doubt two months after the election because of questionable decisions being made by the Minnesota Canvassing Board. But South Carolinians need not look beyond their borders for such political high drama. The Palmetto State boasts its own electoral soap opera, complete with inaccurate voter registrations and a state election commission that refuses to enforce the law.

On Nov. 4, Republican Rep. Wallace Scarborough lost his re-election bid to Democratic challenger Anne Peterson-Hutto by a mere 211 votes out of the nearly 18,000 cast. After Election Day, though, Rep. Scarborough discovered that more than 300 people who voted in the election no longer lived in the precincts where they were registered to vote. Even more had moved out of the House district altogether, including some who had left South Carolina and even the United States.

This discovery was made when Scarborough compared voter registration records with driver's license records from the Department of Motor Vehicles. Based on these public records, which Ms. Peterson-Hutto never challenged or refuted, Scarborough asked the State Election Commission to overturn the results.

Under S.C. law (as in most states), the address that appears on your driver's license must be your permanent residence address. When you submit a change of address form to the DMV, you are submitting it under penalty of perjury acknowledging that the new address is your new permanent residence address. Scarborough's research showed that hundreds of voters who had submitted change-of-address forms to the DMV nevertheless went back to their old precincts - where they no longer lived - and voted in the election. The state's voter registration rolls had not been updated, so the precinct rolls used by poll watchers still listed the voters at their former residences.

The bottom line: The number of illegal votes cast in the race exceeds the margin of victory by more than 100. It should have been an easy call for the State Election Commission to overturn the race and order a new election. The evidence was based on a simple comparison of state records easily available to the commission. And Ms. Peterson-Hutto did not even dispute the evidence. Yet the commission, after meeting in closed session, inexplicably refused to overturn the results and schedule a new election.

To preserve the integrity of the ballot box and to ensure that the representative for House District 115 is actually elected by legal voters residing in the district, Scarborough has appealed the commission's remarkable decision to the S.C. House. If the House does what the commission failed to do - follow state law - it will overturn the Commission's decision.

Allowing people to vote in districts where they don't live is just as fraudulent as allowing multiple votes by the same person, phony votes by fictitious registrants or any of a number of other ways to illegally manipulate an election. It dilutes the votes of legitimate voters and amounts to theft of an election. It is not the way elections should be conducted.

The State Election Commission has failed in its sole responsibility: to protect the security and integrity of the democratic election process. It is incumbent on the House to assure that elections are conducted fairly and legally, and that only those who are entitled to vote in a precinct have their votes count. As the S.C. Supreme Court said when it voided the results of an election in a prior case, when illegal votes have been cast that can affect the results of an election, "it would be a travesty on popular government to sustain the election."

Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

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