The Nov. 6 ballot could prove confusing to some South Carolina voters. Considering that political experts have called this election year "unprecedented" and "unusual" that might not come as a surprise.
Even though neither Mitt Romney nor Barack Obama is expected to set foot in the Palmetto State to campaign, the ballot confusion could have significant ramifications for voters.
The most heated election battles in South Carolina are in the primary, where gerrymandered districts decide which nominee to send to the general election against little or no competition. But this year, many incumbents dodged the primary challenge when hundreds of non-incumbent candidates were purged from the ballot. Even some non-incumbents who won the primary could face decertification.
Across the state, 43 candidates, all non-incumbents, who were decertified before the primary have mounted petition campaigns to appear on the ballot in November. Despite the efforts of the petition candidates, the possibility exists no names will be on the ballot for an open seat, and voters will have to write in the name of their candidate.
University of South Carolina professor of political science Mark Tompkins — a longtime observer of S.C. politics — said in the wake of non-incumbent fever of 2010, this will strike a chord with concerned voters.
"It's diminishing the intensity around the tea party movement and folks wanting change in the political system," Tompkins said. "The system seems to be protecting incumbents … (and) it makes the game less fair for people who are challenging it."
Nationally, the epic unfolding here has won little attention.
University of Michigan professor of political science Michael Traugott likened the event to his own state's ballot woes with Congressman Thaddeus Cotter, who filed incorrectly and then resigned. But that is only one candidate in the state, while South Carolina has seen nearly every non-incumbent purged from the ballot.
"I don't know if I've ever seen this happen before," Traugott said. "Presumably this is a one time event."
Traugott said that while South Carolina laws will not bleed into neighboring states or across the nation, it does rattle trust in the democratic system.
"It could conceivably raise concerns about trust in the system overall," Traugott said. "When people begin to have doubts about the elections … that can raise questions about the legitimacy of the outcome and therefore about whether or not the electoral system allows for real representation."
But so far, national media coverage on the South Carolina ballot debacle has been minimal.
'Long and Unintended Consequences'
The mess in South Carolina can be traced to a law passed two years ago with the best of intentions.
In late 2008, a bill was filed with the S.C. House designed to give citizens access to campaign disclosures and reports. It took more than a year to pass the bill, H3066, that required candidates and public officials to disclose economic interests and campaign donations online. The bill was effective May 28, 2010.
The online disclosure included the Statement of Economic Interests, which is required of all public officials and candidates. Incumbents already have their SEIs on file and, according to S.C. election law, are not required to file it when they file with their party.
The new law went into effect on January 1, 2011 and during that calendar year, where there were dozens, if not hundreds, of local elections, no irregularities were reported.
But in the spring of this year, a surrogate to State Sen. Jake Knotts sued Katrina Shealy, Knotts’ chief rival in the battle for Senate District 23. The suit alleged that Shealy had improperly filed her campaign papers and was heard before the State Supreme Court.
In its Dec. 2010 reminder to candidates, the MASC noted that “(the Election) Commission no longer accepts paper filings.
And it didn't.
In the Knotts-Shealy case (known as Anderson v. S.C. Election Commission et al), the Supreme Court noted on May 2 that what is now Section 8-13-365 did not trump existing Section 8-13-1256, which detailed how candidates and public officials must file their SEIs for decades.
"This statute is not part of the process that qualifies an individual for inclusion on the ballot," according to the Supreme Court decision. "Filing an SEI with the State Ethics Commission cannot excuse noncompliance."
The Court’s decision led to many non-incumbents getting decertified, but many more were to be decertified in the wake of a subsequent decision on June 5 (known as Florence County Democratic Party v. Florence County Republican Party et al, which came with teeth:
“Just as the Florence County political parties were bound by the decision in Anderson, this decision applies to the political party primaries throughout the State. To the extent other county political parties have improperly certified candidates, those parties ignore the decisions of this Court at their own peril.”
Muddying the waters leading up to the Supreme Court decisions were the checklists handed out by state parties to the county parties on how to correctly file a candidate. Instead of asking for a paper copy of the SEI to be filed with the SIC, the checklist asked for confirmation that the SEI was filed online.
Since no county party had the rules correct, no non-incumbent should have filed correctly unless they were deliberately divergent from the rules.
Referencing the 2010 law, Prof. Tompkins said,”This is one of the illustrations of the long and unintended consequences."
Who’s On, Who’s Off Still Not Settled
The Knotts-Shealy fight in Lexington County was just the start of a controversy that has spread throughout the state and may continue right up to Election Day.
No area has had more discord than Dorchester County, where candidates were purged, a lawsuit was filed and a party official was fired.*
In Pickens County, Ed Harris thought he had ousted incumbent B.R. Skelton for House Seat 3, especially after he received more votes in the primary on June 12. But fears that Harris might be ruled ineligible led State GOP Chair Chad Connelly to overturn the voters’ and award Skelton the victory.
And last week Patch reported that numerous candidates in Greenville County races should have been ruled ineligible, one of whom ended up winning. This week, the Greenville County Democratic Party filed suit against the three candidates, the County and State GOP and the County Election Commission.
And the controversy is far from over. Speaking with Patch, South Carolina GOP Executive Director Matt Moore said that more candidates could be removed from the ballot, and described the circumstance on Twitter as an “unfortunate reality.”
In Oconee County, the entire primary was cancelled when none of the 11 non-incumbents filed their paperwork properly.
Fallout for November
The combination of a lackluster presidential race, an absence of choices in local races and South Carolina voters’ natural tendency to vote "straight party," could mean an historically low turnout for a presidential election year, Tompkins said.
"This is going to diminish interest in the general election as it did in the primary election," Tompkins said. "It's going to reinforce the sense that it’s the insiders that are running the process, and yet paradoxically we are dependent on those insiders to fix that process, and it's going to be hard."
Tompkins said that many of the voters on Nov. 6 may even be confused at the lack of candidates and the candidates who do not appear under a Republican or Democratic label.
He said voters in presidential elections tend to be "less connected to politics" and might not even know their state representative, let alone his or her challenger.
Tompkins advocated for a change at the legislative level to streamline the process, but conceded that will take time.
"It's just not the kind of issue that attracts a lot of support within the legislature," Tompkins said, adding that outside pressure and non-incumbent candidates often help make election law changes. "As a result of this process there might not be a lot of outside pressure, so it might be a few years before we get this fixed."
In the meantime, Tompkins said many non-incumbent candidates willing to jump through the hoops will likely hire advisors and lawyers for proper filing in the next election cycle — adding yet another prohibitive expense to the process.
"It's just another barrier to getting good candidates involved in election process," Tompkins said.
*NOTE: This sentence was changed after publication. It had previously indicated that more than one suit had been filed and more than one party officialy had been dismissed when neither was the case.