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S.C. Supreme Court Upholds Sen. 41 Special Primary

In a split-decision, the South Carolina Supreme Court upheld the Circuit Court ruling that led to Tuesday's special Republican Primary for S.C. Senate District 41.

The South Carolina Supreme Court's five justices were divided on the latest case to come out of this year's ballot snafu.

Chief Justice Jean Toal penned the Court's opinion, joined by Justices John Kittredge and Kaye Hearn, upholding Circuit Court Judge Earnest Kinard's ruling that candidate Paul Thurmond was not exempt from the candidate filing requirements and therefore ineligible as a candidate, and that the Charleston County and Dorchester County Republican Parties hold a new special primary to find a replacement candidate.

With the majority of the Court siding against the plaintiffs, the results of Tuesday's Special Republican Primary for the S.C. Senate District 41 seat will stand. That leaves Sen. Walter Hundley — who won a special election for the current term that runs out in January — and Paul Thurmond headed to a run-off election on Oct. 2.

The winner will face Democrat Paul Tinkler in November.

Toal's opinion centers around the definition of "disqualified" in the state statutes in question. She writes:

"Thurmond was certified as the party nominee for Senate Seat 41. The fact that the Republican Party in good faith, albeit erroneously, believed Thurmond was exempt from the filing requirement of section 8-13-1356(B) does not negate his status as the party nominee. We, therefore, reject the State Commission's argument that section 7-11-55 is inapplicable because Thurmond was not the party nominee."

And in another section of the ruling she continues:

"In our judgment, the dissent errs in conflating section 8-13- 1356, the candidacy filing statute, with section 7-11-55, the party nominee replacement statute. This conflation produces the absurd result that a political party can never conduct a replacement primary in a circumstance where, as here, its candidate is disqualified after certification for a defective filing."

State law section 7-11-55, which Toal cites throughout her opinion requires political parties that choose a nominee via a primary must hold a new primary to replace a dead, resigned or disqualified candidate.

The plaintiffs, George Tempel and the South Carolina State Eelection Commission, argued that the Republican candidate had not been disqualified after nomination, because the Circuit Court found that Paul Thurmond had never been eligible to be the nominee in the first place because he did not file the proper paperwork when filing as a candidate in the race.

The majority of the Court disagreed. Toal concludes:

"Thurmond was not exempt under section 8-13-1356(A) from the simultaneous filing requirement of section 8-13-1356(B) and, therefore, was disqualified after his nomination from the initial Republican Party primary election for Senate District 41 because of his failure to comply with the filing requirement. Accordingly, the circuit court properly ordered a special primary election to be held pursuant to section 7-11-55."

All of the justices agreed with the ruling that Thurmond was not exempt from the filing requirements in State Code Section 8-13-1356. However, Two of the Court's justices agreed with the plaintiffs' opposition to a new Republican primary for the race. Justice Costa Pleicones wrote the dissent, joined by Justice Donald Beatty.

Pleicones writes:

"The name of any individual who did not meet the simultaneous filing requirement of § 8-13-1356(B) "must be removed" from the party primary ballot. Anderson v. S.C. Election Comm'n, 397 S.C. 551, 725 S.E.2d 704 (2012). An individual whose name appears on the ballot in violation of this statutory requirement may not be certified as a candidate for the general election. Anderson, citing S.C. Code Ann. § 8-13-1356(E) (Supp. 2011). In Florence Cnty. Democratic Party v. Florence Cnty. Republican Party, 398 S.C. 124, 727 S.E.2d 418 (2012), this Court held that Anderson applied to all political party primaries throughout the state, and that "[t]o the extent other political parties have improperly certified candidates, those parties ignore the decision of this Court at their own peril." Here, despite our clear holding in Anderson, reinforced by our decision in Florence County, the Charleston County Republican Party chose not to remove Thurmond from the ballot, and then chose to certify him in the face of our explicit warning in Florence County. The name of any individual who did not comply with § 8-13-1356(B) was to be removed from the primary ballot under Anderson. A party cannot remedy its error in allowing such an individual's name to appear by unlawfully certifying his election. Florence County, supra. Thurmond is not his party's nominee as he did not properly file as a candidate. Section 7-11-55 does not apply to this situation."

Pleicones and Beatty came to the conclusion that because Thurmond was ruled ineligible due to not filing a paper copy of his Statement of Economic Interest form his election in the original Republican Primary for the seat was never valid, and he was never the party's nominee. Under that interpretation Thurmond was not "disqualified," he wrote. Section 7-11-55 does not include a definition of "disqualified," so Pleicones and Beatty look to the State Constitution for the qualifications that must be met by candidates.

"Pursuant to S.C. Const. art. III, § 7, a person must be a duly qualified elector in the district, twenty-five years old, and a legal resident of the district at the time of filing for office in order to be eligible for a Senate seat. That section also prohibits anyone convicted of certain enumerated crimes from serving in the Senate unless the person has been pardoned or fifteen years has passed since the completion of the sentence for the crime. In Anderson, this Court specifically stated that '§ 8-13-1356 does not alter the qualification for one to serve as a legislator. Instead, it merely delineates filing requirements to appear on a ballot.' Anderson, supra (emphasis added). Accordingly, I disagree with the majority when it holds that 'Thurmond was disqualified from the initial primary election . . . because he failed to comply with the simultaneous filing requirement of § 8-13- 1356(B).' In my opinion, such a holding would require the Court overrule this part of Anderson. A candidate who did not meet the filing requirements of § 8-13-1356 is not 'disqualified' within the meaning of § 7-11-55."

He concludes:

"Because Thurmond was not exempt from the SEI filing requirement of § 8-13- 1356(B), he was ineligible to appear on the ballot and was improperly certified as the Republican nominee for Senate District 41. He, therefore, is not the party nominee. Further, Thurmond was not 'disqualified after his nomination' by his failure to simultaneously file an SEI and an SIC. Accordingly, the circuit court erred in ordering a special primary election to be held pursuant to § 7-11-55. I therefore dissent and would reverse the order of the circuit court authorizing the Republican Party to hold a special primary election and declare the results of the special election, held on September 18, 2012, null and void."

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