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Senate 41 Decision Under Appeal

The S.C. State Election Commission has joined plaintiff George Tempel in appealing decision to allow the Charleston County GOP to hold a new primary in the S.C. Senate 41 race

When in the race he also opened a door for the Charleston County Republican Party to hold a new primary in which Thurmond would be allowed to participate.

That portion of his ruling is now under appeal by the plaintiff in the case, George Tempel, the former chairman of the Charleston County Democratic Party. And Tempel is getting some help from one of the original defendants in the case. The South Carolina State Election Commission has joined with Tempel in seeking to have the portion of the ruling allowing Thurmond to participate in the new primary struck down.

"When it's all done, I don't think there will be much time to do anything," Tempel said. "I don't think Mr. Thurmond's name will appear on the ballot."

The State Election Commission has taken issue with the fact that Kinard's ruling allows Thurmond another chance to get on the ballot, saying such a move would invite every other candidate removed by South Carolina Supreme Court decisions in cases from Florence and Anderson counties to file suit seeking a return to the ballots, according to a statement from State Election Commission spokesman Chris Whitmire.

"Our main concern in all of this is protecting the process," Whitmire wrote in an email to Patch.com. "If reopening filing occurs in this case, it would likely create a flood of complaints and legal filings from many of the other approximately 200 candidates who were decertified. We want the Supreme Court to rule now on this. We’re under state and federal deadlines to send absentee ballots to military and overseas citizens. We want to avoid a string of additional suits, or additional filing periods and primaries, that would delay ballot preparation."

Following Kinard's ruling the Charleston County Republican Party was eager to set a new filing period and primary date, but those plans are on hold now pending the appeal, according to Charleston County GOP Chair Lin Bennett.

In its appeal the State Election Commission included a S.C. Attorney General's opinion from July 10, on a similar question about whether political parties can put forward candidates that had been decertified under the Supreme Court rulings as replacement candidates under the South Carolina law that allows a party to name a candidate as its nominee if the original nominee has to withdraw from the race due to disqualification after nomination, or withdraws for a "legitimate nonpolitical reason." The opinion was sought by the Greenville County Democratic Party.

In his opinion, S.C. Deputy Attorney General Robert Cook concludes that the candidates that were ruled ineligible by the Supreme Court decisions were not disqualified because they were deemed never to have been eligible in the first place by those decisions.

It is striking that the Court in Florence County repeatedly referred to those non­exempt candidates who did not meet the requirements of [S.C. Code] 8-13-1356 as "improperly certified." The Court also made clear that such persons should not be certified "for the general election." Similarly, as we stated in Op. S.C. Atty. Gen., May 26, 1980 (1980 WL 121244) "failure to timely file the ethics statement, thereby resulting in a prohibition of placing a candidate on the ballot, cannot be circumscribed by a procedure that would somehow authorize a political party to nominate the disqualified candidate."

Conclusion

Based upon the foregoing, we do not read [S.C. Code] 7-11-50 as applicable to this situation. We believe the purpose of [S.C. Code] 7-11-50 is to allow political parties to replace candidates who have died, withdrawn or became ineligible following nomination. Anderson and Florence County make clear that candidates who failed to follow [S.C. Code] 8-13-1356 were "improperly certified" candidates, i.e. they were never eligible at all. Thus, these persons did not "become [] disqualified after … nomination," but were never qualified at all. The purpose of [S.C. Code] 7-11-50, to allow a political party to replace a candidate who "becomes disqualified after his nomination" would be thwarted were it to be used to replace the candidate who was "improperly certified" with that same disqualified person.

Moreover, the Supreme Court has made clear that those disqualified by [S.C. Code] 8-13-1256 may not be placed upon the general election ballot. We believe that, absent a ruling from the Supreme Court altering or modifying that instruction, we conclude that the Supreme Court meant what it said. Accordingly, we are unable to advise you that [S.C. Code] 7-11-50 may be used in this circumstance to substitute the same candidates which Martin and Florence County held were disqualified.

Judge Kinard cited S.C. Code 7-11-55 in ruling the Republican Party can hold a new primary and that Thurmond could participate in that primary, and that section of the state law relies on S.C. Code 7-11-50 (the section cited by the Attorney General's opinion) which provides the definitions and directions for replacing disqualified or withdrawn candidate on ballots.

Meanwhile Turmond's attorney has filed a petition with the court to enforce Kinard's ruling and move forward with a new primary. State law requires that the filing period for the new primary begin on the second Tuesday following the disqualification, which would be Aug. 28.

In the petition Thurmond's lawyer Michael Timbes argues that the act of Tempel and the State Election Commission of filing an appeal to the ruling should not automatically stay Kinard's order with regard to the special primary, and seeks an order from the Circuit Court to the South Carolina State Republican Party and the State Election Commission to move forward on holding the primary.

No date has been set as of yet to hear the appeal.

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