Right to a Write-In Vote in South Carolina?

By: Lauren Coleman

Greenville, South Carolina, will become the largest municipality in South Carolina to cancel an election this upcoming November.  Mayor Knox White and three members of the City Council are running unopposed and will take office without going through a formal election process.

A South Carolina law (SC Code § 7-13-190(E)(3)) that went into effect in 2003, allows municipalities to cancel special elections and general elections if only one individual has filed for the office within fourteen days of the close of the filing period and no one has “filed a declaration to be a write-in candidate” by that point.  Essentially, the law enables municipalities to take an unopposed candidate’s name off the ballot, or in the case there are no contested positions, cancel an election altogether.

A recent opinion article published in The State, a newspaper based in Columbia, South Carolina, argues that canceling elections affects the legitimacy of elected leaders and also reduces voters’ ability to participate in the electoral process.  A key question is whether the provision violates Article I § 5 of the South Carolina Constitution which provides that “[a]ll elections shall be free and open,” and all qualified voters in South Carolina “shall have an equal right to elect officers and be elected to fill public office.” A cancelled election means that voters will not have the opportunity to write in candidates of their choice at the polls.

The South Carolina provision does not place an “absolute” ban on write-in candidates, a practice that other states have found to be unconstitutional under their state constitutions (See e.g. Smith v. Smathers, 372 So.2d 427, 427 (1979) holding that the “complete abolition” of write-in candidates by the revised Florida Election Code was unconstitutional).  Instead, individuals just have to declare their intention to run as a write-in candidate earlier in the process.

Just after this provision went into effect in 2003, the South Carolina Office of the Attorney General issued an Opinion Letter concluding that § 7-13-190(E)(3) was “constitutionally suspect” for its “severe restrictions on write-in voting and counting of write-in votes.”  The AG’s opinion highlighted several factors to support its conclusion.  First, it recognized the importance of the fundamental right to vote under the South Carolina Constitution.  Second, the AG determined that past opinions it had issued concluding elections must be held even when candidates were unopposed, implicitly recognized voters’ right to write in candidates on ballots.  Third, the AG pointed to a 1932 case (Gardner v. Blackwell, 167 S.C. 313, 324, 166 S.E.2d 338, 342 (1932)) as recognizing a voter’s right to elect an individual even if he or she was not running for office.  The AG concluded that Article 1 § 5 of the SC Constitution therefore seemed to cover write-in votes for special and municipal general elections.

South Carolina is not the only state to have the option of canceling municipality and special elections in the event of only one candidate running.  Several other states like California and Utah have similar provisions in their state codes that restrict voters’ ability to write in candidate names on election.  There is a strong reason for doing so—mainly that municipalities can save a lot of money and resources by cancelling elections. The City of Greenville reported that it will save about $60,000 by not holding the election this November.  In many municipalities, especially smaller ones with a limited budget, the money saved can be used towards other needed projects.

SC Code § 7-13-190(E)(3) has been in effect for twelve years with no major challenges or lawsuits.  Perhaps this indicates that voters are not concerned with the cancelled elections and are fine with the state saving money to use towards other projects.  However, with a national trend of candidates running unopposed (see this ballotpedia article which addresses legislative races specifically, but also notes declining electoral competitiveness in state elections in general), cancelled elections could become more prevalent.  In the coming years, South Carolina may again need to confront whether voters have the right to write in candidates of their choice on election day.

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