Judge Cameron Currie called the complaint filed by Kincannon “excessively broad and vague.”
By Paul Gable
Update: No candidates will be added to the ballot as a result of the lawsuit heard in federal court yesterday. Initially seen as an opportunity to reinstate some candidates who were decertified due to discrepancies in their filing for candidacy, that will not be the case.
The federal lawsuit was originally filed by candidate Amanda Somers because she believed she was left off the ballot for the Senate District 5 primary. It is now questionable whether Somers even has standing to bring forth a lawsuit because she was certified as a candidate.
After Somers lawyer, Todd Kincannon, discovered Somers was on the ballot, he attempted to shift the focus of the lawsuit, according to the judge, to include the nearly 200 candidates left off the ballot by the S.C. Supreme Court decision last week.
Judge Cameron Currie called the complaint filed by Kincannon “excessively broad and vague.” She gave Kincannon until 4 p.m. Friday to re-file his complaint outlining what he is arguing and what he is requesting the court to decide.
Currie directed attorney S.C. Election Commission attorney Elizabeth Crum to file the election commission’s response to the complaint on Monday. She has tentatively set Tuesday May 15th as the date for a hearing of the case before a three judge panel.
Currie’s reaction to the initial complaint was to concentrate on whether the state was in violation of federal law because it split absentee ballots, one for federal candidates, another for state and local candidates.
Update: Kincannon decided Friday to concentrate on the issues affecting absentee ballots for military personnel serving overseas. He told the Associated Press, ” It’s clear at this point the military absent ballot issue is about the only issue left in this election.”
Congressional primaries are the only elections on the federal primary ballot, according to Crum. Those ballots were sent to overseas service members and citizens on April 28, 2012, pursuant to the 45 day requirement of the federal election law, according to Crum.
State primary ballots were sent last Friday after the Republican and Democratic parties re-certified candidates following last week’s S.C. Supreme Court decision on candidate filing law.
The issue will be whether splitting the absentee primary ballot violates the federal voting rights act. As far as deciding on the fate of candidates left off the ballot by the S.C. Supreme Court decision, it is entirely unlikely that any candidates will be added to the ballot as a result of this court hearing.
Despite Kincannon’s statement, other federal and state lawsuits on behalf of the eliminated candidates could be forthcoming. There remain challengers on the ballot who did not file their SEI at the same time as their SIC, according to SC Ethics Commission records. Two have never filed an SEI, yet they have not been decertified.
Another interesting question that has still to be addressed is why only challengers were affected by filing discrepancies.
State law requires incumbent to file an updated Statement of Economic Interests by April 15th each year for the preceding calendar year. While the S.C. Ethics Commission allows a five-day grace period with respect to fines for that filing, state law allows no grace period after the filing deadline.
Many incumbent officeholders filed their SEI after April 15, 2012, according to disclosure information on the ethics commission website. Certainly an incumbent who did not file by the April 15th deadline would not be considered to have a “current” SEI on file.
This would be a violation of state code Section 8-13-1356(A), which would seem to be every bit as much of a disqualifier for candidacy as a challenger who did not file an SEI and SIC at the same time required by Section 8-13-1356(B).
Why were they not thrown off the ballot for not filing their SEI properly on time?
Challengers were subjected to an earlier deadline and not certified if they failed to meet the filing requirement to the letter of the law.
There are also some questions about the legitimacy of the certifications of some challengers, who apparently did not file the SEI and SIC in accordance with state law, as decided by the Supreme Court last week, but were certified for the ballot anyway.
If the federal three judge panel should decide the split ballots violate federal law, South Carolina’s primary date could be set back. This would give more time to investigate the validity of candidate certifications, including incumbents.
The major question isn’t about who should be put back on the ballot. It is about how many more should be de-certified. These questions about filing discrepancies will likely be the subject of an ever increasing number of lawsuits continuing until after the general election in November.
It is entirely possible that some candidates currently certified, both incumbent and challenger, could ultimately lose an election challenge, after the balloting, to a write-in candidate who garners just a few votes. Nothing remains impossible, or even unexpected, in this extremely strange election year.