Could a candidate defeated in a South Carolina primary still win a county council seat through write-in votes in 2006?

Plain-English summary

In 2006, a Laurens County Council member who lost a Republican primary asked whether he could take office if supporters wrote in his name and he won the general election. The South Carolina Attorney General answered yes, assuming he received the most votes and was otherwise qualified. The opinion relied on an earlier state Supreme Court decision recognizing that a person defeated in a primary could still be elected by write-in votes.

That eligibility did not allow the candidate's name to appear on the general-election ballot. The opinion also read the primary candidate's statutory pledge as prohibiting him from offering or campaigning as a write-in candidate. It distinguished winning through unsolicited write-in votes from actively seeking those votes.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a primary loser take office after winning by write-in votes?
A: The Attorney General said yes, if the person received the most votes and was otherwise legally qualified.

Q: Could the defeated candidate's name appear on the general-election ballot?
A: No. The opinion applied the statutory restriction on placing a defeated primary candidate's name on that ballot.

Q: Could the candidate ask voters to write in his name?
A: The opinion said the notice and pledge statute barred him from offering or campaigning as a write-in candidate, even though he could still be elected through write-in votes.

Background and statutory framework

The opinion compared the Election Law's space for write-in votes with restrictions on defeated primary candidates. It cited Redfearn for eligibility to be elected and Florence County Democratic Party by Moore v. Johnson for the distinction between election eligibility and campaigning after a primary defeat. Its answer concerned the candidate's specific primary and general election.

Citations and references

The linked opinion quotes the South Carolina ballot and candidate-pledge provisions and discusses the two state Supreme Court decisions.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-27-2006-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/06july27trammell.pdf

Original opinion text

HENRY MCMASTER
ATroRNEY GENERAL

July 27, 2006

The Honorable Ernest G. Trammell
Member, Laurens County Council
4 77 Compton Road
Clinton, South Carolina 29325
Dear Mr. Trammell:
We issue this opinion in response to your letter concerning the eligibility of a write-in candidate to take office. You informed us that "[a]fter serving 16 years on the Laurens County Council District 5, I was defeated in the June 13, 2006 Republican primary. For whatever reason my longtime supporters wish to initiate a write-in campaign for me in the November 7, 2006 General Election." Accordingly, you ask: "If I receive the most votes as a write-in candidate in the November General Election, can I legally take office?" Law/Analysis l

l.,,

Initially, we answer your question affirmatively. Section 7-13-360 of the South Carolina Code (Supp. 2005), contained in the South Carolina Election Law (the "Election Law"), requires ballots "contain a place for voters to write in the name of any other person for whom they wish to vote except on ballots for the election of the President and Vice President." Furthermore, as we noted in a 1980 opinion, "if a write-in candidate receives more votes than any other candidate and is otherwise legally qualified, he would win that election. This would be true ifthere was or was not a specific candidate listed on the ballot for the office for which the write in received the most votes." Op. S.C. Atty. Gen., September 24, 1980. Thus, assuming you receive the most votes, you legally may take office. In addition to answering your request, we are compelled to alert you to certain legal principles you should consider due to your prior effort to gain the Republican nomination. We note no statute prohibits a defeated primary candidate from participating as a write-in candidate in the general election. Furthermore, in Redfearn v. Board of State Canvassers of South Carolina, 234 S.C. 113, 107S.E.2d10 (1959), our Supreme Court considered the issue of whether the Board of State Canvassers properly certified the election ofa write-in candidate for probate judge who was defeated in Democratic primary. The Court stated: "We are not here concerned with whether Mrs. Pusser's position, as a 'write-in' candidate in the general election, should or should not be considered as morally or ethically improper. Our function is to determine her eligibility as a matter oflaw." Thus,

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~~~ULLDING

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POST OFFICE Box 11549

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COLUMBIA. SC 292 11 -1.549

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T ELEPHONE 803·734-3970

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FAC$1Ml'-I: 803-1.'iJ-628'.l

The Honorable Ernest G. Trammell
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July 27, 2006

the Court's decision established ''the right of any qualified elector to be voted upon as a write-in
candidate, irrespective of what procedure may have taken place prior to the election, such as
participation in a primary, oath to support nominees of a primary, etc." Op. S.C. Atty. Gen., March
21, 1961 (citing Redfearn, 234 S.C. 113, 107 S.E.2d 10).

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Although in accordance with the Election Law and Redfearn, you may be elected as a writein candidate, certain provisions of the Election Law impose limitations on your candidacy. Section
7-11-10 of the South Carolina Code (Supp. 2005) calls for the method of nominating candidates.
This provisions, however, also states in pertinent part:
no person who was defeated as a candidate for nomination to an
office in a party primary or party convention shall have his name
placed on the ballot for the ensuing general or special election, except
that this proviso shall not prevent a defeated candidate from later
becoming his party's nominee for that office in that election if the
candidate first selected as the party's nominee dies, resigns, is
disqualified, or otherwise ceases to become the party's nominee for
such office before the election is held.
S.C. Code Ann. § 7-11-10. According to this provision, because you participated in the primary,
your name may not be placed on the general election ballot. Therefore, as you stated in your request,
you may only seek election to Laurens County Council ("County Council") as a write-in candidate.

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Moreover, section 7-11-210 ofthe South Carolina Code (Supp. 2005) requires candidates for
all county offices to file a notice and pledge. This provision states such notice and pledge shall be
worded as follows:
"I hereby file my notice as a candidate for the nomination as
_____ in the primary election or convention to be held on
_ _ _ _. I affiliate with the
Party, and I hereby
pledge myself to abide by the results of the primary or convention.
I shall not authorize my name to be placed on the general election
ballot by petition and will not offer or campaign as a write-in
candidate for this office or any other office for which the party has a
nominee. I authorize the issuance of an injunction upon ex parte
application by the party chairman, as provided by law, should I
violate this pledge by offering or campaigning in the ensuing general
election for election to this office or any other office for which a
nominee has been elected in the party primary election, unless the
nominee for the office has become deceased or otherwise disqualified
for election in the ensuing general election. I hereby affirm that I

The Honorable Ernest G. Trammell
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July 27, 2006
meet, or will meet by the time of the general or special election, or as
otherwise required by law, the qualifications for this office".

In the event that a person who was defeated as a candidate for

nomination to an office in a party's primary election shall thereafter
offer or campaign as a candidate against any nominee for election to
any office in the ensuing general election, the state chairman of the
party which held the primary (if the office involved is one voted for
in the general election by the electors ofmore than one county), or the
county chairman of the party which held the primary (in the case of
all other offices), shall forthwith institute an action in a court of
competent jurisdiction for an order enjoining the person from so
offering or campaigning in the general election, and the court is
hereby empowered upon proof of these facts to issue an order.

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S.C. Code Ann.§ 7-11-210 (emphasis added).
In Florence County Democratic Party by Moore v. Johnson, 281 S.C. 218, 314 S.E.2d 335
(1984), the South Carolina Supreme Court considered the constitutionality of this statute. In that

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case, a candidate for city council appealed a ruling by the trial court awarding Florence City
Democratic Party an injunction prohibiting the candidate, who participated in the Democratic
primary, from commencing a petition drive to place his name on the ballot and restraining him from
offering or campaigning in the election. Id. The Court distinguished its prior opinion in Redfearn
stating:

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The issue before the Court was whether the defeated candidate was
eligible as a matter of law to be elected to the office in controversy,
not whether the defeated candidate should be allowed to offer or
campaign for the office. The holding in Redfearn would only allow
Johnson to be elected as a write-in candidate, not as a petition
candidate.
The Court concluded "the pledge's restriction on offering or campaigning in a general election for
an office for which there is a party nominee after a candidate has been defeated in the primary
election is constitutional and reasonable, necessary to preserve the integrity ofthe electoral process."
Id. at 222-23, 314 S.E.2d at 338.
The Legislature amended section 7-11-210 in 2000, after the Court issued its opinion. We
reviewed this amendment in an opinion dated July 13, 2000 and determined "it does not appear that

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The Honorable Ernest G. Trammell
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July 27, 2006

this amendment alters the conclusions reached by the court in [Florence County Democratic Party)."
Op. S.C. Atty. Gen., July 13, 2000.

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We presume, in accordance section 7-11-210, you filed the notice and pledge with "the
county chairman or other officer as may be named by the county committee of the county in which
[you) reside .... " S.C. Code Ann.§ 7-11-210. Thus, we caution you that in accordance with this
section, you are prohibited from offering as a write -in candidate and from campaigning for write-in
votes.
Conclusion
Although you participated in the primary election, there is no prohibition against serving on
County Council if elected in the general election, presuming you receive the most votes as a write-in
candidate. However, as explained above, your name may not be placed on the ballot. Furthermore,
in accordance with section 7-11-210, you may not offer or campaign for the position.
Very truly yours,

Cy~

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Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General