Can a municipal election winner take office while an appeal of the election contest is pending?

Plain-English summary

A lawyer asked whether the winner of a September 2005 municipal election could be sworn in that evening. The unsuccessful incumbent had contested the result; the municipal election commission had denied the protest, and the lawyer had received verbal notice of an intended circuit court appeal. The Attorney General answered that it would be inappropriate to qualify the new officer until the time to appeal expired, or, if an appeal was filed, until that appeal was resolved. The incumbent would hold over.

The letter tied that conclusion to the municipal election statutes, two earlier Attorney General opinions, and a House bill it described as attached. The linked two-page PDF contains the letter's conclusion; its text does not reproduce the referenced attachments. The opinion did not resolve the election contest itself.

Currency note

This opinion was issued in 2005. 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

Could the announced winner be sworn in after the election commission rejected the protest?
The 2005 letter said qualification should wait until the appeal period had expired, even though the commission had upheld the result.

What if the unsuccessful candidate filed an appeal?
The letter said the winner should not be qualified until that appeal was resolved, and the incumbent would hold over in the meantime.

Did the letter decide who actually won the contested election?
No. It addressed when the new officer could be qualified while the contest process remained open.

Background and statutory framework

The request described a September 13 election, a timely contest by the incumbent, and the commission's September 17 rejection of that protest. The AG's answer addressed the interval before the statutory appeal period ended and the separate interval while any filed appeal was pending.

Citations and references

The opinion referred to municipal election code provisions, Attorney General opinions dated May 16, 1988 and May 15, 1995, and House Bill H. 3411. The linked PDF does not reproduce the referenced attachments.

Official title

Questioning as to whether the winner of a municipal election in dispute can be sworn in, or does the current council member retain office pending the appeal.

Requester

Joseph A. Vasquez, Esquire

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-19-2005/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/05sept-19-Vasquez.pdf

Original opinion text

HENRY MCMASTER
ATTORNEY GENERAL

September 19, 2005

VIA FACSIMILE
Joseph A. Vasquez, Esquire
Setzler & Scott, PA
P. 0. Box 4024
West Columbia, SC 29171-4024
Re:

Municipal Council Election

Dear Mr. Vasquez:
This is a follow-up to a telephone conversation and also a letter of today's date in which you asked the question as to whether the winner of a municipal election in dispute can be sworn in, or does the current council member retain office pending the appeal. Specifically, you stated in your correspondence that I

''The election was held September 13, 2005, and the results were contested by the unsuccessful incumbent candidate within 48 hours as set forth in South Carolina Code Section 5-15-130. The bearing was held on September 17, 2005, and the Municipal Election Commission denied the protest and upheld the results of the election. We have received verbal notice that the decision of the Municipal Election Commission will be appealed to the circuit court. The winner of the election, along with the other election winners, however, are to be sworn in tonight."

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As per our conversation and referencing the language of S. C. Code §§5-15-1 20, 5-15-140, South Carolina Attorney General Opinions dated May 16, 1988, and May 15, 1995 (attached) and House Bill H. 3411 (also attached), until the time period of appealing the decision of the municipal election commission has expired or if an appeal is filed until the appeal is resolved, it would be inappropriate for the newly-elected officers to be qualified and the incumbent shaJJ hold over.

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REMllERT C...l>ENNIS BUILDING •
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Posr OFFICE Box 11549 •

COLUMBIA. SC 29211-1549

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TELEPHONE 803-734-3970

• FACSfMILE 803-734-3677

Joseph A. Vasquez, Esquire

Page2
September 19, 2005

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If further assistance is needed in this matter, please do not hesitate to contact me. truly yours,

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REVIEWED AND APPROVED:

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Senior Assistant Attorney General