Election challenge could leave Senate deciding winner

JIM DAVENPORT

Associated Press   06 December 2004

COLUMBIA, S.C. - A Sumter man's election protest could leave the South Carolina Senate deciding who sits in the seat Democrat Phil Leventis now holds.

It's a chilling thought for those who would have to deal with it.

"I hope we never face the issue," Senate President Pro Tem Glenn McConnell, R-Charleston, said.

It would be an unwelcome test for a Senate that's been divided along party lines since a GOP takeover in 2000. "I don't want this thing to turn into some partisan debacle on opening day," McConnell said.

The South Carolina State Election Commission hears an appeal by candidate Dickie Jones on Tuesday in the state's closest race. The last recount showed Jones got 15,454 votes, just 86 less than Leventis.

Jones has appealed, telling the Election Commission that in Sumter County 111 more voters cast ballots than signed in on poll books and that 1,055 more ballots were cast than have been accounted for.

The Election Commission could call for a new election if Jones proves the vote was fundamentally flawed or the agency could let the results stand. In the latter case, Jones' could appeal the decision to the state Senate.

The South Carolina Constitution says the Senate has the final word on who sits in its 46 seats.

Jones refused interview requests from The Associated Press and referred questions to his law partner, J. Seth. Seth said Jones is taking the process one step at a time.

On Tuesday, evidence will show a new election is necessary, Seth said. An appeal to the Senate depends on what the commission orders, he said.

"Heaven forbid if we have to go there," Seth said. Still, he said, Jones is "not going to appeal simply to appeal."

Leventis wants the commission to uphold the count and hopes that Jones doesn't appeal to the Senate.

Leventis angered Republican senators and Gov. Mark Sanford on the last day of the session in June. Leventis held the floor for hours, railing against Sanford's nominee for chairman of the Workers' Compensation Commission. He cost the nominee his job and killed several bills dear to Republicans.

An appeal could bring out the worst in the Senate, Leventis said. "If the thing becomes precedent-setting and incredibly political, that would be very, very unfortunate," he said.

But Seth said that may be needed. "The Constitution sometimes answers questions in ways that we do not like," he said.

Along the way, it would be hard to escape the politics, particularly since Sanford, Senate Republicans and the state GOP spent money and manpower targeting him for defeat, Leventis said. He's worried Jones supporters now could decide if he keeps his seat.

With the Senate "extremely partisan now, any decision that they might make would be seen as basically a partisan Republican decision," said John Crangle, state director for the Washington-based political watchdog group Common Cause.

"It's not only got to be right, it's got to look right," Senate Rules Committee Chairman Larry Martin, R-Pickens, said. "It can't look overtly partisan."

McConnell said there is no precedent for the Senate handling an election appeal while the House has dealt with a handful in the past two decades.

The first in memory came in 1986, when former state Rep. Will McCain, a Republican, won the election but his opponent appealed to the House. At the time, then-Speaker Bob Sheheen could find no previous record of an appeal. "The House Judiciary Committee ruled in my favor and the full House ruled in my favor," McCain said.

McConnell said staffers are researching how to conduct an appeal if the Senate decides to hear one.

Jones would have a "tremendous burden" and would "have to bring extremely convincing evidence. The evidence just has to be overwhelming - errors of law and fact," McConnell said.

The Senate could uphold the Election Commission's decision, order a new election or determine who gets the seat.

The last option would cut the voters in the district out of the process, Leventis said. "It would be one community no vote ... and every other community in the state would get a vote," he said.

A new election might sound like a good result, Martin said. But that would take weeks and "there is a legitimate concern about how long those folks go without a senator," he said.