If I move before a primary runoff, can I still vote in it in South Carolina?

Official title

Opinion addressing an elector's eligibility to vote in specific races after changing residence between a primary election and an ensuing runoff election.

Requester

Requested by Mr. Howard M. Knapp, Executive Director, South Carolina Election Commission.

Plain-English summary

South Carolina's State Election Commission asked the Attorney General a clean hypothetical. A voter is eligible to vote in a primary. No candidate wins a majority, so a runoff is set for two weeks later. In the gap, the voter contacts the county and changes his voting address to a new home in the same county but outside the district whose runoff is coming up. Does he still get to vote in that runoff?

The office's answer is no. A voter has to actually have the qualifications to vote, including living in the right district, at the time he casts the ballot, not just thirty days before the primary. Once the voter notifies the county board that he has moved out of the district, the board knows he no longer qualifies for that district's race, and nothing in the election statutes lets him vote in a race he is no longer eligible for.

The office worked through the registration scheme. Poll books close thirty days before an election and stay closed through any runoff, so the primary and its runoff share one frozen set of books (§§ 7-5-150, 7-5-220). The Commission had read those statutes to mean the primary and runoff are "one electoral event" with one fixed group of eligible voters, and the office agreed that reading is consistent with the statutes' plain language. But it pushed back on the idea that registering thirty days out "vests" a permanent right to vote in the runoff no matter what. The qualifications, including residence in the precinct and district, still have to hold at voting time. The office leaned heavily on Gecy v. Bagwell, where the South Carolina Supreme Court threw out ballots cast by voters who no longer lived in the precinct where they voted and ordered a new election, calling the precinct system "an essential element of our voting process."

The office also walked through the provisional-ballot rules (§ 7-5-440) for voters who move and either do or do not notify the county. Those rules let a mover keep voting in jurisdiction-wide races (federal, statewide, countywide, municipalwide) but not in district or ward races he has moved out of. The office read that limit as confirming the Legislature did not intend to let a voter cast a ballot in a district race he no longer belongs to. It noted, too, that moving within the county does not strip a voter of the right to vote entirely; he just cannot vote in the specific races his new address excludes him from.

What this means for you

Voters who move during an election cycle: The opinion concludes that if you change your registered address out of a district after a primary but before its runoff, you cannot vote in that runoff race. You remain a registered voter for races your new address qualifies you for; you lose only the races you have moved out of.

County boards of voter registration and elections: The opinion treats the board as bound to act on residence information it receives. Once a voter reports a move out of the district, the board cannot use a "legal fiction" to keep him qualified for that district's runoff, and § 7-5-230 requires the board to hold a hearing on challenges to an elector's qualifications, including residence, within ten days.

Poll managers and election officials: The opinion reaffirms the office's prior view that a ballot is subject to challenge if the voter lacks the qualifications to vote at the time the vote is cast. It also flags that voting at a precinct where one no longer resides "may well be a felony" under § 7-25-190.

Candidates and election-protest filers: The opinion's reliance on Gecy v. Bagwell is a reminder that improperly counted out-of-district votes can be grounds to reject ballots and, if enough are rejected to change the outcome, to order a new election.

Common questions

I moved to a new address in the same county before the runoff. Can I still vote in it?
You can vote in races your new address qualifies you for, but not in a district race you have moved out of. The opinion concludes a voter must meet the qualifications, including district residence, at the time the ballot is cast.

Doesn't registering thirty days before the primary lock in my right to vote in the runoff?
The office rejected that framing. It said the thirty-day book-closing rule freezes who is registered, but it does not "vest" a right to vote in a race you have since become ineligible for by moving out of the district.

Do I lose my registration entirely if I move within the county?
No. The opinion stresses that moving within the same county does not remove you from the list of eligible voters. You keep voting in the races your new address allows.

What if I don't tell the county I moved?
The provisional-ballot statute (§ 7-5-440) lets a voter who failed to notify the board vote a provisional ballot at the old polling place, but only for jurisdiction-wide races (federal, statewide, countywide, municipalwide), not for district or ward races affected by the move.

Background and statutory framework

South Carolina closes its registration books thirty days before each election and keeps them closed through any resulting runoff (§ 7-5-150), and registration made within that thirty-day window is not valid for that election or its runoff (§ 7-5-220). The state constitution gives the General Assembly broad authority to regulate the time, place, and manner of elections (S.C. Const. art. II, § 10). A primary nominee must win a majority; if none does, a second primary follows two weeks later under the same rules (§ 7-13-50).

Registration qualifications, including residence in the county and precinct, are set by § 7-5-120, and § 7-5-230 makes county boards the judges of those qualifications and requires a hearing on challenges within ten days. Section 7-7-940 covers a voter who moves between precincts in the same county, and § 7-5-440 sets out the provisional-ballot and address-correction procedures for movers, limiting some of them to jurisdiction-wide races. Voting where one is not entitled can be a felony under § 7-25-190.

The office applied standard statutory-construction principles from South Carolina cases (Mitchell v. City of Greenville, Penman v. City of Columbia) and relied on the South Carolina Supreme Court's decision in Gecy v. Bagwell for the proposition that the precinct-residence requirement is fundamental and that ballots cast by voters who no longer reside in their precinct must be rejected. It cited the Fourth Circuit's decision in Key v. Board of Voter Registration of Charleston County upholding the thirty-day registration requirement as a valid, fraud-preventing measure, and reasoned that reading the rules to let a moved voter vote in a district runoff would undercut that purpose.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-an-elector-s-eligibility-to-vote-in-specific-races-after-changing-residence-between-a-primary-election-and-an-ensuing-runoff-election/
• Original PDF: https://www.scag.gov/media/0zecqqgy/03674241.pdf

Original opinion text

O^‘S,outHc’^
Alan Wilson
Attorney General

August 23, 2024

Howard M. Knapp

Executive Director

South Carolina Election Commission
P.O. Box 5987
Columbia, SC 29250

Dear Director Knapp:
Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter
states the following:
The South Carolina State Election Commission (SEC) writes seeking your opinion

about a voter’s eligibility to vote in a primary runoff when the voter changes
residence during the interval between the primary election and the runoff.

In South Carolina, poll books for a given election, including primaries, are closed

thirty days before election day and for any resulting runoff:
The registration books shall be closed thirty days before each
election, but only as to that election or any second race or runoff
resulting from that election, and shall remain closed until the
election has taken place, anything in this article to the contrary
notwithstanding; provided, that the registration books shall be

closed thirty days before the June primary and shall remain closed
until after the second primary and shall likewise be closed thirty
days before the November general election.

S.C. Code §7-5-150.

S.C. Code § 7-5-220 requires that “[e]xcept as provided in Section 7-5-150,

registration made thirty days or less before any election is not valid for that election
or any second race or runoff resulting from that election but such registration shall
be valid in any other election.”

Kf.h.GER i c. Dennis Building

POST C-iTiCE BOX i 1 549

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Columbia, SC 292 1 1 - 1 549

TELEPiiONE CO’-734-3970

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Director Howard M. Knapp
Page 2
August 23, 2024

Read together, the SEC interprets §§ 7-5-150 and 7-5-220 to indicate that an

election, including a primary election, and any ensuing runoff should be considered
one electoral event in which just one set of eligible electors may vote, those that
were registered at least thirty days before the election. Therefore, in a primary
election, no one who was not registered to vote at least thirty days before the
primary election is eligible to vote in any runoff that may ensue, even if they
registered to vote more than thirty days before that runoff. To create such a system

is well within the General Assembly’s powers:
The General Assembly

shall

provide for the nomination of

candidates, regulate the time, place and manner of elections, provide
for the administration of elections and for absentee voting, insure

secrecy of voting, establish procedures for contested elections, and

enact other provisions necessary to the fulfillment and integrity of
the election process.

S.C. Const, art. II, § 10.

In a South Carolina primary election, no candidate may be declared a nominee

unless he received a majority of the votes cast for the office for which he was a
candidate. S.C. Code § 7-17-600; see also S.C. Code § 7-17-610. If no primary

candidate for a particular office receives a majority of the votes cast, then “[a]

second primary . . . must be held two weeks after the first and is subject to the rules
governing the first primary” S.C. Code § 7-13-50. The rules applying to the primary

runoff will presumably include the use of the same set of closed poll books that
were used for the primary election as required under Sec. 7-5-150.

Note that nothing in the law requires that a qualified elector must vote in an election
or primary election in order to secure their right to vote in a corresponding runoff.
This makes sense if an election and a subsequent runoff are indeed considered one

electoral event with one frozen set of qualified electors. The right to vote appears
to vest in the elector thirty days before an election, when it will not be certain that
a runoff will even be necessary. However, consider that a qualified elector’s general
eligibility to vote starts at the most local level. Therefore, voter registrations are
tied to their declared voting residence. S.C. Code §§ 7-5- 120(A)(3); 7-5-170(2).
As noted earlier, Sec. 7-13-50 requires that, when necessary, a primary runoff will
be held two weeks after a primary election and will be governed by the same rules

as the election. Pursuant to Sec. 7-5-150 the poll books for the primary runoff will

Director Howard M. Knapp
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August 23, 2024

be the same as those for the primary election. With this in mind, the SEC presents
the following scenario and asks the Attorney General for his opinion:

A primary election is conducted that results in a primary runoff. During the two-

week interval after the primary election but before the primary runoff is conducted,
a person who was a qualified elector eligible to vote in the primary election contacts
his county board of voter registration and elections and changes his voting
residence address to a location that is within the same county but outside the district
for which the primary runoff will be conducted. Will this voter still retain the right
to vote in that primary runoff?
Law/Analysis

It is this Office’s opinion that a person who was a qualified elector eligible to vote in a

primary election but changes his residence1 to a location within the same county and outside the
district for which the primary runoff will be conducted would not be permitted to vote in the
primary runoff.

In order to determine whether an elector who changes residence retains the right to vote in

a primary runoff, this opinion will analyze relevant statutes in Title 7 of the South Carolian Code
of Laws according to the rules of statutory construction. When interpreting a statute, the primary
goal is to determine the General Assembly’s intent. See Mitchell v. City of Greenville. 41 1 S.C.
632, 634, 770 S.E.2d 391, 392 (2015) (“The cardinal rule of statutory interpretation is to ascertain

and effectuate the legislative intent whenever possible.”). Where a statute’s language is plain and
unambiguous, “the text of a statute is considered the best evidence of the legislative intent or will.”

Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578,581 (2000). Alternatively, “where a statute is
ambiguous, the Court must construe the terms of the statute.” Wade v. Berkeley Cnty., 348 S.C.
224,229, 559 S.E.2d 586, 588 (2002).

Further, “[a] statute as a whole must receive a practical,

reasonable and fair interpretation consonant with the purpose, design, and policy of lawmakers.”

State v. Henkel. 413 S.C. 9, 14, 774 S.E.2d 458, 461 (2015), reh'g denied (Aug. 5, 2015). Where

statutes deal with the same subject matter, it is well established that they “are in pari materia and
must be construed together, if possible, to produce a single, harmonious result.” Penman v. City
1 For purposes of this opinion, we presume there is no challenge to whether the elector intended to change
his residence. Residence is defined for purposes of voter registration as the person’s “domicile.” S.C. Code
§ 7-l-25(A) (2019). Domicile is further defined as “a person’s fixed home where he has an intention of
returning when he is absent. A person has only one domicile.” Id. The statute provides that a person has
changed his domicile for voting purposes when “(1) has abandoned his prior home and (2) has established
a new home, has a present intention to make that place his home, and has no present intention to leave that
place.” S.C. Code § 7-l-25(B).

Director Howard M. Knapp
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August 23, 2024

of Columbia, 387 S.C. 131, 138,691 S.E.2d 465.468 (2010); see also Op. S.C. Att’y Gen., 2000

WL 1347162 (Aug. 25, 2000) (The meaning of related statutes and their effect must be determined
with reference to each other so as to “construe them together into one integrated system of law.”).
With these principles in mind, this opinion will analyze relevant election statutes to ascertain
legislative intent regarding whether electors who change residence between a primary election and

a runoff retain their eligibility to vote in the runoff election.

It is this Office’s opinion that the SEC’s interpretation of S.C. Code §§ 7-5-150, -220, that
only those electors who were registered to vote prior to thirty days before a primary election are
eligible to vote in an ensuing runoff, is consistent with the plain language of those statutes.
However, we find it is inaccurate to characterize registering to prior to this thirty-day period as

“vesting” a right to vote in an election or runoff. First, the statute listing qualifications to register
also lists reasons a person may be disqualified.

(A) Every citizen of this State and the United States who applies for registration

must be registered if he meets the following qualifications:
(1) meets the age qualification as provided in Section 4, Article II of the
Constitution of this State;
(2) is not laboring under disabilities named in the Constitution of 1 895 of

this State; and
(3) is a resident in the county and in the polling precinct in which the elector

offers to vote.
(B) A person is disqualified from being registered or voting if he:

(1) is mentally incompetent as adjudicated by a court of competent
jurisdiction; or
(2) is serving a term of imprisonment resulting from a conviction of a crime;
or

(3) is convicted of a felony or offenses against the election laws, unless the
disqualification has been removed by service of the sentence, including

probation and parole time unless sooner pardoned.
S.C. Code § 7-5-120. After a person has been registered to vote, aside from specific statutorily
defined circumstances, each elector may only “vote at the designated polling place within the
precinct of his residence.” S.C. Code § 7-7-91 0(A).

Further, section 7-5-230 states that after a

person is registered, the county board of voter registration and elections (“county board”) must

hold a hearing regarding challenges to an elector’s qualifications.

Director Howard M. Knapp
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August 23, 2024

(A) The county boards of voter registration and elections ... shall be the judges of

the legal qualifications of all applicants for registration. The board is empowered
to require proof of these qualifications as it considers necessary.
Once a person is registered, challenges of the qualifications of any elector, except
for challenges issued at the polls pursuant to Sections 7-13-810, 7-13-820, and 7-

15-420 must be made in writing to the county board of voter registration and
elections in the county of registration. The board must, within ten days following
the challenge and after first giving notice to the elector and the challenger, hold a
hearing, accept evidence, and rule upon whether the elector meets or fails to meet

the qualifications set forth in Section 7-5-120.
(B) When a challenge is made regarding the residence or domicile of an elector, the
board must consider the provisions of Section 7-1 -25(D).

S.C. Code § 7-5-230 (emphasis added); see also Gantt v. Selph, 423 S.C. 333, 339, 814 S.E.2d
523, 527 (2018) (“[A]rticle II, section 9 of the South Carolina Constitution addresses a person's
right to vote; subsection 7-5-23 0(A) prescribes a procedure for challenges to a person's
qualification to register to vote ...”).

The statute’s plain language states the qualifications of a

registered person can be challenged if he should fail to meet those listed in section 7-5-120,
including specific reference to the challenges regarding residence and domicile. It does not contain

a stipulation for challenges within a certain time period before an election or runoff. In the absence
of such a stipulation, it appears a county board must hold a hearing and rule on challenges within
10 days, even within the thirty-day period before an election as well as the period between an
election and runoff.

In the scenario presented, the elector notifies the county board of the changed address to
one that is outside of the district for the primary runoff. When an elector moves from “one precinct
to another in the same county,” Section 7-7-940 of the South Carolina Code of Laws states, “[T]he
elector must notify the board of voter registration and elections of the county. The board must note
the fact upon the proper book and give the elector a notification of the precinct into which he is
moved.” S.C. Code § 7-7-940 (emphasis added).

When an elector is notified that he has been

moved to a new precinct, he must not attempt to vote in the formerly assigned precinct for a district
level election to which he is no longer eligible to vote as it may well be a felony. See S.C. Code §
7-25-190 (“A person who votes at any general, special, or primary election who is not entitled to

vote, ... or who violates any of the provisions of this title in regard to general, special, or primary
elections is guilty of a felony.”). Illegally voting at a precinct in which an elector no longer resides
may not only result in consequences for the voter, but may also require that a new election be held.

Director Howard M. Knapp

Page 6
August 23, 2024

For instance, in Gecy v. Bagwell, 372 S.C. 237, 241, 642 S.E.2d 569, 571 (2007), “two voters cast
a ballot in a precinct where they previously were registered, but they no longer had a valid address
in that precinct at the time of the election.” The Court described how allowing an elector to vote
in a precinct in which he no longer resides violates the basic structure of our state election laws:

The use of precincts in our election process is a fundamental part of our statutory
scheme. See S.C. Code § 7-5-110 (1976) (“No person shall be allowed to vote at
any election unless he shall be registered as herein required.”) and S.C. Code § 7-

5-1 20(A)(3) (Supp. 2005) (providing, as a qualification for registration, that the
prospective voter must be a resident of both the county and the precinct in which

he intends to vote); S.C. Code § 7-5-1 55(a)(3)(iii) (Supp. 2005) (requiring
registration board to reject any voter application from which the board cannot
determine the proper precinct to be assigned); S.C. Code § 7-7-940 (Supp. 2005)
(voter moving to new precinct must notify the registration board in his new county

so that he may be informed of his new, correct precinct); S.C. Code § 7-5-440
(Supp. 2005) (outlining specific procedures for voting by an elector who has moved
to a new precinct but has not notified the county registration board); S.C. Code §
7-7-920 (1976) (in municipal elections when the councilmen are elected by an atlarge vote, the electors shall vote at the voting place in the precinct within which

they reside); and S.C. Code § 7-13-810 (Supp. 2005) (election protest may be
based on evidence of voters who voted in a precinct other than the one in which

they are entitled by law to vote).

The disregard of the election statutes requiring electors to be residents of the

precincts in which they vote, as well as failing to follow the procedure outlined in
S.C. Code § 7-5^440 for those voters who have moved to a new precinct,
constitutes more than a mere irregularity or illegality. The precinct system is an

essential element of our voting process, and the failure of the two voters to adhere
to the statutory requirements for registration and voting requires their votes to be

rejected. Because the rejection of these two votes results in Gecy no longer carrying
a majority of the total votes cast, a new election must be held.
Gecy, 372 at 242-43, 642 S.E.2d at 571-72 (emphasis added). Based on the authorities discussed

above, this Office concludes that an elector who notifies a county board of a change of residence
to a location in a new precinct before the day of an election cannot vote at the prior precinct to

which he was registered.

Director Howard M. Knapp
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August 23, 2024

If, however, an elector moved his residence from one precinct to another within the same
county and “failed to notify the county board ... of the change of address before the date of an
election” the elector can choose to “correct the voting records and vote provisional ballots
containing only the races for federal, statewide, countywide, and municipalwide ... at the elector's

former polling place ...” S.C. Code § 7-5-440(B)(l) (emphasis added).2 The highlighted language
only permits voting provisional ballots for races that would not be impacted by the elector’s change
of residence. When this statute is applicable, the voter would not be permitted to vote for races
which are held at the district or ward level.

It is, however, possible for an elector to change residence out of the district for which a
runoff is conducted but still remain registered within the same precinct. Such a circumstance is
not addressed by Section 7-7-940. Section 7-5-440 provides a process in an analogous situation
where an elector moves his residence from one address in a precinct to another within the same
precinct, but fails to notify the county board of the change before an election. It provides:
A qualified elector who has moved from an address in a precinct to an address in

the same precinct shall, notwithstanding failure to notify the county board of voter
registration and elections of the change of address prior to the date of an election,

be permitted to vote at that precinct’s polling place upon oral or written affirmation
by the qualified elector of the change of address before an election official at that
polling place.

S.C. Code § 7-5-440(A) (emphasis added). In this situation, the elector would still be allowed to
vote a standard ballot after affirming his new address. While the elector would still be allowed to
vote in races for which he is a qualified elector, no language in this statute suggests he would be
allowed to vote in races in which both he and the county board know he is not entitled to as a result

of a changed residence.

It must be noted that while an elector may change his residence and no longer be qualified
to vote in certain races, this does not mean that he has become ineligible to vote at all. Section 75 -440(D) explicitly prohibits removing an elector who moves from one address to another within
the same county from the list of eligible voters except in limited circumstances.

2 The Legislature established an additional option for qualified electors who move to another county within
the thirty-day period before an election so that they “must be permitted to correct the voting records and
vote at a central location located at the main office of the county board of voter registration and elections
in his new county of residence where a list of eligible voters is maintained.” S.C. Code § 7-5-440(B)(2).

Director Howard M. Knapp
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August 23, 2024

For voting purposes, in the case of a change of address of a qualified elector to
another address within the same county, the county board of voter registration and

elections shall correct the voting registration list accordingly, and the elector's name
may not be removed from the official list of eligible voters except as provided in
Section 7-5-330(F).

S.C. Code § 7-5 -440(D).

Even when the circumstances allowing for removal are present, this

program “must be completed no later than ninety days before the date of a statewide primary or
general election.” S.C. Code § 7-5-330(F)(4). The removal program does not impact voters during

the thirty days before statewide elections or ensuing runoffs.
Considered together, these statutes generally allow qualified electors to correct their

residence information at their polling place on election day while maintaining eligibility to vote in
the correct races. Their plain language does not demonstrate legislative intent to permit an elector
to vote in races to which he would otherwise not be permitted to vote, whether that is a general
election, primary, runoff or otherwise. To the contrary, the Legislature limited those races that an
elector can vote in when they fail to notify county boards of a change of residence to a different
precinct to only jurisdiction-wide races, arguably to avoid allowing votes to be cast in races to
which the elector is no longer eligible to vote.

The Fourth Circuit Court of Appeals found our state statutory requirement to register to

vote thirty days before an election to be constitutional and serves the purpose of preventing fraud.
The statutory requirement that, as a qualification of voting in any election, one must
be duly registered on the books of registration of a State at least thirty days before

that election has been held perfectly valid and constitutional. As the Court said in
Marston, “. . . a person does not have a federal constitutional right to walk up to a
voting place on election day and demand a ballot. States have valid and sufficient
interests in providing for some period of time prior to an election in order to prepare
adequate voter records and protect its electoral processes from possible frauds.”
Key v. Bd. of Voter Registration of Charleston Cnty., 622 F.2d 88, 90 (4th Cir. 1980) (internal
citations omitted). If the thirty-day registration requirement is intended to prepare voter records
and protect the electoral process, it would be inconsistent for this Office to interpret the phrase
“subject to the rules governing the first primary” in Section 7-13-50 to allow an elector to vote in
a runoff election after moving his residence out of the district for said race. Such an interpretation
would require county boards to employ a legal fiction to maintain the elector’s qualifications

despite having notice to the contrary directly from the elector. We have previously opined that an

Director Howard M. Knapp
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August 23, 2024

elector’s ballot is subject to challenge if he lacks the qualifications to vote at the time the vote is
cast. Sec Op. S.C. Att’y Gen., 2008 WL 4829830 (October 23, 2008) (finding poll managers have
a duty to challenge the absentee ballot of a voter who dies prior to an election).

It remains this

Office’s opinion that an elector must maintain his qualifications to vote at the time he casts his
ballot, including in a primary runoff election.

Conclusion

For the reasons discussed more fully above, it is this Office’s opinion that a person who
was a qualified elector eligible to vote in a primary election but changes his residence to a location
within the same county and outside the district for which the primary runoff will be conducted

would not be permitted to vote in the primary runoff. S.C. Code § 7-5-230 states that after a person
is registered, the county board of voter registration and elections must hold a hearing regarding
challenges to an elector’s qualifications, including challenges regarding residence and domicile.
We have previously opined that an elector’s ballot is subject to challenge if he lacks the

qualifications to vote at the time the vote is cast. See Op. S.C. Att’y Gen., 2008 WL 4829830
(October 23, 2008) (finding poll managers have a duty to challenge the absentee ballot of a voter
who dies prior to an election).

It remains this Office’s opinion that an elector must maintain his

qualifications to vote at the time he casts his ballot, including in a primary runoff election.
Sincerely,

/L£
Matthew Houck

Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General