District 3 Dispute Goes to State
ATTORNEY: NEW EVIDENCE MAY NOT BE ADMISSIBLE
WINNSBORO – The battle for the District 3 County Council seat entered its next round Monday when the incumbent, Mikel Trapp, filed an appeal with the S.C. Election Commission of a Nov. 17 order for a new election by the County Election Commission.
Trapp edged out challenger Walter Larry Stewart by just 4 votes, 489-485, in the Nov. 4 general election, but during the Nov. 17 protest hearing, Stewart’s attorney, Debra Matthews, successfully argued that five voters – two in Mitford and three in Monticello – had been presented with the wrong ballot style on election day and therefore were unable to cast a vote in the District 3 race for County Council.
Trapp, who did not return phone calls seeking comment for this story, was not present at the Nov. 17 hearing, but sent in his stead Winnsboro resident Kadena Woodard. The County Commission did not allow Woodard to present an argument during the hearing, since she is not licensed to practice law.
In Trapp’s appeal, filed just before the noon deadline Monday, Trapp’s attorneys cited the S.C. Supreme Court’s Taylor v. Town of Atlantic Beach Election Commission case, which according to the appeal documents states that election results will not be “set aside . . . due to mere irregularities or illegalities unless the result is changed or rendered doubtful.”
“Not only did the County Board refuse to allow Councilman Mikel Trapp the opportunity to be heard on the protest, but it also employed a presumption against sustaining the election by ignoring that (1) two of the five challenged voters were registered in and had regularly voted in a different county council district without objection or challenge and without requesting a provisional ballot for this election, and (2) two of the other three disputed voters swore in written statements submitted to the County Board that they would have voted for Councilman Trapp if they had voted in District 3,” the appeal document also states.
Trapp’s appeal documents include a pair of sworn affidavits from the voters in Mitford, who averred that while they did not indeed cast ballots in the District 3 Council race, if they had they “definitely would have voted for Council Member Mikel Trapp,” each of their sworn statements say.
The affidavits are similar to documents Woodard attempted to have read into the record during the Nov. 17 hearing before she was barred by the Commission. The Commission’s attorney, Liz Crumb, said at the time that allowing Woodard to make a case for Trapp would be allowing her to practice law without a license. Matthews objected to the documents during the hearing, as they were not notarized, calling them “hearsay” statements.
The Commission sustained the objections, but eventually accepted the documents as an “offer of proof,” to be left to the State Commission to determine their value. However, Matthews said Monday after seeing the affidavits, which had now been signed by a notary and dated Nov. 23, 2014, that the affidavits amounted to “new evidence,” which cannot be entered in an appeal.
“I have received the appeal that was filed on behalf of Mr. Trapp,” Matthews said Monday, “which contains evidence and affidavits that were not presented in the first hearing, and in fact are dated Nov. 23.”
Regarding the S.C. Supreme Court case referenced in the appeal documents, Matthews said, “The Supreme Court has not had a case where electors were given the wrong ballot or where an elector was put in the wrong district.”
Trapp’s appeal documents also assert that the County Commission denied Trapp his “due process of law” because the Commission “rushed to a decision before Councilman Trapp could be present in person later that afternoon,” the documents state.
Woodard informed the Commission during the Nov. 17 hearing that Trapp was at work, but suggested he might be available later in the afternoon. The Commission then took a brief recess to allow Woodard to contact Trapp by phone to determine if he would indeed be arriving later in the day. When the Commission reconvened, however, Woodard told the Commission that Trapp was not, in fact, coming to the hearing.
The appeal will be heard by the State Election Commission Monday at 2 p.m. at 2221 Devine St., Columbia, in Suite 101. The appeal was filed on Trapp’s behalf by attorneys John C. Moylan III of Columbia and Wade S. Kolb III of Greenville.
