The State Election Commission filed an emergency petition with the S.C. Supreme Court Monday asking for relief from a lawsuit over the 7th District Democratic primary and a restraining order that prohibits the Commission from preparing or distributing election materials for the Republican runoff as well.

“The real concern is that voters are going in to participate in the Republican (runoff) and they can’t give them absentee ballots,” Marci Andino, executive director of the Election Commission said late Monday afternoon.

She said the Commission’s filing was seeking a ruling without a hearing, but that she had received no word that one had been issued by 5 p.m.

Debbie Hopkins of the Supreme Court clerk’s office said earlier Monday that the Commission’s filing was “under consideration by the Court but nothing has been decided yet.”

Campaign managers for the two Democratic candidates in a potential Democratic runoff said they had heard of the Election Commission filing, but had no immediate comment.

The lawsuit, filed last week by Conway attorney Morgan Martin, maintains that the Election Commission miscounted votes from the June 12 primary. The Commission did not include approximately 2,300 votes cast for withdrawn candidate Ted Vick in determining that Gloria Tinubu had received 52 percent of the votes and therefore was the winner of the contest, the lawsuit says.

Had Vick’s votes been added to the total, the lawsuit says, Tinubu would not have emerged from the night with 50 percent of the vote, and therefore a runoff between her and Preston Brittain was required.

Martin got a judge to approve the temporary restraining order that prohibits the Election Commission from preparing or distributing electronic voting machines or other election materials before a hearing on the lawsuit.

That hearing has been scheduled for 9:30 a.m. Thursday at the Georgetown County Courthouse, but the Election Commission hopes to have the matter resolved by the Supreme Court no later than Tuesday.

The Election Commission maintains that the lawsuit errs in assuming that Ted Vick was a candidate under state law just because his name appeared on ballots.

Vick withdrew two weeks prior to the June 12 vote and therefore was no longer a candidate. The Election Commission said there was not time to get Vick’s name off the ballot before the June 12 vote. State law says that all votes for all candidates must be counted in determining a winner or the necessity of a runoff.

Since Vick was not a candidate, his votes were rightfully not counted, the Commission maintains.

In its filing with the Supreme Court Monday, the Commission infers that to consider Vick’s votes the same as a write-in votes would be considered has no bearing as state law makes no provision for write-in votes in primary elections.

Further, the filing says the lawsuit did not enumerate any ways in which the defendants -- Donnie McBride and Vincent Masterpaul -- were injured by the way votes were counted nor even provide proof that they were registered voters in South Carolina, and therefore the lawsuit should be dismissed.

“Finally,” the filing read, “to determine that the General Assembly intended for the votes for a candidate who had withdrawn from a race had to be counted would certainly reach an absurd result if there were three candidates for an office on the primary ballot and one withdrew prior to the election.”

In that case, the filing said, votes cast for the withdrawn candidate could force a runoff “for the only two candidates that could be nominated and the two that had already been through the election process.”

The lawsuit concluded that not granting the Election Commission emergency relief could disenfranchise Republican voters who wanted to cast absentee ballots for the June 26 runoff between Andre Bauer and Tom Rice.

The disenfranchisement of voters is the same argument the lawsuit used in insisting that Vick’s votes be included in the June 12 total, which would then force a Democratic runoff.

Contact STEVE JONES at 444-1765.