Conducting a special election without permission from the U.S. Department of Justice puts the town of Atlantic Beach into a legal "no-man's land," leaving Tuesday's results vulnerable to challenge in federal court, experts and officials said.
In Tuesday's election - ordered last month by the state Supreme Court - Town Councilwoman Retha Pierce defeated suspended Mayor Irene Armstrong 47-34 in unofficial results. If it stands, Pierce's victory could end a battle that has played out on several town ballots and numerous court cases, allowing the town to choose a successor to her council seat and end the 2-2 voting splits that often paralyzed the town in 2008.
The special election on Tuesday, however, constituted a change to electoral procedure that should have been cleared ahead of time by the U.S. Department of Justice under the Voting Rights Act of 1965, said Scot Montrey, a spokesman for the department civil rights division. Even now that the election has been conducted, Pierce's victory remains subject to departmental approval.
The town can still request a sort of after-the-fact or retroactive permission for Tuesday's election, Montrey said. If Justice Department lawyers decide that the circumstances of the election do not violate federal law, the results can stand.
If a problem is found with the election - or if a private party such as an Atlantic Beach citizen has a problem with it - the whole election could end up in federal court, which could lead to yet another election, Montrey said. It would be rare for a town not to seek permission for its election at all, even retroactively, Montrey said, and he declined to comment on what will happen then.
"The way we enforce the law is dealing with preclearance submissions," Montrey said. When an issue arises, he added, "these things can go all kinds of ways."
Helen McFadden, a Kingstree-based lawyer who has represented the state Democratic Party in numerous Voting Rights Act cases, said the town's failure to get federal approval for the election puts it in a "no-man's land." Atlantic Beach should seek retroactive approval as soon as possible, she said.
"Even if in my opinion they did not need it, I would still advise them to do it," said McFadden, who represented Atlantic Beach Councilwoman Charlene Taylor and several others in an election battle at the state level in 2004 but is no longer involved in the town.
The specific change to the election that needed preclearance was the state Supreme Court's order removing a write-in blank from the ballot, according to the Justice Department. McFadden said she disagreed that the write-in issue constituted a change to the election, but she said there is "no doubt" the special-election date should have been cleared.
Getting retroactive preclearance might cost the town $3,000, she said; defending a lawsuit will cost about $15,000. Atlantic Beach town attorney Steve Benjamin of Columbia could not be reached for comment Wednesday.