Lawsuit Challenges Kimpson’s Election as State Senator

October 21, 2013

Investigative Reports

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Sen. Marlon KimpsonA state law at the center of a controversial court ruling that kicked about 250 candidates statewide off last year’s primary ballot is once again the basis of a legal challenge – this time the special election this month to fill the Senate seat formerly held by Robert Ford.

A lawsuit filed on Sept. 26 contends that Democrat Marlon Kimpson, who won the Oct. 1 special election for the Charleston-area seat with nearly 80 percent of the vote, and Republican challenger Billy Shuman Jr. violated a state law by listing the year “2013” on their required income-disclosure form, known as a statement of economic interests (SEI), instead of “2012.”

(The state’s income-disclosure law applies to government, not private, income sources, as The Nerve has repeatedly pointed out. The South Carolina Policy Council – The Nerve’s parent organization – in April launched “Project Conflict Watch” to persuade officials to voluntarily disclose their private income sources.)

The other declared challenger in the Oct. 1 special election, Alexandra Thornton, a Libertarian who garnered just 1.2 percent of the vote, correctly filled out the SEI and should be declared the winner if the lawsuit is successful, according to Jeremy Walters, a Fort Mill carpenter and the York County Libertarian Party chairman, who filed the suit without an attorney.

The law in question (Section 8-13-1356 of the S.C. Code of Laws) requires political candidates – excluding incumbents – to file their SEIs “for the preceding calendar year at the same time and with the same official with whom the candidate files a declaration of candidacy or petition for nomination.”

The law states that if the SEI is not filed with the candidate’s respective political party and if the candidate’s name “inadvertently” appears on the ballot, the political party official authorized to receive the candidate’s paperwork “must not certify the candidate subsequent to the election.”

“I didn’t make the rules,” Walters, who lost to state Rep. Raye Felder, R-York, in the November general election, when contacted Friday by The Nerve. “If it were me who filed my paperwork incorrectly, those bastards would have me off the ballot so freakin’ fast.”

The same law was at the center of a May 2012 ruling by the S.C. Supreme Court, though a different issue was involved. In that case, the court ruled that candidates, excluding incumbents, who filed their SEIs electronically with the State Ethics Commission were not exempt from filing a copy of their SEI with their candidacy declaration to their respective political parties, as required by Section 8-13-1356. Those who didn’t submit their SEI at the same they filed their candidacy declaration had to be removed from the primary election ballot, the justices unanimously said.

That forced approximately 250 affected candidates statewide to decide whether to run as petition or write-in candidates in the November general election. In state legislative races, Felder, a Republican petition candidate, beat Walters by about 6 percentage points for a York County House seat; while Republican petition candidate Katrina Shealy defeated longtime Sen. Jake Knotts, R-Lexington, whom critics accused of being behind the lawsuit that led to the candidates’ ouster, by about 7.5 percentage points.

After public outcry contending that incumbents had given themselves an advantage over challengers, lawmakers this year amended the election law to streamline the process. But Walters told The Nerve that State Election Commission spokesman Chris Whitmire informed him before the Oct. 1 special election for Ford’s seat that the change in state law had not yet taken effect, and that the candidates would be covered by the earlier version of the statute.

The amended law (S. 2, Act 61) was signed by Gov. Nikki Haley on June 13, but it specifies it won’t take effect until receiving approval from the U.S. Department of Justice or the U.S. District Court for the District of Columbia. South Carolina is one of nine states that must seek federal “preclearance” before election law changes can be implemented, though the U.S. Supreme Court in June ruled that the formula used in the federal Voting Rights Act for determining preclearance was unconstitutional.

Besides Kimpson and Shuman, the State Election Commission also is named as a defendant in Walters’ suit, which was filed in the 5th Circuit Court in Columbia, where the commission is based.

Kimpson served as the Election Commission chairman during Democrat Gov. Jim Hodges’ administration. A lawyer at the Motley Rice law firm in Mt. Pleasant, he was sworn in earlier this month to succeed Ford, a Democrat who resigned his 20-year Senate seat in May amid a Senate Ethics Committee hearing into allegations that he used his campaign funds for personal expenses, as reported then by The Nerve.

Kimpson and Shuman did not return phone messages Friday from The Nerve. Whitmire was out of the office Friday, according to a voice message, and could not be reached for comment. None of the defendants has filed a response to the suit.

Senate Ethics Committee lawyer Lyn Odom told The Nerve when contacted Friday that he was aware of Walters’ suit, but he declined to discuss specifics, referring questions to Sen. Luke Rankin, R-Horry and the committee chairman. Rankin did not return a phone message from The Nerve.

Under state law, the Senate and House ethics committees police their own respective members and candidates for complying with campaign-reporting and income-disclosure requirements.

Walters said before he filed his lawsuit, Whitmire informed him that he needed to contact the Charleston County GOP and Democratic party chairmen to request that Kimpson and Shuman be removed from the special election ballot. He said he filed the suit after both chairmen declined his request.

To Walters, who helped push for a child-custody reform bill that became law last year, putting the wrong year on an SEI form is more than just a technical violation. As a comparison, he said it would be like taxpayers trying to fill out their 2013 income tax returns that were due in April based on income earned and taxes paid from January through March of this year, instead of calendar year 2012.

Walters’ suit asks a jury to order that the names of Kimpson and Shuman be removed from the special election ballot. He told The Nerve that given that the election already has occurred, he wants the election results thrown out, and Kimpson and Shuman disqualified.

The amended law signed by Haley in June requires political party candidates, including incumbents, to file their SEIs electronically “for the preceding calendar year” before the close of filing “for the particular office.” Candidates who don’t meet the deadline face a civil fine but can remain on the ballot.

Asked why his suit requests a jury trial instead of letting a judge decide the case, Walters said he believes the Legislature’s control over electing judges would pressure the judge assigned to his case not to treat a third-party candidate fairly.

“I’m in favor of the law being upheld,” Walters said.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org. Follow him on Twitter @thenerve_rick. Follow The Nerve on Facebook and Twitter @thenervesc.