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Motion for Emergency Temporary Restraining Order

Motion for Emergency Temporary Restraining Order

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Published by The State Newspaper

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Published by: The State Newspaper on Jun 11, 2012
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UNITED STATES DISTRICT COURTDISTRICT OF SOUTH CAROLINACOLUMBIA DIVISION
Ann Smith, Tommie Reece, John ) C.A. No: 3:12-CV-____________ Pettigrew, Bob Shirley, Robert Tinsley, )and others similarly situated, )
MOTION AND MEMORANDUM
Plaintiffs, )
FOR AN
ex parte
EMERGENCY
 )
TEMPORARY RESTRAINING
v. )
ORDER AND PERMANENT
 )
INJUNCTION
 The State of South Carolina State Election )Commission and the State of South Carolina,)Defendant. )
 __________________________________ 
)
 
Plaintiffs, appearing before this Honorable Court, would respectfully move pursuant to FRCP 65 for an
ex parte
Temporary Restraining Order:1)
 
Staying the immediate and permanent enforcement of 
 Anderson et al. v.South Carolina Election Commission et al.
, Slip Opinion number 27120,2012 S.C. LEXIS 100, filed May 2, 2012 (S.C. Sup. Ct) and
rehearing 
2012S.C. LEXIS 99 decided May 3, 2012 (S.C. Sup. Ct.), and
 Florence County Democratic Party et al. v. Florence County Republican Party et. al 
, SlipOpinion No. 27128, 2012 S.C. LEXIS 116, June 5, 2012 (S.C. Sup. Ct); and2)
 
Temporarily restraining Defendants and requiring that they either a) returnPlaintiffs’ names (and those similarly situated) to the ballots for the primariesto be held on Tuesday, June 12, 2012; or b) postpone the primaries scheduledfor Tuesday, June 12, 2012 pending resolution of this matter by this Court.
I. Background/Facts
Plaintiffs are a collection of individual Democratic and Republican candidates,who on behalf of themselves and other similarly situated, are seeking this Court’s relief 
3:12-cv-01543-CMC Date Filed 06/11/12 Entry Number 4 Page 1 of 20
1543-CMC
 
Page 2 of 20 because they were “decertified” as candidates and removed from their respective primary ballots following three recent decisions from the South Carolina Supreme Court
1
 Plaintiff Ann Smith (hereinafter referred to as Plaintiff Smith) is a citizen andresident of Anderson County and was a candidate for Anderson County Council DistrictSix (6) for the Republican nomination. The Anderson County Council District Six (6)seat is currently held by Ken Waters. Plaintiff Smith was advised by her AndersonCounty Republican Party Chairman (Dan Harvell) that her candidate paperwork would bein order so long as all her documents were received by the local party and filed with theState of South Carolina by noon on the 30
th
of March, 2012. On that date, Plaintiff Smithtendered her “Statement of Intention of Candidacy” (SIC) in person to Mr. Harvell,which was hand-receipted by him at 11:31 a.m. on 3/30/2012. (
See Exhibit A to theComplaint
).
 
Immediately thereafter, Mr. Harvell assisted Plaintiff Smith in completingher electronic filing of her “Statement of Economic Interests Report,” (SEI) which wasconfirmed as received by the South Carolina Ethics Commission at 11:41:50 a.m. (
SeeExhibit B to the Complaint
) i.e. ten minutes after her SIC was physically received byHarvell. As Plaintiff Smith was leaving the Anderson County Republican PartyHeadquarters, her opponent, incumbent Ken Waters, entered the offices to file his SIC.Importantly, Mr. Waters was considered “exempt” from S.C. Code Ann. § 8-13-1356
1
 
 Anderson et al. v. South Carolina Election Commission et al.
, Slip Opinionnumber 27120, 2012 S.C. LEXIS 100, filed May 2, 2012 (S.C. Sup. Ct) and
rehearing 
2012 S.C. LEXIS 99 decided May 3, 2012, and
 Florence County Democratic Party et al.v. Florence County Republican Party et. al 
, Slip Opinion No. 27128, 2012 S.C. LEXIS116, June 5, 2012 (S.C. Sup. Ct).
3:12-cv-01543-CMC Date Filed 06/11/12 Entry Number 4 Page 2 of 20
 
Page 3 of 20(Supp. 2011), as interpreted by the South Carolina Supreme Court in
 Anderson v. S.C. Election Comm'n
, Op. No. 27120 (S.C. Sup. Ct. filed May 2, 2012), and was not requiredto simultaneously file an SEI at the filing of his SIC as was Plaintiff Smith. After theSouth Carolina Supreme Court’s decision in the case of 
 Anderson v. S.C. ElectionComm'n
, Op. No. 27120 (S.C. Sup. Ct. filed May 2, 2012), Plaintiff Smith was recertified by the Anderson County Republican Party as eligible to remain on the ballot because shewas deemed to have met the standard of “S.C. Code Ann. § 8-13-1356, which providesthat ‘[a] candidate must file a statement of economic interests for the preceding calendar year at the same time and with the same official with whom the candidate files adeclaration of candidacy or petition for nomination’.” However, after the South CarolinaSupreme Court’s subsequent decision in the case of 
 Florence County Democratic Partyet al. v. Florence County Republican Party et. al 
, (S.C. Sup. Ct. filed June 5, 2012), andas a result of a rehearing request in the case of 
 Anderson v. S.C. Election Comm'n
, Op. No. 27120 (S.C. Sup. Ct. filed May 2, 2012), the South Carolina Supreme Courtdetermined that the only method for non-exempt individuals to comply with the Court’sinterpretation of S.C. Code Ann. § 8-13-1356 was to have filed a
paper
copy of an SEI.This requirement is found nowhere in the text of the statute, but, rather, was the result of the common law interpretation by the South Carolina Supreme Court. Accordingly, onJune 7, 2012, Plaintiff Smith was decertified and removed from the ballot.Plaintiff Tommie Reece (hereinafter referred to as Plaintiff Reece) is a citizen andresident of Greenville County and was a candidate for State Senate District Six (6), whichcovers the Northwestern portion of Greenville County. Plaintiff Reece currently sits onthe School Board for Greenville County and had a 2011 SEI already on file pursuant to
3:12-cv-01543-CMC Date Filed 06/11/12 Entry Number 4 Page 3 of 20

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