Sen. Gerald Malloy, D-Hartsville, talks during a South Carolina Senate Judiciary Committee meeting in Columbia, S.C. on Tuesday, March 15, 2022. (Travis Bell/STATEHOUSE CAROLINA/Special to the SC Daily Gazette)
COLUMBIA — State Sen. Gerald Malloy is scheduled to appear Dec. 3 before the South Carolina Election Commission to challenge the results of his slim loss to Republican JD Chaplin following inconsistencies in the vote count.
The Hartsville Democrat, a 22-year veteran of the Senate, filed the protest this week after a mandatory recount revealed what state election officials referred to as concerning discrepancies between election night and recount ballot numbers.
Chaplin led Malloy by 278 votes ahead of the Nov. 14 recount — a margin already narrow enough to trigger an automatic recount. Due to the technology of modern elections, recounts don’t generally alter the numbers by much, if at all. But there was a relatively substantial difference this time in the recount of roughly 50,000 votes in a district that spans five counties.
After all counties rescanned ballots and reported the new results, the Republican’s lead shrank to just 87 votes. Malloy picked up 51 votes in the largely rural Pee Dee district and Chaplin lost 140 votes.
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The vast majority of those changes came from rural Lee County — population 16,000 — which prompted a letter from the state’s election chief, Howard Knapp, seeking an explanation.
In Malloy’s challenge, his legal team is demanding an audit of how the results were calculated, including a forensic audit of the county’s voting machines.
If the audit results don’t settle the matter, they are calling for a new election.
“There are a lot of wrong ways to do things right, but there is no right way to do things wrong. The results in Senate District 29 are wrong,” Malloy’s attorneys wrote.
The legal team, which includes a former candidate for state Attorney General, a former U.S. Attorney, the son of Senate Minority Leader Brad Hutto and Malloy’s own son, called the varying vote counts “unprecedented.”
In the 18 state and congressional level recounts held in South Carolina over the past decade, ballot numbers changed by a total of just 24 votes, the lawyers wrote. In Malloy’s Senate contest, the vote changes were 14 times that.
“Election integrity and accuracy are the cornerstones of democracy,” Malloy said in a statement after filing his challenge Tuesday. “It is imperative to understand what happened here because every voter deserves to know their vote is counted fairly and accurately.”
Chaplin and the state Republican Party dismissed Malloy’s claims, with state GOP Chairman Drew McKissick calling him a “sore loser.”
McKissick, who has celebrated the flip of four Senate seats to the GOP, stressed that other Democrats conceded with an even slimmer margin.
That would include one other Democrat incumbent in the Senate. Mike Fanning, D-Great Falls, conceded ahead of the automatic recount for his district, despite losing by less than 30 votes among almost 56,000 cast.
But even ahead of Malloy filing a challenge, state election officials were seeking answers from Lee County.
“It is imperative that these concerns are addressed promptly and thoroughly to ensure public confidence in the electoral process,” Knapp wrote Monday in the commission’s request.
State election officials are still searching for the source of the varying numbers and are trying to make sense of the explanation it received late Thursday from Lee County’s election board.
In its response, Lee County officials said a number of test ballots were inadvertently included in the election night count, after workers failed to wipe the test votes from their system before voters started casting ballots.
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“That’s the only way to explain the irregularities between election night and the recount, wrote board chairperson Deloris LeGrant.
Malloy, in his challenge, also alleged early voting ballots were improperly included in the count of who voted on Election Day.
While these issues may explain why there were fewer ballots in the recount results than the numbers from election night, the question remains how Malloy actually gained more than 50 votes in the recount compared to election night.
Lee County’s election director did not immediately respond to messages left by the SC Daily Gazette.
Still, in his challenge, Malloy must prove that the results are in doubt to the point that they caused his loss.
This is not Malloy’s first time taking part in this type of appeal.
In 2020, he was the lawyer defending Sen. Karl Allen, D-Greenville, in his re-election win challenged by Republican Jack Logan. The margin in that race was not nearly as narrow, with Allen taking 63% of the vote to Logan’s 37%.
If Malloy’s team disagrees with the election commission’s actions at the Dec. 3 hearing, he could appeal to his colleagues in the Senate, which gained a supermajority of Republicans with the election. By law, the South Carolina Supreme Court settles election appeals for all state and federal officeholders except state legislators.
The chamber is holding an organizational session Dec. 4 to make committee assignments and elect their leaders. The Senate already has Chaplin on the Statehouse website and Malloy as a former senator.