Final SC Democrat concedes Pee Dee area Senate race

COLUMBIA — Now-former state Sen. Gerald Malloy conceded Monday to Republican JD Chaplin, dropping his challenge of the results. Still, he continued to call on state election officials to further audit the process following inconsistencies in the vote count.

The Hartsville Democrat abandoned his protest the day before he was scheduled to argue his case to the state Election Commission. He was disputing the result after the counts on election night varied by almost 200 votes from those in a state-mandated recount.

His withdrawal of that challenge ends any possibility of a special election, which he had sought if an audit didn’t sufficiently resolve discrepancies.

Chaplin is expected to be among senators attending Wednesday’s post-election organizational session.

Malloy declined to comment Monday evening, referring the SC Daily Gazette to his withdrawal filing instead.

In it, he claimed the state Election Commission refused to make vote data available to his expert witness, a retired University of South Carolina computer science professor.

Chaplin led Malloy by 278 votes ahead of the Nov. 14 recount — a margin narrow enough to trigger an automatic recount.

Modern technology means recounts rarely alter the election numbers by much. This time, there was substantial difference in the recount of the roughly 50,000 votes cast in the district that spans five counties.

After all five 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.

Date set for SC senator’s challenge of his defeat, after his losing margin shrank

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.

At the same time, the Election Commission made its own examination.

In its report, the commission found the problem in Lee County came down to 360 test ballots being mistakenly counted in the early vote total on election night, then 288 ballots being accidentally scanned twice during the recount — once for early voting and again for Election Day voting. Ultimately, Chaplin won by 254 votes out of 49,312 cast, according to the agency’s findings.

Malloy’s legal team blasted the evaluation.

“In a remarkable feat of reverse engineering, the SEC used ballot images and cast vote records to look behind the secrecy curtains of our voting booths to try to justify its third re-tabulation of the Lee County vote counts,” Malloy’s lawyers claimed in withdrawal filings. “But then the SEC refused to let the most qualified expert in the State — even under the strictest protective order and for the expert’s eyes only — analyze the data used by the SEC in its evaluation to verify its evaluation and post-certification re-tabulation of the Lee County election results.”

For Malloy to win his challenge, he needed to prove that the results were in doubt to the point that they caused his loss.

Without that access, the lawyers argue, the results remain in question despite Malloy’s decision to concede.

“Trust but verify,” the withdrawal notice began, citing the late Republican President Ronald Reagan.

“The protest was over before it began. We were asked to trust but not verify. Under the circumstances, we cannot,” reads the filing’s opening paragraph.

South Carolina Republicans took a second victory lap.

“I’m glad to see former Senator Malloy agrees that it was finally time to listen to the will of the voters and concede the election,” SCGOP Chairman Drew McKissick said in a statement. “Republicans worked incredibly hard to take out a 22-year incumbent Democrat, and their hard work paid off!”

An appeal from the state Election Commission would have gone to the state Senate, since state law requires legislators to have the final ruling over election disputes involving their chamber. Such an extremely rare vote hasn’t happened in either chamber in decades.

And Malloy would have faced a new supermajority GOP chamber.

The loss of the Senate veteran means there will be just 12 Democrats remaining in the 46-member chamber. Eight of those Democrats had no Republican opposition.

Still, Malloy continued to call on the state to use his expert to analyze the election results and “require audits rigorous enough to ensure any potential tabulation errors are caught and corrected before certification” for future elections.

In a statement, Knapp, the state elections director, said his staff was diligent in its efforts to identify the cause of the irregularities. He said the agency could not release the records requested by Malloy because it is against the law to do so.

“The three largest concerns of the Commission during Senator Malloy’s protest were to ensure fairness in the voting process, accuracy in the counting of votes, and to protect the secrecy of the ballot,” Knapp said. “While state law does not grant the SEC the authority to hold county election offices or their boards accountable, the SEC will be further investigating the processes and actions that led to the irregularities found in the report. Now that we know what happened, we need to find out why it happened. The SEC is committed to utilizing all available resources to work with Lee County to ensure that the county adheres to all election laws, policies, and procedures in the future.”