SC Election Commission Proposes Regulations That Hides Audit Reports, Violates FOIA

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We wanted to give you an update to the proposed regulations by the SEC, part of which dozens of concerned citizens attended the hearing for and testified against back in August. Please see below and the attachment as these regulations (as well as others that were proposed after the August hearing) are on the House schedule this coming Wednesday morning, 2/28/2024, at 9:00 am. 

One of these regulations (Document 5224, 45-8) violates SC FOIA law. This regulation states that “all records and audit workpapers of the State Election Commission’s auditing division, except for the auditing division’s final audit reports, are confidential and not subject to public disclosure.” If a person violates this regulation, that may be subject to a civil or a criminal penalty.

Why does the SEC want hide the audit process?* After this regulation was first promulgated, Palmetto State Watch submitted a FOIA request to the SEC for the 3 internal audits the agency had recently completed of Aiken, Beaufort, and Berkeley. Understandably, there were a few files pertaining to personnel records that the SEC informed us they would be unable to provide because they would violate FOIA. However, the entirety of the documents obtained (well over 400 documents, many with multiple pages) are subject to FOIA and contain no personal, proprietary, sensitive, etc. information.

Passing this regulation would allow the SEC to refuse to release a document that would otherwise be subject to public disclosure, simply because it was produced during an internal audit of a county office. The file we received from the FOIA is rather large, so if anyone is interested in reviewing it personally, please contact us at justice@palmettostatewatch.com and we will email you the zip file.

Sunshine Is the Best Disinfectant

Laura Scharr, of SC Safe Elections, states, “This regulation is shocking and unconstitutional. Given the LAC audit findings of the SEC audit if anything this agency needs more scrutiny. Elections are for the people by the people and in order to verify that our vote counted we need to be able to view audit reports and other documentation.” We have previously written about the ongoing lawsuit the SC Safe Elections group has filed against several counties and the State of SC for violating FOIA in regards to Cast Vote Records. Read about it here.

A recent Rasmussen poll indicated that 54% of Americans believe there will likely be cheating in the upcoming 2024 elections.

If anything, there should be more transparency in the process, not less. In addition to violating FOIA, this regulation potentially violates our SC Constitution, which states in Article II, Section 1: “All elections by the people shall be by secret ballot, but the ballots shall not be counted in secret.” (emphasis added) If any documents regarding the counting of our vote are included in this audit (of which there were many in the FOIA obtained by Palmetto State Watch), the SEC proposes to make them inaccessible to the public with this regulation.

*These audits are audits of the individual county elections offices, not the audits of the votes after an election. That is an entirely different type of audit, and not addressed in any of the proposed regulations. However, if any of those documents from a post-election audit were to be included in one of the SEC’s internal audits, it would preclude the public from then accessing that document.

Inflated Price of Voter Rolls

If you’ve ever attempted to purchase a copy of the statewide voter roll list in SC, you might have walked away with sticker shock. The cost to purchase the entire list, which is dynamic, one time is a staggering $2500! Not many can afford this. Nor should they be expected to, especially in a day and age when the information requested is easily put into Excel format and emailed. A process that takes minutes. We did an in-depth analysis of the cost of voter rolls in other states and South Carolina’s price was unreasonable by many standards, including South Carolina’s own State Procurement Regulations! In fact, the price is approximately 10x higher than what would be considered a reasonable price according to a subject matter expert we consulted during the review of this regulation.

Document 5193 (Regulation 45-2) purposes not only to codify the already-inflated price of voter rolls in South Carolina, but also justifies a further raising of the price of said rolls:

“(4)   The Executive Director may determine a reasonable price for voter registration lists by considering as factors: 

       (a)   Recouping the costs associated with running the Sale of Lists program. Costs include but are not limited to:

           (i)    Salary and benefits of all staff employed to implement and maintain the Sale of Lists program;

           (ii)   Costs of establishing, maintaining, and improving the statewide voter registration and election management system.”

Hold on. Isn’t maintaining the statewide voter rolls already part of the duties of the State Election Commission? According to 7-3-20(D)(4) it is:

“(D) The executive director shall:

(4) maintain a complete master file of all qualified electors by county and by precincts;”

What Can You Do?

If you are able to attend the subcommittee meeting tomorrow either to testify or support those testifying, please do so. If you plan on testifying, please email below up until the time of the meeting to be put on the list to testify. Alternately, you can submit written testimony to the same email address for the full committee to read as there will not be an option for the public to testify once they reach the full committee:

House Comm on Regulations and Admin Procedures Mailbox HCommRegAdmin@schouse.gov

You can contact the subcommittee members here.