South

Carolina Election Commission

November 18, 2015 meeting

Summary NotesResponse to SCEC letter 11/17/15 (attached)
Re: Marilyn Markss Complaint re: 10/20/15 election (attached)

Request for Reconsideration

The Commissions response to my complaint was transmitted after business hours,
16 hours before the November 17 meeting. As a result, this is an incomplete and
informal response. However, I am hereby requesting a reconsideration of the
boards decision and a hearing on the record.

1. Alleged suspicious activities in the parking lot. Given the public record
being produced, I request a retraction and full apology from the state and
county commissions of the comments alleging suspicious activities
purportedly on my part meriting a police escort. It is a preposterous and
damaging allegation.

a. I never entered the parking lot or even walked near it. I left the building
at 8:56 pm and walked directly and quickly to my car, entered it, and
locked the doors.
b. I turned on the dome lights and did not start the ignition and spent 8:57
to 8:59 preparing for a long drive home, changing to driving shoes,
resetting my GPS, and finding and taking an aspirin. I did not even glance
up to see surrounding activity until two police officers arrived at 9:00.
c. The police approached me, demanded my license and questioned me.
They refused to let me leave my car. They did NOT provide a police
escort for the staff from the building. When the police arrived, the staff
had already left the building and were standing near the parking lot
talking in a group about 200 feet from where I was parked.

I talked casually with several of the staff and commissioners during the
course of the evening as they moved in and out of the counting room. All
conversations other than those with Ms. Fryar were cordial, jovial and
professional. The exchanges with Ms. Fryar were purely professional and
non-threatening on my part.

The accusations of suspicious activity and need for police escort are
clearly fabricated in an attempt to discredit me and discourage other
observers. I am confident that those present that evening would testify under
oath that they experienced no fear caused by my presence, nor did they
observe any suspicious activity.

I request that this false and derogatory allegation be withdrawn and the
record reflect no such allegations.


2. Constitutional provisions violated. Article II Section 1 clearly states that the
ballots shall not be counted in secret. The ballots were clearly counted in
secret by staff and election commissioners on October 20. The public was
not permitted visual access to verify chain of custody, opening of the ballot
boxes or the tabulation process.

While administrative convenience weighs in favor of insiders tabulating the

ballots without onlookers or any interruption, the law (both the constitution
and applicable statute) recognizes the importance of transparency and
verifiability over speed, efficiency and convenience. Ballots may not be
counted in secret.

3. Improper determination that tabulation and ballot processing proceedings
could be seen and heard by public observers. I provided pictures and
personal statements that the proceedings could not be seen or heard except
on occasions when individuals exited the office, briefly opening the door, or
crossed in front of the window. Over 95% of the time, no person was visible
through the window into the boardroom while the board was conducting the
count.

I urge the commission to take sworn testimony on this matter. I am confident
that under oath staff and commissioners will acknowledge that the meeting
could not be visually observed or heard by public observers, even standing
inches from the window or door.
4. Closed meeting of a public body. The Sunshine Laws in South Carolina define
a public body meeting --(d) "Meeting" means the convening of a quorum of the
constituent membership of a public body, whether corporal or by means of
electronic equipment, to discuss or act upon a matter over which the public body
has supervision, control, jurisdiction or advisory power.

The work of the county election commission in processing and tabulating the
absentee ballots, and overseeing the security and delivery of the electronic ballots,
and their consolidation is clearly acting upon the matter over which they have
duties and jurisdiction. Important decisions and inquiries are made in these
meetings, as they were in Colleton on October 20. The label of the gathering of the
quorum is of no consequence. The failure to formally call the work a meeting does
not change the substance of the meeting content, or the fact that it is a meeting of a
public body under South Carolina law.

5. Inability to observe ballot counting compromises rights of campaigns. With high-
profile presidential primary elections on the immediate horizon, South Carolina
runs a significant risk of controversy if observers are blocked from ballot processing
and tabulation. The primaries are likely to be highly competitive and contentious
with demands made for the full transparency that the law allows.

Immediate changes are required in South Carolina to meet the fundamental promise
of the suffrage provisions of the state constitution.

I respectfully request that the state board undertake a formal reconsideration of the
above matters and all matters covered in the original complaint.


Marilyn Marks
Individually and also on behalf of Rocky Mountain Foundation

7035 Marching Duck Drive E504
Charlotte, NC 28210
970-404 2225


October 29, 2015
South Carolina Election Commission
Ms. Marci Andino, Executive Director
Via email (elections@elections.sc.gov)
Ms. Andino:
I am writing to follow up the complaint filed with your office on October 21,
2015 by Rocky Mountain Foundation and me. I have not received a response
to the complaint, although I did place a call to Mr. Whitmire of your office. I
note that Mr. Whitmire offered certain comments to the press for an article
that I have attached for your reference. I write to seek clarification of those
comments.
Mr. Whitmire apparently told the press that the complaint was not
considered a formal complaint, and therefore would not be reviewed by the
state commission. Please direct me to the guidelines that document the
requirements to file a formal complaint that is subject to review by the
commission. I request that this matter be taken up by the Commission in a
formal review.
Whitmire also reportedly stated that I misunderstand the Open Meetings
Laws in South Carolina claiming that the law does not apply if a formal
meeting has not been called. The law is clear that no meetings of a public
body such as the County Election Board may take place without a public
notice. No public business is to be conducted without such a noticed public
meeting. 7-15-420 provides that the election board is responsible for the
tabulation of absentee ballots. Absentee ballot tabulation and review is
certainly business of the board. 30-4-20(d) prohibits actions taken without a
properly noticed and conducted meeting of the board. If there is a statutory
exemption for election boards to undertake action in private, please provide
that reference. 7-13-1110 requires that the ballot box be publicly opened.
Article II, Section 1 of the South Carolina Constitution is clear that ballots
may not be counted in secret. Please explain what Commission believes to be
my misunderstanding of the law that requires public observation of ballot
counting conducted by the public board undertaking their statutory duties.
The clear intent of the constitutional provisions and the statutory provisions
are to permit the public to observe the ballot counting at a close enough range
to verify the accuracy of the count, and to file challenges if there are ineligible
absentee ballots or inaccurate tabulations. The reported example of the

public standing at one end of a counting room while tabulation happens at

the other does not satisfy the transparency requirements.
Apparently Ms. Fryar stated to the press, as well as to the county board, that
the State Election Commission has no jurisdiction over the County Board of
Elections. That is not my understanding referencing the provisions of 7-325. Please clarify. If Ms. Fryar is attempting to continue to obfuscate the
duties of the board, I reiterate my request for the consideration of her
removal or other appropriate disciplinary action.
Please note that she continued her disparaging remarks about me by stating
to the press that she was very fearful of me because of my actions. Any
witness to my visit would certainly report that I was in no way threatening or
menacing or anything less than professional in my demeanor. Her false
allegations are intended to discredit Rocky Mountain Foundation and me,
and should be investigated by the State Election Commission. It was
reported that Fryar stated that Upchurch observed every conversation we
had. I do not believe this to be true, particularly the conversation in which
Fryar left the counting room and came into the foyer and accused me of
dishonesty. I believe that Ms. Upchurch was not present during that
exchange.
Please let me know when this complaint will be considered by the
Commission. Also, please inform me what steps are being taken to ensure
that the municipal elections on Tuesday, November 3 will be fully
transparent to allow meaningful public observation of ballot counting.
Please provide a copy of this letter to each Commission member.
Thank you for your consideration. Please contact me with any questions or
need for additional information.

Marilyn Marks
7025 Marching Duck Drive E504
Charlotte, NC 28210
970 404 2225
Rocky Mountain Foundation
1550 Larimer Street #246
Denver, CO 80202
cc: Chris Whitmire (via email)

Angela Upchurch (via email)

Billy Way, Jr., Chair (via general dept. email)
Mark A. Benson (via general dept. email)
Marilyn Bowers (via general dept. email)
E. Allen Dawson (via general dept. email)
Nicole Spain White (via general dept. email

COMPLAINT REGARDING COLLETON COUNTY BOARD OF ELECTION ACTIONS

SENATE DISTRICT 45 SPECIAL ELECTION OCTOBER 20, 2015
October 21, 2015
Complainants: Rocky Mountain Foundation (a non-profit corporation)
Marilyn Marks (an individual)
Filed with: Marci Andino, Executive Director South Carolina State Election Commission;
South Carolina State Election Commission; Colleton County Board of Elections and
Voter Registration
Nature of Complaint Complaint concerns violations of South Carolina law regarding
public observation of election processing because public observation of the ballot
counting processes was improperly prohibited. Violations occurred in the Colleton
County Elections Office during the processing of absentee ballots and consolidation of
precinct tabulations. Violations of public meeting law governing meetings of the Colleton
County Election Board (County Board )occurred. This complaint also addresses the
attempts by Ms. Lynette Fryar, Chair of the County Board, to intimidate and harass
complainant Marilyn Marks (Marks) by knowingly filing a false report to a peace officer.
JurisdictionThis complaint is filed with the Executive Director of the State Election
Commission with respect to her duty to supervise the work of county boards under the
provisions of 7-3-20(c)(1). The complaint is also filed with the State Election
Commission (Commission), and the County Board. Complainants believe that the two
bodies share concurrent jurisdiction for the resolution of this matter.
StandingMarilyn Marks, an individual, is a resident of Colorado. Rocky Mountain
Foundation is a non-profit organization with members who are South Carolina electors.
Background of Complaint
Marks, as a member of the public, and in accordance with the policy established by the
state for election observers, visited several precinct polling places during the conduct of
the Senate District 45 October 20 election. Visited sites included polling places in
Colleton, Charleston and Hampton counties. In every polling place visited, full
transparency and public observation of the election process were gladly permitted and
encouraged by poll managers and clerks.
Ms. Angela Upchurch, Director of Voter Registration and Elections, provided helpful
precinct and election process information and told Marks that she was welcome to return
to the office for observation of the absentee ballot processing and final tabulations and
report preparation of the precinct data in the early evening, when members of the
County Board would convene to perform those duties. Upchurch assured Marks that she
would be able to see and hear all the activities and proceedings of the board. Marks
assumed that the meeting of the board members would be conducted under the open
meetings laws of the state. Marks returned to the Elections office at approximately
6:30pm and awaited the arrival of the board members and for them to commence their
duties. Marks met Ms. Lynette Fryar, (Fryar), Chair of the County Board, who informed
Marks that she would not be allowed to enter the room where the board members were

meeting privately to process the ballots and memory cards. Fryar became verbally
aggressive and accusatory toward Marks falsely claiming that Marks was changing your
story, every time you tell it about Markss statement that she did not represent a
candidate or anyone other than herself and the Rocky Mountain Foundation. Fryar
declared that Marks would not be allowed in the ballot counting room. Fyar and
Upchurch stated that no one is ever allowed in the ballot counting room other than staff
and board members. Presumably certified watchers are purportedly also not permitted
in the ballot counting room in Colleton.
Marks asked Fryar and Upchurch to reference the state law on the public observation of
the ballot counting process, and they refused. When Marks objected to being prohibited
from observing the process, Fryar responded, well, this [in the foyer] is where you are
going to observe tonight. Upchurch stated againthat no one is allowed in the room
other than board members. Marks asked to see the absentee ballot box opening by the
board and ballot processing and Upchurch and Fryar denied her request. Marks asked
Upchurch if she and Upchurch could speak to the Commissions office the following
morning to address the policy regarding transparency and Upchurch readily agreed, but
Fryar instructed Upchurch to inform Marks that the state Commission had no authority
over the County board.
Marks overheard Fryar inform other meeting participants that they did not have to deal
with Marks.
Marks remained outside the board meeting room attempting to see the processes and
hear the proceedings, but was only able to occasionally hear a few phrases and ballots
and processes were not visible through the glass except for scanning of the paper
ballots, approximately 10 feet away from the glass, making it impossible to observe,
witness or verify the ballots or machine counts. Marks informed Upchurch that she could
not observe the processes or hear the proceedings of the board, (a public body), but she
was still not permitted access to witness the proceedings and ballot counting.
It should be noted that there was ample space in the room to accommodate observers.
From the window looking into the room, no meeting participants could be seen, but
available areas of the room could be observed. (See Exhibits 1-2) The absentee ballot
box was opened in areas of the room that could not be seen from the windows.
Marks remained in the foyer and hallway of the Elections office attempting to observe
through the windows and reviewing machine tapes as they were posted in the hall. At
one point Fryar opened the door, addressed Marks accusing her of being dishonest
claiming that Marks should have disclosed that you are an attorney. Marks informed
Fryar that she is not an attorney, to which Fryar responded that Markss site
(presumably website) states that she is an attorney. Marks requested to see the
referenced website, given that she does not have a site, nor is she an attorney. Fryar
refused to respond, and refused to address the truth of the allegations, but attempted to
publicly discredit and intimidate Marks by making false allegations against her. Marks
could occasionally overhear various disparaging remarks about Marks made by Fryar
during the board meeting. Fryar presumably attempted to convince the board members
that Marks was an attorney and in some type of violation of professional ethics.
It should be noted that despite Fryars claims that no one except board members could
enter the room, numerous staff members entered at will, as did an advisor from another

county, his child, and numerous precinct poll workers. Clearly some citizens were given
access and others were denied access.
Marks wrote a note on her business card to attempt to set the record straight on the fact
that she is not an attorney, nor does she have a website. She asked the receptionist to
deliver the note to Fryar during a break or time that would not interrupt the proceedings
of the meeting.
When Fryar exited the building at the conclusion of the board meeting, Marks attempted
to speak to Fryar to address the allegations Fryar had made. Fryar stated that she was
not going to deal with Marks.
Marks remained in the hallway attempting to observe the processes and reviewed the
precinct tapes as they were intermittently posted, and exchanged pleasantries and
asked a few questions of members posting the results. She left the building at
approximately 8:55pm after obtaining a copy of the consolidated county totals, and
returned to her car parked in front of the elections office. Before Marks started the car,
two Walterboro police officers approached the car, requested Markss identification and
contacted other law enforcement authorities asking for a review of Markss record using
her Colorado drivers license number. The police officers reported that they had
received a report that Marks had created a disturbance in the elections office. Marks
requested that she be allowed to leave her car and walk with the police officers to talk
with Ms. Upchurch whom they were going to talk with. The police officers would not
allow Marks to leave her car. They stated that Fryar and others were meeting with
Upchurch in the parking area, and they would not allow Marks to approach them to
inquire about the police complaint. Such actions by members of public County Board
should not be tolerated. False reporting of a crime to a peace officer is also in violation
of the states criminal statutes.
The complaint is being filed to request disciplinary and injunctive relief.
Violations of Law
1. Article II, Section 1 of the states constitution is clear
All elections by the people shall be by secret ballot, but the ballots shall not be
counted in secret.
2. SC Code 7-13-1110 require the public opening of the ballot boxes and public
counting of the ballots.
The Poll Managers handbook page 27 clearly reinforces this requirement by instructing
officials to permit observers to observe the public process. (Exhibit 3)
The boards absentee ballot counting process took place amid protest behind closed
doors between 6:30 p.m. and 9 p.m.
3. SC Code 30-4-60 requires meetings of the County Board to be open to the public.
The meeting of members of the board on election night was closed to the public.

4. Although filing of false reports of crimes is outside the jurisdiction of the Commission
and the Board, these governing bodies should address the unacceptable policy of such
improper attempts to intimidate an election observer.
Relief requested
Injunctive relief as provided in 7-3-25 is requested to prevent future failures of election
transparency. Marks and Rocky Mountain Foundation are requesting that the
Commission and Board publish written policies making clear that observers and
watchers may witness and observe the counting, tabulation and ballot processing
activities of the board. The observation must be allowed at a close enough distance to
provide visual access and the meaningful ability to challenge any discrepancies or
irregularities.
Marks requests that the Executive Director of the Commission consider disciplinary
action against, including the potential removal of, Ms. Fryar from the County Board for
her knowing and willful violations of law and her unprofessional behavior in her official
duties. Such authority has been granted under 7-3-25(C).
The information contained in this complaint is true and correct.
Please provide copies to all State Election Commission members and Colleton County
Board of Elections members.

Marilyn Marks
Contact Information
Marilyn Marks
(Temp) 7035 Marching Duck Drive E 504
Charlotte, NC 28210
970 404 2225
Marilyn@AspenOffice.com
Rocky Mountain Foundation
1550 Larimer Street, #246
Denver, CO 80202
970 404 2225

CC:
Angela Upchurch (aupchurch@colletoncounty.org)
Marci Andino (elections@elections.sc.gov)
Chris Whitmire (cwhitmi@elections.sc.gov)
County Administration (mchaplin@colletoncounty.org)
Legislative Delegation and Appointment authority(via legislative website)
Senator Chip Campsen

Senator Brad Hutto

Senator John Matthews
Representative Justin Bamberg
Representative Robert Brown
Representative Kenneth Hodges
Representative Patsy Knight
Governor Nikki Haley governor@govoepp.state.sc.us

Ballot counting room during Board meeting. 10.20.15

View from observer window.
Several board members in attendance in room.

View of optical scanner ballot processing from observer window.

Election Day Issues

27

manner. Watchers who are disorderly or unruly may be removed from the polling place. (7-13-140,
7-13-860, 7-13-130)
The voter registration list is a matter of public record. Under supervision of the poll managers, poll
watchers should be allowed to look at the list as long as it does not interfere with or disrupt the orderly voting process.
To be more knowledgeable about election day procedures, poll watchers may want to attend poll
manager training conducted by the county election commission. Special poll watchers training may
also be available.

Challenges by Watchers and Electors

1. If the watcher desires to challenge a voter, he must address himself to a manager and not to the
voter.
2. The manager should then follow the procedure outlined in the preceding section entitled Voter
Qualification Challenge Procedure.

Observers
Since elections are a public process, anyone should be allowed to observe under certain conditions.
Any member of the public in a polling place who isnt performing a specific role (manager, voter,
watcher, etc) is considered an observer. Observers may stay inside polling place if they do not talk to
voters or interfere with the election process. Because of a polling place size, observers may be limited
in number. Observers, as with anyone inside the polling place, may not display any type of campaign
literature including a badge or item of clothing. Observers must conduct themselves in an orderly
manner. Observers who are disorderly or unruly may be removed from the polling place (7-13-140).

Assistance to Voters
Generally, no one except a voter preparing his ballot is allowed within five feet of the voting booth.
However, voters with disabilities and voters who are blind, have low vision and voters who are unable
to read or write may receive assistance in voting (7-13-780).
Section 208 of the 1965 Voting Rights Act, as amended, states:
Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or
write may be given assistance by a person of the voters choice, other than the voters employer or