COLUMBIA – Three federal judges are set Monday to consider an attorney’s argument that South Carolina’s decision to send partial ballots to overseas voters was a violation of federal election law.

The panel meeting in Columbia is reviewing motions from Todd Kincannon, a Columbia attorney who has said the state Election Commission was in violation of the Voting Rights Act when it opted to send ballots with only federal races on them to military and overseas voters, leaving off local races.

Commission attorneys have said Justice Department officials knew about the decision to send the federal-only ballots to military and overseas voters and said the decision to send them didn’t run counter to federal requirements.

Not only have election officials not broken the law, the Commission’s attorney wrote, “they have complied with the practice that has been followed since 2006 by allowing the overseas voters the opportunity to receive their federal primary ballots and the State and local primary ballots at the same time.”

Kincannon had also asked Currie to delay the June 12 election to allow time for his arguments that election officials broke federal law that requires them to send ballots overseas by 45 days before an election, to ensure military service members’ votes are counted. He represents state Senate candidate Amanda Somers, a Republican who said her candidacy was thrown into question after state Supreme Court justices ruled that financial- and candidate-intent paperwork must be filed simultaneously.

That decision led the state Democrat and Republican parties to cull their candidate lists, eliminating nearly 200 names of candidates who hadn’t adhered to the rule. Somers was ultimately allowed on the June 12 ballot, causing a federal judge considering her case to question her ability to sue – and leading to Kincannon’s decision to drop that part of his case. His suit now focuses solely on the federal ballots issue.

There had been another candidate who could have pursued those claims. But on Friday, Edgefield state Senate candidate John Pettigrew withdrew from the case.

So the issue before the three-judge panel will be whether federal and local races must be sent on a single ballot. If so, the primary could be delayed to either send a single ballot that allows a 45-day window or ask the Justice Department to approve of separate ballots.

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In court papers filed Monday, the Election Commission reported that, statewide, 568 overseas and military ballots had been requested.

South Carolina must get preclearance from the Justice Department for election law changes, per the 1965 Voting Rights Act, due to the state’s prior history of disenfranchising black voters.

State lawmakers’ efforts to sort out the issue were stymied last week. State senators failed to advance a measure that would have, retroactively, re-certified candidates who had filed their paperwork by April 20, including a five-day grace period – thereby reinstating 95 percent of candidates tossed from the ballots.

That measure would have required Justice Department approval, and even supporters said the primary’s timing made that unlikely.

Kinnard can be reached at