South  Carolina  Election  Commission  November  18,  2015  meeting    Summary  Notes—Response  to  SCEC  letter  11/17/15  (attached)  Re:  Marilyn  Marks’s  Complaint  re:  10/20/15  election  (attached)    Request  for  Reconsideration    The  Commission’s  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  board’s  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 §7-3-25. 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. Jurisdiction—This 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. Standing—Marilyn 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 Marks’s 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 Commission’s 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 Marks’s “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 Fryar’s 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 Marks’s identification and contacted other law enforcement authorities asking for a review of Marks’s record using her Colorado driver’s 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 state’s criminal statutes. The complaint is being filed to request disciplinary and injunctive relief. Violations of Law 1. Article II, Section 1 of the state’s 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 board’s 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

marilynmarks

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Ballot counting room during Board meeting. 10.20.15 View from observer window. Several board members in attendance in room.

marilynmarks

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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 or-derly 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 isn’t 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 voter’s choice, other than the voter’s employer or