CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 8/29/2023 1

Rushed Election to Fill a Vacancy 

Butler v. City of Columbia 

(Cameron McGowan Currie, D.S.C. 3:10-cv-794) 

When a city council member resigned, the city had to decide 

whether to follow the normal schedule for a replacement election or 

add the replacement election to an earlier city election already 

scheduled. The state’s supreme court determined that the replacement election should be on the earlier date. A retired law professor 

filed a pro se complaint claiming that the early election had not 

been precleared pursuant to section 5 of the Voting Rights Act. A 

three-judge district court enjoined the early election because it had 

not been precleared. 

Subject: Election dates. Topics: Section 5 preclearance; threejudge court; enjoining elections; pro se party; intervention. 

A member of the city council for Columbia, South Carolina, resigned on 

March 9, 2010.1 The city decided to depart from its normal timetable and add 

an election for the vacancy to a city election scheduled for April 6.2

 The city 

was faced with a choice between (1) giving candidates and voters, respectively, enough time to file and register and (2) ensuring that residents of the unrepresented district were not unrepresented during budget deliberations.3

South Carolina’s supreme court approved inclusion of an election for the vacated office in the April 6 election.4

On March 30, a retired law professor filed a pro se federal complaint alleging that the rushing of the vacancy election had not been precleared pursuant to section 5 of the Voting Rights Act.5

 She and her coplaintiffs sought a 

temporary restraining order6

 and a three-judge district court to hear the 

complaint.7

1. Denman v. City of Columbia, 387 S.C. 131, 691 S.E.2d 465, 466 (S.C. 2010); Opinion at 

2, Butler v. City of Columbia, No. 3:10-cv-794 (D.S.C. Apr. 5, 2010), D.E. 38, 2010 WL 

1372299; see Adam Beam, Columbia Sets District 2 Vote for April 6, Columbia State, Mar. 10, 

2010. 

2. Denman, 387 S.C. 131, 691 S.E.2d at 466; Opinion, supra note 1; see Beam, supra

note 1.

3. See Adam Beam, Judge Rules on Columbia Election, Columbia State, Mar. 19, 2010. 

4. Denman, 387 S.C. 131, 691 S.E.2d 465; see Adam Beam, Supreme Court Sets April 6 

Election Day, Columbia State, Mar. 24, 2010. 

5. Complaint, Butler, No. 3:10-cv-794 (D.S.C. Mar. 30, 2010), D.E. 1; see Voting Rights 

Act of 1965, Pub. L. No. 89-110, § 5, 79 Stat. 437, 439, as amended, 52 U.S.C. § 10304 (requiring preclearance of changes to voting procedures in jurisdictions with a certified history 

of discrimination and requiring that preclearance disputes be heard by a three-judge district 

court); see also Adam Beam, District 2 Election Back in Court, Columbia State, Mar. 31, 2010; 

Adam Beam, Law Prof Asks Judge to Halt Columbia Election, Columbia State, Mar. 30, 2010. 

6. Temporary-Restraining-Order Motion, Butler, No. 3:10-cv-794 (D.S.C. Mar. 30, 2010), 

D.E. 15. 

7. Motion, id. (Mar. 30, 2010), D.E. 5. 
Rushed Election to Fill a Vacancy 

2 Federal Judicial Center 8/29/2023 

The pro se plaintiff wished to proceed with three coplaintiffs represented 

by counsel.8

 Because court rules required attorneys to file documents electronically and required pro se parties to file documents traditionally, the pro 

se plaintiff filed her complaint traditionally and sought to join the other 

plaintiffs with notices of joinder.9

The court assigned the case to Judge Cameron McGowan Currie,10 who 

authorized the pro se plaintiff—an attorney licensed elsewhere—to appear 

pro hac vice without payment of fees and to receive service electronically but 

not to file electronically.11

On the following day, a voter moved to intervene in support of the defendant; he had prevailed in the state court lawsuit.12 The circuit’s chief judge 

named a three-judge panel,13 but amended the panel’s composition on the 

next day because of a schedule conflict.14

In matters before a three-judge district court, the original judge may issue interim orders.15 At a proceeding on Wednesday, March 31, Judge Currie 

granted joinder and intervention, deferred ruling on the temporary restraining order until Monday, and ordered the city to advise the Justice Department of the action.16

On Friday, after consultation with the other judges on the panel and with 

the consent of the parties, Judge Currie converted the motion for a temporary restraining order to a motion for a preliminary injunction, which the 

full panel would hear on Monday.17

The job of a section 5 three-judge court was clarified by the Supreme 

Court in Lopez v. Monterey County: determine (1) whether section 5 covers a 

contested change, (2) whether section 5’s approval requirements were satisfied, and (3) if the requirements were not satisfied, what temporary remedy, 

if any, is appropriate.18 After Monday’s evidentiary hearing, the court en8. Notices of Joinder, id. (Mar. 30, 2010), D.E. 4, 13. 

9. Id.; see D.S.C. ECF Policies and Procedures ¶¶ 2.1, 3.3 (May 12, 2006). 

10. Tim Reagan interviewed Judge Currie for this report by telephone on September 6, 

2012. 

11. Docket Sheet, Butler, No. 3:10-cv-794 (D.S.C. Mar. 30, 2010) (specifying that these 

decisions were not intended as precedents for future cases). 

12. Intervention Motion, id. (Mar. 31, 2010), D.E. 19. 

13. Order, id. (Mar. 31, 2010), D.E. 25. 

14. Order, id. (Apr. 1, 2010), D.E. 29. 

When there was time, it was Judge Currie’s practice to have her law clerks prepare a 

bench memorandum for the other two judges on the panel. Interview with Hon. Cameron 

McGowan Currie, Sept. 6, 2012. 

15. 28 U.S.C. § 2284(b)(3). 

16. Docket Sheet, supra note 11; see Adam Beam, Judge to Rule Monday if Election Can 

Proceed Tuesday, Columbia State, Apr. 1, 2010. 

17. Order, Butler, No. 3:10-cv-794 (D.S.C. Apr. 2, 2010), D.E. 33. 

Judge Currie advised other judges to seek a complete and accurate record of previous 

relevant preclearances. Interview with Hon. Cameron McGowan Currie, Sept. 6, 2012. 

18. 519 U.S. 9, 23 (1996). 
Rushed Election to Fill a Vacancy 

Federal Judicial Center 8/29/2023 3

joined the inclusion of the election for the unexpired city council seat in the 

scheduled city election, pending preclearance.19

A special election was held on July 13 following previously precleared 

procedures.20 A runoff election was held on July 27.21

On June 25, 2013, the Supreme Court declined to hold section 5 unconstitutional, but the Court did hold unconstitutional the criteria for which jurisdictions require section 5 preclearance.22

19. Opinion, supra note 1; see Adam Beam, Court: No District 2 Election Without Federal 

OK, Columbia State, Apr. 5, 2010. 

20. See Adam Beam, District 2 Election Will Be July 13, Columbia State, Apr. 7, 2010. 

21. See Adam Beam, Newman Tops Howard in District 2 Race, Columbia State, July 28, 

2010. 

22. Shelby County v. Holder, 570 U.S. 529 (2013).