Scoppe: Courting trouble

Associate EditorSeptember 2, 2012 

STROM Thurmond didn’t seem to have a prayer when he launched a quixotic write-in campaign for the U.S. Senate in 1954. Voters had rejected his traditional candidacy just four years earlier, and no one in the history of the republic had ever made it into that most exclusive gentleman’s club through such an unorthodox method. (Only one other person has since.)

Yet resentment was so deep over the decision by the executive committee of the state Democratic Party to hand-pick state Sen. Edgar Brown as successor to the just-deceased U.S. Sen. Burnet Maybank and Mr. Thurmond was still a popular enough figure that 143,442 voters wrote in his name, launching a legendary Senate career.

Nearly six decades later, his youngest son, Paul, could join the S.C. Senate via the same long-shot method.

Or at least that’s the way Mr. Thurmond should join the Senate, if he is to do so.

The way he should not join is for the courts to force the state to conduct a do-over primary for the Republican Party, for which it opened filing on Tuesday and for which I can find absolutely no legal justification.

Of all the lawsuits that have been spawned by the state Supreme Court’s Anderson v. S.C. Election Commission decision throwing 250 state and local candidates off the ballot, none has the potential to do more mischief than Mr. Thurmond’s.

In the short term, it would make it impossible for the courts to maintain any credibility unless they ordered new primaries in countless other races where all of one party’s candidates were stricken from the ballot. That, in turn, could throw the November elections into disarray.

Longer term, it would, as the attorney general’s office explained in an advisory ruling, thwart the intention of a well-known law that has been on the books for 60 years that bars political parties from replacing their nominees unless they die, are disqualified or withdraw for valid non-political reasons.

The younger Mr. Thurmond was one of five Republicans who filed for the Charleston County Senate seat vacated by President Pro Tem Glenn McConnell when he succeeded convicted former Lt. Gov. Ken Ard. All the other candidates were removed from the ballot because they didn’t file paper versions of their economic-disclosure reports when they filed to run, so Mr. Thurmond was declared the nominee.

But Mr. Thurmond didn’t file his disclosure either, so if the Republican Party had been doing its job, it would have had no candidate on the ballot. A local Democrat filed suit, and last month Circuit Judge Ernest Kinard appropriately tossed Mr. Thurmond off the ballot. But in a bizarre twist, he said the party could re-open filing, at a cost to the taxpayers of $20,000, and that nothing barred Mr. Thurmond from filing.

The state Election Commission, understandably, freaked. It had been telling Democrats they couldn’t reopen filing under similar circumstances, so the order created different standards for the parties. Further, the commission is required by federal law to send out overseas ballots by Sept. 22, which won’t be possible if a new Republican primary is held Sept. 18; violating that law, the commission said in asking the Supreme Court to rule quickly in the case, could trigger Justice Department intervention, which could force the state to delay the elections.

(The court hasn’t said whether it will take the case, but it did agree to lift an automatic stay and let the GOP reopen filing, a move that could simply mean it is holding all its options open, since there wouldn’t be time to have a primary if the court later allowed it.)

In his ruling, Judge Kinard deemed Mr. Thurmond’s decertification to be a “disqualification,” which might make sense if not for the fact that the Supreme Court had gone so far out of its way to make it clear that candidates who didn’t file their paperwork had never been “candidates” at all. Therefore, the attorney general’s office reasoned, they could not be “disqualified.”

It’s striking that Judge Kinard didn’t even quote from the law that was the ostensible basis for allowing the do-over primary. Instead, he cited “the inherent power of this Court to do all things reasonably necessary to ensure that just results are reached to the fullest extent possible.”

A reading hint for court orders: When a judge starts speaking of “inherent power,” beware. It suggests that no statutory or constitutional power exists to justify his decision.

Also striking is the contrast between Judge Kinard’s ends-justify-the-means approach and the Supreme Court’s order that set off the ballot fiasco. The court made it clear that it didn’t like what it was doing. It simply saw no way to ignore the clear and unambiguous law that required the paper reports.

If there were a time for the courts to worry about what is “just” rather than what the law requires — and I don’t believe there ever is such a time — it was when the original case was decided. Having not found a way to do that, how in the world could the justices possibly just grab ahold of Judge Kinard’s handy-dandy little “inherent power” argument and create one special set of rules to one special candidate?

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571.

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