Scoppe: Constitution, schmonstitution; we’re SC legislators

Associate EditorDecember 5, 2012 

IT’S NO surprise that Richland County legislators are ignoring the attorney general’s opinion that says they don’t have the power to fire county Elections Director Lillian McBride. After all, they ignored a long string of attorney general’s opinions — and, more significantly, the Supreme Court rulings on which those opinions were based — when they passed the law last year that gave themselves the power to hire her, but not to fire her.

The problem is that laws that affect only one county are prohibited by the state constitution. That provision was adopted at the same time the Legislature created county councils, as a way of making it clear that it was no longer legislators’ job to run their counties.

There is nothing ambiguous about the provision in the constitution: “No laws for a specific county shall be enacted and no county shall be exempted from the general laws,” it says in Article VIII, Section 7. And again, in Article III, Section 34: “where a general law can be made applicable, no special law shall be enacted.”

There is nothing ambiguous about how seriously the Supreme Court takes those provisions. In its last high-profile local-law decision, in 2007, the court overturned a single-county law that devolved power from the county legislative delegation to the county council — that is, a law that accomplished the very purpose that the ban on single-county laws was designed to accomplish.

And although attorney general’s opinions are always couched in deferential disclaimers about how of course the opinion is only an opinion, and a court must decide the outcome, there’s nothing ambiguous about those opinions: Time after time, like a broken record, they warn that the laws are “constitutionally suspect” and remind legislators of that long string of Supreme Court rulings that have invalidated laws that affect a single county.

Of course, our legislators don’t generally worry about such niceties as the state constitution, at least not when it comes to meddling in matters back home. They keep passing single-county laws because all legislative enactments have the force of law until a court declares them unconstitutional, and a court can’t declare them unconstitutional until someone whom the court decides has legal standing to sue actually files a lawsuit.

Since this happens so rarely, legislators convince themselves that the constitution doesn’t really say what it so clearly says. What the attorney general’s office so clearly says it says — regardless of who occupies the office at the time. What the Supreme Court so clearly says it says — every single time the court rules on the question.

It’s a bizarre case of collective self-delusion that incapacitates the rational part of our legislators’ brains. When Senate President Pro Tempore John Courson was asked recently about the lawsuit filed last month challenging the constitutionality of the law merging Richland County’s election and voter registration offices and laying the groundwork for the Nov. 6 debacle, he responded that lots of counties had passed similar laws.

The symptoms were even more acute when Richland County legislators gathered last week to collect non-answers about the unmitigated disaster that resulted from their law that changed how elections are conducted in Richland County — and only Richland County. They said they don’t pass … local laws.

Seriously.

Here’s Rep. Todd Rutherford, huffing about how lawmakers had been maligned, I presume by me, since no one else seems to care about the ban on single-county laws: “It’s not local legislation. I’ve seen that in the newspaper. We cannot do local legislation, and we do not do local legislation.”

Uh. Right. So, let’s call that local law a caramel-almond torte instead, and everything will be just ducky.

Sen. Darrell Jackson, the chairman of the county legislative delegation, chief author of the law that applies only to Richland County but that Mr. Rutherford insists is not a local law, and chief defender of Ms. McBride, thanked his colleague for making that important point for the audience. Then he segued into the lawsuit that challenges the law that applies only to Richland County but that Mr. Rutherford insists, and he agrees, isn’t a local law.

“That lawsuit would have a ripple effect throughout the state, and many, many counties would have to undo what they have done,” he said.

It must be a Senate thing, this non-defense defense. As if the ubiquity of unconstitutional behavior is at all relevant to the constitutionality of the law that merged a perfectly good election commission with a perfectly good voter registration office and resulted in perhaps the biggest Election Day disaster that our state has ever seen.

The Rutherford-Jackson love-in came in response to Sen. John Scott’s announcement that he had just received the attorney general’s opinion about who, if anyone, could fire Ms. McBride — as if anyone who might theoretically have the power to fire her seems at all interested in even drawing a frowny-face on her report card. The opinion said, and as anyone who can read at a fifth-grade level and who had read the law could have told you, that the legislators who have insisted for three weeks that only they can fire her … can’t.

More convoluted was the matter of whether anyone could fire her, but after applying several layers of legal rules that are used by courts to decipher the meaning of badly written laws, the opinion said it thought the election commission could fire her.

Although the reason for the ban on single-county laws was to make the Legislature stop meddling in local matters, it has a secondary benefit, on those rare occasions when legislators deign to obey it: Single-county laws don’t get vetted by the full Legislature, and so they tend to be horribly written. As the Lillian McBride Law so clearly demonstrates.

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

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