Scoppe: The Catch-22 of fixing Richland election mess

Associate EditorDecember 12, 2012 

— WHEN IT comes to the 40-year struggle to extricate state legislators from local government, nothing is ever simple. The politics are always difficult, because lots of state legislators do not want to be extricated. And then there’s an Orwellian constitutional problem.

But if Senate President Pro Tem John Courson manages to navigate the political land mines and convince his fellow Richland County legislators to hand control of the county election commission over to the County Council — and to date there has been no rush to embrace the idea — it could put the Supreme Court in a position to remove one of the barriers to local control of local government.

Sen. Courson’s idea certainly is not a perfect solution to the disaster that the elections office made of last month’s voting. What legislators need to do (and needed to do before the worst election debacle in modern state history) is put the state in charge of running elections. Among other things, that idea has the advantage of being clearly constitutional.

But the Legislature has shown no interest in doing this, not only because it would require the state to assume the cost of elections rather than forcing county governments to pay for them, but also because few legislators are willing to give up control over something so precious to them as the mechanism by which they are elected.

The second-best solution is to turn control of all elections over to county councils, which at least would mean the people who fund the elections have some control over the people who run them. Hence, some modicum of accountability.

Like the best solution, this one presents no constitutional problems, and it has the added advantage of costing the state nothing. But of course the political problem remains: Absent extraordinary circumstances, legislators simply aren’t interested in removing themselves from the business of running the elections that determine whether they remain legislators.

In Richland County, at least for the moment, we have extraordinary circumstances, which brings us back to Sen. Courson’s politically possible but constitutionally iffy proposal.

The Orwellian constitutional problem for this and other proposals to cede legislative control of local functions is this: The state constitution prohibits the Legislature from passing a law to overturn a law that would be unconstitutional if it were passed today.

I’ll pause while you re-read that sentence, and re-read it again. I realize it sounds absurd. But it’s what our Supreme Court has consistently said. At least, up until now.

Before I explain, a little background is in order.

The Legislature wrote the constitutional ban on single-county laws as part of one of the biggest governmental transformations in our state’s history. Up until then, legislators created and oversaw whatever government they believed was needed back home, appointing commissions or special-purpose districts to run the operations and passing “supply bills” to fund them.

With the passage of the Home Rule Act creating county councils and allowing those councils to create and fund county governments, there was no longer any need for local laws. The constitutional amendment was to make sure that those new county councils could run the governments they were elected to run, without interference from state legislators.

So certainly the spirit of the constitution would not be offended if Richland County legislators decide to turn control of the county election office over to the County Council. But there’s that pesky letter of the law: “No laws for a specific county shall be enacted ….”

And our Supreme Court has repeatedly ruled that the letter trumps the spirit, most recently in 2007, when it declared the law that turned control of the Richland County Recreation Commission over to the County Council unconstitutional.

But that ruling was not unanimous. It was 3-2. All three of the justices in the majority have since retired. And one of the two in the minority, Chief Justice Jean Toal, has been on a two-decade crusade to convince the court that it has completely misunderstood the constitution.

Ms. Toal’s argument was that the Richland County law was precisely the type of “one-shot legislation” that the court early on allowed the Legislature to pass in order to transition into Home Rule.

A subsequent ruling had limited the scope of the “one-shot” exception to the initial establishment of county governments, and in every decision since then, the majority has used that later decision to say, essentially, that any legislative meddling that remained on the books after county councils were established could never be eliminated. As Ms. Toal argued in her 2007 dissent, joined by Associate Justice Costa Pleicones: “the majority continues to ignore the essential purpose and intent of the constitutional provisions enacted to aid in ‘home rule,’ which is ‘to diminish legislative interaction in local government.’ ”

“Because Richland County Council has never had the legal authority to appoint the members of the Commission,” she wrote, “in my opinion, the transfer of authority under Act No. 207 constitutes the establishment of initial county government.”

Legislators don’t pay much attention to the ban on single-county laws — except when it suits their purposes. And it has frequently suited their purposes to cite that prohibition, and the 2007 ruling, in defending their refusal to turn control of their special purpose districts and election commissions over to county officials.

But the same logic that the chief justice cited in the Recreation Commission case would apply to a law transferring appointment power for the election commission from legislators to the County Council. So if Richland County legislators will make that change, we might get to find out whether at least one of the three newest members of the court agrees.

If so, they would be able to eliminate one more barrier to finally allowing locally elected officials to run local governments, and freeing up our state legislators to concentrate on the business of running our state. Which they clearly need to do a better job of.

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

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