Scoppe: Go ahead, make my day: Appeal the Richland election commission ruling

Associate EditorSeptember 11, 2013 

— PERHAPS I didn’t think this through sufficiently. Perhaps, contrary to what I wrote for Sunday’s editorial, Richland County senators should appeal the court order striking down the law that merged the county’s election and voter registration offices.

There’s every reason to think the Supreme Court will uphold Circuit Judge Thomas Cooper’s order, which said the 2011 law violated the state constitution’s ban on single-county and other special laws. That’s because the law he struck down applied to only one county, something the constitution bars in almost all cases. And our Supreme Court has a solid record of finding in favor of the constitution when the Legislature chooses to ignore that part of it.

All of which, at first glance, seems to make an appeal by Sens. John Courson, Darrell Jackson, Joel Lourie and John Scott a hideous waste of our money and the court’s time.

But there’s one thing we don’t know: We don’t know what else the court might do, if given the opportunity to examine Chapter 27 of Title VII of the S.C. Code of Laws.

Chapter 27 was passed in 2008, after then-Senate President Pro Tempore Glenn McConnell got an attorney general’s opinion that said the law he and other Charleston County legislators had passed to merge their county’s voting offices probably was unconstitutional.

The opinion freaked Mr. McConnell out, and for months it seemed that all he could talk about was the danger that someone would sue and the court would declare the combined Charleston County election office unconstitutional and there would be no way to hold an election. You know, the situation in which we find ourselves in Richland County as we lurch toward what was supposed to be a Columbia mayoral and City Council election on Nov. 5.

So Mr. McConnell convinced his colleagues to gather up all the single-county laws that legislators had passed over the years to merge the election and voter registration offices in their counties, put them into a single bill and give that one bill the blessing of the entire General Assembly.

Think of it as having a second wedding ceremony after you were given to believe that the Las Vegas priest who performed the first one wasn’t really ordained.

The Legislature even wrote a preamble to explain its intentions, although it didn’t say anything about wanting to give those unconstitutional laws the imprimatur of constitutionality. Instead, it talks about wanting to be more transparent.

And that’s all good and everything. Among the many problems with single-county laws — they violate the constitution, they steal power from the people who ought to have it, they distract state legislators from their actual jobs — is that they aren’t included in the code of laws. I’m sure they exist somewhere, but I have no idea where. Whenever I want to check on one, I look up a bill that was proposed to change it.

Anyway, Judge Cooper’s order implied that the 2008 codification had taken care of the constitutional problem for the 37 counties that had combined the two offices. I had never read that law, but assumed it said, essentially, this is how election and voter registration will work everywhere except in these nine counties that have kept their offices separate.

It turns out that’s not what the law says. It’s actually 46 separate laws, all passed in one bill. One law for each county.

So when Richland County legislators decided in 2011 to merge their election and voter registration offices, leading to the unmitigated disaster that was the November 2012 election, they didn’t pass the normal uncodified local law. Instead, they replaced the old Richland County Section 405 of Chapter 27 with a new Richland County Section 405.

But if Section 405 of Chapter 27 of Title VII violates the constitution, then wouldn’t Section 410, which combines the election offices in Saluda County, also violate the constitution? And Section 400, which combines the offices in Pickens County? And Lexington County’s Section 365? And all of the other laws that reflect any change since a county government was established four decades ago?

That is, wasn’t the priest who performed your do-over wedding just as illegitimate as the Vegas fraud who did the first one?

I posed those questions to a constitutional law expert, who said that, yes, that problem had occurred to him as well.

So wouldn’t the court at least by implication invalidate all those other laws if the Richland County case came before it? Yes, came the reply. As the Supreme Court opined three-quarters of a century ago in Gamble v. Clarendon County, “it is not made to appear that the constitutional authority given to the Legislature for the codification of the general statutes was intended to include the power to collect for such purpose unconstitutional special legislation, whether original or amendatory, and by such act give to it the force and effect of a valid statute.”

And might the court feel compelled to not just imply but state that all of those laws are unconstitutional? Possibly, although more likely it would say there is a problem with the entire chapter that it will be forced to address if the Legislature does not. That would be a step in the right direction, though not necessarily a cure, since the court has issued such warnings before, to no effect.

It’s hard to overstate how potentially significant this is. Although the Supreme Court strikes down single-county laws whenever they come before it, those laws don’t come before it often enough, so most of them stand, and the Legislature, unconstrained by a steady stream of court orders, keeps passing more of them.

So, about that appeal? Bring it on.

Ms. Scoppe can be reached at cscoppe@thestate.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.

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