Columbia, SC — THERE’S something to be said for making sweeping pronouncements on matters of great import, as Circuit Judge Thomas Cooper did in his order striking down the 2011 law that merged the Richland County election and voter registration commissions.
“The General Assembly has returned to its unconstitutional practice of enacting special and single county legislation,” he began the substantive portion of his blistering 10-page opinion. “Act 17 of 2011 violates Article VIII, Section 7 of the Constitution: ‘No laws for a specific county shall be enacted.’ The Supreme Court has repeatedly found such actions of the General Assembly unconstitutional.”
There followed, for two-thirds of a page, a recitation of Supreme Court rulings from 1974, 1976, 1979, 1982, 1991, 1994 and 2007, all of which serve to support Judge Cooper’s legal conclusion, while revealing the dirty little secret about his grand pronouncement: It wasn’t precisely accurate, since it implied that the General Assembly had at some point ceased its unconstitutional practice of enacting special and single-county legislation.
Far from it.
Indeed, the case law doesn’t skim the surface of unconstitutionality at the State House. The court has only struck down those laws that people challenged. The vast, overwhelming majority of unconstitutional laws are allowed to stand, simply because no one files suit.
It’s bad enough that the Legislature routinely violates the state constitution; our legislators, after all, do swear an oath to uphold that constitution, along with the federal one.
It’s worse because this isn’t some silly little provision that remains simply because no one has thought it important enough to go through the tedious process of removing it.
The prohibition on single-county laws was in fact an essential part of the Legislature’s kicking-and-screaming 1972 decision to relinquish a smidgen of its Colonial power, by allowing the creation of independent county governments. It is best understood when read in that context:
“The General Assembly shall provide by general law for the structure, organization, powers, duties, functions, and the responsibilities of counties, including the power to tax different areas at different rates of taxation related to the nature and level of governmental services provided. Alternate forms of government, not to exceed five, shall be established. No laws for a specific county shall be enacted and no county shall be exempted from the general laws or laws applicable to the selected alternative form of government.”
Before 1972, single-county laws were not merely allowed; they were the only way government was conducted on the local level. The legislators from a given county — and more accurately, as this hearkened to the days when each county had one senator, the senator from each county — decided what sort of and how much government the people back home would have, and who would run it. And whoever the senator chose to run it would do so until the senator decided someone else was better suited to his preference.
The 1962 U.S. Supreme Court ruling requiring that legislative districts be drawn on the basis of population rather than county lines spelled the beginning of the end for this system, because now some counties had two or three or even four senators, and you couldn’t have two or three or even four senators competing to be the king and kingmaker back home. Instead, voters would be allowed to elect people to run their local governments, and the single-county provision in the constitution would ensure that those new county councils were left to do that, without legislative interference.
Another provision of the constitution declares that “where a general law can be made applicable, no special law shall be enacted,” and this leaves some wiggle room. But the Supreme Court has said this allows special legislation only when the Legislature has a “logical basis and sound reason” for passing it, and since “logical basis and sound reason” have legal meanings, “because that’s what we wanted to do” — which was Richland County legislators’ reason for passing the special law for Richland County — doesn’t meet that test.
The constitutional constraints don’t mean we are consigned to cookie-cutter local governments. The Legislature is perfectly free to pass a law setting out several options for voting boards — just as it did when it set the forms of county government as council, council-supervisor, council-administrator, council-manager or board of commissioners. The constraints simply mean that the Legislature has to let local officials decide which one to use, rather than the state legislators from each county making that decision.
Of course, this is one of those rare areas where the standard ought to be statewide, because running an election really shouldn’t be a local matter — particularly since so many election districts cross county lines.
What we need is to put the State Election Commission in charge of running elections, with county offices that report to it. But the sad fact is that we’ll be making progress if we can simply get to a place where our election mechanisms don’t violate the constitution.
Ms. Scoppe can be reached at firstname.lastname@example.org. Follow her on Twitter @CindiScoppe.