Scoppe: Can Richland election mess get messier? Oh yes

Associate EditorMarch 5, 2014 

— JUST WHEN you thought the mess that is the Richland County Board of Elections and Voter Registration couldn’t get any worse — never a safe assumption when we’re dealing with the spawns of the Legislative State — we learn that the temporary stay that had allowed the unconstitutional board to keep operating was lifted. In December.

Which means … well, that’s a good question.

It should mean that former commissioner Sam Selph is not interim director of the agency, because the board that last week appointed Mr. Selph had no legal authority to act.

For that matter, it should mean that Howard Jackson still is the director, because surely a board that has been declared unconstitutional would not take personnel actions of such magnitude.

It should mean that we have returned to the status quo ante — with separate boards running separate offices of elections and voter registration, with new commissioners who have the knowledge and capability and integrity to make legal hiring decisions and run legitimate elections.

But clearly the latter has not happened, and there’s a little glitch that makes far from clear when it can happen or what must happen on the other fronts. Which should surprise no one.

It seems that when former state Election Commission Chairman Rusty DePass filed the lawsuit that resulted in Circuit Court Judge Thomas Cooper overturning the 2011 law creating the Richland County Board of Elections and Voter Registration, he forgot to sue the Richland County Board of Elections and Voter Registration, or its members.

This should be a distinction without a difference, and in the end it will be, but for now it’s an extremely important difference. It means that while the board members have no legal basis to act as the Richland County Board of Elections and Voter Registration — since said board has no legal basis to exist — they remain de facto board members, because no one with the legal authority to tell them otherwise has told them otherwise.

Case law suggests that a judge would consider any actions they take as de facto board members to be legitimate, but a suggestion is not the same as an assurance, and in any event their de facto status needs to be deleted, sooner rather than later. To that end, Mr. DePass’ attorney, Jim Carpenter, has filed a new complaint asking Judge Cooper to invalidate all of the unconstitutional board’s actions since Dec. 30. That’s when the judge lifted the stay that he issued last summer to get Richland County through the November and December elections with a semi-operational election commission in place.

Another thing that’s unclear is whether the unconstitutional board will go away quietly or waste time and money — and endanger the smooth operation of the June primaries — by fighting Mr. DePass’ latest lawsuit. The suit should be a simple matter of determining at what point the board ceases to exist, but the commissioners could argue that Judge Cooper’s order declaring the law unconstitutional was wrong. They’d be wrong, of course — even the senators who wrote that law realized they had absolutely no basis to appeal the decision, and so did not — but they could tie this matter up in court for several months.

Which means … that their legislative patrons need to make it crystal clear that they are to sit quietly and let the grown-ups sort this out.

Which means … that Richland County Council should direct its county attorney, Larry Smith, to make it clear to the commissioners that he will not defend any effort to overturn Judge Cooper’s ruling, and that he will not authorize the board to hire outside counsel to do that. This should be unnecessary, but Mr. Smith did allow the commission to use tax dollars to work out a taxpayer-funded golden parachute for Lillian McBride after she oversaw the most disastrous election in modern state history.

Which means … the County Council needs to make it clear to the commissioners that it will not provide them with money to hire outside counsel if they do that anyway. This should go without saying, but the council did appropriate extra money to pay for Ms. McBride’s lawyer.

The reason we’re in the mess we’re in is that Richland County legislators passed a bill in 2011 that merged the county elections and voter registration offices, gave themselves the power to appoint not only the board members but also the first director (and failed to give themselves or anybody else the power to remove board members), and passed over the professional who had run the county’s elections for 35 years in favor of Ms. McBride. We all know what happened next.

Although merging the offices made perfectly good sense, allowing legislators to pull so many strings was a bad idea, made worse by the strings they pulled. That’s why the people who didn’t give up and go home waited in line for two, four, even seven hours to cast their ballots in 2012. It’s why some absentee ballots didn’t get counted in last year’s municipal election, and perhaps not even in the 2012 election.

Those are policy problems, which normally we’d be stuck with. The reason we eventually get a do-over is that the 2011 law applied to a single county, which the state constitution prohibits under almost all circumstances. That’s why Judge Cooper ruled in August that the law was unconstitutional, which returns us to the law that existed prior to that.

The good news is that abolishing the incompetent board gives Richland County legislators the power to select new boards for the elections and voter registration offices. The bad news is that the pre-2011 commissioners — which include some of the de facto members of the unconstitutional board, along with Ms. McBride — likely can remain in holdover status until the delegation makes new appointments. (Technically, the governor appoints members of both boards; in reality, governors appoint whomever the local legislators ask them to.)

There’s no good reason that Richland County legislators haven’t already selected the new commissioners for the old boards. Even if they still believe they can reconstitute the combined board in a way that does not violate the constitution — the longest of long shots — there’s nothing to suggest they can do it quickly, and we have statewide primaries coming up in June.

It’s true that the de facto commissioners could block the election office door and tell any new commissioners they’re not welcome, and we would have another court fight. But the county attorney’s refusal to foot their bill might make them think twice about that.

And even if new appointees can’t take office immediately, our legislators need to act to show a little good faith. Which several of them have thus far failed to do.

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

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