State lawmakers are warning that another flawed election law could make the debacle of 2012 that knocked hundreds of candidates out of primaries seem tame by comparison.
Sen. Larry Martin of Pickens, chairman of the Senate Judiciary Committee, told the Senate on Wednesday that the office of state Attorney General Alan Wilson has issued an opinion concluding that a 2008 law under which most of the state’s counties combined election and voter registration boards is unconstitutional.
The reason, state Solicitor General Robert Cook explained in the opinion, is that under the state’s Constitution, the Legislature is prohibited from passing laws that are customized for certain parts of the state but not others.
“Act No. 312 is simply an amalgam of laws, each for a particular county,” Cook wrote.
“While the act addresses all 46 counties ... the effect is a different result in each county. Certain counties have combined the boards of election and voter registration; yet, the act expressly recognizes others do not. Thus, while the act may appear general, it is far from uniform, but is instead a collective hodgepodge of local laws.”
Cook concluded, “Based upon the foregoing, we believe a court would likely conclude that Act No. 312 unconstitutionally violates ... the South Carolina Constitution.”
Martin said lawmakers over the years have passed laws geared for individual counties to combine voter registration and election offices and that those laws were codified in 2008.
But he said codifying them doesn’t cure the underlying problem of state lawmakers passing local legislation. It has to be fixed, he said, or election officials and voters will face a nightmare of “epic proportions.”
“What could very well happen is we could have a ruling across the street (state Supreme Court) if a suit is filed, that we have no ability to address if we are out of session,” he told the Senate. “We cannot sit on something that is this volatile and this explosive.”
Greenville County operates separate boards of elections and voter registration.
Officials said it wasn’t clear what impact, if any, the problem with the 2008 law would have in Greenville County. However, lawmakers said it is possible that the cure for the 2008 law may involve forcing all counties to combine boards.
Part of the impetus for the Attorney General’s opinion was a 2013 ruling by a judge involving a 2011 law merging the voter registration and board of elections offices in Richland County. Judge Thomas Cooper found the law unconstitutional.
Martin said unlike the 2012 problem that stemmed from a Supreme Court ruling on paperwork requirements for candidates, lawmakers are now being made aware that there is a problem.
“None of us can go home and say, ‘We didn’t know,’ ” he said. “We know there’s a problem and if we sit on it and don’t address it, it could blow up in our face in a way we never expected.”
Sen. Chip Campsen, a Charleston Republican, asked Martin if it was possible a lawsuit would result in a ruling that the state’s registration and voter boards were unconstitutionally formed.
“I don’t think it’s a matter of if it’s going to be done,” he said. “It’s just a matter of when.”
Campsen questioned if election results could all be voided if such a ruling was made.
“What the consequences will be, I don’t know,” Martin said. “Based on the 2012 decision by the court (state Supreme Court) across the street, it could be very catastrophic.”
Martin said a bill filed by himself and Campsen last year would establish a uniform process for all counties to follow to combine voter registration and election functions. But he said a minority report has been placed on it, meaning it will take a vote of the Senate to have it considered as a priority bill.
He said he is aware some counties want to keep voter registration and election boards separate.
“I don’t know if we can accommodate that or not,” Martin said. “We may try to come up with an option that provides for a general law that would go back and give every county an option. The problem is right now the legislative delegations exercise that option. That’s problematic too. It would be better if there was one template for the whole state.”
Sen. Joel Lourie, a Columbia Democrat, said he had helped sponsor a bill that would allow a legislative delegation to pass its own resolution that would then go to that county’s council for final approval.
But Martin said getting county councils involved would draw objections from some state lawmakers.
“I don’t know that getting county councils involved would get you a strong vote in this chamber,” he said.
He said he also isn’t sure related issues such as state oversight for local boards would pass without a “knock-down, drag-out fight.”
“What I would like to see us pass is a template that we can make constitutional,” he said. “I think that is the best we can hope for.”