FOR ANYONE who cared to pay even a tittle of attention, it has been obvious for months that this year’s elections are in danger of being essentially cancelled in most of the state because the laws that created 37 of the 46 county election commissions are unconstitutional.
This became clear in September, when Circuit Judge Thomas Cooper struck down the law Richland County legislators had passed in 2011 merging the county’s elections and voter registration commissions, declaring it a violation of the state constitution’s prohibition on single-county and special laws.
It was a ruling that Richland County’s senators would decline to appeal, out of concern that they would give the Supreme Court the opportunity to strike down similar laws in most of the state. By not providing the court with a vehicle to act, the senators force people to file additional lawsuits, against some or all of those other county laws. Which they will.
The constitutional problem should have been obvious long before that, but S.C. legislators are firm believers of our state’s motto, dum spiro spero, particularly when what they’re hoping is that the courts will look the other way as they continue to trample over the state constitution.
The fig leaf behind which legislators have been hiding their ignorance was a 2008 law, referred to by insiders as Act 312, that took all the clearly unconstitutional single-county laws that legislators had passed merging their individual county commissions, copied them into a single bill, and re-passed them. Which is to say that we still had 37 single-county laws — 46 actually, but the old ones with separate boards were constitutional because they hadn’t been changed since the prohibition was added to the state constitution. Further aiding the self-delusion, a quick reading of Judge Cooper’s order implied that the codification had taken care of the constitutional problem for those 37 counties.
But earlier this month, S.C. Solicitor General Robert Cook shredded the fig leaf, with an attorney general’s opinion explaining that the judge didn’t actually say the codification law rendered the single-county laws constitutional. Rather, he punted on that question, because it wasn’t before him — just as the attorney general’s office had punted for the same reason in 2012, when Richland legislators asked about their law.
The new opinion was requested by Senate Judiciary Chairman Larry Martin, who is trying to pass a bill to reconstitute all 46 election boards under a uniform law. S.866 would leave local legislators fully in control of their county election systems, but at least in those 11 counties that still have separate election and voter registration commissions, it would give House members more say in the appointments.
That means senators would have less say, and that means some of those senators don’t like the change. Never mind that maintaining their control of their county election commissions endangers elections in the rest of the state.
This is not the best solution to the constitutional problem. I’m tempted to say it’s the worst solution, but state legislators have a remarkable ability to dream up worse ideas than I ever could. But it is a solution, which is better than no solution. And unlike the best solution — putting the State Election Commission in charge of elections — or even the distant second of putting county councils in charge, it has a chance of passing.
But even that’s no sure thing, given the way the Senate operates. Which is why Mr. Martin wanted someone with more constitutional gravitas than he has to explain the danger the status quo represents. And to the surprise of no one who has been paying attention, that’s what he got.
The opinion was unambiguous: “we do not believe it makes a constitutional difference” to bundle up “this collection of unconstitutional laws in the form of Act No. 312.”
Among other things, the opinion cites a 1996 Supreme Court decision, Martin v. Condon, a 4-1 ruling that struck down a video-gambling law that allowed individual counties to outlaw an activity that was legal elsewhere. It concludes:
“As in Martin — and even more so — Act 312 is simply an amalgam of laws, each for a particular county. While this Act addresses all 46 counties, just as in Martin, 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. Even those counties which do have combined boards have different structures, compositions, etc., depending upon the individual county. Thus, while the Act may appear general, it is far from uniform, but is instead a collective hodgepodge of local laws.”
When he got the opinion, Sen. Martin told the Senate that the Supreme Court was unlikely to be sympathetic to the Legislature’s failure to repair a constitutional flaw when it had been put on such clear notice about the problem. If the right lawsuit is filed at the right time, he warned, the result could be catastrophic — far more disruptive than the Supreme Court’s 2012 decision that kicked 250 candidates off the ballot for failing to comply with an obscure filing requirement that most legislators were unaware of.
His warning seems unlikely to convince Sen. Shane Martin, or any of the similarly situated senators, that they should care about something other than their own control over the system that got them elected.
But it has convinced other senators that this is legislation they need to pass this year, which requires them to get it to the House before a May 1 deadline. On Tuesday, they voted 34-8 to leapfrog it ahead of all but two other bills on the calendar, which will reduce the chances that other bills will beat that deadline.
All we can do now is hope that those 34 senators don’t allow the eight to run the clock — which wouldn’t be nearly as difficult as you might think.
Ms. Scoppe can be reached at email@example.com or at (803) 771-8571. Follow her on Twitter @CindiScoppe.