A FAVORITE parlor game in Columbia — aside from guessing which legislator will be indicted next — concerns prognostications about the legal battle over the next lieutenant governor, about which there are three insufficiently understood points:
▪ There could be a lot more at stake than whether the Senate president pro tempore assumes the office or Lt. Gov. Henry McMaster appoints his replacement if he succeeds Nikki Haley as governor.
▪ The convoluted language lawmakers passed in 2014 to change how vacancies are filled was not an accident.
▪ We wouldn’t be talking about this but for what one former Senate leader calls “the Jake Knotts gift that keeps on giving.”
At issue is whether governors get to fill vacancies in the office now, as the official version of the state constitution says, or not until the end of 2018, as voters overwhelmingly approved in a 2012 referendum. On Wednesday, the state Supreme Court will hear oral arguments in a lawsuit brought by Sen. Tom Davis, which argues (as everyone agrees) that what’s in the constitution is wrong. The question is what happens as a result of that.
Former Senate Judiciary Chairman Larry Martin argues that if the court concludes that the Legislature improperly ratified the change, it won’t simply clarify that the Senate president pro tem becomes lieutenant governor if Gov. Haley becomes U.N. ambassador.
“If they declare the ratification is defective, the new amendment will never go into effect,” and lieutenant governors will continue to be elected separately, Mr. Martin told me. “It’s either ratified correctly, or it’s ratified incorrectly.”
I don’t expect such a seismic decision. It’s clear that the Legislature did not intend for governors to fill vacancies until 2018, when they also get to start picking their running mates. There are ways the court can acknowledge that without any unintended consequences.
But there is always some risk that a court order will have unintended consequences. Since everyone agrees about what the constitution is supposed to say, those consequences could be worse than the unsettling thought of a constitution that for two more years contains language it’s not supposed to contain.
For his part, Sen. Davis says he had to take that chance because without a court ruling, any laws passed at least in the next two years, possibly forever, would be subject to legal challenge. When you try to spin out what would have to happen to make that nightmare scenario a reality (and you really don’t want me to do that), it seems incredibly far-fetched. But it’s how Mr. Davis justifies charging that the Legislature “perpetuated a fraud on the public” by not joining him in his lawsuit.
I and other critics have pinned the problem with the constitution to the fact that Sen. Martin’s 2014 bill ratifying the amendment didn’t specify that the governor couldn’t fill a vacancy until 2018. But Mr. Martin insists that wasn’t needed because the 2014 bill repeatedly referred to the amendment “prepared under the terms of Joint Resolution 289 of 2012” — which did include the 2018 effective date. He blames the error on sloppy work by the Legislative Council, which had the ministerial duty of updating the constitution pursuant to his bill. If he’s correct, the problem is easily fixable — or ignorable.
Ordinarily he would be correct, but there’s this one bit of uncertainty: The ballot question itself was drafted … inartfully.
And this is where we get to what Mr. Martin refers to as “the Jake Knotts gift that keeps on giving.” Mr. Knotts, who from 2002 through 2012 served as one of the premiere obstructionists our Senate has ever known, detested Gov. Haley. So he threatened to block the constitutional referendum unless its effective date was delayed until 2018, so she could never pick her running mate. Without that delay, the language in the constitutional referendum would have been perfect, and the 2014 bill would have needed no reference to 2018.
But when Mr. Knotts’ delay was added to the ballot question, we ended up with an awkward sentence in which one section begins with the clause, “upon the joint election” of 2018, and is followed by four changes, each separated by a semicolon. And a 1931 federal court order said an introductory clause only applies to the language before a semicolon.
For the record, the 1931 court was completely incorrect about the rules of grammar, and fortunately, while our court is free to consider it, that order holds no precedential status in South Carolina.
((NOTE: An earlier version of this column incorrectly said the 1931 case was from the S.C. Supreme Court.))
Our current court has focused on making sure it does not read any laws in a way that produces an “absurd result” — even when lawmakers intended their results to be absurd. We can only hope it will ignore that bad grammar lesson and apply the same “no absurd result” standard to the constitution.
Because throwing out the results of the public referendum over what everyone agrees was a simple and likely even ministerial mistake would indeed be absurd.
Ms. Scoppe writes editorials and columns for The State. Reach her at email@example.com or (803) 771-8571 or follow her on Twitter or like her on Facebook @CindiScoppe.