THERE’S PROBABLY no polite way of saying “I told you so,” so let’s just out with it.
A week ago, I wrote that based on Circuit Judge Thomas Cooper’s ruling striking down Richland County’s single-county law that merged the election and voter registration boards into one disastrous office, and a new attorney general’s opinion, someone was certain to bring suit against some or all of the 37 other county election offices that have been merged via unconstitutional single-county laws. It’s a situation Senate Judiciary Chairman Larry Martin calls a ticking time bomb.
Two days after that column appeared, Jim Carpenter dropped a lawsuit in the mail to the Richland County clerk of court seeking a declaratory judgment invalidating the laws that created all of those other election offices.
Mr. Carpenter is not new to this issue. The Greenville attorney brought the successful lawsuit on behalf of former State Election Commission Chairman Rusty DePass challenging the Richland law. His plaintiff in this new case is Greenville’s Ned Sloan, a constitutional gadfly who with Mr. Carpenter’s help convinced the Supreme Court a few years back to chip away at the Legislature’s extra-constitutional habit of stringing together dissimilar bills and passing them all in one fell swoop, in violation of the constitution’s prohibition on bills with more than one subject.
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Messrs. Sloan and Carpenter have tried in the past to tackle legislative violations of the constitutional ban on bills that affect a single county, but they tried skipping the lower courts and going straight to the Supreme Court, which seems to have lost its appetite for granting them original jurisdiction. Mr. Carpenter found more success with his suit in Circuit Court for Mr. DePass, which was filed after the 2012 fiasco that was the first byproduct of the poorly written, poorly vetted Richland County law that, among other things, gave the county’s legislative delegation sole authority to appoint the new governing board and the executive director, but no power to remove either.
The case challenging the other 37 single-county laws likewise is being filed in Circuit Court, and it comes as Sen. Martin races a May 1 deadline to get the Senate to pass his bill ( S.866) reconstituting all 46 county election commissions in a standard, and thus constitutional, manner. A handful of senators oppose that legislation because it will require the still-separate elections and voter registration offices in their counties to merge, which will give House members some say that now is reserved to senators.
An imminent danger
But since receiving an attorney general’s opinion on March 12 that concluded that the 37 other laws were no more constitutional than the Richland law — despite the Legislature’s attempt to wrap them all up in a “codification” bill to give them a patina of constitutionality — Mr. Martin has warned that a court could strike down all those other laws and put this year’s elections on hold if someone filed a lawsuit.
Which Mr. Carpenter just did, drawing heavily on that attorney general’s opinion.
Senators seemed mostly convinced, even before the lawsuit was filed; the Senate voted 34-8 last month to put Mr. Martin’s bill in line for debate. Assuming the hold-outs don’t run the clock, it should make the May 1 deadline to cross over to the House, where what little attention has gone to election laws has been focused not on how to make the county offices constitutional but how to make them competent.
Although one senator told me he didn’t think there was much chance of the Legislature doing both of those things at once — you know, the whole walking and chewing gum problem — it’s possible that the lawsuit could give some impetus to House efforts to make the election offices constitutional. What would be tragic is if it slows down the effort to inject some accountability into the operation of those offices.
H.3198, by Richland Reps. James Smith, Mia McLeod, Beth Bernstein, Nathan Ballentine and Kirkman Finlay, gives the director of the State Election Commission the power to order county election employees fired if they fail to follow state law. If county election commissioners refused to act, that would constitute “malfeasance” — one of the few reasons for which they can be removed from office. It also would turn the ballots over to the state if the county agency doesn’t count and certify them within 48 hours after polls close.
There’s nothing radical about this: The county boards retain complete control as long as they see to it that the law is obeyed. All this legislation does is give someone outside those boards the power to make them obey the law if they don’t.
Of course, it’s a going-around-your-elbow-to-get-to-your-nose sort of solution. We ought to just turn running elections over to the State Election Commission. That would take care of both constitutionality and competence. But legislators aren’t willing to give up their power to appoint their county election officials.
Crossing county lines
What some are starting to understand is that what happens in the Richland County election office affects people across the state, since that office counts votes not just for county offices but for legislative and congressional offices that cross county lines and for governor and U.S. senator and other statewide offices. Thus the unanimous support Rep. Smith’s bill got in the House Judiciary Committee.
It is that understanding that is at the heart of the latest lawsuit. On its face, it seems doubtful that a judge would grant Mr. Sloan standing to sue over anything other than the Greenville election office. Indeed, he was stymied in this previous attempts to take on single-county laws because the Supreme Court said he lacked standing outside of his home county.
But Mr. Sloan isn’t suing the Greenville County election office, or any other county office. He is suing the state of South Carolina, the House of Representatives, the Senate, House Speaker Bobby Harrell and Senate President Pro Tempore John Courson. He is suing not as one aggrieved by the way his individual county election office operates but as one aggrieved by the way the Legislature writes laws to create the offices that run elections — offices whose performance affects every one of us, whether we live in a particular county or not.
Of course, legislators could decide to take their chance on the constitutional flaws in our election system (and in the accountability and competence problems, for that matter). They could gamble that the court won’t buy the argument that Mr. Sloan should be allowed to sue based on the fact that his suit raises “Constitutional issues of great public importance” and that he is entitled to sue “as a citizen, resident, taxpayer and registered elector” not simply of Greenville County but “of the State of South Carolina.”
But they’d also be gambling that there aren’t any more Ned Slogans and Rusty DePasses out there who could win standing — and win the slam-dunk lawsuit. They’d also be abdicating their responsibilities and, I would argue, violating their oaths of office. You know, the ones that require them to “preserve, protect, and defend the Constitution of this State …. So help me God.”
In the end, there’s only one sure way to defeat Mr. Sloan’s lawsuit: Either turn our elections over to the State Election Commission, or else pass Sen. Martin’s bill, to give us an election process that comports with the constitution, thus rendering moot both the question of standing and the lawsuit itself.
Ms. Scoppe can be reached at email@example.com or at (803) 771-8571.