How Far Will S.C. Supreme Court Go?

By Paul Gable

Part III of the Election Filing Mess

After reading the complaint and viewing exhibits included with the lawsuit by two Lexington County voters against the S.C. Republican and Democratic parties and the S.C. Election Commission, it is clear it will be very difficult for the S.C. Supreme Court to fail to disqualify some candidates who were late in fililng their Statement of Economic Interests.

Many incumbents and challengers, who filed for the upcoming June 12^th primary elections, did not comply with either the letter of the law or with the spirit of the law by failing to file some required papers until after close of filing at noon March 30, 2012.

(Ed. Note: The complaint, exhibits and other documents included with the suit can be found in the election  commission information pdf file below.)

It’s pretty clear that the intent of S.C. Code of Laws Section 8-13-1356 is to require candidates to file both a Statement of Intention of Candidacy (SIC) and Statement of Economic Interests (SEI) before they can be certified to be placed on the ballot.

Some confusion entered into the filing with sub-sections quoted below. There have been reports in other media that incumbent officeholders running for re-election are not affected by the filing mess. This is not true.

Section 8-13-1356(A) states, “This section does not apply to a public official who has a current disclosure statement on file with the appropriate supervisory office pursuant to Sections 8‑13‑1110 or 8‑13‑1140.”

Section 8-13-1356(B) states, “A candidate must file a statement of economic interests for the preceding calendar year at the same time and with the same official with whom the candidate files a declaration of candidacy or petition for nomination.”

Incumbents are required to file an SEI by April 15^th of each year for the prior year’s data. In other words, by April 15, 2012, all incumbent officeholders must file an SEI with their 2011 economic interest information listed. However, incumbents who are also candidates in the 2012 elections are required to have a current SEI on file at time of filing their SIC.

The Court is going to have to decide what current means with regard to the filing of SEI by incumbent candidates.

It would seem that an incumbent candidate would be seen to be acting within the spirit of the law if they filed an SEI by end of filing noon March 30, 2012, even if they filed an SIC earlier in the filing period. Likewise, an incumbent who had filed an SEI earlier, say in January or February 2012, would be seen to have a current SEI on file at time of filing.

However, incumbent candidates who filed an SEI after end of filing appear to be in violation of 8-13-1356(A) because last year’s SEI filing cannot be considered current. Additionally they are not in compliance with 8-13-1356(B) because they did not file a current SEI with their SIC. In no way could last year’s SEI filing (April 15, 2011) be considered current. Therefore, it will be very difficult for the Court to find a way to certify those incumbents as candidates.

Challengers are even easier to exclude from candidacy because it is clear that they were required to file an SEI at the time they filed their SIC. The examples included in the court papers all deal with challengers who failed to file an SEI with their SIC and did not file the SEI at all within the filing period of March 15^th to noon March 30^th. These candidates should, clearly, be excluded from certification.

There is mention in the complaint about the need to file the SEI and SIC at the same time and with the same party official. This is the strict requirement of the law. The intent of the law would again seem to be that challengers must have filed an SEI and SIC by the close of the filing period.

Challenger candidates who filed an SEI by the close of filing are probably going to be considered valid candidates even if their SIC was filed earlier in the filing period. But, those who did not file an SEI until after close of filing should excluded from certification.

In other words, the Court will probably find that the relatively small group of challengers and incumbents who got everything done within the filing period, or before the filing period in the case of incumbents, can be certified to be placed on the ballot.

However, anyone (incumbent or challenger) who had initial filings of an SEI dated March 31, 2012 or later should be and probably will be declared ineligible.

To do anything other than decide that candidates who completed all paperwork, including electronic filing of the SEI, within the filing period of March 15^th thru 30^th would be judicial activism on the part of the S.C. Supreme Court.

South Carolinians, in general, and the many who call themselves strict conservatives, in particular, have decried judicial activism by the U.S. Supreme Court for decades. This is especially true in the decisions of Brown v. Board of Education and Roe v. Wade, but applies to many others.

Can the conservative judges on the S.C. Supreme Court take other than a strict stand on the current candidate filing controversy?

Would a decision to reopen filing, throw out Sec. 8-13-1356, or exclude all incumbents from the requirements of the law be anything other than judicial activism? I think not!

The recent attitude around Republican Party headquarters, at both the state and county levels, has generally been that there is not a problem and all the candidates, regardless of when they filed, will ultimately be certified to stand for election. In other words, the fix is in.

If, next week, that is in fact what is decided, party officials and activist judges will have overturned a requirement for candidates for public office to obey the law. They will have codified that the law doesn’t apply to politicians or, if it does, it must be changed!

What a terrible precedent that would be. Can dictatorship of the party be far behind?

election commission information