This is a defense of the candidates who were struck from the primary ballot by the South Carolina Supreme Court in May. It is particularly tiresome to hear that "any candidate who was too dumb to file their papers properly is not fit to be elected to any office." That sentiment reflects the lack of understanding of the facts by the speaker rather than the true situation.
First we need to look at the history of the law and its application to see how we got where we are today. South Carolina’s original ethics law, which is the source of all of this controversy, is a product of Operation Lost Trust from the early 90’s when several legislators were indicted and convicted for corruption. As a result of that scandal the ethics law was created and financial disclosure requirements were codified at Title 8 of the South Carolina Code. This is the law that requires every officeholder or incumbent to file a Statement of Economic Interests, also known as an “SEI”, every year by April 15th to cover the previous year just like the schedule for income taxes. The idea behind the SEI is to disclose any personal or business dealings a government employee may have with the State that may be a source of a conflict of interest with their office or position. The law also requires quarterly campaign financial disclosures by all candidates (and elected officials) with active campaign accounts. These filing requirements have remained largely unchanged until 2010. The specific law pertaining to SEI’s is at SC Code of Laws Section 8-13-1100 et seq.
The conduct of elections is codified in Title 7 of the South Carolina Code. In order to be placed on the primary ballot every candidate must file a Statement of Intention of Candidacy also known as an “SIC” for each election. All SIC forms are filed with either the state or local party organization depending on the office sought. This law is found in the Elections law at SC Code of Laws Section 7-11-10 et seq. If you are not an officeholder within the State government or any of its subdivisions, with an SEI on file when you become a candidate, then you must also file an SEI “at the same time” as the SIC with the party authority per SC Code section 8-13-1356(B). Incumbents are supposed to have an SEI on file every year while they hold their office so they are considered exempt from having to file another SEI with their SIC. Up until 2010 filing under these rules was not a problem. Nearly twenty years of experience had essentially perfected the process.
In 2010 the ethics law was changed in reference to the filing of the SEI for all South Carolinians. As of January 2011 all SEI and campaign disclosure filings had to be done electronically on the State Ethics Commission website (Section 8-13-365 SC Code) and the paper versions of the SEI and disclosure forms were eliminated. Unfortunately the election laws regarding filing for candidates were not changed. 2012 was the first year these changes were applied to the election cycle. As a result of the changes, section 8-13-1356(B) which required 2simultaneous filing of the paper SEI and the SIC directly contradicted section 8-13-365 which required electronic filing only of the SEI. This intrinsic contradiction is the source of all of the confusion and the basis for the expulsion of most of the candidates who were removed.
Next we need to review the process put in place to implement the new rules before candidate filing started on March 16th. Before the Supreme Court ruling, the resolution to this conflict was universally accepted: each non-incumbent candidate had to file the SEI online as required by the new law and then show proof that the SEI filing was complete at the time the SIC was filed as required by the old law. This was the position taken by the State Ethics Commission, the State Elections Commission, the Republican Party, the Democrat Party and all the corresponding local authorities. Even members of the legal community who reviewed the situation agreed that it was the most appropriate solution to the conflict between the two code sections. This reasonable interpretation of the law was basis on which the candidates filed their paperwork.
Many of the candidates were first-time candidates and naturally deferred to the advice of the authorities who were instructing them on filing. Many of the local party officials were presiding over the filing process for the first time and they too deferred to the authorities who instructed them on the proper procedures for filing. Even after filing was complete there was no reason to believe that the filing process was done incorrectly. The only reason the issue of the conflicting laws came up at all was because a lawsuit was filed challenging the sufficiency of the filings in Lexington County. Even after the suit was filed it was still nearly a foregone conclusion that the Supreme Court would reconcile the contradictory laws as routinely occurs in courtrooms across the state.
Finally we need to review the law applicable to this situation and elaborate on the outcome and the possible alternative outcomes to this case to demonstrate that eminently reasonable and intelligent people ultimately got it wrong.
When the South Carolina Supreme Court heard this case on May 1st it had before it two private citizens from Lexington County as Plaintiffs who filed a lawsuit against the State Republican and Democrat Parties and the Lexington County Republican and Democrat Parties and the State Elections Commission and the Lexington County Elections Commission complaining that they did not properly follow the Election law and put people on the ballot that should not have been on the ballot. Not a single candidate was listed as a Defendant even though they had the most to lose and should have had an opportunity to defend their rights. The Court issued its decision on May 2nd, which is incredibly quick but necessary under the time constraints of a pending election. The decision essentially said that both laws had to be followed and that if you did not follow both laws your name could not appear on the ballot. The order gave the Defendants until Friday May 4that noon to review all of the filings from every candidate and 3determine which ones filed a paper SEI with their SIC and which did not and provide an accurate list to the election commission. On Thursday May 3rd the Court issued a clarification at the request of the Defendants that a paper copy of the electronically filed SEI was sufficient to satisfy the requirement that a paper copy of the SEI be filed at the same time as the SIC since there was no longer a paper SEI form available. As a result of the Court’s decision and the impossibly short timeframe to comply, the State parties determined who filed properly and who did not on the honor system via email, essentially asking candidates did you do what we told you to do or did you anticipate the Court’s ruling and file correctly. Surprisingly only 180 candidates did not anticipate the Court’s decision. The method of identifying the noncompliant candidates also precipitated a lawsuit when the Florence County Democrat Party sued the Florence County Republican Party in the Supreme Court. That decision did not change the previous ruling but did demonstrate the level of confusion all over the State and resulted in another 60 candidates being removed from the ballots exactly a week before the election was held.
As a practical matter new laws regularly have unintended consequences and often effect other parts of the law inadvertently. As a general principle when that happens the Courts have a standard solution to resolve the conflict, they interpret the new law to have implicitly repealed any sections of old laws that directly contradict the new law based on the erroneous assumption that the legislature knew of the conflict and intentionally overruled the old law. So in this case the new electronic filing requirement law should have implicitly repealed the part of the old law that requires filing a paper form that no longer exists, a fairly commonsense approach to the problem and the one that was universally expected as the decision in this case. That decision would have made all candidates who filed the SEI online as required and brought a receipt or other proof of their filing to the Party to file with their SIC eligible to be on the ballot.
An alternate legal theory that would have allowed the candidates to stay on the ballot is the concept commonly referred to in legal circles as “equitable estoppel”. The concept is that a party who does something wrong cannot later gain an advantage as a result of that wrong. So for instance if you are in a race against a buddy and you mislead him and give him the wrong course for the race and he believes you and goes the wrong way you cannot then claim victory because you crossed the finish line before him. In other words, you are “equitably estopped” from winning the race. In this case the Court could have found that the State and County Parties and the State and County Elections Commissions were “equitably estopped” from removing candidates from the ballot because they gave the candidates bad instructions which they followed and violated the law in so doing. That decision would have again made all candidates who filed the SEI online as required and brought a receipt or other proof of their filing to the Party to file with their SIC eligible to be on the ballot.
Another possible ruling could have been that to remove the Candidates from the ballot would be a violation of the due process rights of the candidates guaranteed by the U.S. and South Carolina Constitutions. It is well known that citizens have property interest or right to be a candidate for public office. It is also axiomatic that we are guaranteed by the U.S. and South Carolina Constitutions a chance to defend ourselves before our rights can be taken away. This right to defend ourselves is commonly called our “due process” right. Here the Court could have refused to take candidates off the ballot because not one of them was given an opportunity to defend themselves. None were given notice of the hearing. None were permitted to intervene in the case or present evidence or even review the allegations prior to losing their right to be on the ballot. The court could have denied the Plaintiff’s requests since they failed to bring any candidates into the suit to represent all of the candidates who would be affected by the decision. That decision would have left all of the candidates on the ballot.
Another possible outcome would have been for the court to find that they could not change the requirements to be on the ballot in May when the filing closed on March 30th because that would be a violation of the Constitutional prohibition of ex post facto laws. That prohibition basically says that a new law cannot be made that has the effect of making something that has already occurred a violation of the law retroactively. When a court makes a decision that ruling is considered “case law” which has the same effect as legislatively enacted “statutory law” at least until it is changed by the legislature or a higher court. Here the Supreme Court could have decided that to retroactively dismiss many candidates by creating a rule in May for application the previous March would violate the Ex Post Facto law prohibition and declined to act on the plaintiff’s requests and that would have left all of the candidates on the ballot.
It is clear from the circumstances in this case that the outcome of this case and even the application of the rules to filing for office were unpredictable. As a result well educated, competent and even experienced participants in this year’s election process, very reasonably did not do what should have been done to have a smooth election cycle. Any of these legal theories demonstrate that their presumptions were reasonable and that filing to become a candidate was not merely a matter of following a few simple rules. Obviously if that were the case we would not have needed three Supreme Court orders to explain the rules. So if you are inclined to think anyone who got kicked off the ballot is not competent enough to hold whatever office they seek, you need to re-evaluate that position before you vote in November.
The problems with the elections this year were created by many various components of the government including agencies from all three branches of government. Unfortunately the only people who have paid the price for the mistakes are the non-officeholding citizens who attempted to participate in the process and offered themselves as candidates but were unceremoniously relegated to petition candidate status and the voters who had far fewer choices 5on June 12th and June 26th. The voters’ frustration with our government and our election process was amply demonstrated by the lowest voter turnout in decades, perhaps ever.
Another “amazing” thing about this whole situation is the fact that the federal authorities were not interested in the least in the situation or the common people and minorities who were denied their rights in reference to voting and running for office. Where was Eric Holder and theDepartment of Justice or the US Attorney? Obviously they were too busy fighting against voterID so they could not get involved in real election issues.
In a gesture of good will and as a sort of penance for the mess the government has created the Legislature should hold a special session specifically to pass a law making straight party voting unavailable for the November election. Governor Haley should sign it immediately and Attorney General Wilson should get it approved through the Department of Justice expeditiously so that it can be put into effect in November. This simple change would require the voters to consider every office individually and consciously decide to vote for the incumbent or not and give the petition candidates a fighting chance. Do our leaders have the moral strength and honor to make this a reality? We will see.
Richard Bolen is a lawyer with the Bolen Law Firm in Lexington. He originally wrote this letter to fellow Republicans.