A legislative legal mess could put elections at risk

State Senate President Pro Tempore Glenn McConnell is rightly worried. A new attorney general's opinion has him concerned that next year's elections in this state are legally at risk. So are appointments to the Charleston County Parks and Recreation Commission. They are part of a larger legal mess that is the creation of the General Assembly and can no longer be ignored.

The heart of the problem is the Legislature's inability to come to terms with the 1970s "home rule" constitutional amendment that prohibited lawmakers from passing "special legislation" for only one county when a general law could apply. Every governor for the last four decades has tried to uphold the Constitution by vetoing these local bills. Just as routinely, the Legislature has overridden those vetoes.

For the most part these special laws have remained on the books unchallenged. While in most instances the local laws being passed reflect the lawmakers' inability to stop dabbling in local government, some actually involve efforts by lawmakers to do the right thing and transfer their power over local boards and commissions to local officials. That's the case, for instance, with the Charleston County Parks and Recreation Commission which has been appointed by County Council since 2003.

But those appointments have been on hold since a Supreme Court decision earlier this year in a Richland County Recreation Commission case. The high court said, in effect, that Richland legislators had waited much too late to give their power to appoint commissioners to county government. According to the decision, there was only a narrow window of opportunity after "home rule" went into effect to pass local bills —no matter if they were remedial and carried out the "home rule" intent.

Sen. McConnell asked the attorney general's office last month to assess the impact of that decision on the Charleston delegation's transfer of its parks commission appointment power to County Council as well as the validity of the merger of the Board of Voter Registration and the Election Commission. In view of the Richland decision, he tells us it came as no surprise that opinion found both the election and recreation commission changes to be "constitutionally suspect" special legislation.

In Sen. McConnell's view, the most obvious fix is to pass statewide laws to supplant the local legislation. For example, one statewide law could establish the framework for all county election operations and another could turn over the appointment powers for all county recreation commissions to local governments. With the 2008 election year looming and close elections likely, the senator said it is vital to resolve the legality of local election commissions in early January. The revised Charleston election commission is by no means the only one under a cloud as a result of the 2003 merger. A state Election Commission spokesman tells us that 37 out of 46 counties now have merged operations that have been accomplished through the years by special legislation.

Since so many county election commissions are "constitutionally suspect," surely the majority of the Legislature will heed Sen. McConnell's concern and correct the problem with a statewide bill. "We've been turning our head to 'special legislation,' " he said. "This has got to stop." The senator added, "We've got enough to do without getting hung up on these local matters."

The attorney general's opinion notes that until a court rules otherwise, the legislation in question has the force and effect of law. But challenges are getting more and more frequent. For example, a citizen's lawsuit was filed with the Supreme Court recently that challenges as prohibited "special legislation" changes to election commission laws in Hampton and Oconee counties that were passed this year after the decision in the Richland case.

For too long the Legislature has been blatantly ignoring the Constitution's "home rule" provisions even in the face of rulings by the high court. It is, indeed, time to stop.