I-526 Funding (copy) (copy)

A lawsuit says because of the way it handled the 2016 referendum, the Charleston County Council is legally barred from using money from the half-cent sales tax to complete I-526. Brad Nettles/Staff

When the Coastal Conservation League filed its lawsuit Monday seeking to block the completion of I-526, it went on at length about how Charleston County Council had broken its “contract with voters” by paying for the controversial project using money from the half-cent sales tax that voters had authorized in 2016.

That’s indisputable. Not only was the project not included in the ordinance calling the referendum, but the council had removed it from an earlier version. Then it repeatedly made the point that I-526, also known as the Mark Clark Expressway, was not among the projects that would be built using money from the new tax.

Doing precisely what they had promised voters they wouldn’t do certainly is a strong foundation for an argument against re-electing any of the seven council members who authorized the I-526 funding.

But what does it have to do with a lawsuit? Which is supposed to be about violations of the law or the constitution, not politicians doing what some people believe comes naturally for politicians.

The more I read of the league’s quotes from voters who said they would have opposed the sales tax if they knew the money would go to I-526, the more concerned I was that the lawsuit lacked a sound legal basis.

Scoppe Mug Shot (copy) (copy)

Cindi Ross Scoppe

Well.

It turns out that this “contract with voters” isn’t just a political ideal. It’s also a well-established legal doctrine, which the S.C. Supreme Court has recognized for decades. A 1965 S.C. attorney general opinion advised that the “South Carolina Supreme Court has held several times that funds derived from a tax levied for a particular purpose may not be diverted to another use before the original purpose has been accomplished.”

Without using those actual words, the court spelled out the contract with voters doctrine in a 2006 case about the question Oconee County had placed on the ballot three decades earlier seeking permission to build a sewer system using state and federal grants and revenue from the system itself.

Although the state constitution didn’t require the county to restrict the sources of funding for the sewer system, “here Oconee County chose to include such a restriction in the referendum it presented to the voters,” the unanimous court declared in Cornelius v. Oconee County. “Accordingly, the voters of Oconee County approved the referendum, but only on the condition that specific, non-tax based financing be used to construct, operate, and maintain the sewer system. To now permit the County to use the fact of a favorable vote as a license to ignore the express terms of that referendum and deploy its general taxing power to finance expansion of the system would subvert the popular will.”

Circuit Judge Michael Nettles brought the principle even closer to home in a 2017 ruling that said Dillon County had to give half the proceeds from a local sales tax to the county schools because of a public relations campaign the council had waged in 1995 to persuade voters to increase the tax. The ballot question didn’t say the money would go to the schools, but the council had agreed to split the money with the schools, and the local newspaper had published a fact sheet from the county promising half the sales tax revenue to the schools.

That’s a lower-court opinion, so it has no precedential value, but it sounds a lot like what happened here in 2016, when Charleston County Council played tug-of-war over whether to include I-526 in the list of projects to be funded by the sales tax increase, or to ask a separate question about funding I-526, and ended up making no reference to the project on the ordinance or the ballot question. Just days before the referendum, The Post and Courier published an op-ed column in which Councilman Herb Sass declared: “The half-penny sales tax program Charleston County Council passed this summer, which is on the November ballot, was the result of careful study of our road and transit needs and did not include funding for the Mark Clark.”

Whatever you think about the wisdom of completing I-526, it seems like we all ought to be encouraged by the possibility that the courts could hold an elected body responsible for the promises it makes to voters.

Cindi Scoppe is an editorial writer for The Post and Courier. Contact her at cscoppe@postandcourier.com, or follow her on Facebook or Twitter @CindiScoppe.

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