Op-Ed: Succession Quandary Shows Legislative Negligence


By Hannah Hill
December 13, 2016

The constitutional conundrum South Carolina will face if Nikki Haley is confirmed as UN ambassador is evidence of at least one thing: Its legislators take a casual approach to the rule of law.

How did we get to this point? The amendment to the constitution that voters approved in 2012 would have been enacted in 2018, but when the bill to ratify the amendment was filed in the Senate in 2013 it left out a key portion – which changed the effective date. Here is what happened:

  • On November 6, 2012 voters approved a constitutional amendment which would have enabled, among other things, the governor and lieutenant governor to run on the same ticket and the governor to appoint the lieutenant governor should the seat to become vacant.
  • On February 27, 2013 a bill was introduced, by Sen. Shane Massey that did not include an effective date for much of the bill – meaning it would become effective when the House and Senate passed it.
  • By May 29, 2014 the bill had passed both the Senate and House and was ratified with no amendment to insert the missing date. Since ratification triggered an effective date where not expressly stated a majority of the bill became effective on this date – which is almost two years before voters intended it to.

The bill passed the Senate Judiciary Committee, received two floor votes in the Senate, passed the House Judiciary Committee, and received two floor votes in the House – with no amendment to correct the missing date. The fact that no one caught that error – presumably that no one actually read the bill that changed the constitution – is alarming enough.

But the consequences go much further. By a plain reading of the constitution, the whole amendment should be invalidated. There are no constitutional or statutory grounds for correcting errors in the constitution. Even the process for correcting errors in state code is limited to a brief fifteen-day window, after which any errors stand until legislatively corrected by the General Assembly.

If Haley resigns from office, as she is expected to do, who would become lieutenant governor when Henry McMaster steps into the governor’s seat? Does the legislature follow what the people voted on, or does it follow the current reading of the constitution? It’s not within the purview of the General Assembly to adjudicate or fix constitutional questions. Only the courts can perform that role.

Still, the legislature may try. Media reports indicate that senators may simply follow the original language of the amendment, in spite of the fact that the constitution, as it reads now, demands something completely different. And lawmakers “fixing” the constitution on their own authority would set a dangerous precedent.

Lawmakers either made this change inadvertently, in which case they passed a constitutional amendment without bothering to read it, or someone altered a constitutional amendment after the people approved it. South Carolinians ought to be outraged by either scenario. And whatever happened, the state supreme court should rule on how to proceed – the court must decide either to make all the amended sections effective 2018 or invalidate the amendment and tell the legislature to start over.

Hannah Hill is a policy analyst at the South Carolina Policy Council. Her story for November 21 story for TheNerve.org was the first to reveal the ambiguously dated constitutional amendment.

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