Rhodes Bailey, Robert Wehrman, South Carolina Democratic Party, and DCCC, Plaintiffs-Petitioners, v. South Carolina State Election Commission and Marci Andino as Executive Director of the State Election Commission, Defendants-Respondents, and South Carolina Republican Party, Intervenor.
Appellate Case No. 2020-000642
THE STATE OF SOUTH CAROLINA In The Supreme Court
Heard May 12, 2020 – Filed May 27, 2020
Opinion No. 27975
ORIGINAL JURISDICTION
DISMISSED
Christopher James Bryant and Bruce V. Spiva, both of Perkins Coie, LLP, of Washington, D.C., for Plaintiffs Petitioners.
William Grayson Lambert and Mary Elizabeth Crum, of Burr & Forman, LLP; Karl Smith Bowers Jr., of Bowers Law Office; J. Robert Bolchoz, of Robert Bolchoz, LLC; and Harrison D. Brant, of the South Carolina Election Commission, all of Columbia, for Defendants Respondents.
Robert E. Tyson, Jr. and Vordman Carlisle Traywick III, both of Robinson Gray Stepp & Laffitte, LLC, of Columbia, for Intervenors.
Attorney General Alan McCrory Wilson, Deputy Solicitor General J. Emory Smith Jr., and Assistant Attorney General Harley Kirkland, all of the South Carolina Attorney General‘s Office, of Columbia, for Amicus Curiae.
We grant the request to hear the case in our original jurisdiction. We respectfully decline to dismiss the case on any of the grounds argued in the SCGOP motion. As we will explain, however, we dismiss the case on the ground that it does not present a justiciable controversy.
I.
Although this case does not present a constitutional challenge,2 we begin with the
unassailable proposition which all participants acknowledge: the right to vote is a cornerstone of our constitutional republic. See Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S. Ct. 983, 990, 59 L. Ed. 2d 230, 241 (1979) (“[V]oting is of the most fundamental significance under our constitutional structure.“); Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535, 11 L. Ed. 2d 481, 492 (1964) (“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.“); see also
The voting laws implicated in this case are South Carolina statutes governing absentee voting. Pursuant to
II.
We will dismiss any case that does not present a justiciable controversy. Byrd v. Irmo High Sch., 321 S.C. 426, 430, 468 S.E.2d 861, 864 (1996). On Tuesday, May 12—the day this Court heard oral argument on Plaintiffs’ request that we construe the term “physically disabled person” to include any voter practicing social distancing to avoid contracting or spreading COVID-19—our Legislature met to consider whether it should make any changes to our election law in light of the COVID-19 pandemic. Both the House and the Senate enacted legislation to temporarily change the law. The bill provides,
A qualified elector must be permitted to vote by absentee ballot in an election if the qualified elector‘s place of residence or polling place is located in an area subject to a state of emergency declared by the Governor and there are fewer than forty-six days remaining until the date of the election.
The next day—May 13—the Governor signed the bill into law. Because the entire State is currently under a “state of emergency as declared by the Governor,” S.C. Exec. Order No. 20-35 at 9 (May 12, 2020), and “there are fewer than forty-six
days” between now and the June primary, all South Carolina voters are permitted to vote in the primary by absentee ballot, if they choose. This action by our Legislature and Governor enacted into law the precise relief Plaintiffs request—as to the primary election. By its terms, however, the legislation expires on July 1, 2020.
Second, though the new law expires on July 1, and thus does not moot Plaintiffs’ claim as to any election after that date, the fact the Legislature changed the law to permit every voter to vote in the primary by absentee ballot is a clear indication the absentee voting statutes did not already permit that. To explain, if existing law already permitted all voters to vote by absentee in the face of a pandemic, it would have been unnecessary for the Legislature to change the law. In addition, by providing the new law “expires,” the Legislature essentially reenacted the old law as of July 1. This makes clear the Legislature‘s intent that—under the old law reenacted—all voters may not vote by absentee ballot in the face of a pandemic. The question Plaintiffs raise is whether existing law permits all voters to vote by absentee ballot. The Legislature answered that question, “No“; it took a change in the law for that to be true. The change in the law means the answer is now, “Yes.” But the law expires, by which the Legislature deliberately changed the answer back to, “No,” after July 1. There is no way to interpret these changes other than as a legislative determination that
The dissent argues that Plaintiffs’ claim relating to elections after July 1—in addition to the constitutional question—presents a question of statutory interpretation, not a political question. We certainly agree statutory interpretation is within the province of this Court. In fact, what we articulated in the previous paragraph is our construction of
intends it after July 1, not based on its plain language or the canons of construction, but based on the Legislature‘s political act of reenacting the subsection after temporarily changing the law. We hold the question is now a political question because the Legislature answered the question of statutory interpretation with absolute clarity when it changed the law to permit all voters to vote absentee, and then sunset the new law for elections held after July 1.
Statutory interpretation is certainly a judicial question, but when the Legislature considers the very same question—knowing it is doing so at the very same time the Court considers the question—and answers the question with clarity, we cannot give a different answer through the judicial act of statutory interpretation. We may do so only by the political act of simply disagreeing. This Court will not do it.
Plaintiffs are left, therefore, only with their implicit argument as to what the law should be, that is, that this Court should change the law. As for the June primary election, the Legislature has determined that all voters may vote absentee. As for elections after July 1, 2020, we hold that whether any change should be made to the law is a political question for the Legislature likewise to answer. See S.C. Pub. Interest Found. v. Judicial Merit Selection Comm‘n, 369 S.C. 139, 142-44, 632 S.E.2d 277, 278-79 (2006) (explaining that this Court will not answer political questions). To consider this political question, the House and Senate by joint resolution Tuesday, May 12 set September 15, 2020 (or earlier at the call of the Senate President or House Speaker) to resume the legislative session. See
Pursuant to that constitutional obligation, the Legislature has determined that
another change in our election law, and if the will of the people as expressed through their legislative representatives is that such a change be made, the Legislature may change the law. This Court, however, will not. See
III.
We grant the motion to hear this case in our original jurisdiction. Having carefully reviewed the matter, we dismiss the case.
DISMISSED.
KITTREDGE, FEW, and JAMES, J.J., concur. HEARN, J., concurring in part and dissenting in part in a separate opinion in which BEATTY, C.J., concurs.
Rhodes Bailey, Robert Wehrman, South Carolina Democratic Party, and DCCC, Plaintiffs-Petitioners, v. South Carolina State Election Commission and Marci Andino as Executive Director of the State Election Commission, Defendants-Respondents, and South Carolina Republican Party, Intervenor.
Appellate Case No. 2020-000642
THE STATE OF SOUTH CAROLINA In The Supreme Court
JUSTICE HEARN: I agree with the majority‘s decision to grant Plaintiffs’ request to hear this case in our original jurisdiction, decline to dismiss the case on the grounds argued in the SCGOP‘s motion, and dismiss Plaintiffs’ complaint as moot with respect to the June primary. Sloan v. Friends of Hunley, Inc., 369 S.C. 20, 25, 630 S.E.2d 474, 477 (2006) (“Generally, this Court only considers cases presenting a justiciable controversy.“); Id. at 26, 630 S.E.2d at 477 (“A moot case exists where a judgment rendered by the court will have no practical legal
However, I part company with the majority in its haste to dismiss the action with finality as it relates to the general election on the theory that a political question is presented.4 I view the issue before us not as a political question but rather a question of statutory interpretation, which is clearly within the province of this Court. Marbury v. Madison, 5 U.S. 137, 177 (1803) (“[I]t is emphatically the province and duty of the judicial department to say what the law is.“); Abbeville Cty. Sch. Dist. v. State, 410 S.C. 619, 632, 767 S.E.2d 157, 163-64 (2014) (“This hallowed observation is the bedrock of the judiciary‘s proper role in determining the constitutionality of laws, and the government‘s actions pursuant to those laws.“); 82 C.J.S. Statutes § 368 (2009) (noting the interpretation and construction of statutory language presents a question of law for the court to decide). The General Assembly, in enacting the legislation, rendered the question before us moot with respect to the June primary, but it did not settle the ultimate issue at hand—the statutory construction of “physically disabled persons” in the absentee voting statutes consonant with the constitutional mandate for free and open elections.
citizen . . . .“); Peoples Nat‘l Bank of Greenville v. S.C. Tax Comm‘n, 250 S.C. 187, 192, 156 S.E.2d 769, 772 (1967) (noting this Court has a duty to adopt a statutory construction which conforms to constitutional requirements); Moseley v. Welch, 209 S.C. 19, 27, 39 S.E.2d 133, 137 (1946) (“[T]he provisions of our State Constitution are not a grant but a limitation of legislative power, so that the General Assembly may enact any law not expressly, or by clear implication, prohibited by the State or Federal Constitution.“). I reject the majority‘s assertion that I have reframed or recast the issue as a constitutional challenge but instead explain that this Court cannot ignore the constitutional ramifications of the statutory construction question presented. Although I agree with the premise that we generally answer only the questions specifically posited to us, we do not construe statutes in a vacuum, but rather in the shadow of the Constitution. Indeed, were this Court able to address the question of statutory construction raised here, we would inevitably have to determine whether our interpretation is consistent with the free and open elections clause of our Constitution, as both Plaintiffs and the SCGOP acknowledged at oral argument.5
My review of our jurisprudence does not support the majority‘s reliance on the political question doctrine. In Alexander v. Houston, 403 S.C. 615, 619, 744 S.E.2d 517, 520 (2013), we rejected the trial court‘s determination that a legal challenge under our Constitution‘s dual office holding provision was a nonjusticiable political question. Instead, we held the question presented a “bona fide legal challenge” that was proper for
Moreover, the action or inaction of the General Assembly does not determine whether a question is political, and therefore, nonjusticiable. See Doran v. Robertson, 203 S.C. 434, 445, 27 S.E.2d 714, 718 (1943) (“The Legislature cannot finally determine the limits of its power under the Constitution; that is a fundamental function of the courts. But it is so high a prerogative that it should be exercised with utmost care and circumspection.” (internal citation omitted)). Rather, it is the responsibility of this Court to decide on a case-by-case basis whether a nonjusticiable political question is presented. Baker v. Carr, 369 U.S. 186, 211 (1962) (“Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.“); Segars-Andrews v. Judicial Merit Selection Comm‘n, 387 S.C. 109, 122, 691 S.E.2d 453, 460 (2010) (“In determining whether a question is political and nonjusticiable, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory
Further, in my view, the General Assembly‘s action in passing the temporary legislation does not necessarily resolve the issue of whether persons practicing social distancing to avoid contracting or spreading this serious, highly communicable disease are included within the plain and ordinary meaning of “physically disabled persons,” as defined in
(2019) and allowed to vote by absentee ballot pursuant to
BEATTY, C.J., concurs.