Could a South Carolina party reopen candidate filing when someone withdrew after the deadline but before the primary?

Plain-English summary

The state election commission asked whether a political party could reopen filing when one of no more than two candidates withdrew after filing closed. The 1996 AG drew the line at nomination. If the withdrawal occurred after filing closed but before the primary, Section 7-11-15 let the appropriate party committee decide whether to allow new candidates to enter. The pre-primary rule did not require the withdrawal to be for a nonpolitical reason.

The opinion distinguished a withdrawal after nomination, governed by a different replacement provision. It also stressed that the party’s discretion was not unlimited: the committee should decide promptly, and if it reopened entries, allow a reasonable time for them. For a state Senate race, the state committee held the specified discretion.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a withdrawal before the primary automatically reopen filing? A: No. Where no more than two candidates had filed, the statute gave the relevant party committee discretion to allow additional entries.

Q: Did the candidate need a nonpolitical reason for a pre-primary withdrawal? A: The opinion said Section 7-11-15 did not impose that condition in the situation it addressed.

Q: Did the same rule apply after the candidate became the party nominee? A: No. The AG distinguished withdrawal by a nominee after the primary, which fell under Section 7-11-55.

Q: Could the committee delay its decision indefinitely? A: The opinion said the decision should be made expeditiously and with due diligence because election deadlines were pressing.

Background and statutory framework

The AG read Section 7-11-15 with Section 7-11-55. The first allowed a party committee to admit new candidates after a timely filer withdrew before the primary in a race with no more than two filed candidates. The second concerned a party nominee’s later vacancy. The opinion relied on the predecessor to the first statute and earlier office guidance about reasonable use of committee discretion.

Citations and references

Statutes discussed: Section 7-11-15; Section 7-11-55.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-18-1996-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96apr18hendrix.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOL.ONY CONDON
ATTORNEY G ENERAL

April 18, 1996

James F. Hendrix, .Executive Director
Election Commission
Post Office Box 5987
Columbia, South Carolina 29250
Re: Infonnal Opinion
Dear Mr. Hendrix:
You pose the following question and request an opinion thereupon:
[w]e have received several inquiries regarding the legality of reopening the filing process when a single candidate or, in some cases, two candidates have filed with a political party as a candidate for an office during the statutory filing period and one or more of those candidates withdraws after filing is closed. I am writing to request an opinion from your office concerning this situation. The next to last paragraph of Section 7-11-15 seems, in my judgment to address this situation.

Law I Analysis
Several statutes may be applicable to the situation apd thus must be examined. S.C. Code Ann. Section 7-11-55 provides in pertinent part as follows: (i]f a party nominee dies, becomes disqualified after his nomination, or resigns his candidacy for a legitimate nonpolitical reason as defined in Section 7-11-50 and was selected through a party primary election, the vacancy must be Rl'\lllf;J{T

c. J)i;~~l S Bl "ILDI~ (;

'2i~d(~

•

POST OFFICE Box 11549

•

COLUMBIA.

s.c. 29211-1549

•

TELEPHONE: 803-734-3970

•

FACSIMILE: 803-253-6283

Mr. Hendrix
Page 2
April 18, 1996
filled in a special primary election to be conducted as provided in this section. Moreover, Section 7-11-15 provides in pertinent part:
[i]f, after the closing of the time for filing statements of candidacy, there are not more than two candidates for any one office and one or more of the candidates dies, or withdraws, the state or county committee, as the case may be, if the nomination is by political party primary or political party convention only may, in its discretion, afford opportunity for the entry of other candidates for the office involved; provided, that for the office of state Senator, the discretion must be exercised by the state committee. The predecessor language in substantially similar form to the above-quoted portion of Section 7-11-15 has been in existence for many years and was originally codified as part of Section 7-13-40.1 In 1988, however, Act No. 363 recodified this provision with slight modifications and inserted it as part of new Section 7-11-15. At the same time, the provision was removed from Section 7-13-40 which was also considerably revised. Thus, the question here is whether Section 7-11-55 or 7-11-15 controls. Several principals of statutory construction are relevant to your inquiry. First and foremost, in interpreting a statute, the primary purpose is to ascertain the intent of the Legislature. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). A statutory provision as a whole must receive a practical, reasonable and fair interpretation consonant with the purpose, design and policy of the lawmakers. Browning v. Hartvigsen, 414· S.E.2d 115 ( 1992). The words in a statute must be given their plain and ordinary meaning without

1

Former Section 7-13-40 provided that
[i]f, after the closing of the time for filing pledges, there be not more than two candidates for any one office and one or more of such candidates dies or withdraws, the state or county committee, as the case may be, may in its discretion, afford entry for the other candidates for the office involved

Mr. Hendrix
Page 3
April 18, 1996
resort to subtle or forced construction to limit or expand the statute's operation. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991). Moreover, statutes in pari materia have to be construed together and reconciled so as to render both operable. State Farm Mut. Auto Ins. Co. v. Lindsay, 284 S.C. 472, 328 S.E.2d 80 (Ct. App. 1984). Generally, statutes relating to a specific subject matter prevail. Ramsey v. County of McCormick, 412 S.E.2d 408 (1991). From the facts you have presented, it appears that the candidate's withdrawal occurs after the close of filing but before the primary. Applying the foregoing rules of construction, I would thus consider Section 7-11-15 rather than Section 7-11-55 to apply in that situation. First of all, Section 7-11-55 expressly deals with situations where the "party nominee ... resigns his candidacy for a legitimate nonpolitical reason as defined in Section 7-11-50 and was selected through a party primary election ... ". (emphasis added). Moreover, Section 7-11-15 specifically addresses the situation where 'after the closing of the time for filing statements of candidacy" and "there are not more than two candidates for any one office and one or more of the candidates ... withdraws .... " Reading Sections 7-11-15 and 7-11-55 together, it is evident that the former statute controls the situation after the closing of filing and prior to the primary and the latter deals with the withdrawal of a party'.s nominee after being chosen by the party. ["If a party nominee ... resigns for a nonpolitical reason ..."]. Finally, neither Section 7-11-15 nor its predecessor statute (Section 7-13-40) requires the candidate to have based his withdrawal upon a nonpolitical reason. This interpretation is consistent with an earlier opinion of this Office. In Op. No. 88-25 (March 16, 1988) we deemed the predecessor to Section 7-11-15 (Section 7-13-40) to be applicable in this very situation. There, we addressed the issue of whether filing could be reopened where a candidate had withdrawn to accept a full-time ·position after filing had closed. We determined that Section 7-13-40 would be applicable in that instance. In the opinion, we stated:
[t]he answer to your question would depend upon many
variables, most importantly the timing of the resignation. South Carolina Code of Laws, 1976, as amended, Section 713-40 provides for primary nominations of candidates and provides that
[i]f after the closing of the time for filing
pledges, there be not more than two candidates

Mr. Hendrix
Page 4
April 18, 1996

for one office and one or more of such
candidates dies or withdraws, the State or county
committee, as the case may be, may, in its
discretion, afford the opponunity for the entry of
other candidates for the office involved;
provided that for the office of State Senator, the
discretion shall be exercised by the State
committee.
Therefore, if the candidate's withdrawal comes before the primary and there are only two candidates for that position, the party has the discretion to reopen filing. If the withdrawal occurs after the primary or convention nomination section 711-50 governs. This section provides in part that

If a party nominee dies, becomes
disqualified after his nomir.ation or resigns his
candidacy for a legitimate nonpolitical reason as
defined in this section and sufficient time does
not remain to hold a convention or primary to
fill the vacancy or to nominate a nominee to
enter a special election, the respective state or
county party executive may :iominate a nominee
for such office, who shall be duly certified by
the respective county or state chainnan.
(emphasis added). Thus, even though this opinion interpreted Section 7-13-40, as noted above, the opinion would be similarly controlling with respect to the applicability of Section 7-11-15 which is the successor provision. Thus, it is my opinion that Section 711-15 would be controlling where after the clos·~ of filing there are not more than two candidates and one or more candidates withdraw3 prior to the primary. Section 7-11-55 would be used to replace the nominee who withdraws after the primary. While Section 7-11-15 would be applicabie where withdrawal occurs prior to the primary, and the decision to reopen filing is a matter of discretion with "the state or county committee ... [to] afford the opportunity for the entry of other candidates," I would advise that it would be expected that the political parties would act reasonably in the exercise of such discretion. As we stated in QQ. No. 2858 (March 17, 1970), the exercise of discretion "is not absolute." We noted in an opinion dated April 11, 1968 that "[i]f the

Mr. Hendrix
Page 5
April 18, 1996
committee decides to open the entries for additional candidates, it should afford a reasonable time for their entry." In an opinion of March 30, 1972, we advised that "[a] two week period, the length of the original filing period, would be an appropriate period, in our opinion, to re-open the filing ... ."

It is a well recognized principle of law that where discretion is given by statute, the exercise of that discretion must be done within a reasonable period of time. It is wellestablished, for example, that
[a] public officer is in duty bound to exercise the
judgment.or discretion which is reposed in him by law. If he fails, or refuses to do so, and does not act upon the subject or pass upon the question on which such judgment or discretion is to be exercised, then the writ of mandamus may be used to enforce obedience to the law. In other words, when in matters involving discretion the respondent refuses to act at all, mandamus may issue to move him to action and to exercise discretion in the matter. 52 Am.Jur.2d, Mandamus, § 77. Our Supreme Court has also stated:
[w]hether the courts can control the action of officers or official boards, vested with discretionary power, when they refuse to act in consequence of a conclusion they have reached
... is a question of some difficulty. But it must be answered in the affirmative, on principle as well as authority. Mauldin v. Matthews, 81 S.C. 414, 416 (1908). The need for such expedition is patently obvious in election matters where time is almost always at a premium. Thus, while Section 7-11-15 grants discretion to determine whether or not to allow additional filing for the primary, that decision, one way or the other, should be made expeditiously and with due diligence. This letter is an infonnal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion.

Mr. Hendrix
Page 6
April 18, 1996
With kind regards, I am
Very truly yours,

Ur

Robert D. Cook
Assistant Deputy Attorney General
RDC/an
cc:
Dr. Mark Hartley
Mr. Trey Walker
REVIEWED AND APPROVED BY:

~ C. Williams, III

~~ty Attorney General