Could a county election commission reject a council candidate solely because the candidate had not moved into the district by filing day?

Plain-English summary

A senator reported that a Charleston County Council District 7 candidate had been told he was ineligible because he did not yet live in the district. The AG concluded that district residence was required on the date of election. Filing from an address outside the district did not itself bar the candidacy, because the governing statute and candidacy statement contemplated qualification by election day.

Currency note

This opinion was issued in 2004. 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: Could the candidate run while living outside District 7 at filing?
A: The AG said yes; the filing address alone did not preclude the candidacy.

Q: When did the candidate need to live in the council district?
A: The opinion said residence in the district was required at the time of election.

Q: What did the candidate affirm on the filing statement?
A: The form allowed an affirmation that qualifications were met or would be met by the election, subject to other legal requirements.

Background and statutory framework

Section 4-9-90 referred to the district as constituted at the time of the election. Section 7-11-15 governed the statement of intention of candidacy. The AG relied on these provisions and prior opinions to distinguish filing from the election-date qualification.

Citations

• Section 4-9-90
• Section 7-11-15

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-21-2004/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04apr21hawkins.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTI.R
ATTORNEY GENERAL

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April 21, 2004

The Honorable John Hawkins
Senator, District No. 12
Post Office Box 142
Columbia, South Carolina 29202
Dear Senator Hawkins:
ln a letter to this office you indicated that a question bas arisen with regard to the residency requirement for a candidate for Charleston County Council. The individual has been informed by the CharJeston County Election Commission that he is ineligible to be a canclidate for that office because he does not currently live in the county council district. It is my understanding that the individual is a candidate for the District 7 seat.

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According to my information, members of Charleston County Council are required to be elected from single member districts. It is my information that the candidate for District 7 filed a Statement of Intention of Candidacy pursuant to S.C. Code Ann. Section 7-11-15 which contained the affirmation by the candidate that "I hereby affirm that I meet or will meet by the time of the general or special election, or as otherwise required by law, the qualifications to hold this office." In that Statement, the candidate gave as his address the same address as the voter registration records shows as his residence. It is my information that the address given by the candidate and set forth in his voter registration records is not located within Charleston County Council District 7 and, therefore, the candidate did not presently reside within District 7 as of the time of filing for office. As provjded by Article XVII, Section 1 and Article Vl, Section 1 of the State Constitution, an office holder must possess the qualifications ofan elector. S. C. Code Ann. Section 7-5-120 states that an elector must be a "resident in the county and in the polling precinct in which the elector offers to vote." Such is consistent with the requirements of S.C. Code Ann. Section 4-9-90 that "in the event the members ofthe governing body... (county counciJ) ... are required to be elected from defined single-member election districts, they must be elected by the qualified electors of the distri ct in which they reside." However, as further stated by Section 4-9-90, "for the purpose of thjs section, a council member will be deemed a resident of the district he represents as long as he resides in any part of the district as constituted at the time of the election.'' (emphasis added). Consistent with such provision, this office has indicated in prior opinion dated October 18, 1993 that to be elected to a county council position where the election is held according to defined single member districts, an individual must be a qualified elector who resides in the district he is to represent. The opinion

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The Honorable John Hawkins
Page 2
April 21, 2004

further stated that in such circumstances, "one's qualification for office is determined as of the date of election." Other opinions have reached similar conclusions. See: Op. Atty. Gen. dated February 19, 1998 ("It has been the consistent opinion of this office that a candidate must be qualified as of the time of the general election."); Op. Atty. Gen. dated November 20, 1997 ("If a candidate is not a qualified elector at the time of the election, his election is a nullity."); Op. Atty. Gen. dated April 19, 1996 (citing State ex rel. Harrelson v. Williams, 157 S.C. 290, 154 S.E.164 (1930), "Ordinarily, candidates' qualifications are determined at the time of the election and not at the time of nomination."); Op. Atty. Gen. dated November 15, 1995 ("Ordinarily, the time for determining a candidate's qualification for holding office is the date of election."). Therefore, consistent with the above-referenced opinions and the specific language of Section 4-9-90 that a council member is considered a resident of a district as long as he resides in any part of that district at the time of the election, in my opinion, the candidate for District 7 must reside in that district as of the date of his election. The fact that the candidate did not live in the district at the time of his filing for office would not preclude him from being a candidate. Such interpretation would also be consistent with the candidate's Statement of Intention of Candidacy pursuant to S.C. Code Ann. Section 7-11-15 which contained the affirmation by the candidate that "I hereby affirm that I meet or will meet by the time of the general or special election, or as otherwise required by law, the qualifications to hold this office."

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With kind regards, I am,

Very truly yours,

(1~,,r/I /ZlcJ), __
Charles H. Richardson
Senior Assistant Attorney General

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REVIEWED AND APPROVED BY:

Robert D. Cook
Assistant Deputy Attorney General