Could a Charleston County Council candidate file before moving into the district?

Plain-English summary

Charleston County election-board counsel asked about a District 7 county council candidate whose filing address was outside the district. The AG read Section 4-9-90 to require district residence when the election occurred, not at filing. The candidacy statement itself allowed the person to affirm that qualifications would be met by the election. On the stated facts, the filing address did not alone disqualify the candidate.

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: Did the candidate have to live in District 7 when filing?
A: No. The AG said a candidate could file before moving into the district.

Q: When did the residence requirement have to be met?
A: The AG said the candidate had to reside in the district on the date of election.

Q: Did the candidacy form permit future qualification?
A: Yes. The opinion quoted its affirmation that the candidate met or would meet the qualifications by the election, as otherwise required by law.

Background and statutory framework

Section 4-9-90 tied residence in a single-member council district to the district as constituted at election time. Section 7-11-15 supplied the candidacy-statement language. The AG drew on earlier opinions distinguishing the date of filing from the date of election.

Citations

• Section 4-9-90
• Section 7-11-15

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-21-2004-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04apr21howell.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATTORNEY GENERAL

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April 21, 2004

SamueJ W. Howen, IV, Esquire
General Counsel, Board of Elections and
Voter Registration for Charleston County
Post Office Box 22495
Charleston, South Carolina 29413
Dear Mr. Howell:

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In a letter to this office you indicated that a question has arisen with regard to the residency requirement for a candidate for Charleston County Council District 7. According to your letter, members ofCharleston County Council are required to be elected from single member districts. You indicated 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 1 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 your 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 provided by Article XVTI, Section 1 and Article VI, Section 1 of the State Constitution, an officeholder must possess the qualifications of an 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 of the governing body... (county council) ... are required to be elected from defined single-member election districts, they must be elected by the qualified electors of the district in which they reside." However, as further stated by Section 4-9-90, "for the purpose of this section, a council member will be deemed a resident of the district he represents as long as he resides in any patt of the district as constituted at the time of the election." (emphasis added). Consistent with such proyjsion, 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 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

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April 21, 2004

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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." With kind regards, I am,

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Very truly yours,

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Charles H. Richardson
Senior Assistant Attorney General

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REVIEWED AND APPROVED BY:

Rob/lbm, {di-Assistant Deputy Attorney General