Was South Carolina’s early fingerprint deadline for sheriff candidates constitutional in 1996?

Plain-English summary

A senator questioned the constitutionality of South Carolina’s requirement that prospective sheriff candidates have fingerprints available to the State Law Enforcement Division sixty days before qualification for election closed. Candidates might have to decide to run before filing opened. The 1996 AG nevertheless expected a court to uphold the law. The state constitution authorized legislative sheriff qualifications, and the opinion considered an early background check a reasonable way to identify an ineligible candidate before an election was held.

The AG treated the deadline as measured back from the end of the filing period under an earlier office opinion. He also discussed equal protection and ballot access, concluding that the fingerprint requirement had reasonable grounds. He emphasized that the statute was presumed constitutional and remained to be followed unless a court declared otherwise; his letter did not itself decide the constitutional question for a court.

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: When did fingerprints have to reach SLED under the 1996 law? A: The opinion read the statute as requiring them sixty days before the close of qualification, measured from the last day for filing candidacy with the appropriate party committee or election commission.

Q: Did the early deadline invalidate the sheriff qualification law? A: The AG thought a court would find the requirement constitutional, even though it could require a prospective candidate to act before filing opened.

Q: Why did the AG view sheriffs differently from candidates for other offices? A: The opinion pointed to a constitutional amendment allowing the legislature to set sheriff qualifications and to the more detailed eligibility and criminal-background requirements for that office.

Background and statutory framework

S.C. Code Ann. §23-11-110 set sheriff qualifications, including the fingerprint search. The opinion linked it to Article V, Section 24’s authorization for legislative age and qualification rules for sheriffs. The AG reasoned that the check took time and could prevent the public cost of an election won by someone ineligible to serve.

Citations and references

Statute and constitutional provision discussed: S.C. Code Ann. §23-11-110; Article V, Section 24.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-24-1996-2/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/96apr24lander.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
Cl!ARLES MOLONY CONDON

ATTORNEY GENERAL

April 24, 1996

The Honorable James A. Lander
Senator, District No. 18
601 Gressette Building
Columbia, South Carolina 29202
RE: Informal Opinion
Dear Senator Lander:
By your letter of April 12, 1996, to Attorney General Condon, you have sought an opinion as to the constitutionality of S.C. Code Ann. §23-11-110 (1995 Cum. Supp.), which Code section sets forth qualifications for the office of sheriff. Your particular area of concern is the fingerprint requirements of item (7) of subsection (A), which was added to the qualification section in 1993. You have advised that many candidates have apparently been "caught unaware" of this provision and thus have failed to timely fulfill the requirements. You have asked about the constitutionality of requiring a candidate for the office of sheriff to have his fingerprints taken and submitted to SLED for a criminal records search at least sixty days before the close of filing for election to the office. You have asked whether it would be unconstitutional to require a candidate to "commit" to filing, or at least make the decision to run, prior to the time that filing actually opens. Section 23-11-110 is entitled to the presumptions which attach to any enactment of the General Assembly. In considering the constitutionality of an act of the General Assembly, it is presumed that the act is constitutional in all respects. Moreover, such an act will not be considered void unless its unconstitutionality is clear beyond any reasonable doubt. Thomas v. Macl<len, 186 S.C. 290, 195 S.E. 539 (1937); Townsend v. Richland County, 190 S.C. 270, 2 S.E.2d 777 (1939). All doubts of constitutionality are generally resolved in favor of constitutionality. While this Office may comment upon potential constitutional problems, it is solely within the province of the courts of this State

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POST OFFICt Box I 1549

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COLD I BIA. S.C. 292 l l-1549

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TELEPHONE:

803-734-3970

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f..CSl~lll.E: ~ll3-25~ -h2S.~

The Honorable James A. Lander
Page 2
April 24, 1996

to declare an act unconstitutional. I am of the opinion, however, that a court considering
the constitutionality of §23-11-1 I 0 would not find the statute to be unconstitutional.
Article II, Section 10 of the South Carolina Constitution provides that "[tJhe
General Assembly shall provide for the nomination _o f candidates ... ." Article V, Section
24 of the South Carolina Constitution was amended by the electorate in November 1988
(with the results of the vote ratified by the General Assembly in 1989) to provide that
"[t]he General Assembly also may provide by law for the age and qualifications of sheriffs
... ." Acting with such constitutional authorization, the General Assembly adopted §23-11110, which statute sets forth the qualifications which one must possess to hold the office
of sheriff. Subsection (A)(7) requires that one who would be sheriff must
be fingerprinted and have the State Law Enforcement Division make a
search of local, state, and federal fingerprint files for any criminal record.
Fingerprints are to be taken under the direction of any law enforcement
agency and must be made available to SLED sixty days before the close of
qualification for election to the office with the records search to be filed
with the county executive committee of the person's political party. A
person seeking nomination by petition must file the records search with the
county election commission in the county of his residence.
This provision has been interpreted by an Informal Opinion dated November 15, 1995, to
mean that the time for qualification by a person who would become a candidate for the
office of sheriff would be the last day for filing his candidacy with the county executive
com~ittee or the county election commission, as may be appropriate. Hence, to determine
when fingerprints must be submitted to SLED, one would count back sixty days from the
date filing would be closed.
·
As you pointed out, ordinarily one's qualifications for holding office are determined
as of the date of election. State ex rel. Harrelson v. Williams, 157 S.C. 290, 154 S.E. 164
( 1930). In the Informal Opinion of November 15, 1995, it was opined that by the
adoption of §23- 11 - 110, the General Assembly has created an exception to the usual rule.
It was observed in that opinion that the fingerprint check will take some time to complete
and that if a person who could not meet the qualifications were to be nominated or elected
to the office of sheriff, such election would have been futile; another election would then
be required at great public expense. Thus, it was concluded in the opinion that the
General Assembly could have had such considerations in mind as that body adopted §2311- 110, so that a person would be required to establish his or her qualification to hold the
office no later than the end of the filing period, whenever that may be. (A copy of the
opinion is enclosed herewith for your review.)

The Honorable James A. Lander
Page 3
April 24, 1996

Restrictions on access to the ballot as a candidate must follow the dictates of the
Equal Protection Clause of the Fourteenth Amendment, U.S. const. 1 Bullock v. Carter,
405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). The scrutiny to be given statutes
relative to one's ability to become a candidate for elective office is analyzed in Nowak
et al., Constitutional Law (2d Ed. 1983) at page 77_8:
The ability of persons to be a candidate for political office is certainly
intertwined with the freedom of choice of voters to place persons into
electoral office. Nevertheless, it would be misleading to characterize the
right to be a candidate as a fundamental right which requires the [Supreme]
Court to "strict scrutiny" and the "compelling interest" test to all laws
restricting candidate access to the ballot. Laws which regulate candidacy for
elective office certainly should be subject to independent judicial review.
WhiJe the justices should not impose unduly strict limitations on states'
abilities to promote legitimate goals through regulating the candidacy of
persons for elective office, the justices [of the United States Supreme Court]
should not simply defer to legislative judgments in this area.
Put another way, the judiciary will independently scrutinize the basis for legisktion
contro1ling access to the ballot to ensure that restrictions are a reasonable, non-disc.riminatory means of promoting important state interests. Anderson v. Celebrezze, 460 U.S. 780,
103 S.Ct. 1564, 75 L.Ed.2d 547 (1983).
I am of the opinion that a court considering the requirements of §23-11 -110 w~uld
find them to be reasonable. First and foremost, the electorate of the State of S·.luth
Carolina, by constitutional amendment, has authorized the General Assembly to adopt laws
relative to the age and qualifications for one to be elected sheriff. The General Assembly
has done so. As stated in the Infonnal Opinion of November 15, 1995, referenced above:
To offer as a candidate for the office of sheriff, one must establish
that he [or she] is a citizen of the United States, a resident of the county in
which he seeks election for the specified time, a registered voter, at least
twenty-one years of age, qualified as to education and experience; that his
criminal background meets the statutory requirements; and that his
fingerprints have been checked according tc the statute. Most especially the
fingerprint check will take some time to complete, which could welJ account

1

Section I of the Fourteenth Amendment provides in relevant part that "[n]o state shall
... deny to any person within its jurisdiction the equal protection of the Jaws."

The Honorable James A. Lander
Page 4
April 24, 1996
for the requirement that the fingerprints be made available to SLED sixty
days before the close of "qualification for election to the office." If a person
is not qualified to become a sheriff because he or she cannot meet one or
more of the statutory requirements, it would be futile for that individual to
be able to run in the primary or especially .in the general election held in
November of the appropriate year. Should that person win the nomination
or election yet be unqualified to serve, the primary or general election would
have been a futility; another election would be required at great public
expense. I am of the opinion that the General Assembly could have had
such considerations in mind as that body adopted §23-11-110, so that a
person would be required to establish his or her qualification to hold the
office no later than the end of the filing period, whenever that may be.
[Emphasis added.]
The Informal Opinion of November 15, 1995, therefore contains several reasonable and
rational bases which a court might find to uphold the constitutionality of the statute, if
faced with that issue. Most of the other elective offices of this State do not contain such
detailed requirements for one to be elected thereto; thus, there is reason to treat candidates
for the office of sheriff differently. I am of the opinion that if §23-11-110 were
challenged on the basis of equal protection, the statute would be found by a court to be
constitutional. In any event, the presumption of \;Onstitutionality attaches to §23-11-110,
as it does to any legislative act, and the statute should be·followed unless and until a court
of competent jurisdiction should declare otherwise.
This letter is an infonnal opinion only. It has been written by a designated Senior
Assistant 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.
With kindest regards, I am
Sincerely,

'- Po.fil(LJ;.., '1~ f :,;/vJ

fvzr-

Patricia D. Petway
Senior Assistant Attorney General

Enclosure