Could South Carolina declare unopposed school board candidates elected without a vote under a 1997 proposal?

Plain-English summary

A South Carolina representative asked whether proposed S.402 could eliminate an election for Laurens County School Board when the number of qualified candidates equaled the number of vacancies. The Attorney General said the bill was constitutionally suspect because canceling the election would eliminate the opportunity to vote for a write-in candidate. The opinion relied on earlier AG letters treating write-in voting as part of the state constitution's guarantee of equal access to elect and be elected.

The letter did not declare the proposal unconstitutional. It emphasized that legislation carries a presumption of constitutionality, that only courts can declare an act unconstitutional, and that S.402 would be enforceable until a court ruled otherwise. It was an informal opinion on a proposed 1997 bill, not a statement of current election law.

Currency note

This opinion was issued in 1998. 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: Why did the AG object to canceling an unopposed school board election?
A: The letter said cancellation would remove voters' opportunity to elect a write-in candidate, a right it traced to the state constitution.

Q: Did the letter say every uncontested election had to occur under any future law?
A: It evaluated the specific Laurens County bill and earlier opinions; it did not assess later legislation.

Q: Could the AG invalidate S.402 itself?
A: No. The opinion said courts alone could declare an act unconstitutional and that the bill, if enacted, would retain the ordinary presumption of constitutionality until a court ruled.

Background and statutory framework

S.402 of 1997 would have amended Act 779 of 1988 concerning the Laurens County School Board. The AG read Article I, Section 5 of the South Carolina Constitution, which guaranteed qualified inhabitants an equal right to elect and be elected, together with earlier opinions on unopposed candidates and write-in voting. The letter also cited cases for the presumption favoring a statute's constitutionality.

Citations and references

• S.402 of 1997 and Act 779 of 1988, the proposal and act described in the letter.
• Article I, Section 5 of the South Carolina Constitution, the election guarantee quoted in the letter.
• Thomas v. Madden, 186 S.C. 290, 195 S.E. 539 (1938).
• Townsend v. Richland County, 190 S.C. 270, 2 S.E.2d 777 (1939).

Official title

Regarding the constitutionality of S.402 of 1997.

Requester

The Honorable Eugene C. Stoddard, Member, House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-28-1998-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98april28stoddard.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

·.1.

April 28, 1998

The Honorable Eugene C. Stoddard
Member, House of Representatives
422B Blatt Building
Columbia, South Carolina 29205
RE:

Informal Opinion

Dear Representative Stoddard:
You have asked for this Office's opinion regarding the constitutionality of S .402 of 1997. Constitutionality of the Bill will be considered following a discussion of the presumptions of constitutionality by which the courts and this Office are guided. 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. Madden, 186 S.C. 290, 195 S.E. 539 (1938); 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 to declare an act
·
unconstitutional.
S.402 would amend Act 779 of 1988, as amended, relating to the Laurens County School Board of Trustees, to provide that if the number of qualified candidates offering for election is equal to the number of existing vacancies, the candidates must be deemed elected without an election being held. Analysis of your question must begin with Article 1, Section 5 of the South Carolina Constitution. This section provides as follows:

REMBERT

c. DENNIS B UILDING

•

POST OFFICE Box 11549

•

COLUMBIA .

s.c. 29211-1549

•

T ELEPHONE:

803-734-3970

•

FACSIMILE: 803-253-6283

f .

I
The Honorable Eugene C. Stoddard
Page 2
April 28, 1998
All elections shall be free and open, and every inhabitant of this State possessing the qualifications provided in this Constitution shall have an equal right to elect officers and be elected to fill public office.

I
I

This Office has never addressed the applicability of Article 1, Section 5 to a situation such as the one raised in your opinion request. However, we have applied this provision to other situations which provide guidance in analyzing your question. On two occasions in the 1960's, this Office was asked whether an election must be held when the candidates for office were unopposed. On both occasions, this Office concluded that since Article I, Section 5 provides that any qualified elector is eligible to an office for which he may vote, the elections must be held. Ops. Atty. Gen. dated July 29, 1963 and March 16, 1961. While not specifically stated therein, it is clear these opinions recognized that the right to write in the name of a candidate on the ballot is contained in Article 5, Section 1. In an opinion dated June 18, 1968, Attorney General McLeod discussed a statute which required a candidate defeated in the primary to pledge not to offer or campaign in the ensuing general election. Attorney General McLeod cited Gardner v. Blackwell, 167 S.C. 313, 166 S.E.2d 338 (1932), as authority for the proposition that all qualified electors are eligible to be voted upon for an office. Attorney General McLeod went on to state:

l>!ftt

I

i

[Gardner] effectively recognized the right to be voted for even though one's name was not placed upon an official ballot. It recognized the validity of a write-in ballot prior to the incorporation in the official ballot form of a write-in space for candidates. The later provision was adopted in the early 1950's and merely had the effect of focusing attention on the constitutional right to write in the name of a candidate- a right which has always existed, but was not exercised merely because the attention of the voters was not directed to its existence. As previously stated, S.402 provides that if the number of qualified candidates offering for election is equal to the number of existing vacancies, the candidates must be deemed elected without an election being held. In so doing, the Bill eliminates the opportunity for write-in votes in such a situation. This infringes upon one's right to write in the name of a candidate on the ballot. Therefore, in my opinion, S.402 is constitutionally suspect as violative of Article 1, Section 5. Of course, S.402 would be entitled to a presumption of constitutionality and would be enforceable until a court rules otherwise.

I

I

The Honorable Eugene C. Stoddard
Page 3
April 28, 1998

l
This letter is an informal opinion only. It has been written by a designated 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 :rrumner of a formal opinion. With kindest regards, I remain Very truly yours,

I
I

El A l(oJ

Paul M. Koch
Assistant Attorney General