Could a Horry County senator who lived outside the county vote on Grand Strand Water and Sewer Authority appointments?

Plain-English summary

A senator whose district included Horry County residents asked whether he could participate in Grand Strand Water and Sewer Authority appointments despite residing outside the county. The Attorney General said the appointment statute, as written, gave the vote to resident Horry delegation members. But the office considered that rule constitutionally suspect under the Fourth Circuit's one-person, one-vote decision in Vander Linden v. Hodges.

In the absence of a new court ruling about the authority's statute, the office suggested following the federal district court's existing remedial order. That would allow every Horry delegation member, including a nonresident member, to cast a vote weighted by the county population within the member's district. The opinion expressly preferred further court clarification and did not itself invalidate the statute.

Currency note

This opinion was issued in 2009. 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 appointment statute expressly include nonresident legislators? A: No. The Attorney General read its resident-member wording as unambiguous, then explained why the federal voting decision cast doubt on that restriction.

Q: What voting method did the opinion suggest?
A: It recommended the district court's interim weighted scheme, allocating each delegation member's vote by the county population in that member's district.

Q: Was the Grand Strand appointment provision itself struck down in this letter? A: No. The office predicted a court would likely find a constitutional problem and said a new lawsuit directed at that statute would be preferable.

Background and statutory framework

Act No. 771 of 1978 used resident Horry legislative-delegation members to recommend authority appointments. The Fourth Circuit held in Vander Linden that county legislative delegations exercised governmental functions and therefore faced one-person, one-vote requirements. The Attorney General applied the resulting district-court remedial order to the Grand Strand appointment question while acknowledging that a court should resolve the statute's validity.

Citations and references

Act: Act No. 771 of 1978. Case: Vander Linden v. Hodges, 193 F .3d 268 (4th Cir. 1999), as printed in the opinion. Remedy: Federal district-court order dated June 22, 2000, quoted in the letter.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-30-2009/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/cleary-r-e-iii-os-8773-4-30-09-weighted-voting-grand-strand-water-and-sewer-authority.pdf

Original opinion text

HENRY M CM ASTER
A1TORNEY G ENERA L

April 30, 2009

The Honorable Raymond E. Cleary, III
Senator, District No. 34
501 Gressette Building
Columbia, South Carolina 29201
Dear Senator Cleary:
You have asked for an opinion regarding your right as Senator "to represent my 46,000 constituents which live in Horry County by being allowed to have a weighted vote for appointing members to the Grand Strand Water and Sewer Authority." You note that if this Office finds that you are not authorized to vote on such appointments, you will ask ''the Supreme Court to make a ruling which will take my [disenfranchised] constituents who would have no rights or representation and correct this injustice." We agree with your assessment that the current law providing for appointment ofmembers to the Grand Strand Water and Sewer Authority is constitutionally suspect under principles of "one person, one vote" as articulated in Vander Linden v. Hodges, 193 F .3d 268 (4th Cir. 1999). While further clarification by a court would be ideal, in the absence of such further clarification, we believe the remedial Order of the District Court subsequent to Vander Linden should be followed. Law I Analysis Act No. 771 of 1978 provides for appointment of the Grand Strand Water and Sewer Authority, as follows:
[t]he authority shall be composed of six members, who shall be resident electors of the county and who shall be appointed by the Governor, upon the recommendation of a majority of the resident members of the Horry County Legislative Delegation, including the resident Senator, for terms of six years, and until their successors are appointed and qualify. (emphasis added). We have previously interpreted similar language as meaning only the resident Senator (if any) and resident House members. Op. S. C. Atty. Gen., June 8, 1971. Thus, the statute, as written, is not ambiguous and there is little or no room for interpretation.

R EMBERT

c. D ENNIS B UILDING • POS'r O FFICE Box 11 549 • COLUMBIA, SC 292 11 -1549 • T ELEPHONE 803-734-3970 • FACS!MlLE 803-253-6283

The Honorable Raymond E. Cleary, III
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April 30, 2009
However, in our opinion, a court would most likely conclude that Vander Linden renders such a statute to be constitutionally infirm. In Vander Linden the Fourth Circuit concluded that the "one person, one vote" requirements of the Equal Protection Clause are applicable to South Carolina's legislative delegations. The Fourth Circuit, in Vander Linden, focused upon the fact that legislative delegations in South Carolina "are elected bodies that exercise governmental functions." In the Court's opinion, based upon the parties' stipulations, the county legislative delegations actually "perform numerous and various general county governmental functions," including approving or recommending expenditures for various activities, approving local school district budgets, initiating referenda regarding special-purpose governing bodies in public service districts, approving reimbursement of expenses for county planning commissioners, approving county planning commission contracts, altering or dividing county school districts, reducing special school levies, submitting grant applications for park and recreation facilities, and making or recommending appointments. 193 F.3d at 276. (emphasis added). The Court also referenced numerous statutes empowering legislative delegations to perform various governmental functions. Id. at 276-277. Therefore, the Court concluded,
[g]iven the array of state statutes empowering the delegation to perform fiscal, regulatory and appointive functions and the parties' stipulation that the delegations do "perform" such functions, we have little difficulty concluding that the legislative delegations exercise "governmental functions" and so fall within the scope ofthe one person, one vote mandate. Id. at 277-278.

The constitutional problem identified in Vander Linden was the disparity in representation between various members ofthe legislative delegation. Under the legislative delegation system, each member of the delegation possessed one vote "regardless of how many of the member's constituents live in the county," thereby diluting 'the voting power of county residents from more populous areas." 193 F.3d at 272. According to the Court, this disparity was demonstrated clearly by the evidence presented. The Fourth Circuit noted that
[i]n support of their one person, one vote claim, the voters here presented demographic reports showing that the delegation system deviates from the standard of equal, population-based representation set by the Supreme Court. The reports demonstrated that by one measure, 45 of the 46 legislative delegations in South Carolina deviate from the equal population standard by amounts that range from 75.15% to 330.56%, and that by another measure, 44 of the 46 delegations deviate

The Honorable Raymond E. Cleary, III
Page3
April 30, 2009
from the standard by amounts that range from 34.86% to 418.47%. The State proffered no evidence that in any way contradicted these findings. Id. at 272.

As noted above, Act No. 771 of 1978 permits only"resident members of the Horry County Legislative Delegation, including the resident Senator" to vote for members of the Grand Strand Water and Sewer Authority. As we read Vander Linden, this statutory provision is inconsistent with that decision, and thus a court would likely conclude Act No. 771 of 1978 violates the Equal Protection Clause, to the extent it only authorizes resident members of the Horry Delegation to vote for appointments to the Grand Strand Water and Sewer Authority. For example, you note that you, as Senator, represent 46, 000 constituents of Horry County, yet Act No. 771 of 1978 only allows the "resident" members, including the "resident senator," to vote. Vander Linden holds that such constituents may not be constitutionally disenfranchised in such manner. With respect to a remedy, a new lawsuit, specifically directed at the constitutionality of Act No. 771 of 1978 would, of course, be preferable. However, the Remedial Order of the District Court, filed June 22, 2000 to implement the Vander Linden decision, is apparently still in effect, as the General Assembly has not adopted further remedial legislation since Vander Linden was handed down. The Order of the Honorable Michael Duffy, United States District Judge, expressly directs that "[a]n interim imposition of weighted voting scheme would allocate voting to delegation members in proportion to the population of the county that resides in each district." (emphasis added). Referencing Vander Linden, the District Court defined a delegation member as "each legislator ... of every county containing territory that falls within the legislators' district." Accordingly, absent further clarification from a court, we suggest that the Remedial Order be followed, thus allowing all members of the Horry County Delegation (including non-resident members) to vote on a weighted vote basis for members of the Grand Strand Water and Sewer Authority. Such adherence to the Remedial Order would thus allow you, as a non-resident Senator of Horry County to vote upon such appointments. Yours very truly, Henry McMaster Atto General

~J~
By:
RDC/an

Ro ert D. Cook
Deputy Attorney General