Who sets the date of a South Carolina town's special election when the county conducts its municipal elections?

Official title

Opinion regarding several questions on special elections in the County of Lexington

Requester

Mr. Jeff M. Anderson, Attorney for the County of Lexington

Plain-English summary

Chapin received a certified petition asking for a special election on the town's form of government. Lexington County had agreed to conduct the town's municipal elections. The Attorney General concluded that the town's governing body still chose the date: the transfer agreement covered conducting elections and did not transfer that separate decision.

Under the statute the opinion applied, the election had to occur no earlier than 30 days and no later than 90 days after the August 7, 2014 petition. The AG said the town's governing body would set the date under its own procedures. The office was unaware of a statutory bar to putting the question on the November 4 general-election ballot, subject to a separate submission deadline. It concluded that the election commission needed the necessary information by noon on August 15 if the town chose that ballot.

Currency note

This opinion was issued in 2014. 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 Lexington County get to choose the town's special-election date? A: The AG said no. The town retained that decision under the transfer agreement described in the opinion.

Q: Could the question appear on the November 2014 general-election ballot? A: The AG was unaware of a statutory prohibition, apart from the timing requirement for submitting the question to the election commission.

Q: Did the mayor have to send a written notice to set the date?
A: The opinion said the governing body would set the date according to its procedures. It did not prescribe a mayoral notice as the method.

Background and statutory framework

The petition was certified as having signatures from at least 15 percent of Chapin's qualified electors. Section 5-5-20 supplied the 30-to-90-day election window. The town and county ordinances transferring election conduct did not give the county the power to select the date. For a question on the November 4 ballot, the opinion applied Section 7-13-355's noon August 15 submission deadline.

Citations

• Section 5-5-20
• Section 7-13-355

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-14-2014-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2014/08/Anderson-J.-FINAL-OPINION-OS-9819-08-14-2014-Valenzuela-00420176xD2C78.pdf

Original opinion text

0/'SOUYtf. C?V
Alan Wilson
Attorney General

August 14, 2014

Mr. Jeff M. Anderson
Attorney for the County of Lexington
1 40 East Main Street
Lexington, South Carolina 29071
Dear Mr. Anderson:

We

received

your

letter dated August

12,

2014.

The

following

is

this

Office's

understanding of your question and our opinion based on that understanding. Issue:

On August 7, 2014, the governing body for the Town of Chapin ("Town") received a certified petition, executed by at least 15% of the qualified electors of the Town, for the purpose of having a special election to determine the form of government within the Town. The Town's governing body, pursuant to S.C. Code Section Ann. 5-15-145 and Town of

Chapin Ordinance No. 04032007, has delegated the conducting of elections to the County of Lexington ("County"), and the County has accepted the authority of conducting municipal

elections through Lexington County Ordinance No. 06-04.
Finally, your letter acknowledged the May 27, 1998, South Carolina Attorney General Opinion to the Honorable Robbie Dix, Jr., which stated the use of the word "shall" in S.C. Code

Ann. Section 5-5-20 1 means that "the municipal governing body does not have discretion in determining whether to hold a special election; the municipal governing body is required to hold a special election." Op. Attv. Gen, dated May 27, 1998.

With these facts in mind, you have asked:

(1) Does the Town or the County set the date of the special election? 1 "After the date of official council action if a petition executed by fifteen percent of the qualified electors is presented to the municipal governing body, certified by the county election commission, for an election to determine or change the fonn of government . . . , the municipal governing body shall conduct a special election not later than ninety days nor earlier than thirty days after the receipt of the certified petition . . . ." S.C. Code Ann. Section 5-5-20 (emphasis added).

1
Rembert C. Dennis Building

•

Post Office Box 1 1 549

• Columbia, SC 2921 1-1549

. Telephone 803-734-3970

• Facsimile 803-253-6283

(2) If the Town sets the date of the special election, is it by Town Resolution by Town Council or by written Notice from the Mayor to the County Election Commission? (3) Regardless of who sets the date and how, can the special election question be placed on the November 4, 2014 general election ballot? Law/Analysis:

Taking your questions in the order presented above:
As to whether the Town's governing body or the County sets the date for the special election when the Town's governing body has delegated the conducting of the elections to the County, it is the Town's governing body. Section 5-15-145(A) authorizes the transfer of authority only as to the conducting of municipal elections and does not authorize delegation of any other powers or responsibilities. Additionally, Section 5-15-145(6) states that the municipality and the county must agree to the terms of the transfer. The agreed upon terms of the transfer between the Town and the County are outlined in their respective ordinances. See

Ordinance Nos. 04032007 and 06-04. Neither Ordinance states that the Town has transferred its power to set the date of the election to the County. As to how the Town sets the date for the election, Section 5-5-20 provides guidance. The governing body, subject to its procedures, will set the date. Section 5-5-20 ("[T]he municipal governing body shall conduct a special election

" (emphasis added)).

Finally, regardless of who sets the date and how, with the exception of the timing

requirements outlined in Section 7-1 3-355,2 our office is not aware of any statutory provision that prevents the special election question from being placed on the November 4, 2014 general election ballot. Conclusion: A special election regarding the form of government for the Town of Chapin must be held no earlier than thirty days and no later than ninety days from August 7, 2014; the Town's

governing body must select the date; and if the Town's governing body elects to place the question on the November 4, 2014 general election ballot, it must provide the necessary information to the appropriate election commission by 12:00 noon this Friday, August fifteenth.

enzuel
Lssistant Attorney General

Revieyrad and approved by:

jert'D. Cook

"

Solicitor General
2 Section 7-13-355 states, in part, the question must be "submitted to the appropriate election commission ... no later than 12:00 noon on August fifteenth . . . ."