Could Charleston County's election board rewrite the county council's sales tax ballot question?

Plain-English summary

Charleston County's election board asked whether it could change wording supplied by county council for a new transportation sales tax referendum. The Attorney General said the board had no authority to rewrite that question. The state Supreme Court had described county and state election commissions' referendum duties as ministerial: they controlled physical ballot characteristics under statute, but not the text of the question. The governor's executive order calling for a new election did not change that allocation of authority.

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: Could the election board shorten or change the county's ballot question?
A: No. The AG agreed that the board lacked unilateral authority to change council's wording.

Q: Did the governor's order for a new referendum give the board that power?
A: No. The letter said the executive order did not alter the board's ministerial role.

Background and statutory framework

The county council had enacted an ordinance for a new sales tax referendum and sent the question to the board. The opinion noted that the statute prescribed a substantially similar ballot form. It applied Douan et al. v. Charleston County Election Commission et al., which distinguished responsibility for a question's wording from election commissions' control over physical ballot layout.

Citations

• Douan et al. v. Charleston County Election Commission et al.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-20-2004-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04aug-20-Howell.pdf

Original opinion text

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The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsn:R
ATIDRNEY GENERAL

August 20, 2004

Samuel W. Howell, IV, Esquire
General Counsel, Board of Elections and
Voter Registration For Charleston County
Post Office Box 22495
Charleston, South Carolina 29413

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Dear Mr. Howell:

In a letter to this office you referenced that a question has arisen with regard to the sales tax referendum for Charleston County which is being held pursuant to S.C. Code Ann. Sections 4-3 7-10 et seq. (Supp. 2003). Such provisions provide counties with an optional method to finance transportation facilities. In particular, you note concerns that certain language in Governor Sanford's Executive Order regarding the Sales Tax referendum which orders a new election imposes additional duties, responsibilities and authority on the Board of Elections and Voter Registration ("the Board") regarding the ballot question. You state that concerns have been raised by the Board that it has duties and responsibilities to insure that the ballot question conforms to state law and that it is the Board which determines what language may go on the ballot.
~{ ou indicate that Charleston County Council ena1.;ied an orciinance ordering a new sales tax

referendum and submitted the form of the ballot question to the Board. S.C. Code Ann. Section 437-30(A)(2) (Supp. 2003) requires that the ballot question "read substantially" as provided by that provision. As you state in your letter, in its decision in Douan et al. v. Charleston County Election Commission et al., 357 S.C. 601, 614, 594 S.E.2d 261, 268 (2003) at footnote 9, the State Supreme Court determined that: The County and State Election Commissions did not have a stake in this Referendum because their duties are ministerial in nature. "Neither the State Commission nor County Commission has any unilateral authority to shorten or change the wording of a question to fit a particular ballot form. State and County Commission, subject to statutory guidance, control the form of the ballot only as it pertains to physical characteristics of the ballot such as space limitations and the arrangement of names and issues. Consistent with such, you have stated that it is your opinion that County Council, not the Board, is responsible for the ballot question.
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REMBERT C. PENNIS BUD.DING • POST OFFICE Box 11549 • COLUMBIA, S.C. 29211-1549 • TELEPHONE: 803-734-3970 • FACSIMILE: 803-253-6283

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Mr. Howell
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August 20, 2004

This office is in agreement with your conclusion that the Board has no authority to change the wording of a ballot question submitted to the Board by the County Council. Such is consistent with the determination in Douan. Moreover, we agree with your conclusion that nothing in the Governor's Executive Order changes that conclusion. With kind regards, I am, Very truly yours,

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Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General

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