Could a South Carolina referendum decide the State House flag issue in 2015?

Plain-English summary

A senator asked whether South Carolina could put a proposed change to the State House Confederate battle flag law to a binding or advisory referendum. In an expedited July 2015 letter, the Attorney General said state supreme court decisions answered both questions against the proposed votes. A binding referendum could not directly enact general law because the state Constitution assigned that function to the Legislature. The AG also cited a decision striking down an advisory election that chilled officials' constitutionally assigned discretion.

The letter expressly said there had been too little time, over the holiday weekend, to prepare a formal opinion. It supplied the two controlling decisions rather than a lengthy independent analysis. The advisory-election case it discussed involved appointment of magistrates, and the AG applied its principle to the proposed flag referendum. The opinion concerned the proposed voting method, not the substantive question of where the flag should be displayed.

Currency note

This opinion was issued in 2015. 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 a binding popular vote itself change the flag statute?
A: The AG said no, citing a South Carolina Supreme Court decision reserving general lawmaking to the Legislature.

Q: Did calling a vote advisory remove the constitutional issue?
A: The AG said no, relying on a case where an advisory election improperly constrained officials' assigned discretion.

Q: Did the AG endorse a particular flag policy?
A: No. The letter addressed the constitutionality of referendum methods.

Background and statutory framework

The letter cited one state supreme court case on direct legislation by referendum and another on advisory elections affecting constitutional decision makers. It was sent promptly because the General Assembly was about to reconvene. The opinion's narrow purpose was to identify the constitutional treatment of the two proposed forms of vote.

Citations and references

• The AG quoted the high court: “our constitution does not give the people the right of direct legislation by referendum.”
• It said the court decisions treated “the referendum (both binding and non-binding)” as unconstitutional in the contexts discussed.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-6-2015-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2015/07/Grooms-L.-OS-9932-FINAL-Opinion-7-6-2015-00699673xD2C78.pdf

Original opinion text

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^SOUTB ^
Alan Wilson
ATTORNEY GENERAL

July 6,2015
The Honorable Lawrence K. Grooms
Senator

District No. 37

'

Post Office Box 142
Columbia, South Carolina 29202
Dear Senator Grooms:

You have raised two issues regarding "the possibility of placing on a referendum the question of whether to change state law regarding the display of the Confederate battle flag on the grounds of the South Carolina State House." You question whether a binding statewide referendum is constitutional and also whether a non-binding referendum is valid under the Constitution? You have asked that your request be expedited "[bjecause the General Assembly reconvenes next week . . .

We received your letter late Thursday, July 2, and with the intervening Fourth of July holiday, have not had sufficient time to prepare a formal opinion. However, we have located two Supreme Court decisions on point, which answer these questions. We forward these for your review.

With respect to the constitutional validity of a binding referendum, the case of Joytime Distributors and Amusement Co. v. The State, 338 S.C. 634, 528 S.E.2d 647 (1999) resolves the issue in that the Supreme Court concluded that such a binding referendum is unconstitutional. There, the Court stated:
. . since the [present] constitution does not contain a specific provision

reserving to the people the power to legislate, . . . Art. Ill, § 1 [of the Constitution] requires the legislature, not the people, to enact the general law." 338 S.C. at 641, 528 S.E.2d at 650. Further, the Court in Jovtime concluded:
. . it is clear that our constitution does not give the
people the right of direct legislation by referendum." 338 S.C. at 643, 528 S.E.2d at 652. Finally, the Jovtime Court said this: a binding referendum is "an unconstitutional attempt to delegate to the people the legislature's power to set the policy of the state and enact laws to effectuate that policy." 338 S.C. at 648, 528 S.E.2d at 654.
_
As to your second question regarding the constitutional permissibility of a non-binding referendum, while such advisory referenda have been enacted in the past, see Griggs v. Hodge. 229 S.C. 245, 92 S.E.2d 654 (1956), the case of State ex rel. Rilev v. Pechilis. 273 S.C. 628, 258 S.E.2d 433 (1979) -concluded that advisory elections are unconstitutional as "chilling" the decision of officers, who are required under the Constitution to take action within their discretion. In Pechilis, the Court struck down advisory elections for magistrates as intruding upon the power of tire Governor to nominate a magistrate and the Senate to confirm the rewbert C. Dennis Building

• Post Office Box 11549 . Columbia, SC 292 11 - i 549 . Telephone 803-734-3970 . Facsimile 803-253-6283

The Honorable Lawrence K. Grooms
Page 2
July 6, 2015

magistrate's appointment.

The Court cited with approval State v. Greeru 220 S.C. 315, 67

S.E.2d 509 (1951), which had set aside the seeking of a recommendation by the trial judge to the jury regarding sentencing.

In Green, the Supreme Court found that the trial judge's seeking

advice from the jury, intruded upon the sentencing discretion of the Court.

The Green Court

characterized such a practice as "highly irregular, if not a dangerous innovation. . . ." 220 S.C. at 320, 67 S.E.2d at 511. Pechilis. found the Green precedent dispositive. Thus, the Court held:
[w]e therefore conclude that the establishment of the election procedure to select a

nominee for magistrate, either by party primary or statute, and the resulting almost universally coerced acceptance by the Governor and the Senate of the

nominee of the election has, in fact, so chilled the discretionary power of the Governor and Senate to appoint magistrates in this State as to amount to the •

circumvention of the constitutionally mandated method for the appointment of magistrates. 273 S.C. at 633, 258 S.E.2d at 435.

As noted, these decisions answer your questions. In each instance, the Supreme Court concluded the referendum (both binding and non-binding) to be unconstitutional. I trust these decisions will be helpful to you.

Sincerely

Lobert D. Cook
Solicitor General