Could someone run for a South Carolina House seat and a constitutional office in the same election?

Plain-English summary

The Attorney General concluded that running for a South Carolina House seat and a constitutional office in the same election did not violate a state statute or the constitutional rule against dual office holding. It distinguished candidacy from taking office: a person with no office could seek both, while election to both offices would create a conflict if the person tried to hold both.

The opinion did not identify the second constitutional office and cautioned that rules for that office or ethical restrictions might also matter.

Currency note

This opinion was issued in 2010. 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 candidate file for a House seat and another constitutional office at the same time? A: The opinion said yes. Merely running for both did not mean the candidate held two offices.

Q: What if the candidate won both contests?
A: The opinion said holding both a House seat and a constitutional office would conflict with South Carolina's dual office holding restriction, subject to the constitutional exceptions it quoted.

Q: Did the opinion clear the candidate under every election or ethics rule? A: No. The second office was unspecified, and the opinion cautioned that its own rules, restrictions, or ethical considerations might apply.

Background and statutory framework

A House member asked about an individual seeking a House seat and an unspecified constitutional office. The opinion distinguished simultaneous candidacies from simultaneous service and discussed earlier Attorney General opinions on each issue.

Citations and references

The original opinion text below quotes the South Carolina Constitution's dual office holding provision and cites Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-24-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/govan-j-n-jr-os-9041-3-24-10-running-for-house-seat-constitutional-office-at-same-time.pdf

Original opinion text

HENRY MCMASTER
ArroRNEY GENERAL

March 24, 2010

The Honorable Jerry N. Govan, Jr.
Member, House of Representatives
404-B Blatt Building
Columbia, South Carolina 29211
Dear Representative Govan:
We received your letter requesting an opinion ohhls Office concerning dual office holding. You asked whether there is "any state statute that prohibits an individual from filing and running for a house seat and constitutional office at the same time." Several prior opinions of this Office have addressed the question of dual-office holding and dual candidacy. This opinion will address those prior opinions and explore the circumstance of an individual running for two offices simultaneously. Law/Analysis

Article XVII, Section lA of the South Carolina Constitution provides that "No person may hold two offices of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of a lawfully and regularly organized fire department, constable, or a notary public." For this provision to be contravened, a person concurrently must hold two public offices which have duties involving an exercise of some portion of the sovereign power of the State. Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907). "One who is charged by law with duties involving an exercise of some part of the sovereign power, either small or great, in the performance of which the public is concerned, and which are continuing, and not occasional or intermittent, is a public officer." Id., 58 S.E. 762, 763. Other relevant considerations are whether statutes, or other such authority, establish the position, prescribe its tenure, duties or salary, or requirequalificationsoranoath for the position. Statev. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980). On numerous occasions, we have opined the following: The prohlbition on dual office holding is only contravened when an individual who holds an office assumes a second office. Merely running for an office does not violate the dual office

REMBERT

c. D ENNlS BUILDING • POST OFP!Cll Box 11549 • COLUMBIA, SC 2921 1-1549 • T ELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

The Honorable Jerry N. Govan, Jr.
Page2
March 24, 2010

holding prohibition. The problem would arise ifthe individual holding the first office were elected, took the oath, and began to exercise the duties of the second office. See, Ops. S.C. Atty. Gen., August 13, 2009; March 7, 2008; September 8, 1992. In the circumstances before us, the individual currently does not hold any office. Hence, running simultaneously for two offices-member of the house of Representatives and a constitutional office

• is not problematic. However, if the individual is elected to both, there would be a conflict.
  In many prior opinions, this Office has explained that a member of the South Carolina House of Representatives holds an office for purposes of dual office holding. See, e.g., Ops. S.C. Atty. Gen., July 24, 2009; September 20, 2002; February 9, 2001; June 11, 1992. A "constitutional office" by definition is also an office for purposes of dual office holding because duties involve exercising some sovereign power of the State. See, e.g., Ops. S.C. Atty. Gen., May 11, 1972. Since the request for this opinion is not clear as to the nature of the "constitutional office," we caution that the person considering running for office should familiarize himself with any applicable agency rules, office restrictions or ethical considerations. In an opinion of this Office dated April 22, 1982, we addressed the issue of dual candidacy: There is no state statute that would prevent a person from being a candidate for two offices. See,~' Ops. S.C. Atty. Gen., March 11, 1977; September 7, 1966; September 20, 1996.

Conclusion
Running for an office and holding an office are two distinct situations and are treated differently under the law. Thus, one may file and run for both the house seat and the constitutional office without violating a state statute or constitutional provision. However, with certain exceptions, 1 the

'S.C. Const. Art. XVII,§ IA. (No person may hold two offices of honor or profit at the same time, but any person holding another office may at the same time be an officer in the militia, member of the fire department, constable, or notary public.); S.C. Const. Art. VI,§ 3 ("This limitation does not apply to officers in the militia, notaries public, members oflawfully and regularly organized fire departments, constables, or delegates to a constitutional convention.") S.C. Const. Art. III,§ 24 ("No person is eligible to a seat in the General Assembly while he holds any office or position of profit or trust under this State, the United States of America, or any of them, or under any other power, except officers in the militia, members of lawfully and regularly organized fire departments, (continued ... )

The Honorable Jerry N. Govan, Jr.
Page 3
March 24, 2010

South Carolina Constitution is clear that no one may hold multiple offices of honor or profit at the same time. Sincerely, Henry McMaster Attorney General

O(~~
By:

Leigha Blackwell
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Deputy Attorney General,

1
( •••

continued)
constables, and notaries public. If any member accepts or exercises any of the disqualifying offices or positions he shall vacate his seat.")