Did South Carolina’s 2013 ballot law require parties that used conventions to hold a primary first?

Plain-English summary

The South Carolina Attorney General concluded that the 2013 Equal Access to the Ballot Act did not require every political party to use primary elections. Parties already nominating candidates through conventions could continue doing so under the AG's reading of the amendment. The opinion said the new procedure applied when a party using primaries wanted to switch to convention nominations.

The state Election Commission had asked because several smaller parties used conventions and a group had argued the amendment required those parties to hold a primary first. The AG focused on the statute's phrase referring to “that party's next primary election,” reasoning that it assumed the party already had a primary process. The opinion also noted that the amended election law still listed party conventions as a nomination method.

Currency note

This opinion was issued in 2013. 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 a party already using conventions need to run a primary before holding its next convention? A: The AG's 2013 answer was no. It read the amended procedure as governing a change from primary nominations to convention nominations, not a continuing convention practice.

Q: Which parties did the Election Commission identify as convention-nominating? A: Its request listed the Constitution, Green, Independence, Labor, Libertarian, United Citizens, and Working Families Parties. The AG said the amendment did not affect those parties at that time on the facts supplied.

Q: What was the amendment meant to regulate?
A: The opinion said it changed the procedure for a party that already nominated through primaries and wished to adopt a convention process.

Background and statutory framework

The Commission sought guidance for the coming candidate-filing cycle. The opinion reproduced the amended nomination statute from 2013 S.C. Acts, 120 Legis. Sess., Act No. 61 and read its convention-vote and next-primary-vote requirements in context. Its answer rested on the difference between changing a nomination method and continuing an existing one.

Citations and references

The opinion quotes 2013 S.C. Acts, 120 Legis. Sess., Act No. 61, including the amended nomination procedure.

Official title

Regarding the impact the recently passed, Equal Access to the Ballot Act, which you reference as S.2, “has on political parties who nominate candidates through the convention process.”

Requester

Marci Andino, Executive Director, South Carolina Election Commission

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-12-2013/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/andino-m-os-9690-11-12-13-S.2-impact-on-political-parties-nominate-candidates-convention-process.pdf

Original opinion text

ALAN WILSON
A TIORNEY GENERAL

November 12, 2013

Marci Andino, Executive Director
South Carolina Election Commission
2221 Devine Street
Columbia, SC 29250
Dear Ms. Andino:
By your letter dated October 22, 2013, you have asked for the opinion of this Office regarding the impact the recently passed, Equal Access to the Ballot Act, which you reference as S.2, "has on political parties who nominate candidates through the convention process." Per your letter you explain: The State Election Commission (SEC) is preparing to conduct candidate filing for the 2014 election cycle and needs an opinion to clarify what impact S.2 has on political parties who nominate candidates through the convention process. In South Carolina, only the Democratic and Republican Parties nominate candidates through a primary process. The Constitution, Green, Independence, Labor, Libertarian, United Citizens, and Working Families Parties all nominate candidates at conventions. Recently, a group inquired about the impact of S.2 and suggested they may file a legal complaint challenging a political parties' right to hold a convention without first complying with Section 7-l 1-30(A) as shown below. Specifically, the group interpreted the section below to mean that a party cannot hold a convention without first having held a primary. Our response follows. Law/Analysis

We understand your question as asking whether the Equal Access to the Ballot Act, in particular, the Act's amendment of Section 7-11-30, operates so as to require all political parties to adopt a primary nomination system. We believe it does not. Rather, we believe the intent of the General Assembly in amending Section 7-11-30 was to change the procedure political parties

REMBERT C. DENNIS BUILDING • POST OFFICE Box 11549 • COLUMBrA SC ?9211 1549
•
• TELEPHONE 803-734-3970 • FACSIMILE 803-251-n?Rl

Ms.Andino
Page2
November 12, 2013
utilize when they wish to change from the pnmary nomination process, to a convention nomination process. In determining whether the Equal Access to the Ballot Act's amendment of Section 7-1130 of the Code operates so as to require all political parties to adopt a primary nomination system, we must first look to the statute's legislative intent. See Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000) ("The cardinal rule of statutory construction is to ascertain and effectuate the legislative intent whenever possible."). When ascertaining legislative intent, South Carolina's appellate courts have stated, "[w]hat a legislature says in the text of a statute is considered the best evidence of the legislative intent or will" and "courts are bound to give effect to the expressed intent of the legislature." Media General Communications, Inc. v. South Carolina Dept. of Revenue, 388 S.C. 138, 148, 694 S.E.2d 525, 530 (2010); Wade v. State, 348 S.C. 255, 259, 559 S.E.2d 843, 844 (2002). Indeed, "[t]here is no safer nor better rule of interpretation than when language is clear and unambiguous it must be held to mean what it plainly states." Jones v. South Carolina State Highway Dep't, 247 S.C. 132, 137, 146 S.E. 2d 166, 168 (1966). Section 7-11-30 of the Code, titled "Nomination of candidates, party convention election procedures," states: (A)

A party may choose to nominate candidates for all offices including, but not limited to, Governor, Lieutenant Governor, United States Senator, United States House of Representatives, Circuit Solicitor, State Senator, and members of the State House of Representatives if: (1)

there is a three-fourths vote of the total membership of the convention to use the convention nomination process; and

(2)

a majority of voters in that party's next primary election
approve the use of the convention nomination process.

(B)

A party may not choose to nominate by party convention for an election cycle in which the filing period for candidates has begun.

(C)

A political party nominating candidates by party convention shall nominate the party candidates and make the nominations public not later than the time for certifying candidates to the authority charged by law with preparing ballots for the general or special election.

2013 S.C. Acts, 120 Legis. Sess., Act No. 61 (emphasis added).

Ms. Andino
Page 3
November 12, 2013
Here, we believe the language from subsection (A)(2), stating "a majority of voters in that party's next primary election" is indicative of the statute' s legislative intent. Specifically, because the phrase, "in that party' s next primary election" clearly assumes the party already nominates candidates via a primary election, it is the opinion of this Office that the General Assembly did not intend for Section 7-11-30 to apply to political parties that nominate candidates via the convention method. In other words, Section 7-11-30 should not be read as requiring all political parties to utilize the primary nomination process, but must instead be read as amending the procedure a political party utilizes if it wishes to change from the primary nomination process to a convention nomination process. Indeed, this is consistent with the legislative title to the Act, which explains that Section 7-11-30 of the Code was amended "to provide a procedure for the nomination of candidates by party convention by a three-fourths vote" and "a majority vote in the party 's next primary election[.]" 2013 S.C. Acts, 120 Legis. Sess., Act No. 61 (emphasis added). Likewise, this construction is also consistent with other portions of the Act, such as the amended Section 7-11 -10, which states that candidates may still be nominated by "political party primary, by political party convention, or by petition." S.C. Code Ann.§ 7-11 -10 (as amended by 2013 S.C. Acts, 120 Legis. Sess., Act No. 61). Thus, it is the opinion of this Office that Section 7-11-30, as amended by the Equal Access to the Ballot Act, does not operate so as to require all political parties to adopt a primary nomination system. Conclusion

In light of our view of the statute' s legislative intent, we believe that Section 7-11-30, as amended by the Equal Access to the Ballot Act, does not require all political parties to adopt a primary nomination process, but should instead be construed as amending the procedure that political parties must utilize if they wish to change from the primary nomination process to a convention nomination process. Accordingly, because you have explained the Constitution, Green, Independence, Labor, Libertarian, United Citizens, and Working Families Parties all currently nominate candidates by convention, we believe Section 7-11-30 as amended would not affect these parties at the present time.

Brendan McDonald
Assistant Attorney General
RE/7~D-AND APPROVED BY:

fHU0U2, ~-

~Obert D. Cook

Solicitor General