How many members make a quorum on a South Carolina county election board, and who sets the board's size and fills vacancies?

Official title

Opinion addressing appointments, vacancies and quorum requirements for county boards of voter registration and elections.

Requester

Requested by Howard M. Knapp, Executive Director, South Carolina Election Commission.

Plain-English summary

The South Carolina State Election Commission asked how to determine a quorum for a county board of voter registration and elections when fewer than the required number of members are appointed or sitting, and, in follow-up, whether the Governor can make emergency appointments if a county delegation fails to recommend anyone. Each county board, by statute (Section 7-5-10), has between five and nine members, appointed by the Governor on the recommendation of the county's legislative delegation.

The Attorney General's office reached three main conclusions, each cautioned as "not free from doubt" on the harder points:

First, on board size: the statute sets a five-to-nine range but does not say who fixes the exact number or whether it can change. Reading the statute's history and the fact that appointments start with the county legislative delegation's recommendation, the office concluded the delegation determines the number of members and may increase or decrease it. The office suggested the delegation do so by majority vote in an open public meeting to create a record, and said legislative clarification may be warranted.

Second, on quorum: except for the narrow task of registering voter applications (where one member is a quorum under Section 7-5-30), a quorum is a majority of the board's members, following the common-law rule (Garris v. Governing Bd. of S.C. Reinsurance Facility; Williams v. Benet). So a five-member board needs three present, a six- or seven-member board needs four, and an eight- or nine-member board needs five. A member subject to removal remains a de facto officer who counts toward quorum until actually removed.

Third, on vacancies: Section 7-5-10(B)(4) requires vacancies to be filled by the Governor on the delegation's recommendation, in the same manner as an original appointment, whether or not the General Assembly is in session. If a delegation refuses or fails to recommend anyone, the office said a court might allow the Governor to appoint under the general county-vacancy statutes (Sections 4-11-20 and 1-3-220), as in Bradford v. Byrnes, to avoid leaving a seat permanently empty, but it called that conclusion far from certain and again flagged that legislative clarification may help.

What this means for you

County boards of voter registration and elections: Under this opinion, a quorum is a majority of the board's current membership for everything except registering voter applications. Three of five, four of six or seven, and five of eight or nine members must be present to act. A member facing removal still counts toward quorum until actually removed.

County legislative delegations: The office's view is that the delegation sets and may change the board's size within the five-to-nine range. It recommends doing so by a majority vote in an open public meeting so there is a public record, especially when reducing membership, to reduce litigation risk over quorum.

Governors and the State Election Commission: The opinion reads Section 7-5-10(B)(4) to require the Governor to fill vacancies on the delegation's recommendation, in or out of session. Where a delegation will not recommend anyone, the office suggests a court may permit the Governor to use the general vacancy statutes, but treats that as uncertain.

Common questions

How many members of a South Carolina county election board have to show up to do business?
A majority of the board's members, except when registering voter applications. The opinion gives the numbers: three of five, four of six or seven, and five of eight or nine. For registering or refusing applications, Section 7-5-30 makes one member a quorum.

Who decides how many members a county board has?
The office concluded the county legislative delegation determines the number, within the statutory range of five to nine, and may increase or decrease it, though it noted this is not free from doubt and suggested the delegation act by majority vote in an open meeting.

Who fills a vacancy on the board?
The Governor, on the recommendation of the county legislative delegation, under Section 7-5-10(B)(4), in the same manner as an original appointment, whether or not the General Assembly is in session.

What if the delegation refuses to recommend anyone?
The opinion says a court might allow the Governor to appoint under the general county-vacancy statutes (Sections 4-11-20 and 1-3-220), pointing to Bradford v. Byrnes, to avoid a permanently empty seat. But it called this conclusion far from certain and suggested legislative clarification.

Does a member who missed meetings or skipped training still count for quorum?
Yes, until that member is actually removed from office. The opinion treats such a member as a de facto officer whose acts are valid as to third parties until a court or the Governor removes them.

Background and statutory framework

Section 7-5-10 of the South Carolina Code governs county boards of voter registration and elections: the Governor appoints five to nine members per county on the recommendation of the county legislative delegation (Section 7-5-10(A)(1)), members serve four-year terms and until successors qualify (Section 7-5-10(B)(1)), and vacancies are filled in the same manner as the original appointment (Section 7-5-10(B)(4)). These boards were created in 2014 when prior county election commissions and registration boards were abolished and their duties combined (2014 Act No. 196). Title 7 sets no specific quorum, so the office applied the common-law majority rule and the parallel Freedom of Information Act definition (Section 30-4-20(e)), with a narrow statutory exception that one member is a quorum to register applications (Section 7-5-30).

The quorum analysis relies on Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998), Williams v. Benet, 35 S.C. 150, 14 S.E. 311 (1892), and State v. McMillian, 349 S.C. 17, 561 S.E.2d 602 (2002). On board size and continuity of membership, the office drew on statutory-construction principles and Rogers v. Coleman, 245 S.C. 32, 138 S.E.2d 415 (1964). On vacancy appointments and the ministerial nature of the Governor's role, it cited Blalock v. Johnston, 180 S.C. 40, 185 S.E. 51 (1936), the general vacancy statutes (Sections 4-11-20 and 1-3-220), the SEC's supervisory role (Section 7-3-20), and Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952), where the Supreme Court upheld a gubernatorial appointment after a delegation failed to make recommendations.

Citations

Statutes: S.C. Code § 7-5-10 (including (A)(1), (B)(1), (B)(3), (B)(4), (D)(1), (D)(2)); S.C. Code § 7-5-30; S.C. Code § 30-4-20(e); S.C. Code § 4-11-20; S.C. Code § 1-3-220; S.C. Code § 7-3-20; S.C. Code § 7-13-70; 2014 Act No. 196.

Cases: Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998); Williams v. Benet, 35 S.C. 150, 14 S.E. 311 (1892); State v. McMillian, 349 S.C. 17, 561 S.E.2d 602 (2002); Rogers v. Coleman, 245 S.C. 32, 138 S.E.2d 415 (1964); Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952); Blalock v. Johnston, 180 S.C. 40, 185 S.E. 51 (1936).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-appointments-vacancies-and-quorum-requirements-for-county-boards-of-voter-registration-and-elections/
• Original PDF: https://www.scag.gov/media/1mgmpv14/03378722.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

August 30, 2023

Howard M. Knapp

Executive Director

South Carolina Election Commission
P.O. Box 5987

Columbia, SC 29250

Dear Director Knapp:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter
states the following:

The South Carolina State Election Commission (SEC) writes to request an opinion
on what constitutes a quorum of a county’s board of voter registration and elections
when there are fewer than the statutorily required number of members currently
appointed or actively sitting on the board.

Each South Carolina county has an appointed board whose business is to conduct
voter registration and elections in its respective county (hereinafter, “County
Board” or “County Boards”):

The Governor shall appoint upon the recommendation of the
legislative delegation of the counties, competent and discreet
persons in each county, who are qualified electors of that county and
who must be known as the [County Board]. The total number of
members on the board must not be less than five nor more than nine
persons, At least one appointee on the board shall be a member of
the majority political party represented in the General Assembly and
at least one appointee shall be a member of the largest minority
political party represented in the General Assembly.

S.C. Code § 7-5-10(A)(1).

ROBERT C. DENNIS BUILDING • POST OFFICE BOX 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970

Director Howard M. Knapp
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August 30, 2023

Currently, appointed members of County Boards serve a four-year term. S.C. Code
§ 7-5-10(B)(1). However, County Board members will serve “until their successors
are appointed and qualify”, and may succeed themselves in their seats. Id.
Vacancies on the County Board are filled in the same manner as the original
appointment and serve for the remainder of the unexpired term of the vacant
member. S.C. Code § 7-5-10(B)(4).

County Boards are statutorily obligated to act in various ways. For instance, a
County Board must hire a director, who will be responsible for hiring and managing
the Board’s staff. S.C. Code § 7-5-10(B)(6). After elections, County Boards are to
meet and organize as their respective counties’ board of canvassers, canvass the
votes, and transmit their findings to the SEC. See S.C. Code §§ 7-17-10, 7-17-20.
The constituted boards of canvassers “shall make such statements of the votes of
the precincts of each county as the nature of the election shall require, within ten
days from their first meeting, and shall transmit to the Board of State Canvassers
any protest and all papers relating to the election.” S.C. Code § 7-17-80.

All the duties described above require the members of a County Board (or board of
canvassers) to meet and act as required. Section 7-5-10(B)(2) requires that
“{m]embers must be present at a meeting in order to vote.” However, neither that
code section nor anything elsewhere in Title 7 states a specific quorum requirement
for County Boards. Presumably then the quorum requirement stated under South
Carolina’s Freedom of Information Act applies: “Quorum” unless otherwise
defined by applicable law means a simple majority of the constituent membership
of a public body.” S.C. Code § 30-4-20(e).

It would appear that, at a minimum, a County Board must have had at least five
members appointed in order to become a constituted board and therefore capable
of acting to fulfill its various statutory obligations. A simple quorum of such a
County Board would be three of its members. However, as noted earlier in this
letter, the number of County Board seats are not static or established; a County
Board may have anywhere from five to nine appointed members at any given time.

Your letter presents several scenarios for consideration of whether a quorum exists and the
status of the hypothetical county boards. Moreover, in subsequent correspondence, you ask
whether the Governor is authorized to make emergency appointments if a county delegation fails
to make recommendations for appointment to a county board. This opinion will evaluate the legal
authorities relevant to those issues in the analysis below.

Director Howard M. Knapp
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August 30, 2023

Law/Analysis

While not free from doubt, it is this Office’s opinion that the total number of members on
a county board of voter registration and elections (“county board”) may be increased or decreased
by the legislative delegation of that county. Further, it is this Office’s opinion that, aside from
registering applications, a quorum for a county board requires the presence of a majority of its
membership. See Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 453, 511
S.E.2d 48, 59 (1998) (“In the absence of any statutory or other controlling provision, the common-
law rule that a majority of a whole board is necessary to constitute a quorum applies, and the board
may do no valid act in the absence of a quorum.”). Finally, it is this Office’s opinion that S.C.
Code § 7-5-10(B)(4) requires vacancies on a county board to be filled by appointment of the
Governor, upon the recommendation of the legislative delegation of that county.

I. Who selects the number of members on a county board of voter registration and
elections, and whether the number can be varied.

Section 7-5-10 of the South Carolina Code establishes how county board members are
appointed, their training and certification requirements, specifies circumstances which necessitate
their removal, and how their vacant seats are filled. As noted in your letter, subsection (A)(1)
provides that the Governor appoints county board members based upon the recommendation of
the respective county delegation.' The members are directed to take and subscribe an oath of
office which is filed with the office of the clerk of common pleas of the county, or, in specific
circumstances, with the office of the Secretary of State. See S.C. Code § 7-5-10(A)(2)-(3). The
Governor provides the State Election Commission (“SEC”) with written notification of the
appointments. See S.C. Code § 7-5-10(A)(4). Finally, the board notifies the SEC in writing of the
names of the persons elected chairman and officers. See S.C. Code § 7-5-10(B)(5). Section 7-5-
10 does not, however, require anyone to file written documentation of the number of members on
a particular county board with either the SEC or the Governor’s Office. Section 7-5-10(A)(1)

' The duty to appoint here is ministerial as it is based on the “recommendation” of the delegation. See, e.g.,
Blalock v. Johnston, 180 S.C. 40, 185 S.E. 51, 54 (1936) (emphasis in original).

The statute provides that the appointment shall be made by the Governor upon the
recommendation of a majority of the members of the General Assembly from Cherokee
county. It is clear that the use of the word “discreet,” as applied to the person to be
recommended by a majority of the delegation, is only for their guidance, and affords no
occasion for the exercise of any judgment or discretion on the part of the Governor,

Director Howard M. Knapp
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permits a range of five to nine members on county boards. Your letter posits that “the number of
County Board seats are not static or established; a county board may have anywhere from five to
nine appointed members at any given time.” Assuming the number of members on a county board
can be varied, the letter asks how quorum is determined.

In order to determine if the number of seats on a county board are fixed or may be varied,
and if so, by whom, this opinion will analyze section 7-5-10 according to the rules of statutory
construction. When interpreting a statute, the primary goal is to determine the General Assembly’s
intent. See Mitchell v. City of Greenville, 411 S.C. 632, 634, 770 S.E.2d 391, 392 (2015) (“The
cardinal rule of statutory interpretation is to ascertain and effectuate the legislative intent whenever
possible.”). Where a statute's language is plain and unambiguous, “the text of a statute is
considered the best evidence of the legislative intent or will.” Hodges v. Rainey, 341 S.C. 79, 85,
533 S.E.2d 578, 581 (2000). Alternatively, “where a statute is ambiguous, the Court must construe
the terms of the statute.” Wade v. Berkeley Cnty., 348 S.C. 224, 229, 559 S.E.2d 586, 588 (2002).
Further, “[a] statute as a whole must receive a practical, reasonable and fair interpretation
consonant with the purpose, design, and policy of lawmakers.” State v. Henkel, 413 S.C. 9, 14,
774 S.E.2d 458, 461 (2015), reh'g denied (Aug. 5, 2015). Where statutes deal with the same
subject matter, it is well established that they “are in pari materia and must be construed together,
if possible, to produce a single, harmonious result.” Penman v. City of Columbia, 387 S.C. 131,
138,691 S.E.2d 465, 468 (2010); see also Op. S.C. Atty. Gen., 2000 WL 1347162 (Aug. 25, 2000)
(The meaning of related statutes and their effect must be determined with reference to each other
so as to “construe them together into one integrated system of law.”). With these principles in
mind, this opinion will analyze section 7-5-10 and related statutes to ascertain legislative intent
regarding whether the number of members on a county board may be changed.

Section 7-5-10 is ambiguous in regard to whether the number of members on a county
board may be varied. In relevant part, it states, “The total number of members on the board must
not be less than five nor more than nine persons.” Id. The plain language of the statute does not
address how the number of members is determined, by whom, or whether the number of members
may be amended. There are several similar statutes that permit a range of council members,
commissioners, or board members and have provisions clearly stating the method of choosing the
number of members in the body. For instance, $.C. Code § 4-9-810 allows counties to adopt a
council-manager form of government with “not less than five nor more than twelve members.”
Section 4-9-10 requires each county to have two public hearings and conduct a referendum to
select the form of government. Subsection (c) permits a change in the number of members
following a referendum. See S.C. Code § 4-9-10(c). Under this statutory scheme, the number of

Director Howard M. Knapp
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members is determined by the outcome of a referendum.” In contrast, section 7-5-10 and related
statutes omit a similar mechanism for choosing the number of members.

The legislative history of section 7-5-10 demonstrates that the initial number of members
on each county board carried over from the former county election commissions, voter registration
boards, and combined boards when those bodies were abolished in 2014. See 2014 Act No. 196.
Prior to the 2014 Act, Chapter 27 of Title 7 codified the laws specific to each of these bodies,
including the number of members. See S.C. Code §§ 7-27-210, -435 (Supp. 2013).? In 2011, the
General Assembly enacted Act 17 which merged the Richland County Election Commission and
the Richland County Board of Registration. See $.C. Code § 7-27-405 (Supp. 2013). In 2013,
Judge G. Thomas Cooper, Jr. held that Act 17 was unconstitutional as single county and special
legislation in violation of South Carolina Constitution Article II, § 34 and Article VIII, § 7. See
South Carolina Public Interest Foundation v. Courson, No. 2012CP4007790, 2013 WL 12290023
(S.C. Com. Pl. Aug. 26, 2013). While the ruling in Courson only held Act 17 of 2011 to be
unconstitutional, the General Assembly repealed Chapter 27, Title 7 in its entirety. See 2014 Act
No. 196, § 7. Again, the 2014 Act explicitly abolished the previous bodies and devolved their
powers and duties on the newly created county boards. S.C. Code § 7-5-10(C). The members
serving on those bodies were directed to “continue to serve in a combined governing capacity until
at least five members of the successor board members” were appointed and qualified. Id.
Therefore, at least initially, the new county boards were required to retain the same number of
members as had been appointed to the prior bodies.

While the newly created county boards retained the same number of members initially,
these boards were not required to retain the same number of members after five successor board
members were appointed. In fact, in some cases the membership totals may have exceeded, and
in one instance certainly exceeded, the new nine-member maximum. For instance, the Calhoun
County Board of Elections and Registration had “ten members of the board.” S.C. Code § 7-27-
250 (Supp. 2013). Although the statute does not expressly state how the number of members was

? Another example of a permitting a range of seats on a statutorily authorized body can be found in Chapter
3, of Title 31 regarding the creation of city housing authority commissions. A municipality creates such a
commission by adopting a resolution. See $.C. Code § 31-3-340. The municipal “council shall appoint not
less than five nor more than seven persons as commissioners.” The resolution establishing the commission
provides a written record of the number of commissioners selected. Additional examples include S.C. Code
§ 33-45-100 (Cooperative Associations); S.C. Code § 38-31-50 (S.C. Property and Casualty Insurance
Guaranty Association); S.C. Code § 46-39-90 (Farmers’ Associations).

3 Those counties that did “not have combined boards of registration and election commissions must have
their members appointed ... as provided in Section 7-5-10 and 7-13-70.” S.C. Code § 7-27-110 (Supp.
2013). The method of appointment to these bodies is discussed in the analysis below.

Director Howard M. Knapp
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August 30, 2023

determined for each county board, the legislative history suggests that power now rests with the
county legislative delegation. Prior to the 2014 Act, the former county boards of registration also
permitted a range of “not less than three nor more than five” members, but those appointments
were made by Governor with the advice and consent of the Senate. S.C. Code § 7-5-10(A) (Supp.
2013). In contrast, while the membership for the county commissions of election were permitted
the same range of “not less than three nor more than five” commissioners, those appointments
were made by the Governor “upon the recommendation of the senatorial delegation and at least
half of the members of the House of Representatives from the respective counties.” S.C. Code §
7-13-70 (Supp. 2013). Currently, section 7-5-10(A)(1) more closely follows the model of the
appointment statute used for the county commissions of election as it assigns the county legislative
delegations with the task of recommending competent and qualified electors to the Governor for
appointment. Because the appointment process begins with a county legislative delegation’s
recommendation, it appears the General Assembly intended for the delegation to determine the
number of members necessary to serve the county. Therefore, while it is not free from doubt, it is
this Office’s opinion that section 7-5-10(A)(1) authorizes each county legislative delegation to
determine the number of members who serve on its respective county board of voter registration
and elections.

Moreover, it is this Office’s opinion that a county legislative delegation is authorized to
vary the number of members on the respective county board. Again, the plain language of section
7-5-10 does not directly address whether the number of members can be increased or decreased.
Subsection (B)(1) states that “the term of office for the members of the board is four years, and
until their successors are appointed and qualify.” This language could be interpreted to mean
General Assembly did not mean for the number of members to be decreased. However, describing
a finite term of office to continue “until their successors are appointed and qualify” has been
construed to ensure continuity of membership. For instance, in Rogers v. Coleman, 245 S.C. 32,
34, 138 S.E.2d 415, 417 (1964), the South Carolina Supreme Court held the statute establishing
the county commissioners of election which used this same language clearly demonstrated
legislative intent “to make provision against a situation where there would be no qualified
commissioners to conduct and hold elections.” It is this Office’s opinion that a court would
similarly construe section 7-5-10(B)(4) to protect against the total membership of a county board
falling below the statutory minimum of five members and threatening quorum rather than
prohibiting an intentional reduction of the number of members by a county legislative delegation.

There is support in the legislative history of section 7-5-10 for holding the number of
members can be varied. Before 1970, both the statutes creating the former county boards of
registration and the county election commissions fixed the number of members on each body at
three. Act Number 1034 of 1970 was titled, “An Act to amend Section 23-51 of the 1962 Code

Director Howard M. Knapp
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[now codified at S.C. Code § 7-5-10] ... so as to provide that the number of members may be
increased.” 1970 (56) 2337 (emphasis added). Section 1 of the Act struck the word “three” and
replaced it with “not less than three nor more than five.” Id. Appointments to these former county
boards of registration were made “[b]etween the first day of January and the fifteenth day of March
in each even-numbered year.” S.C. Code § 7-5-10(A) (Supp. 2013).* Therefore, historically, these
bodies were subject to varying the number of their membership on a biannual basis. Section 7-5-
10 does not include this same language regarding appointments occurring in “each even-number
year,” but it still permits a range for the total number of members. Thus, it may be reasonable to
construe section 7-5-10(A) to allow varying the number of members, but the change in
membership no longer must occur within the same fixed date range in each even-numbered year.

From your letter, this Office understands the SEC has interpreted section 7-5-10 to permit
the total number of members on a county board to vary. It is this Office’s long-standing policy,
like that of our state courts, to defer to an administrative agency’s reasonable interpretation of the
statutes and regulations that it administers. See Op. S.C. Att'y Gen., 2013 WL 3133636 (June 11,
2013); see also Kiawah Dev. Partners. II v. 8.C. Dep't of Health & Envtl. Control, 411 S.C. 16,
34, 766 S.E.2d 707, 718 (2014) (“[W]e give deference to agencies both because they have been
entrusted with administering their statutes and regulations and because they have unique skill and
expertise in administering those statutes and regulations.”), The South Carolina Code requires the
SEC, through its executive director, to supervise the county boards’ conduct of elections and voter
registration for compliance state and federal law. S.C. Code § 7-3-20 (2019). Therefore, because
we find this interpretation to be a reasonable one based on the analysis above, a court may well
defer to the SEC’s conclusion that the total number of members on a county board may be varied.

We caution that that the text of section 7-5-10 provides no direct assurance that the number
of members of a county board of voter registration and election may be varied.> Legislative
clarification may be warranted to confirm the General Assembly’s intent. While there is support
for each county legislative delegation setting the number of members, there is uncertainty
regarding how a delegation should memorialize such a change and when it should do so. Section
7-5-10 does not contain a statutory deadline similar to those for the former county election
commissions and county boards of registration for making appointments. Presumably, because
there is no deadline, county legislative delegations may make appointments as necessary
throughout the year. This Office has opined that county delegations “may adopt rules to employ
valid methods of selection, such as a majority of a quorum or even a majority of the entire
Delegation, but we advise that such a rule may not be inconsistent with a statute.” Op. S.C. Att’y
Gen., 2012 WL 6720258 (December 17, 2012). Generally, then, we suggest that the county

• Appointments to the county election commissions were made “at least ninety days before the election.”
  S.C. Code § 7-13-70 (Supp. 2013).

‘We do not address the General Assembly’s authority to delegate this decision to a county legislative
delegation.

Director Howard M. Knapp
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August 30, 2023

legislative delegations can choose to increase or decrease the membership of a county board of
voter registration and elections by vote of a majority of the delegation during open session of a
public meeting. See S.C. Code §§ 30-4-60, -70 (establishing requirement for public bodies to hold
public meetings open to the public). By voting in open session, the delegation would create a
public record of the change to the total membership and thereby offer some protection from
litigation challenging whether the county board complied with quorum requirements, particularly
where the membership is reduced.

II. Quorum requirements for county boards of voter registration and elections.

Aside from registering applications for registration, it is this Office’s opinion that quorum
for a county board requires the presence of a majority of the board members. In Williams v. Benet,
35 S.C. 150, 14 S.E. 311 (1892), the South Carolina Supreme Court expressed that the purpose of
a quorum requirement is to allow a public body to conduct its business with less than the entire
membership present.

The very purpose in providing for the transaction of business of any given body or
tribunal by a quorum is to prevent the stoppage of the public business when a
portion of the whole membership may, from any cause, fail to attend at the time
appointed; and whether such failure results from death or some temporary cause
cannot affect the question.

14 S.E. at 312.; see also State v. McMillian, 349 S.C. 17, 20, 561 S.E.2d 602, 603 (2002) (“This
Court has recognized that no valid act can be done in the absence of a quorum.”). The Court also
held that the common law requires the presence of a simple majority of the membership of a public
body to constitute a quorum.

In the absence of any statutory or other controlling provision, the common-law rule
that a majority of a whole board is necessary to constitute a quorum applies, and
the board may do no valid act in the absence of a quorum. A member who recuses
himself or is disqualified to participate in a matter due to a conflict of interest, bias,
or other good cause may not be counted for purposes of a quorum at the meeting
where the board acts upon the matter.

Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 453, 511 S.E.2d 48, 59 (1998)

citations omitted).° This Office has not identified authority specific to a county board’s quorum
p q

6 This common law quorum requirement is consistent with the statutory definition for “Quorum” in the S.C.
FOIA you cite in your letter. See S.C. Code § 30-4-20(e).

Director Howard M. Knapp
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requirement other than for registering applications for registration. See S.C. Code § 7-5-30 (“One
member of the board shall constitute a quorum for the purpose of registering or refusing to register
applications for registration.”). Therefore, a majority of the members of a county board are
required to constitute a quorum of the body for all other purposes. When five members are
appointed, the statutory minimum required by S.C. Code § 7-5-10(A)(1), the minimum number of
members who must be present to constitute quorum and validly conduct such a board’s business
is three. See State v. McMillian, 349 S.C. 17, 20, 561 S.E.2d 602, 603-04 (2002) (“This Court has
recognized that no valid act can be done in the absence of a quorum.”). County boards with six or
seven members require the presence of at least four members for quorum. County boards with
eight or nine members require the presence of at least five members for quorum.

III. Members who are subject to removal under S.C. Code § 7-5-10(B)(3) or (D)(2).

Sections 7-5-10(B)(3) and (D)(2) require the removal of a county board member from
office if the member fails to comply with meeting attendance requirements or does not complete a
training and certification program. Subsection (B)(3) states, “If a member misses three
consecutive meetings of the board, the chairman or his designee immediately shall notify the
Governor who shall then remove the member from office.” S.C. Code § 7-5-10(B)(3) (2019)
(emphasis added). Subsection (D)(1) requires county board members to “complete, within
eighteen months after a member's initial appointment or his reappointment following a break in
service ... a training and certification program conducted by the State Election Commission.” S.C.
Code § 7-5-10(D)(1) (2019). Subsection (D)(2) then provides that if a member fails to complete
the training and certification program, “the Governor, upon notification, must remove that member
from the board unless the Governor grants the member an extension to complete the training and
certification program based upon exceptional circumstances.””’ Regardless of which of the two

7 Because subsection (D)(2) allows the Governor to grant an extension in “exceptional circumstances,”
removal of a member thereunder is discretionary. See Blalock v. Johnston, 180 S.C. 40, 185 S.E. 51 (1936).

The Governor is, by the Constitution, invested with certain important governmental or
political powers and duties belonging to the executive branch of the state government, and
the due performance of these duties is intrusted [sic] to his official honesty, judgment, and
discretion. As to these purely executive or political functions devolving upon the chief
executive officer of the state, and as to any other duties necessarily involving the exercise
of official judgment and discretion, the doctrine is uncontroverted, and settled beyond the
shadow of a doubt, that mandamus will not lie to control or compel his action. In other
words, the action of the Governor, in the exercise of his political or governmental powers,
whether the same are conferred by the Constitution or by statute, cannot be controlled by
mandamus.

Director Howard M. Knapp
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August 30, 2023

subsections may be implicated, this Office has consistently recognized “[a]s an officer de facto,
any action taken as to the public or third parties would be as valid and effectual as those actions
taken by an officer de jure unless or until a court would declare such acts void or remove the de
facto officer from office.” Op. S.C. Att’y Gen., 2003 WL 2147151 (June 5, 2003). “Until a court
removes them or declares their acts void, the law treats all official duties and acts performed by
these [officers] as valid with respect to third parties.” Id. Applying these principles to the statutes
at issue, even when violations are reported to the Governor, a member in violation may be counted
to calculate whether a quorum is present until the member is actually removed from office.

IV. Vacancy appointment statutes.

It is this Office’s opinion that a court would likely hold vacancies on county boards are
filled according to the vacancy appointment provision in sections 7-5-10(A)(1) and (B)(4). The
Governor makes vacancy appointments “in the same manner as an original appointment,” which
is based “upon the recommendation of the legislative delegation of the counties.” Id.

This Office previously opined on vacancy appointments on the former county boards of
registration. See Ops. S.C. Att’y Gen., 1975 WL 22475 (November 14, 1975); 1972 WL 25275
(April 14, 1972). At the time of those opinions, the statutes establishing the county boards of
registration stated, “the Governor fills such vacancy ‘in the same manner as provided in [1962
Code] Section 23-51.’” Op. S.C. Att’y Gen., 1972 WL 25275 (April 14, 1972). Section 23-51
stated that appointments were made “by and with the consent of the Senate.” Id. The opinion
concluded by finding the Governor could appoint a replacement member to a county board of
registration “with the advice and consent of the Senate.” Id.

A subsequent opinion authored by Attorney General McLeod considered whether then
Governor Edwards could make a vacancy appointment when the Senate was not in session. Op.
S.C. Att’y Gen., 1975 WL 22475 (November 14, 1975). The opinion noted that obtaining the
advice and consent of the Senate was not possible while the General Assembly was not in session
and suggested, instead, employing 1962 Code § 14-302 which allowed the Governor to fill
vacancies in county offices, now codified at section 4-11-20. Id. In relevant part, section 4-11-20
reads:

In the event of a vacancy at any time in any of the offices of any county of the State
the Governor may appoint some suitable person, who shall be an elector of the

Id. at 53; see also Edwards v. State, 383 S.C. 82, 96, 678 S.E.2d 412, 419 (2009) (“A ministerial act or duty
is one which a person performs because of a legal mandate which is defined with such precision as to leave
nothing to the exercise of discretion.”).

Director Howard M. Knapp
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August 30, 2023

county, and, upon duly qualifying according to law, he shall be entitled to enter
upon and hold the office to which he has been appointed:

(2) If it be an office which was filled originally by appointment, until the
adjournment of the General Assembly at the regular session next after such
appointment.

... Any officer elected to fill an unexpired term under the provisions of this section
shall hold office for such term and until his successor shall qualify.

Id. The opinion concluded by stating the Governor was authorized “to fill vacancies on County
Boards of Registration under § 14-302 with the terms of your appointees to extend until the
adjournment of the General Assembly at its next regular session.” Op. S.C. Att’y Gen., 1975 WL
22475 (November 14, 1975).

As described above, the county boards of registration were abolished by 2014 Act No. 196
and their powers devolved to the county boards of registration and elections. Much like the
statutory scheme for the prior county boards of registration, the current county board’s vacancy
provision reads, “In case of a vacancy on the board, the vacancy must be filled in the same manner
as an original appointment, as provided in this section, for the unexpired term.” S.C. Code § 7-5-
10(B)(4). Yet, unlike the former county boards of registration, appointments to the current county
boards do not require the “advice and consent of the Senate.” 1962 Code § 23-51. The Governor
still makes the appointments, however, the appointments now are based “upon the
recommendation of the legislative delegation of the counties.” S.C. Code § 7-5-10(A)(1). Because
the recommendations for appointments come from the county legislative delegations, the
impossibility of obtaining the advice and consent of the Senate when the General Assembly is not
in session no longer presents an obstacle to filling vacancies. ® The county legislative delegations
can hold public meetings throughout the year to vote on recommendations for appointments to
county boards as well as other offices assigned to them. Generally, then, it is this Office’s opinion
that vacancy appointments on county boards are made according to the county legislative
delegation’s recommendation as required by sections 7-5-10(A)(1) and (B)(4) irrespective of
whether the General Assembly is in session or not.

8 Additionally, the vacancy appointment provisions in S.C. Code § 1-3-210 relating to filling vacancies
when the Senate is not in session no longer apply to these offices.

Director Howard M. Knapp
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August 30, 2023

In circumstances where a county legislative delegation fails to make a recommendation for
a vacancy on a county board, it is arguable that the Governor’s power to fill vacant county offices
as authorized in section 4-11-20 may still apply. This Office’s opinions have repeatedly concluded
members of county boards of voter registration and elections hold a county office.? If a county
board member holds county office and the member’s seat becomes vacant “at any time,” the plain
language of section 4-11-20 authorizes “the Governor [to] appoint some suitable person.” See also
S.C. Code § 1-3-220 (Authorizing appointment to fill any vacancy in a county office by the
Governor).!°

_ The premise that the Governor can make an appointment when a legislative delegation fails
to make a recommendation is not without precedent. In Bradford v. Byrnes, 221 S.C. 255, 260, 70
S.E.2d 228, 231 (1952), nearly two years had passed since passage of the “York County
Government Act of June 30, 1950, No. 962” (the Act) which required the appointment of members
of a county board of directors, and “a majority, including the Senator, of the legislative delegation,
ha[d] failed to agree upon, and make, recommendations for the appointments.” The South Carolina
Supreme Court described the Act to require the appointment of county directors by the Governor
“upon the recommendation, quoting from the proviso to section 2(3) of the act, ‘by a majority of
the legislative delegation from York County, including the Senator.’” Id. at 260, 70 S.E.2d at 230.
The Court upheld the trial court’s conclusion that the Governor was authorized to make
appointments for those offices according to the statutes now codified at sections 4-11-20 and 1-3-
220.

° See Op. S.C. Att’y Gen., 2017 WL 6629070, at 2 (December 18, 2017) (“[T]his Office reaffirms our prior
opinions and finds that county boards of voter registration and elections are county agencies.”).
1° Tn relevant part, section 1-3-220 states:

The following appointments shall be made by the Governor and are in addition to those
‘appointments by the Governor authorized in other provisions in the Code:

(2) An appointment to fill any vacancy in a county office. The person so appointed shall
hold office, in all cases in which the office is elective, until the next general election and
until his successor shall qualify; and in the case of offices originally filled by appointment
and not by election, until the adjournment of the session of the General Assembly next after
such vacancy has occurred. The Governor may remove for cause any person so appointed
by him under the provisions of this paragraph to fill any such vacancy.

S.C. Code § 1-3-220.

Director Howard M. Knapp
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August 30, 2023

The facts of this case present no conflict between the terms of these statutes and the
York Government Act of 1950. The situation is simply that vacancies under the
terms of the latter have come about from the long-continued failure of a majority,
including the Senator, of the York County Legislative Delegation to make
recommendations pursuant to the terms of the Act. It is the same as if the electors
of the county should have failed to elect an elective official, in which case the
general law, embodied in the cited statutes, has provided for the filling of the office.
The failure of the Senator and enough of the Representatives from York County,
who together would constitute a majority of the legislative delegation, to function
in accord with the terms of the Act of 1950 has created vacancies in the offices of
County Director as effectively as any other means may have done, and has given
rise to the power of the Governor to appoint under the general laws which have
been cited. As said, there is no present conflict in the statutes, and hence no apparent
conflict to harmonize, which latter would be the duty of the court to try, if it were
required.

Bradford, 221 S.C. at 265, 70 S.E.2d at 233. It is noteworthy that the Bradford Court found no
conflict in the terms of these statutes allowing the Governor to make a vacancy appointment and
the Act which called for recommendations from the legislative delegation. Id. at 265. There is no
indication from the decision whether there was a provision in the Act addressing vacancies on the
newly created five-member County Board of Directors.

In contrast, here, section 7-5-10(B)(4) directly addresses how to fill vacancies on county
boards of voter registration and elections. This apparently conflicts with section 4-11-20 where
the Governor is authorized to make an appointment “at any time” a vacancy occurs. If a court
were to find the terms of S.C. Code §§ 4-11-20 and 1-3-220 conflict with section 7-5-10(B)(4),
the terms of section 7-5-10(B)(4) would prevail as the more specific and later adopted legislation."!

Perhaps there are scenarios where a court would find the facts do not present a conflict
between section 4-11-20 and section 7-5-10(B)(4). For instance, a court may find that if a county
legislative delegation informs the Governor it cannot agree on a candidate to recommend, section
4-11-20 would then authorize the Governor to appoint without the delegation’s recommendation.
The South Carolina Supreme Court recently rejected a construction of a statute which would

"! See Atlas Food Sys. & Servs., Inc. v. Crane Nat. Vendors Div. of Unidynamics Corp., 319 S.C. 556, 558,
462 S.E.2d 858, 859 (1995) (“The general rule of statutory construction is that a specific statute prevails
over a more general one.”); Ramsey v. County of McCormick, 306 S.C. 393, 397, 412 S.E.2d 408, 410
(1991) (“Under the ‘last legislative expression’ rule, where conflicting provisions exists, the last in point of
time or order of arrangement, prevails.”).

Director Howard M. Knapp
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August 30, 2023

permit the county legislative delegation to “simply refuse to submit another name for
consideration, leaving the office permanently vacant.” Stickland v. Richland County Legislative
Delegation, Case No. 2023-1130, at 7 (August 10, 2023). The Court found this outcome, among
others, to be an absurdity and “a result the legislature surely did not intend.” Id.; see also Bradford,
221 S.C. at 262, 70 S.E.2d at 231 (“As nature abhors a void, the law of government does not
ordinarily countenance an interregnum.”). In an effort to avoid a similarly unintended vacancy on
a county board of registration and elections, particularly where membership is below the statutory
minimum and quorum is threatened, a court may well reconcile section 4-11-20 to authorize the
Governor to make an appointment if the legislative delegation fails to make the recommendation
required by sections 7-5-10(A)(1) and (B)(4) in the first instance. This conclusion is far from
certain and legislative clarification may be appropriate.

Conclusion

While not free from doubt, it is this Office’s opinion that the total number of members on
a county board of voter registration and elections (“county board”) may be increased or decreased
by the legislative delegation of that county. Further, it is this Office’s opinion that, aside from
registering applications, a quorum for a county board requires the presence of a majority of its
membership. See Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 453, 511
S.E.2d 48, 59 (1998) (“In the absence of any statutory or other controlling provision, the common-
law rule that a majority of a whole board is necessary to constitute a quorum applies, and the board
may do no valid act in the absence of a quorum.”). Finally, it is this Office’s opinion that S.C.
Code § 7-5-10(B)(4) requires vacancies on a county board to be filled by appointment of the
Governor, upon the recommendation of the legislative delegation of that county.

Sincerely,

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General