Which South Carolina Senate districts governed a vacancy election before the 2024 general election?

Plain-English summary

In April 2022, the South Carolina Attorney General answered which Senate map would govern during the transition to districts enacted after the 2020 Census. The office read Act 117 as delaying repeal of the existing Senate district provision until the 2024 general election and starting elections under the new districts with that election. Sitting senators therefore continued to represent the old districts before the 2024 election. A special election to fill a Senate vacancy during that interval had to use the old districts too.

The opinion addressed a defined transition period that ended with the 2024 general election. It did not describe which districts governed any later special election.

What this means for you

Election officials administering a pre-2024 vacancy

The AG said a Senate special election held before the 2024 general election had to use the districts in the existing Senate district statute. Its conclusion rested on the Act's delayed repeal of that provision and its stated starting date for the new map.

Sitting senators and constituents during the transition

The opinion treated senators then in office as representatives of their existing districts until the 2024 general election, despite the earlier enactment of reapportioned districts.

Candidates and voters looking back at that period

The relevant line in the opinion was the 2024 general election: the old map governed earlier Senate vacancy elections, and the newly enacted map began with that general election.

Common questions

Q: Which map applied to a Senate vacancy election before the 2024 general election? A: The AG said the existing Senate districts governed that special election.

Q: Did enactment of Act 117 immediately change the districts sitting senators represented? A: No. The opinion said those senators continued to represent the districts in the existing statute until the 2024 general election.

Q: When were members first to be elected from the new Senate districts? A: The opinion read Act 117 as starting elections from the newly drawn districts with the 2024 general election.

Background and statutory framework

The State Election Commission asked how Act 117 affected Senate vacancies and sitting senators before the first election under the new map. The AG read the Act's delayed repeal of the prior district statute together with its phrase commencing with the 2024 general election for the replacement districts. That combined reading resolved both questions in favor of the preexisting map during the transition.

Citations and references

• S.C. Code § 2-1-70: existing Senate districts whose repeal was delayed.
• S.C. Code § 2-1-75: districts applicable beginning with the 2024 general election.
• Mitchell v. City of Greenville, 411 S.C. 632, 634, 770 S.E.2d 391, 392 (2015): state Supreme Court authority cited for legislative intent.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-impact-of-act-117-of-the-124th-general-assembly-on-senate-election-districts-prior-to-the-2024-general-election/
• Original PDF: https://www.scag.gov/media/spcjrumv/02970788.pdf

Original opinion text

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

ALAN WILSON
ATTORNEY GENERAL

April 28, 2022

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) seeks clarification with regards to Act 117 of the 124th General Assembly (the Act or Act 117). The Act adopted the results of the 2020 Census and enacted reapportioned districts for the South Carolina House and Senate. It was signed into law and effective as of December 10, 2021.

With regards to districts for the House of Representatives, Section 5 of the Act states:

Section 2-1-35 of the 1976 Code is repealed, provided that until the

members of the House of Representatives elected in the 2022 General Election from the districts enumerated in Section 2-1-45 qualify and take office, the districts now provided for by law continue to apply for purposes of vacancies in office for members of the House of Representatives (Emphasis added).

With regards to the Senate’s districts, S.C. Code Ann. § 2-1-70 states “{c]ommencing with the 2012 general election, one member of the Senate must be elected from each of the following districts” and then proceeds to list the various districts. This is the law that was in effect for the last general election for senate seats held in 2020.

At Section 2 the Act amends S.C. Code § 2-1-75.stating “/cJommencing with the 2024 General Election, one member of the Senate must be elected from each of the following districts (emphasis added)”, and then proceeds to list the various districts reapportioned pursuant to the 2020 census results. This would appear to

tenBERT C. DENNIS BUILDING POST OFFICE BOX 11549 © COLUMBIA, SC 29211-1549 © TELEPHONE 803-734-3970 » FACSIMILE 803-253-6283

Director Howard M. Knapp
Page 2
April 28, 2022

have the effect of replacing or repealing Section 2-1-70, but Section 4 of Act 117 states that “[s]Jection 2-1-70 of the 1976 Code is repealed effective with the 2024 General Election (emphasis added).” This would appear to leave Section 2-1-70 in effect until that time.

The next general election for senate seats will be in 2024. There is no provision in the Act like that in its Section 5 for the House districts that specifies what will happen should there be a vacancy of a Senate seat before the 2024 election.

The SEC asks these questions of the Attorney General:

1. In the event a special election must be held before the 2024 general
   election to fill a vacant senate seat, should such an election be held pursuant to the districts specified by S.C. Code § 2-1-70 or those as amended by the Act for Section 2-1-75?

2. Until the 2024 general elections, are sitting senators representing districts
   defined by S.C. Code § 2-1-70, or those as amended by the Act for Section 2-1-75?

Law/Analysis

It is this Office’s opinion that Act 117 does not repeal S.C. Code § 2-1-70 nor replace the senate election districts established therein until the 2024 General Election, and “[c]ommencing with the 2024 General Election” members will thereafter be elected from the districts articulated in S.C. Code § 2-1-75. This opinion will interpret the Act according to the rules of statutory construction to evaluate which districts sitting senators represent and whether special elections should be held pursuant to the districts specified by S.C. Code § 2-1-75 before the 2024 General Election. Statutory construction primarily requires a determination of the General Assembly's intent. 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 legislation’s language is plain and unambiguous, “the text of [the Act] 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). Further, “[an Act] 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).

As described above in your letter, Act 117 adopted the results of the 2020 Census and reapportioned the election districts for both chambers of the General Assembly prospectively. While section 5 of the Act directly addresses which statute controls regarding vacancies in office for members of the House of Representatives prior to the first election with the new districts, sections 2 and 4 can be read to provide similar guidance indirectly. First, section 4 states, “Section 2-1-70 of the 1976 Code is repealed effective with the 2024 General Election.” (emphasis added). The title to Act 117 explains section 2-1-70 “relat{es] to election districts from which members to the Senate were formerly elected.” The general rule is that legislation is effective from the date of its passage, but there are some exceptions.

Director Howard M. Knapp
Page 3
April 28, 2022

A statute takes effect from the date of its passage unless the time is fixed by a constitution or statutory provision, or is otherwise provided in the statute itself. The date of passage is the date of the completion of the last act necessary to fulfill the constitutional requirements and to give a bill the force and effect of law. ...

To avoid the hardships sometimes occasioned by the general rule, the legislature will usually designate within the act itself a future day for the act to take effect.

2 Sutherland Statutory Construction § 33:6 (7th ed.) (emphasis added). Here, the plain language of section 4 demonstrates the General Assembly intended that the Senate election districts described in Section 2-1-70 not to be repealed when the Act was adopted; rather, it intended the repeal occur with the 2024 General Election. Moreover, section 2 of the Act clarifies that the Senate Election districts established in section 2-1-75 do not “commencfe]” until the 2024 General Election. Therefore, when sections 2 and 4 of Act 117 are read together, it is reasonable and fair to construe them to demonstrate legislative intent that sitting members of the Senate continue to represent the districts defined in S.C. Code § 2-1-70 (Supp. 2021) until the 2024 General Election. Finally, it is this Office’s opinion that a court would likely hold, if a special election is held before the 2024 General Election to fill a vacant senate seat, it must be held pursuant to the election districts specified by S.C. Code § 2-1-70.

Conclusion

As is discussed more fully above, it is this Office’s opinion that Act 117 does not repeal S.C. Code § 2-1-70 nor replace the senate election districts established therein until the 2024 General Election, and “[c]ommencing with the 2024 General Election” members will thereafter be elected from the districts articulated in S.C. Code § 2-1-75. Prior to the 2024 General Election, if a special election is held to fill a vacant senate seat, it must be held pursuant to the election districts specified by S.C. Code § 2-1-70.

Sincerely,

// oD
Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:
Wt LeP—

Robert D. Cook
Solicitor General