What happens if a South Carolina county council member no longer lives in the district after a county-boundary change?

Official title

Opinion regarding residency requirements for county council

Requester

G.P. Callison, Jr., County Attorney, McCormick County

Plain-English summary

The South Carolina Attorney General explained that a county council member must be a qualified elector of the represented district and must maintain that status throughout the term. If a boundary change causes the member to reside outside the county and district, the member forfeits the office and the seat becomes vacant.

The AG did not decide where the particular council member lived. Residency is a mixed question of fact and law, and the Attorney General's Office cannot adjudicate factual disputes. The opinion said the McCormick County Board of Voter Registration and Elections should make the initial determination, subject to a declaratory-judgment action in a South Carolina court.

Even after forfeiture, the opinion said the member may continue serving in a de facto capacity until a successor is elected and seated. A member who becomes a qualified elector of the district again before the general election may be eligible for the ballot. Because the hypothetical vacancy was less than 180 days before the November 3, 2026 general election, the opinion concluded it should be filled at that election rather than by special election.

What this means for you

County council members and candidates

The opinion treats district residency and qualified-elector status as continuing qualifications, not requirements that matter only on election day. A member who no longer resides in the represented district forfeits the seat, while a candidate who reestablishes the required status before the election may qualify for the ballot.

County election boards

The opinion identifies the county board of voter registration and elections as the first body responsible for verifying whether a candidate meets or will timely meet the qualifications for office, including residency. Its determination may be challenged through a declaratory-judgment action.

County governments and voters

The opinion says a former de jure officeholder may continue acting as a de facto council member until a successor is seated. For the timing described, section 4-9-90 called for filling the vacancy at the next general election because fewer than 180 days remained.

Common questions

Q: Who decides whether a South Carolina county council member lives in the represented district? A: The opinion says the county board of voter registration and elections makes the initial residency determination, and a South Carolina court may decide the question in a declaratory-judgment action.

Q: Can the Attorney General decide where the member is domiciled? A: No. The opinion expressly declined to resolve that factual question.

Q: Does moving outside the district create a vacancy?
A: Yes, if the member is no longer a qualified elector of the represented district. The opinion says the office is then forfeited and becomes vacant.

Q: May the member keep voting on council matters after forfeiting the seat? A: The opinion says the member may continue serving in a de facto capacity until a successor is elected and seated.

Q: Can the member qualify for reelection after moving back into the district? A: The opinion says a person who becomes a qualified elector of the district before the general election may be eligible to appear on the ballot.

Background and statutory framework

Article VI, section 1 of the South Carolina Constitution requires a person elected to state or local office to possess the qualifications of an elector. Section 7-5-120(A)(3) includes residency in the county and polling precinct among those qualifications, while section 4-9-90 governs county council elections and vacancies.

S.C. Code Ann. § 7-13-352 requires the election authority to verify each candidate's qualifications. The opinion also relied on South Carolina decisions and earlier AG opinions recognizing that residency must continue throughout the term and that an officer who has forfeited a seat may remain a de facto officer until a successor is seated.

Citations and references

Constitution and statutes:

• S.C. Const. art. VI, § 1
• S.C. Code Ann. § 7-5-120(A)(3)
• S.C. Code Ann. § 7-13-352
• S.C. Code Ann. § 4-9-90
• S.C. Code Ann. § 15-53-30

Case:

• Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-regarding-residency-requirements-for-county-council/
• Original PDF: https://www.scag.gov/media/xsepcujs/callison-8-4.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 4, 2026

Mr. G. P. Callison, Jr., Esquire
McCormick County Attorney
116 County Line Road E.
Bradley, SC 29819-2648

Dear Mr. Callison:

Attorney General Alan Wilson referred your letter to the Opinions section for a response. You seek an opinion regarding residency requirements for McCormick County Council and the effect of recent county boundary adjustments on Council Member Brown’s eligibility to hold office. Specifically, you advise that recent modifications to the boundary between McCormick County and Edgefield County resulted in the property and house of Council Member Brown sitting

in both McCormick County and Edgefield County. In light of these adjustments, you ask:

1.

REMBERT C. DENNIS BUILDING

Since a portion of her home and most of the property remains in McCormick County, is Councilperson Brown still considered a resident of McCormick County eligible for reelection in November 2026?

Under these circumstances, other than the court, who or what entity has the authority to make a determination regarding Councilperson Brown’s residency and domicile? Who — or what entity — decides if she is a resident of McCormick or Edgefield County? .

Did the change in the county boundary pursuant to SCGS County Boundary Program result in a vacancy in the office for District Five?

Does Councilperson Brown continue to serve as a de facto member of County Council until her successor is elected or appointed? Does she retain the right to vote and participate in Council decisions? I am familiar with previous Attorney General Opinions and case law which indicate that a de facto member of Council continues to serve until a successor is elected or appointed. Please confirm this.

Can Councilperson Brown change her residence to another location in McCormick County District 5 thereby making her eligible for reelection in November?

If Councilperson Brown is deemed a resident of Edgefield County, do the circumstances presented require an election or an appointment?

Mr. G. P. Callison, Jr.
Page 2
August 4, 2025

Your questions are answered in turn below, but we must note that the Office can only render an opinion on general questions of law; it cannot make factual determinations. Op. S.C. Att’y Gen., 2003 WL 21040130 at 1 (Feb. 19, 2003) (“Because this Office does not have the authority of a court or other fact-finding body, we are not able to adjudicate or investigate factual questions.” (quoting Ops. S.C. Att’y Gen., Oct. 10, 1985, at 2 and Sept. 3, 1999, at *2)). Therefore, the Office can offer a general opinion on residency requirements, the effect of an officeholder no longer residing in the district which they represent, and the method of filling a vacancy, but the Office cannot determine whether Council Member Brown is a resident of McCormick County. That determination should be made by the McCormick County Board of Voter Registration and Elections or a South Carolina court, as described below.

Law/Analysis

We begin by reviewing the general law regarding residency and county council members. Article XVII, § 1 and Article VI, § 1 of the South Carolina Constitution require that an officeholder possess the qualifications of an elector. Article VI, section 1, specifically provides that “No person may be popularly elected to and serve in any office in this State or its political subdivisions unless he possesses the qualifications of an elector.” S.C. Const. art. VI, § 1. South Carolina Code Section 7-5-120 details the qualifications of an elector. In particular, Section 7-5-120 requires that an elector be “a resident of the county and in the polling precinct in which the elector offers to vote.” S.C, Code Ann. § 7-5-120(A)(3) (2019).

Section 4-9-90 governs the election of county council members. The first paragraph of Section 4-9-90 provides in part that “[i]n the event the members of the governing body are required to be elected from defined single-member election districts, they must be elected by the qualified electors of the district in which they reside.” S.C. Code Ann. § 4-9-90 (2021). The final paragraph of § 4-9-90 provides that “[flor the purpose of this section, a council member will be deemed a resident of the district he represents as long as he resides in any part of the district as constituted at the time of his election.” Id. You advise that the McCormick County Council consists of five members elected from single-member districts.

Considering these constitutional and statutory provisions, in order to be elected to a county council position in a county in which elections are held according to defined single-member districts, like McCormick County, a candidate must be a qualified elector who resides in the district they represent.

To run for office, candidates “file [a] statement of candidacy with the authority responsible by law for conducting the election.” S.C. Code Ann. § 7-13-352 (2019). County council elections are conducted by the county board of voter registration and elections. After filing, the authority responsible for conducting the election, in this case the county board of voter registration and elections, “must verify that each candidate meets, or will meet by the time of the general election, or as otherwise required by law, the qualifications for the office sought.” Id. “Any candidate who does not, or will not by the time of the general election, or as otherwise required by law, meet the

Mr. G. P. Callison, Jr.
Page 3
August 4, 2025

qualifications for the office sought shall not have his name placed on the ballot.” Id. Thus, for county council elections, county boards of voter registration and elections have the first responsibility to verify a candidate’s eligibility for office, including their residency.

A candidate’s qualification may be challenged in court under the Declaratory Judgments Act (the “Act”). The Act states, “[A]ny person interested . . . whose rights, status or other legal relations are affected by a statute... may have determined any question of construction or validity arising under the .. , statute . . . and obtain a declaration of rights... .° S.C. Code Ann. § 15-53- 30 (2005). This Office has previously opined that the Act serves the same function as a writ of quo warranto to determine a person’s eligibility to hold title to office. See Op. S.C. Att’y Gen., 2007 WL 419410, at *3 (January 17, 2007) (discussing procedure for determining officer’s eligibility for office and removal from office if found ineligible). Accordingly, the Act authorizes our state courts to determine an officer’s eligibility and permits the courts to order removal when warranted. See Florence Ctv. v. Moore, 344 S.C, 596, 545 S.E.2d 507 (2001) (determining eligibility of county treasurer appointed by governor to serve remainder of the office’s unexpired term).

While qualifications for office are determined as of the date of election, this Office has advised previously that qualifications, such as residence, continue throughout the officer’s tenure. Op. S.C. Att’v Gen., 1993 WL 494585 (Oct. 18, 1993) (citing Op. S.C. Att’y. Gen. dated August 27, 1985; 67 C.J.S. Officers § 18). Elected officials must maintain their status as qualified electors throughout their term of office or the office is forfeited. Ops. S.C. Att’y Gen., 2020 WL 7862620, at 3 (December 17, 2020) (Residency “must be maintained throughout the official’s term of office and the failure to do so results in a vacancy or forfeiture of the office.”); 2006 WL 981694, at 3 (March 28, 2006) (‘[P]Jublic officers vacate or forfeit their offices at the time they ceased to be a resident of the affected district or political subdivision.”).

Ifa member vacates their seat, they continue to serve in a de facto capacity until a successor is elected and seated. See Op. S.C. Att’y Gen., 2006 WL 981694, at *3 (March 28, 2006) (“[T]he decision in Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952), states that ‘in the absence of pertinent statutory or constitutional provision, public officers hold over de facto until their successors are appointed or elected and qualify.’”). We are not aware of any changes in law which alter our prior opinions regarding this point.

Filling vacancies on county council is governed by Section 4-9-90, Pursuant to Section 4- 9-90, “Vacancies on the governing body shall be filled in the manner of original election for the unexpired terms in the next general election after the vacancy occurs or by special election if the vacancy occurs one hundred eighty days or more prior to the next general election.” S.C. Code Ann. § 4-9-90 (2021). There are less than one hundred and eighty days until the next general election, on November 3, 2026.

Having reviewed the general law, we now turn to your questions. The determination of residency is a mixed question of fact and law. Op. S.C. Att’y Gen., 2021 WL 2460869 at *2 (June 11, 2021). This Office cannot make factual determinations. Op. S.C. Att’y Gen., 2003 WL

Mr. G. P. Callison, Jr.
Page 4
August 4, 2025

21040130 at *1 (Feb. 19, 2003). Therefore, we cannot determine whether Council Member Brown is a qualified elector in McCormick County or Edgefield County. As is described above, Council Member Brown’s residency should be determined first by the McCormick Board of Voter Registration and Elections, but the question may also be raised in a South Carolina court pursuant to the Declaratory Judgments Act.

If the revision of the boundary between McCormick County and Edgefield County made Council Member Brown a resident of Edgefield County, then she is no longer a resident of McCormick County, and is no longer a qualified elector in McCormick County. Elected officials must maintain their status as qualified electors throughout their term of office or the office is forfeited. Ops. S.C. Att’y Gen., 2020 WL 7862620, at 3 (December 17, 2020); 2006 WL 981694, at 3 (March 28, 2006). Thus, if Council Member Brown is a resident of Edgefield, then her position on McCormick County Council has been forfeited and the seat is vacant.

If a member vacates their seat, they may continue to serve in a de facto capacity until a successor is elected and seated. See Op. S.C. Att’y Gen., 2006 WL 981694, at *3 (March 28, 2006); Bradford v. Byrnes, 221 S.C. 255, 70 S.E.2d 228 (1952). Thus, even if Council Member Brown is a resident of Edgefield County, she may continue to serve in a de facto capacity until her successor is seated.

The county board of voter registration and elections “must verify that each candidate meets, or will meet by the time of the general election, or as otherwise required by law, the qualifications for the office sought.” S.C. Code Ann. § 7-13-352 (2019). If Council Member Brown is now a resident of Edgefield County but becomes a qualified elector of McCormick County prior to the general election in November, then she would be eligible to be on the ballot for McCormick County Council in November.

“Vacancies on the governing body shall be filled in the manner of original election for the unexpired terms in the next general election after the vacancy occurs or by special election if the vacancy occurs one hundred eighty days or more prior to the next general election.” S.C. Code Ann. § 4-9-90 (2021), If there is currently a vacancy on the McCormick County Council, there are less than one hundred and eighty days until the next general election, on November 3, 2026. Therefore, the vacancy should be filled in the next general election.

Conclusion

The general law regarding County Council membership and residency may be summarized as follows. County Council members must be qualified electors for the district they represent, and they must maintain this status for the entire time in office. A candidate’s residency is verified at the time of filing by the county board of voter registration and elections, but it may also be subject to a declaratory judgment action in court. If a council member no longer resides in the district they represent, then they are not eligible for reelection. However, if the council member reestablishes themselves a qualified elector for that district prior to the election, then they would be eligible for

Mr. G. P. Callison, Jr.
Page 5
August 4, 2025

election. If a council member no longer resides in their district during their tenure, the position is forfeited, and the office becomes vacant. A council member may continue to serve in a de facto capacity after vacating their seat. Vacancies which occur less than one hundred eighty days prior to the next general election, should be filled at the next general election.

Regarding Council Member Brown’s residency and eligibility, the Office cannot make factual determinations. Op. S.C. Att’y Gen., 2003 WL 21040130 at 1 (Feb. 19, 2003) (“Because this Office does not have the authority of a court or other fact-finding body, we are not able to adjudicate or investigate factual questions.” (quoting Op. S.C. Att’y Gen., Oct. 10, 1985, at 2 and Sept. 3, 1999, at *2)). Therefore, we cannot determine whether Council Member Brown is a resident of McCormick County or Edgefield County or whether she is a qualified elector in McCormick County, as required to be a member of the McCormick County Council.

Assistant Attorney General

REVIEWED AND APPROVED BY:
we

Robert D. Cook
Solicitor General Emeritus