Beaufort County v. South Carolina State Election Commission ( 2011 )

JUDGMENT FOR RESPONDENTS

Chief Justice TOAL.

Petitioners seek a declaration from this Court in its original jurisdiction that the General Assembly has neither authorized the State Election Commission or the County Election Commissions to conduct a Presidential Preference Primary in 2012, nor mandated that petitioners bear the financial burden of conducting the primary. Because we are firmly persuaded that the General Assembly, through passage of Provisos 79.6 and 79.12 for fiscal year 2011-2012, intended to suspend the temporal limitation in S.C.Code Ann. § 7-ll-20(B)(2) (Supp. 2010), we enter judgment for respondents.

FACTS

The South Carolina Republican Party has scheduled a Presidential Preference Primary for January 21, 2012. In the 2011-2012 Appropriations Act, the General Assembly provided that filing fees received from candidates to run in primary elections may be used by the State Election Commission to conduct the 2012 Presidential Preference Primary elections. Act No. 73, 2011 S.C. Acts § 79.6. In addition, the State Election Commission is authorized to use funds originally appropriated for ballot security to conduct the Presidential Preference Primary elections and the statewide primaries and runoffs. Act No. 73, 2011 S.C. Acts § 79.12.

Petitioners contend the General Assembly has not authorized the State Election Commission or the County Election Commissions to conduct a Presidential Preference Primary in 2012 or any election cycle thereafter. In addition, petitioners argue the amount set forth in the Appropriations Act will be insufficient to cover the actual costs to the counties of conducting the 2012 primary.

QUESTIONS PRESENTED

I. Are the State Election Commission and the County Election Commissions authorized and required to conduct a 2012 Presidential Preference Primary?

II. Has the General Assembly appropriated sufficient funds for the State Election Commission and the County Election Commissions to conduct a 2012 Presidential Preference Primary?

ANALYSIS

I. Authorization and Requirement to Conduct Presidential Preference Primary

South Carolina Code Ann. § 7-ll-20(B)(2) provides, in part:

For the 2008 election cycle, if the state committee of a certified political party which received at least five percent of the popular vote in South Carolina for the party’s candidate for President of the United States decides to hold a presidential preference primary election, the State Election Commission must conduct the presidential preference primary in accordance with the provisions of this title and party rules provided that a registered elector may cast a ballot in only one presidential preference primary. However, notwithstanding any other provision of this title, (a) the State Election Commission and the authorities responsible for conducting the elections in each county shall provide for cost-effective measures in conducting the presidential preference primaries including, but not limited to, combining polling places, while ensuring that voters have adequate notice and access to the polling places; and (b) the state committee of the party shall set the date and the filing requirements, including a certification fee.... Political parties may charge a certification fee to persons seeking to be candidates in the presidential preference primary for the political party. A filing fee not to exceed twenty thousand dollars, as determined by the State Election Commission, for each candidate certified by a political party must be transmitted by the respective political party to the State Election Commission and must be used for conducting the presidential preference primaries.

(emphasis added). Section 7-ll-20(B)(4) states, “Nothing in this section prevents a political party from conducting a presidential preference primary for the 2008 election cycle pursuant to the provisions of Section 7-11-25.” (emphasis added).¹

Although Petitioners admit these provisions authorized the State Election Commission and the County Election Commissions to conduct the 2008 Presidential Preference Primaries, they argue these provisions applied only to the 2008 primaries and not to any subsequent primaries. Accordingly, petitioners contend the State Election Commission and the County Election Commissions have no authority to conduct the 2012 Presidential Preference Primary or any future Presidential Preference Primaries. Petitioners argue the statute should be construed to create a limited exception, solely for the 2008 election cycle, to the traditional practice of political parties conducting their own Presidential Preference Primaries.

We would agree with Petitioners if § 7-ll-20(B)(2) were the only expression of legislative intent before us. But, as discussed below, we must consider the operative budget provisos for the current fiscal year, as well as our precedent that speaks to the relationship of a legislative proviso juxtaposed to a permanent statute.

The primary rule of statutory construction is to ascertain and give effect to the intent of the General Assembly. Town of Mt. Pleasant v. Roberts, 393 S.C. 332, 342, 713 S.E.2d 278, 283 (2011). This Court has held that a statute shall not be construed by concentrating on an isolated phrase. Laurens County Sch. Dists. 55 & 56 v. Cox, 308 S.C. 171, 174, 417 S.E.2d 560, 561 (1992) (“The true guide to statutory construction is not the phraseology of an isolated section or provision, but the language of the statute as a whole considered in the light of its manifest purpose. In applying the rule of strict construction the courts may not give to particular words a significance clearly repugnant to the meaning of the statute as a whole, or destructive of its obvious intent.”); see also Sloan v. S.C. Bd. of Physical Therapy Exam’rs, 370 S.C. 452, 468, 636 S.E.2d 598, 606-07 (2006) (“A statute as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers.”). “All rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the statute.” State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010). Moreover, it is well settled that statutes dealing with the same subject matter are in pari materia and must be construed together, if possible, to produce a single, harmonious result. Joiner ex rel. Rivas v. Rivas, 342 S.C. 102, 109, 536 S.E.2d 372, 375 (2000).

Section 7-ll-20(B)(2) is included in the permanent laws of this state. Following the limitation to the 2008 election cycle, § 7-ll-20(B)(2) speaks more broadly to a general application, where it states in part, “[hjowever, notwithstanding any other provision of this title ...(emphasis added). The statute must be construed in light of the entirety of Chapter 11 of Title 7. Although the body of § 7-ll-20(B)(2) refers to the 2008 election cycle, the title of the act does not indicate that the General Assembly intended to limit the provisions to 2008. Instead, the title states the act is:

AN ACT TO AMEND SECTIONS 7-11-20 AND 7-13-15, BOTH AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO PARTY CONVENTIONS AND PARTY PRIMARY ELECTIONS CONDUCTED BY THE STATE ELECTION COMMISSION AND COUNTY ELECTION COMMISSIONS, SO AS TO PROVIDE THAT THE STATE ELECTION COMMISSION CONDUCT PRESIDENTIAL PREFERENCE PRIMARIES, THAT THE STATE COMMITTEE OF THE PARTY SET THE DATE, FILING REQUIREMENTS AND CERTIFICATION FEE FOR THE PRESIDENTIAL PREFERENCE PRIMARIES, TO PROVIDE A PROCEDURE FOR VERIFICATION OF THE QUALIFICATION OF CANDIDATES, TO CLARIFY CERTAIN EXISTING PROVISIONS CONCERNING PRIMARIES, AND TO SPECIFY WHICH PRIMARIES MUST BE CONDUCTED BY THE STATE ELECTION COMMISSION AND COUNTY ELECTION COMMISSION; TO DESIGNATE SECTION 14 OF ACT 253 OF 1992 AS SECTION 7-11-25, RELATING TO POLITICAL PARTIES NOT PROHIBITED FROM CONDUCTING PRESIDENTIAL PREFERENCE OR ADVISORY PRIMARIES, SO AS TO DELETE THE REFERENCES TO PRESIDENTIAL PREFERENCE PRIMARIES; AND BY ADDING SECTION 7-9-110 SO AS TO AUTHORIZE A POLITICAL PARTY OR STATE ELECTION COMMISSION TO CONDUCT A PRIMARY OR ELECTION, WITHOUT CHARGE, IN A FACILITY THAT RECEIVES STATE FUNDS FOR SUPPORT OR OPERATION.

A recent opinion of the Attorney General states the statute is a permanent statute and is not limited to the 2008 Presidential Preference Primary. 2011 Op. Att’y Gen. dated June 27, 2011, 2011 WL 2648710. The opinion refers to the fact that the title does not contain the 2008 limitation² as well as the fact that the statute was codified at the direction of the General Assembly in the permanent laws of the State rather than as a local or temporary law. Id. We agree with the Attorney General insofar as he recognizes the statute was codified by the General Assembly as a permanent statute and the title contains no temporal limitation. However, absent the current provisos, the temporal limitation in § 7-ll-20(B) would be respected. This brings us to discerning legislative intent and the effect of Provisos 79.6 and 79.12.

We reject any suggestion that the entirety of § 7-ll-20(B) is meaningless when viewed through the lens of the current budget provisos. As noted, § 7-ll-20(B) is a permanent statute. We hold the provisos of the 2011-2012 Appropriations Act allowing the State Election Commission to use funds toward a Presidential Preference Primary suspend the temporal limitation of § 7-ll-20(B) and authorize the State Election Commission and the County Election Commissions to conduct a Presidential Preferential Primary in 2012.

Proviso 79.6 provides:

Filing fees received from candidates filing to run in statewide or special primary elections may be retained and expended by the State Election Commission to pay for the conduct of primary elections. Any balance in the filing fee accounts on June thirtieth, [sic] of the prior fiscal year may be carried forward and expended for the same purposes during the current fiscal year. In addition, any balance in the Primary and General Election Accounts on June thirtieth, [sic] of the prior fiscal year may be carried forward and expended for the same purposes during the current fiscal year. In addition, the aforementioned funds may also be utilized to conduct the 2012 Presidential Preference Primary elections.

(emphasis added). Proviso 79.12 provides, “The State Election Commission is authorized to carry forward and use funds originally appropriated for Ballot Security to conduct the 2012 Presidential Preference Primary elections and the 2012 Statewide Primaries/Runoff.” (emphasis added).

As a permanent statute, the portions of § 7-ll-20(B)(2) which do not conflict with the 2011-2012 Appropriations Act remain viable. Only the terms of that section which conflict with the current budget are suspended. State ex rel. McLeod v. Mills, 256 S.C. 21, 26, 180 S.E.2d 638, 640 (1971) (finding only the provisions of the permanent statute that conflicted with the budget provisos were suspended during the fiscal year). We must reject petitioners’ invitation to view the statute and budget provisos in isolation, a position which violates our rules of statutory construction. We must not only seek to discern legislative intent from all lawful enactments of the General Assembly — the statutory scheme and budget provisos — but we must also respect our settled law that suspends a conflicting permanent statutory provision while a proviso is in effect. Id. Accordingly, only the language limiting that section to the 2008 election cycle must be stricken as that is the only provision of the statute in conflict with the current budget provisos.

Moreover, we cannot ignore the final provision of the 2011-2012 Appropriations Act in which the General Assembly stated, “All acts or parts of acts inconsistent with any of the provisions of Parts IA or IB of this act are suspended for Fiscal Year 2011-2012.” By passing the relevant budget provisos, the General Assembly, thus, has expressly provided that the temporal limitation in § 7-ll-20(B)(2) must be suspended during the current fiscal year. See McLeod, 256 S.C. at 26, 180 S.E.2d at 640 (“There is no doubt that the legislature has the power, where there is no constitutional prohibition, to suspend the operation of a statute. When such intention is clearly manifest this court has no choice but to give force and effect thereto.”).

As additional evidence of legislative intent, it is instructive to note that the Governor vetoed provisos 79.6 and 79.12. In her veto message, the Governor wrote:

Prior to 2008, the taxpayers of South Carolina had never funded the First in the South Presidential Primary — instead, the political parties did. As I have made clear throughout the budget process, I believe private dollars are the appropriate way to fund a partisan Presidential Primary. The Attorney General of South Carolina has recognized that the State GOP can contract with the State Election Commission to run the primary. The United States Department of Justice has cleared an election conducted by the Election Commission and funded by a political party. The bottom line is this: South Carolina will host the First in the South Presidential Primary in 2012 and will be as successful as it always has been, but it should not fall on the taxpayers to cover the expense. For these reasons, we are vetoing these provisos.

Governor’s Message to the Members of the General Assembly Transmitting Line-Item Vetoes of Portions of the 2011-2012 General Appropriations Act (June 28, 2011).

The Governor clearly understood the intent of the General Assembly to adhere to the 2008 public funding approach in fiscal year 2011-2012 and sought to oppose it.³ The General Assembly, in turn, clearly understood the import and consequences of overriding the Governor’s veto — the effect of the budget provisos was to suspend the temporal limitation in § 7-ll-20(B)(2). A contrary construction of legislative intent would mean the Governor and the General Assembly were not aware what was intended by the provisos, a result which would border on frivolity.

Accordingly, we hold that provisos 79.6 and 79.12 suspend the temporal limitation in § 7-ll-20(B)(2) and authorize the State Election Commission and the County Election Commissions to conduct Presidential Preference Primaries in 2012.⁴ If they were not so construed, the provisos would authorize the State Election Commission to carry over certain funds to perform an unauthorized act, which would be an absurd result. See Lancaster County Bar Ass’n v. S.C. Comm’n on Indigent Defense, 380 S.C. 219, 670 S.E.2d 371 (2008) (holding that, in construing a statute, this Court will reject an interpretation which leads to an absurd result which could not have been intended by the General Assembly); Gordon v. Phillips Util., Inc., 362 S.C. 403, 608 S.E.2d 425 (2005) (noting it is presumed that the General Assembly intended to accomplish something by its choice of words and would not do a futile thing); Denene, Inc. v. City of Charleston, 352 S.C. 208, 574 S.E.2d 196 (2002) (finding that this Court must presume the General Assembly did not intend a futile act, but rather intended its statutes to accomplish something).

II. Sufficiency of Funds Appropriated for Presidential Preference Primary

Petitioners’ argument that the funds appropriated for conducting a 2012 Presidential Preference Primary are insufficient presents a nonjusticiable political question. Accordingly, we decline to address that argument. Segars-Andrews v. Judicial Merit Selection Comm’n, 387 S.C. 109, 691 S.E.2d 453 (2010); S.C. Pub. Interest Found. v. Judicial Merit Selection Comm’n, 369 S.C. 139, 632 S.E.2d 277 (2006); see also State ex rel. Condon v. Hodges, 349 S.C. 232, 562 S.E.2d 623 (2002); Gilstrap v. S.C. Budget & Control Bd., 310 S.C. 210, 423 S.E.2d 101 (1992) (holding the appropriation of public funds is a legislative function); Clarke v. S.C. Pub. Serv. Auth., 177 S.C. 427, 181 S.E. 481 (1935) (noting the General Assembly has full authority to make appropriations as it deems wise in absence of any specific constitutional prohibition against the appropriation).

CONCLUSION

Having held the General Assembly has authorized and directed that Presidential Preference Primaries be conducted in South Carolina in 2012 by the State Election Commission and the County Election Commissions, we declare that such Presidential Preference Primaries shall be conducted in accordance with the provisions of S.C.Code Ann. § 7-ll-20(B)(2) (Supp.2010) and Provisos 79.6 and 79.12 of Part II of the 2011-2012 General Appropriations Act, Act. No. 73, 2011 S.C. Acts §§ 79.6 and 79.12.

At the present time, the practical effect of this declaratory judgment is as follows: For the 2012 election cycle, the state committee of the Republican Party of South Carolina, a certified political party which received at least five percent of the popular vote in South Carolina for its presidential candidate in the 2008 General Election, has decided to hold a Republican Presidential Preference Primary Election on January 21, 2012. The State Election Commission and the County Election Commissions for each of the 46 counties must conduct this Presidential Preference Primary.

The only other political party in South Carolina which is eligible to conduct a Presidential Preference Primary is the South Carolina Democratic Party. Thus far, it has not decided to conduct such a primary. If it decides to do so, the State Election Commission and the County Election Commissions will also be required to conduct such a primary pursuant to the above set forth provisions of state law.

Finally, it has been brought to the attention of the Court that the State Election Commission’s website (www.scvotes. org) advises that the proposed ballot for the January 21, 2012, South Carolina Republican Presidential Preference Primary will include candidates as follows: Michele Bachmann, Herman Cain, Newt Gingrich, Jon Huntsman, Gary Johnson, Ron Paul, Rick Perry, Mitt Romney, and Rick Santorum, and will also include four (4) nonbinding advisory questions. Nothing in the statutes upon which this declaratory judgment is rendered and no provision of South Carolina law would allow the ballot for a publically funded Presidential Preference Primary to include anything other than the names of candidates for a qualifying political party’s nominee for President of the United States. Accordingly, the State Election Commission and the County Election Commissions are hereby directed that they may not print such ballots or conduct such primaries for any matter other than the nomination of party candidates for President of the United States. No advisory questions may be included on any such primary ballots. Additionally, no other advisory elections, straw polls, or the like on any question may be conducted at the various Presidential Preference Primary polling places or within 200 feet of the entrance to such polling places.

JUDGMENT FOR RESPONDENTS.

PLEICONES and KITTREDGE, JJ., concur. HEARN, J., dissenting in a separate opinion in which BEATTY, J., concurs.

1 . Section 7-11-25 provides, "Except for the provisions of Section 7-11-20 related to presidential preference primaries, nothing in this chapter nor any other provision of law may be construed as either requiring or prohibiting a political party in this State from conducting advisory primaries according to the party’s own rules and at the party’s expense.”

2 . This Court may, of course, consider the title or caption of an act in determining the intent of the Legislature. Joytime Distrib. & Amusement Co., Inc. v. State, 338 S.C. 634, 528 S.E.2d 647 (1999).

3 . Whether the expense of a Presidential Preference Primary should be borne by the political parties or the taxpayers is a policy decision, one that lies exclusively in the General Assembly.

4 . The dissent accepts petitioners' argument that the budget provisos are merely permissive, allowing the State Commission to participate in the primaries should it choose to do so. We respectfully disagree. Ostensibly, the words "may” and "authorize” appear permissive, but such terms are commonly invoked in the context of budget provisos. The General Assembly, for example, routinely uses the word "may” in budget provisos in connection with an agency’s ability to utilize a designated funding source. In the 2011-2012 Appropriations Act, the General Assembly used the word "may” in multiple budget provisos in addition to the ones in section 79. See Act No. 73, 2011 S.C. Acts §§ 1.7 (Governor's School for Science & Math); 1.13 (School Lunch Program Aid); 4.1 (School for the Deaf and the Blind); 22.36 (Department of Health & Environmental Control); 26.4 (Department of Social Services); 28.1 (Department of Archives & History); 38.1 (Sea Grant Consortium); 39.13 (Department of Parks & Recreation); 46.4 (Prosecution Coordination Commission); 65.1 (Department of Labor, Licensing & Regulation); 66.4 (Department of Motor Vehicles); 74.1 (Secretary of State). The General Assembly’s approach to budget provisos for fiscal year 2011-2012, with its common usage of the term “may,” was no different than its approach in prior years. Simply stated, the word "may” should not be viewed out of the budget proviso context in which it appears. An agency's authority to utilize a particular funding source does not transform the underlying legislation from a mandatory one to a permissive one.

Because we are tasked with ascertaining legislative intent, we further point to the fact that the House of Representatives rejected a proposed amendment to the provisos, which would have stricken the State Election Commission’s and the County Election Commissions' duty to conduct the Presidential Preference Primaries. A statement by Representative Quinn and others was included in the House Journal:

While I support the idea of raising private funds to save tax dollars, I voted to table [the proposed amendment] for two major reasons. First, conducting elections is a core function of government. And no election is more important than the Presidency of the United States. Second, recent federal court cases and justice department decisions will potentially make a purely privately paid for election infeasible.

2011 House Journal March 15, 2011, p. 97 (statement of Rep. Richard Quinn, et al., regarding Amendment No. 71).