The attorney for the latter two towns is among those who recognized that a change in the state election law that cancels uncontested elections is constitutionally suspect. The change, which went into effect the day after Gov. Mark Sanford took office in January and without his signature, already has caused headaches. If it isn't remedied soon, those headaches will only get worse.

It is difficult to understand how the General Assembly could have allowed a bill to pass that eliminates a voter's constitutional right to write-in a candidate on Election Day. But that's what happened when lawmakers in 2002 approved a bill that said towns can forego an election if there is no contest and no one had filed as a write-in candidate 14 days after the filing deadline. Keep in mind that there is no requirement elsewhere in the state election law that write-in candidates have to file. Indeed, that is inconsistent with a voter's right to write in any candidate he or she chooses on Election Day.

The attorney for Barnwell and Williston, Thomas M. Boulware, and the attorney for the S.C. Municipal Association, Danny C. Crowe, took their misgivings to the attorney general's office. The result was an opinion confirming Mr. Crowe's view that the law is constitutionally suspect. It should be noted that's about as far as the attorney general's office can go since only the courts can declare a law null and void.

As a result of that opinion, Mr. Boulware advised his two towns to be safe rather than sorry. Last month, Barnwell voters went to the polls to vote for an uncontested mayor and three council members and Williston elected three uncontested members of council. According to our report, Jamestown officials, unfortunately, are relying on the new law. A November election that would have had two uncontested candidates for council on the ballot has been canceled. Even though the law's the law until it is changed or the court finds it unconstitutional, towns that fail to hold elections still are taking a risk, particularly if a citizen decides to challenge the validity of an election.

Further, unintended consequences of the law already have begun to take place. In North Myrtle Beach, for example, an uncontested candidate in the November city council election recently died. Since the new law considered him as good as elected, a special election to fill the seat will have to be held after the town's upcoming regularly scheduled election.

The new law has more than one constitutional problem. While the title says it only deals with special elections, the text says it applies to all municipal general elections. That may explain how it passed under the radar when it was going through the legislative process. As the attorney for Barnwell and Williston noted, you can't legally label a law a monkey if it really is a squirrel.

The only way to eliminate the voter's right to go to the polls on Election Day and write in the candidate of his choice is by constitutional amendment. We'd wager that is never going to happen. That's why all towns should continue to hold elections, contested or not. It shouldn't be long before this ill-considered law is either eliminated by the Legislature or overturned by the courts.

Click here to return to story:
http://www.charleston.net/stories/101903/edi_19edit1.shtml