Court case tests ‘Power of One’

Contributed by Rick Brundrett, Senior Investigative Reporter, www.thenerve.org

If you want to see a concentration of power, look no further than the S.C. Legislature.

In the 170-member General Assembly, a governor’s veto of a bill that applies only to a particular county, known as local legislation, can be overturned by just a single legislator. By legislative custom, lawmakers outside a county’s delegation typically don’t participate in votes on local bills.

But the single-vote practice is being challenged in the state’s highest court.

The S.C. Supreme Court last week heard oral arguments in a case pitting the Fairfield County School Board against the county’s state legislative delegation.

The five-member court is under no deadline to rule, though some legal observers expect a decision before the Legislature returns to session next month.

At issue is the constitutionality of a newly passed law (Act 308) that would strip the seven-member Fairfield County School Board of its financial authority and give it to a five-member committee appointed by the county’s two-member legislative delegation – Rep. Boyd Brown and Sen. Creighton Coleman, both Democrats. None of the state’s other 84 school districts has that division of authority.

“I don’t agree with every local legislation,” Brown, who introduced the bill (H. 4431) in January, told The Nerve last week. “But we’ve suffered in Fairfield County for a long, long time, and there is a breaking point.”

Coleman did not respond last week to written and verbal requests by The Nerve for an interview.

The school board’s attorney in the appeal, Armand Derfner of Charleston, argued last week before the Supreme Court that the House and Senate violated the S.C. Constitution when they voted to override Gov. Mark Sanford’s veto of the bill.

The constitution requires a two-thirds vote of each chamber to override a veto. Citing state Supreme Court rulings in 1873 and 1903, Derfner said an override requires a two-thirds vote of a quorum, or a majority, of lawmakers present.

Attorneys for the delegation and other defendants, including House Speaker Bobby Harrell, R-Charleston, and Senate President Pro Tempore Glenn McConnell, R-Charleston, both of whom asked to intervene in the case, contended during last week’s arguments that according to prior court rulings and current chamber rules, the two-thirds requirement applies only to those lawmakers who actually vote, though a quorum must be present.

In the case of Brown’s bill, Coleman cast the sole Senate vote to override Sanford’s veto.

The legislative custom was broken, however, on the House side.  It took two tries in that chamber to override Sanford’s veto; the final vote to override was 33 to 10.

Still, under the school board’s interpretation of the S.C. Constitution, override votes by a minimum of 16 senators and 42 representatives – assuming full membership in both chambers – would have been necessary for Brown’s bill to become law.  There are 46 members in the Senate and 124 in the House. A quorum in the Senate is 24 members; in the House, that number is 63.

“Defendants’ interpretation upsets the balance between branches of the state government as ordained by the people in our constitution,” the school board said in court papers. “The issue here involves a bill that the legislative branch has approved and the executive branch had disapproved. In such a situation, the two-thirds requirement is part of the balance, and while the defendants espouse a view that may suit the legislative branch, it has severe effects on the executive branch to which the people allocated a critical role in the enactment of our laws.”

Derfner, the school board’s attorney, declined comment when contacted last week by The Nerve, referring a reporter to court filings in the case.

Legislative Voting Patterns

Besides local bills such as Brown’s, the two-thirds-of-a-quorum requirement also has been ignored on statewide bills for decades, the school board said in court papers, citing its own research.

Between 1903 – the year of a key S.C. Supreme Court ruling defining the two-thirds requirement – and this year, there have been more than 1,200 vetoes on bills that one or both chambers considered overriding, according to the research. Of that number, about 700 dealt with statewide bills, and approximately 500 involved local bills.

Before 1980, no veto was overridden in either chamber with less than two-thirds of a quorum, according to the research. But the practice began to change in the House after 1980; since 1989, for example, the House has considered overriding more than 200 vetoes of local bills but voted in “full quorum” only five times, the review found.

From 1903 through 2007, the Senate only twice voted to override a statewide or local bill with less than two-thirds of a quorum, according to the research. But since 2008, the Senate has voted in “full quorum” only twice when considering whether to override vetoes on 16 local bills, the review found.

“Contrary to suggestions of a longstanding practice of only local delegations voting on local bills, the fact is that just the opposite was true for generations,” the school board said in court papers.

The study was done by John Ruoff, program director for a nonprofit policy research organization, South Carolina Fair Share. Brown, Coleman, Harrell and McConnell in court papers criticized the study, contending the research contains “a number of inaccuracies.”

Fairfield County Bills

Brown told The Nerve last week that he had not seen the study.  But he said the school board’s position on the two-thirds veto override requirement is “just wrong,” pointing out it could undo previously passed local legislation if the Supreme Court sides with the board.

“We’re going to be renaming every bridge and road in South Carolina,” he joked.

The school board also contends that Brown’s bill is unconstitutional because it violates state law on the duties and powers of local school boards. Brown and the other defendants in court papers said the Supreme Court has long allowed local legislation that applied only to a single school district.

Brown told The Nerve that he had plenty of good reasons to introduce his bill. Among other things, he cited a recent study by the Southern Association of Colleges and Schools, which accredits schools across the Southeast, that found only slightly more than half of the district’s budget is spent on instruction; graduation rates in the district are declining; and the school board has interfered unnecessarily with the district superintendent’s duties.

The controversy has racial overtones, as Brown and Coleman are white, and the majority of the school board members – with whom the two state lawmakers have disagreed – are black. Brown denied that race was a factor in the drafting of his bill, pointing out to The Nerve that three of the five members of the proposed finance committee are black, including its chairman.

Brown’s bill and a companion bill (H. 4432) he authored, which would allow the Fairfield County legislative delegation to appoint two additional members to the popularly elected county school board, passed the House just one week after being introduced on Jan 27.

In accordance with legislative custom on local legislation, Brown gave sole approval of the bills on second and third readings, Brown told The Nerve. The bills sailed through three required readings in the Senate that same week on the “local and uncontested” bill calendar, records show.

Gov. Sanford, in explaining why he vetoed both bills, contended that while Brown and Coleman “seem justified in their concerns about the effectiveness of the Fairfield County School Board leadership over the past few years,” he believed that the  “more appropriate route is to pass legislation of this nature that will benefit all students in South Carolina.”

The House and Senate overturned both vetoes in early March, though it took the House two tries on the bill that would strip the school board of its financial authority.  Brown told The Nerve that Rep. Leon Howard, D-Richland, was the main House opponent to his bills.

“They just don’t have the right to change the process,” Howard said when contacted by The Nerve. “Personally, I don’t think Brown and Coleman said, ‘I think they’re four or five blacks sitting on that school board we don’t want.’ But they still don’t have the right, whether (the school board members) are black or white, to take away (people’s) voting rights.”

On the Senate side, one vote – Coleman’s – overturned both of Sanford’s vetoes.

“Out of a long-held precedent in the Senate where members do not vote on legislation affecting solely one county, also known as local legislation, we did not officially vote on bills related to Fairfield County schools,” Sens. John Matthews, D-Orangeburg; Darrell Jackson, D-Richland; and Ralph Anderson, D-Greenville, said in a joint written statement printed in the Senate Journal. “However, we have serious concerns about the legislation.

“The effect of H. 4431 and H. 4432 is to undermine the will of Fairfield County voters.”

Despite the veto overrides, neither bill took effect pending a review by the U.S. Department of Justice. Under the federal Voting Rights Act of 1965, South Carolina is one of nine mostly Southern states that have to get “preclearance” from the department before implementing voting changes.

In August, the department in a letter to the S.C. Attorney General’s Office said it didn’t object to the finance committee bill, but found that the other bill increasing the size of the school board by two appointed members would “reduce the level of electoral influence that African-American voters have on the board.”

In the letter, Assistant U.S. Attorney General Thomas Perez pointed out that the bill to increase the board size was “neither subject to the traditional legislative scrutiny nor accompanied by legislative hearings or reports.”

Brown told The Nerve last week that he doesn’t plan to appeal the DOJ’s decision, which, if not challenged, would nullify the bill to increase the board size.

Less than two weeks after the DOJ decision, the Fairfield County School Board filed a lawsuit against the county legislative delegation and the state over Brown’s finance committee bill. Enactment of the bill was put on hold after the parties agreed to ask the S.C. Supreme Court to hear the case.

Reach Brundrett at (803) 254-4411 or rick@thenerve.org

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