MYRTLE BEACH — Questions surrounding the interpretations of South Carolina’s election laws – including when does a private citizen become a “public official,” and what does “current” mean – have some local candidates kicked off primary ballots pointing fingers at state and local party leaders and fighting to revive their candidacies.
One local candidate is going to the state Supreme Court on Monday hoping to close what he calls a loophole created by the state’s Republican party to get some candidates on the June 12 ballot at the expense of others running for the same offices.
Conway lawyer Bert von Herrmann, a Republican candidate for S.C. House District 105, is bucking his party leadership’s decision to put some non-incumbent candidates on the ballot based on what he says is a circumvention of the state Supreme Court’s decision last month. The court ruled that all non-incumbent candidates must file two documents – their Statement of Intention of Candidacy and Statement of Economic Interests – at the same time with their local party office.
Von Herrmann’s argument will focus on the S.C. Republican Party’s method of choosing who did and did not comply with that order. Von Herrmann said the state GOP has twisted election laws in an attempt to qualify some candidates.
“It’s almost offensive that they’re going to the extent that they are,” von Herrmann said.
The state Supreme Court on Monday also will hear arguments in a Florence County case in which the Democratic party there claims Republican leadership certified all of its candidates regardless of whether they complied with the filing requirements. The Florence County Democrats want what they term unqualified candidates removed from the ballots, although that could prove impossible at this late date.
Matt Moore, executive director of the S.C. Republican Party, said the candidate certification process was legal – “the law is very clear,” he said – and the focus now should be on getting Republicans elected rather than fighting over who is on the ballot.
“We are frustrated by people who seem more interested in winning court battles than in winning elections,” Moore said. “Those of us working in the Republican party are doing the best we can to make the best of a difficult situation.”
Who is a public official?
The state Supreme Court ruling says non-incumbent candidates must file paper versions of their Statement of Economic Interests – a form that details a candidate’s income, business dealings and potential conflicts of interest – at the same time they file to run for office, but some are exempt from the requirement.
Those exempt from the rule – “public officials,” according to state law – typically have been incumbent candidates who already are required to file Statement of Economic Interests forms each year with the S.C. Ethics Commission.
The same-time-same-place filing requirement “does not apply to a public official who has a current disclosure statement on file” with the commission, the law states.
About 180 non-incumbent candidates from both political parties statewide – including 16 in Horry County – failed to properly file their economic interests and candidacy forms, causing them to be dropped from the primary ballots.
Moore said the state GOP initially thought the ruling would affect hundreds of that party’s candidates.
“But, thankfully, the impact was limited to 83 GOP filings statewide and we successfully certified over 400 candidates,” he said.
The ruling did not impact any of Horry County’s Democratic candidates, according to Doris Hickman, that party’s local chairman.
“We followed the ethics committee’s guidelines to a fine point,” Hickman told The Sun News.
One of the ways the party certified some non-incumbent candidates was through its interpretation of the term “public official” and the filing responsibilities such an official has.
In addition to sitting office holders, state law says a “public official” includes any candidate for those offices.
So, if a non-incumbent candidate had the foresight – or luck – to file his or her economic interests form online with the ethics commission before filing candidacy papers, that non-incumbent met the letter of the law, state GOP officials say.
The party’s logic: A candidate is a public official, and a public official doesn’t have to simultaneously file candidacy papers and an economics interest form if a current form is on file with the ethics commission.
That means candidates such as Blake Hewett – von Herrmann’s opponent in the District 105 race – got their names on the ballot.
Hewett filed his economic interests form online on March 29. He filed his Statement of Intention of Candidacy one day later.
Mike Connett, another District 105 candidate who was dropped from the ballot, filed a protest against Hewett’s certification. The state GOP denied the protest, saying in a May 8 letter that Hewett “had a current SEI on file and was therefore exempt from the paper copy filing requirement.”
“Their criteria for leaving you on the ballot is if you had your Statement of Economic Interests filed online before you did your Intention of Candidacy, even though that’s not what this pesky little thing called the law says by any stretch of the imagination,” Connett said. “It’s not sour grapes. There is so much monkey business going on that the ballots should be questioned in every county in this state.”
Hewett, however, said his interpretation of the law matches his party’s leadership.
“I’m of the same mind as the state GOP,” he said. “My reading of the law is the same as theirs and that obviously differs from what Mr. von Herrmann thinks. Everyone is entitled to their opinion and I guess that’s what the Supreme Court will sort out.”
Hewett said he knew to file his economic interests form ahead of time because that’s what the filing instructions on the ethics commission and state GOP web sites stated.
“I followed the directions on the web sites,” he said.
And what does ‘current’ mean?
Another wrinkle in the debate over who does – and does not – belong on the ballot centers on the definition of “current.”
State law says public officials who have “a current disclosure statement on file” are exempt from having to file their economic interests forms along with their candidacy papers.
Connett and Mike Ryhal – a Republican candidate for State House District 56 – say “current” means public officials must have filed an economic interests statement for the preceding calendar year. That is what the law requires of all non-incumbent candidates who must file their forms with the local party office.
“The law cannot have two different definitions of current,” Ryhal said.
Under that interpretation, none of the incumbent candidates should be on the ballot because none of them had filed their 2011 forms before the March 30 candidacy filing deadline. The incumbents’ 2011 forms weren’t due until April 15, which means their most current ones on file would have been for 2010.
“If they were going to meet this exemption of having a current form on file, they would have had to file their 2011 form online before they went to the county office to register as a candidate, no different than us,” Ryhal said.
Some incumbent candidates even failed to meet the April 15 deadline for filing their most recent reports.
For example, Tracy Edge – a Republican running for re-election to State House District 104 – filed his Statement of Economic Interests form on April 18, as did Alan Clemmons, a Republican running for re-election to State House District 107. Nelson Hardwick, a Republican running for re-election to State House District 106, filed his SEI a day late.
Instead of being thrown off the ballot for filing late, however, incumbents only face the possibility of a $100 fine.
The timing didn’t become an issue, Ryhal said, until after the state Supreme Court’s ruling forced party officials to find a way to keep candidates on the ballot.
“Everybody just assumed the incumbents were exempt,” he said. “But when they [party officials] started using that to pull in the new people, it drew attention to the language in the law. When I asked them to explain how [incumbent] candidates were exempt and they referred to that language, I said: ‘Wait a minute – you’ve got a problem. None of you had a current SEI on file’.”
There is no clear answer to the questions Ryhal and others have raised, according to Cathy Hazelwood, general counsel for the state Ethics Commission.
“Current is not defined” by the section of state law dealing with incumbents and other public officials, Hazelwood said.
An opinion issued May 23 by the S.C. Attorney General’s office could throw cold water on Ryhal’s interpretation.
The law “does not expressly state which SEI must be on file in order to qualify for that exemption,” Robert Cook, a deputy attorney general, wrote in the opinion. Cook notes that election filings take place in March, but state law requires annual SEI forms to be filed by April 15.
“To avoid any possible conflict between the two dates, we believe it is most reasonable to construe the language ‘current SEI on file’ . . . to be the SEI filed in the previous year on or before April 15, rather than the current year when the candidacy filing occurs,” Cook stated in the written opinion.
The opinion, while siding with the incumbents’ viewpoint, cannot be used to resolve case-by-case disputes over whether a violation of elections laws took place. Such alleged violations “can only be resolved by a court,” Cook said.
The state Supreme Court declined to address the issue of what “current” means in its decision last month.
Where should the blame lie?
Some local candidates who were kicked off the ballot say they blame Johnnie Bellamy, the Horry County GOP chairman, for not guiding them through the filing process.
“If Johnnie Bellamy had told me I didn’t have my SEI, I would have done it,” said Mary Henry, who was running for a seat on the Horry County Council. “If I hadn’t done it right, she shouldn’t have kept my check [for filing fees]. She should have sent me away.”
Bellamy said she noticed inconsistencies in how some candidates were filing their paperwork, so she called the state GOP for advice. Bellamy said state officials told her that if candidates did not have their SEI forms at the time of filing to direct them to the party’s web site “and get it done right away.”
Bellamy admits to making mistakes while overseeing the filing process, but said no one expected the type of ruling the state Supreme Court would make more than a month later.
“The system failed everywhere -- from the ethics commission to the elections commission to the state GOP,” Bellamy said. “Nobody expected the Supreme Court to come down so hard.”
Ryhal and Connett say the instructions to file an SEI prior to the candidacy forms had been discussed by state officials for weeks before the Supreme Court made its decision.
The state GOP sent a memo on Feb. 6 to county Republican leaders statewide stressing the need to have SEI forms filed either before or at the same time as candidacy forms. Connett said that memo was not forwarded to local candidates. Instead, Bellamy accepted the candidacy forms and then told candidates to visit the state GOP web site for more information about how to file an SEI form.
Ryhal said Bellamy’s instructions to file an SEI after the candidacy forms automatically disqualified non-incumbent candidates.
“If I leave her office and go do this, I’m dead,” Ryhal said. “I can’t win. Those were her instructions to me.”
Even though Ryhal and others have been removed from the ballot, they can still run as write-in candidates or petition candidates, although their chances for success are slim. For one thing, petition candidates must collect signatures from 5 percent of registered voters in the counties, cities or districts that they are running to represent by noon July 16.
“It’s much, much harder to win from a petition,” Clemson political science professor David Woodard said. “[But] they might be able to create a little more interest from what’s happened this [past] month.”
Another big problem petition candidates face is that they are not listed under one of the parties on the November ballot. That hurts because voters are prone to push the button for a single-party ticket, voting all Republican or all Democratic, Woodard said.
Ryhal and Connett have been soliciting signatures to run as petition candidates, but Henry said she doubts she will continue to fight for a spot on November’s ballot.
“I’m so disgusted at this point, I’m almost ready to fold the tent and move on,” she said.
Von Herrmann said he thinks the solution is to force all candidates who did not file their SEI at the same time as their candidacy forms to run as petition or write-in candidates. Allowing the state GOP to pick and choose who gets on the ballot practically dooms non-ballot candidates’ chances, he said.
“They are trying to use a loophole to get on [the ballot] knowing that will give them an advantage over other candidates,” he said.
Although many candidates’ political hopes have been dimmed by the state Supreme Court ruling and subsequent decisions by the S.C. Republican Party, John Crangle – executive director of the S.C. chapter of Common Cause, a government watchdog group – said voters are the real losers.
“From the point of view of the voters, I think it’s a disaster,” Crangle told the Greenville News last month. "There are few contested elections now for the General Assembly. And therefore the voters don’t have any choices any more. I think [the ruling] is very unfortunate for voters who would like to have some choices when they vote for a senator and House member.”
The (Columbia) State newspaper contributed to this report
Contact DAVID WREN at 626-0281