Secret ballots on the ballots

On Thursday, the State Election Commission will try to convince a judge that it was following state law when it threw away 2,300 votes and declared an obscure college professor the winner of the Democratic Party nomination for the new 7th Congressional District, rebuffing the come-back hopes of the obscure darling of the party elite.

It could be an uphill battle, because there is no law that clearly addresses the legal point in question – and the commission finds itself in the rare and awkward position of having to be represented by outside counsel because it rejected the advice it had requested from the attorney general.

Why did the commission get itself into this predicament? We may never know, because its only discussion of the matter came during a 90-minute closed-door meeting.

Worse, there’s nothing illegal about governmental entities discussing such matters in secret.

There’s not even anything unusual about it.

And that’s what transforms the 7th District contest from what would be for most South Carolinians just the latest twist in a soap-opera-style election into a dramatic example of the absurdity of the over-broad “legal advice” exemption in our open-meetings law.

In South Carolina, secrecy is the default position for government whenever there are lawsuits or rumors of lawsuits. The Freedom of Information Act allows public bodies to kick the public out of their meetings for “the receipt of legal advice where the legal advice relates to a pending, threatened, or potential claim or other matters covered by the attorney-client privilege, settlement of legal claims, or other positions of the public agency in other adversary situations involving the assertion against the agency of a claim.”

Marci Andino, who runs the state agency called the Election Commission and reports to the five-member commission by the same name, told me Monday that the board did not consider discussing the election protest in public because “whenever we have a protest, they always go into executive session when they’re meeting with the attorney.”

It’s one thing for a governmental body to use the “legal advice” exemption when it is trying to decide how, or whether, to fight a lawsuit over actions it already has taken. But it is another thing altogether – and an increasingly fashionable thing – to exploit the loophole to discuss prospective actions.

At issue in this case are 2,300 votes cast for state Rep. Ted Vick, a married father of two who withdrew from the race late last month after Columbia police stopped him after midnight with a loaded pistol and a loaded coed in his car and charged him with speeding and DUI. When the Election Commission decided shortly before midnight on election night not to count those votes, that pushed economics professor Gloria Bromell Tinubu’s total above the 50 percent mark that state law requires for a primary winner. That led to a protest to the Election Commission and a lawsuit in state court.

On Thursday, the attorney general’s office issued an opinion saying that Mr. Vick’s votes should be counted, triggering a runoff with Preston Brittain, around whom the party’s elite had rallied following Mr. Vick’s debacle. On Friday, the commission went into executive session to get a private legal briefing on the attorney general’s opinion – which is itself a legal briefing.

This was absurd enough, since attorney general’s opinions are, by law, public; in fact, the media had already reported on its contents before the commission got its secret briefing. The situation was rendered all the more absurd by the fact that, because the Election Commission doesn’t have an in-house attorney, the attorney who provided the private briefing of the public briefing works for the attorney general’s office. That is, he was advocating the position that the commission voted 3-2 to ignore.

State law requires a primary winner to receive half the votes cast in an election. Although it doesn’t say whether that tally includes votes cast for inactive candidates, the attorney general has issued several opinions over the decades saying it should; after all, those were votes cast in the primary, and they didn’t go to the first-place finisher.

Last week’s opinion cited a Louisiana court decision, based on a law that used the same language as ours, that said not counting such votes is “contrary to (the) democratic process of free elections that all qualified voters should have equal opportunity to vote.” Deputy Attorney General Robert Cook concluded that “in our best judgment, a court would conclude that such votes may not be thrown away completely” but should be counted “for the limited purpose of determining a majority in the primary.”

Ms. Andino said the motion to throw away the Vick votes noted that the commission could be seen as playing favorites if it didn’t follow its precedent of ignoring votes cast for candidates who withdraw too late for their names to be removed from the ballot. But it’s hard to see how anyone could think agency precedent could trump the attorney general’s argument.

I suspect that if I called the commissioners, they’d all tell me why they voted as they did. But I wouldn’t get a feel for the back-and-forth of the discussion, wouldn’t get to see their reaction when their attorney told them they’d have to find other counsel if they disregarded his advice. In fact, some of them likely would tell me (erroneously) that it’s against the law to discuss that secret discussion.

More to the point, we shouldn’t have to interview every member of a governing body in order to find out what led to its decision.

One of the very few advantages of government by commission rather than by individuals appointed by the governor is that a commission has to have a public debate about its decisions. We ought to be able to show up at the public meeting and listen to that debate. That helps us decide whether officials were acting responsibly, and it often forces them to make better, more careful decisions.

The commission’s decision, crafted in secret, seems neither good nor careful, nor legally sound.

Contact Scoppe, a columnist for The State, at cscoppe@thestate.com.