The Unfixable Election

So much for public outrage over the great ballot debacle of 2012.

Voters certainly didn’t punish legislators for the Supreme Court ruling that kicked 250 challengers off the ballot, many for doing what party and state officials told them to do. Only six of the 148 legislators seeking re-election were defeated Tuesday, and two of them lost to other legislators who had been drawn into their districts. Of the others, Sen. David Thomas’ days had been numbered since he became USA Today’s poster child for obscene legislative pensions, Sen. Mike Rose lost in a district that has taken to switching senators every election, and retired Clemson economist B.R. Skelton lost his House seat because he insisted on approaching tax policy in a rational way.

Even the anti-establishment hotbed of Lexington County returned all its local incumbents to office, and voters interviewed on primary day largely blamed disqualified challengers for failing to follow the law, rather than legislators for not granting them a do-over.

It’s possible that voters have just given up in disgust. It’s also possible that they’re acting maturely.

I don’t think it’s fair to blame challengers who filed their economic-interest statements online during the filing period, as the State Election Commission and the political parties told them to do, rather than handing the reports to party officials when they filed for office, as the law requires. But it’s not clear who should be blamed. It’s even less clear that, once the court ordered the state to obey the law, there was anything the legislature could have done to fix it.

The problem was set in motion in 2010, when the legislature passed a smart law requiring the disclosure statements to be filed electronically, but failed to think about how this would interplay with another law that required challengers to hand-deliver them with their filing papers.

The poorly thought-through law wouldn’t have created problems if the Ethics and Election commissions had not decided to reconcile what Election Commission Executive Director Marci Andino told me they considered “conflicting statutes,” by telling candidates that rather than submitting the report with their campaign filing materials, they could submit a receipt showing they had filed it online. This problem was compounded by the Ethics Commission’s directive that the reports weren’t due until April 15 — which was true for the annual reports that public officials must file, but not for the identical filing-for-election reports that must be turned in during the filing period, which ends March 31.

It was a bad call, but made in good faith. Likewise, the worst you can say about the legislature is that it was, once again, sloppy.

But it is worth noting that the sloppiness was present in the original bill, sponsored by Rep. Nathan Ballentine and then-Rep. Nikki Haley. That’s what makes it so galling that, after urging the Republican Party to defy the Supreme Court’s order, the governor attempted to blame others for the mess, declaring the primaries “an absolute sham.”

The governor’s point was that the legislature should have fixed the problem she helped create, and that points to the most frustrating thing about all this: It turns out that there really wasn’t any way the legislature could have revived the disqualified candidates without running the risk of causing even worse problems.

There were never enough days between the court order and the primaries to get the candidates back on the ballot and keep the vote on schedule. So the only way to fix this was to delay the primaries. But the Election Commission took the position that it couldn’t move them just because the legislature passed a law to do that; it would have to hold them on June 12 unless the U.S. Justice Department first precleared the new law. And Justice officials wouldn’t commit to speeding up their 60-day review period.

In separate conversations, Senate Judiciary Chairman Larry Martin and House Republican Leader Kenny Bingham laid out similar worrisome scenarios of what could have happened had the Legislature reinstated the candidates and delayed the primaries until August: The Justice Department doesn’t preclear the new law by June 12, so the primaries are held as scheduled. Then the department gives its blessing, and the election results are tossed out. Before the do-over primaries can be held, the state Supreme Court rules that the legislature violated the constitution by putting the disqualified candidates back on the ballots. Or, worse, the court issues that order after the August do-over.

“Now guess what?” Mr. Bingham said. “We don’t have a slate of candidates, we’ve undone a primary election, and we don’t have anything going forward in August because what we have approved by the DOJ has been stricken by the Supreme Court. We’d now have to come back into session and set a new election schedule, with a new filing period, and send it all to DOJ for preclearance. There’s no way we would be able to have elections this year.”

Central to the American mindset is the idea that all wrongs can be righted, all problems solved. But some problems are just beyond repair. This was one of them.