MY LAST NERVE: Succession confusion leads to pitfall

December 2, 2016

Inside Insight

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SC Senate Chamber

With the news that Governor Nikki Haley will be leaving for New York to serve as ambassador to the United Nations once she’s confirmed by the U.S. Senate, there’s been a lot of speculation about the line of succession.

Currently, the South Carolina constitution reads that the governor can, in the event of a vacant lieutenant governor’s office, appoint the lieutenant governor with the advice and consent of the state senate. However, based on a 2012 ballot question that voters passed, the constitution should still require the senate president pro tempore to ascend to the lieutenant governor’s office if there’s a vacancy.

Judging from the media’s coverage, one suspects the senate will follow the public’s intent in 2012 and break with what the constitution currently says.

When it holds its organizational session this coming Tuesday, it will elect its next president pro tem. As of now, the only candidate is current president Hugh Leatherman.

Before a vote has even been taken to put Leatherman in the office, he’s declared he will not break his “pledge” to his constituents to serve out a full term and that he has “no ambition for higher office.”

This attitude is at the root of the problem in the General Assembly.

Any politician, regardless of seniority or amount of power, must be willing to follow not just the law but the constitution. Just because the legislature routinely writes legislation does not give it the ability to ignore the laws or constitution when they don’t align with legislators’ political ambitions.

Legislators believe that the rules don’t apply to them. In this instance, that’s not even the worst part.

If the lieutenant governor’s seat remains vacant and Henry McMaster for any reason leaves the governor’s seat, Leatherman, would perform, according to the SC Code, the duties and exercise the powers of the governor without having to leave his senate seat, until the next general election.

A senator with veto power, the power to appoint magistrates and all other gubernatorial power wouldn’t just be unconstitutional – it would turn the state into a monarchy. The courts would have to step in and, based on the code, the legislature would eventually elect a governor.

Thanks to a dubious change to the state constitution and a senator who wants power without responsibility, it’s turning out to be a dangerously cloudy day in South Carolina.

  • Laird

    You state that “[c]urrently, the South Carolina constitution reads that the governor can, in the event of a vacant lieutenant governor’s office, appoint the lieutenant governor with the advice and consent of the state senate.” That is true as far as it goes, but there is at least an argument that this process would not apply to McMaster appointing his own successor were he to ascend to the Governorship.

    The State Constitution provides that the Lt Gov automatically becomes Governor upon the latter’s “impeachment, death, resignation, disqualification, disability, or removal from the State.” Thus if Haley is confirmed as UN Ambassador, she resigns her office and McMaster takes her seat. Fine. But the identical language is used for filling a vacancy in the Lt Gov seat. In the posited situation, the Lt Gov seat will not have become vacant for any of the reasons enumerated in the Constitution. The vacancy will have occurred due to McMaster’s ascension to the Governorship, but it is a stretch to argue that such constitutes a “resignation” as Lt Gov. And it certainly doesn’t meet any of the other five reasons.

    One can infer that the Constitution intended to cover this situation, but that is only an inference and is by no means certain. Indeed, I could in good conscience argue that by using those specific words, and not merely saying that the specified appointment process applies whenever there is a Lt Gov vacancy for any reason, the Legislature intended that the appointment process not apply in this circumstance. There must have been a reason for them to carefully use all those words; a court will be extremely loathe to conclude that they lack meaning, are mere surplussage, or were used unintentionally.

    Of course, it is equally true that a court will not look to interpret a statute (much less a Constitution) so as to create unnecessary ambiguity. Inferring that the ascension to the Governorship is equivalent to a “resignation” avoids that problem, but it creates the other one (that is, ignoring a lot of words which were carefully chosen for some reason), as well as employing a highly unusual, indeed idiosyncratic, definition of the term “resignation”. I could plausibly argue either side of this, and I won’t pretend to know how a court would rule on it. My point is that this issue is not as cut and dried as this and other recent Nerve articles have made it seem.

    • Paul_Curry

      Seems to me that, assuming one can not both be the governor and the lieutenant governor, this would be a “disqualification.”

      • Laird

        A fair argument, although I would counter that it’s not one of the “disqualifications” specified in the Constitution. It thus requires interpretation and inference, which merely supports my argument: the question is not as simple as the Nerve suggests.

        • Constantine

          It could be a disqualification under the constitution if you count the dual office holding provisions. That would also square with the case law which holds that the first office is immediately vacated when the person in question assumes the next office.

          • Laird

            I’m not arguing that were McMaster to ascend to the Governorship he could also remain as Lt Gov. That would indeed be “dual office” holding. I am arguing that by leaving that seat he creates a vacancy in the Lieutenant Governorship which does not fit any of the “vacancy-creating” words in the constitution. And those words have to have some meaning or they wouldn’t be there. My point is merely that there is ambiguity here, and that its resolution is not as straightforward as the Nerve contends. The Supreme Court will have to decide this, and I note that it has already been asked the question. (Whether it will choose to answer it I don’t know.)

  • Skip

    I think Glen McConnel faced a similar situation and became LT governor, so to some extent their is precedent for taking the job. I know Glen gave up a segnificient amount of power in that action, and said, I’m not going to leave the state in a constitutional crisis.