Four S.C. counties Monday asked the state Supreme Court to make the Republican Party pay for its cherished first-in-the-South presidential primary in arguments that raised questions about the authority of state government versus the public's access to elections.
Much is at stake.
If the Republicans lose the case, state GOP chairman Chad Connelly said it is likely to put the primary - set for Jan. 21, just 10 weeks away - in jeopardy. Losing the case would require the party to use paper ballots, which is likely to cause trouble with the federal Department of Justice, which must approve the election, he said.
The four county governments - Chester, Greenville, Spartanburg and Beaufort - argue that the state Election Commission cannot force them to use their electronic voting machines for what they say is an election by a private club.
The real issue is money.
The Election Commission expects the primary to cost $1.5 million. But lawmakers only set aside $680,000 to reimburse county election commissions for the expense of conducting the election. The counties, suffering through budget shortfalls, say they should not have to cut local programs to pay for the primary.
The state GOP has said it will reimburse counties for their reasonable costs above the state's $680,000. But the counties and GOP don't agree what is reasonable, such as the cost of opening and heating public schools on a Saturday and overtime for poll workers.
But in making their argument against using taxpayer money and resources to host the primary, the counties harkened back to the Jim Crow era, when lawmakers made primaries a private function to exclude black voters - at least, that's how Chief Justice Jean Toal saw it Monday.
"The notion that access can be denied because of some breakdown in the system - including that counties don't want to pay for it - that strikes me as completely contrary to what's been said in the decisions of the '40s regarding voter access," Toal said, citing a famous 1947 case, when U.S. District Judge J. Waites Waring of Charleston ruled the state Democratic Party could not exclude black people from its primary.
Kevin Hall, an attorney for the state Republican Party, seized on that idea during his presentation to the court.
"What we are talking about is an argument that is rooted in a very sordid history here that has been rejected, thankfully," he said. "For counties to stand in the schoolhouse doorway, which is what we've got right here, is a pretty remarkable position 45 years later."
Just a few months ago, however, the state GOP was arguing in federal court that it should have the right to close its primary, allowing only registered Republicans to vote. That lawsuit since has been dismissed.
Connelly, the state party chairman, said he did not see that contrast - between then arguing only Republicans should be allowed to vote and, now, arguing public taxpayers should pay for the primary - as a conflict.
"That was filed before I took over as chairman," he said. "I don't think that's going anywhere, honestly."
The counties pointed out the Republicans ran the primary without the state's help from 1980 to 2000 - all without serious allegations of disenfranchisement.
"This essentially is a claim that the Republican Party cannot and will not conduct a fair primary. They can," said Joel Collins, an attorney for the counties.
While the counties say the state Legislature did not set aside enough money to pay for the primary, they could not argue position in court Monday. That is because the court long has said it will not tell the Legislature how much money it should spend.
Instead, the counties' case hinges on a five-word phrase at the beginning of a 2007 law that required the state Election Commission to run the presidential primary "(f)or the 2008 election cycle. ... " The counties argue that phrase means the 2007 law does not extend to 2012.
Republicans, however, point to the 2011-12 state budget, which includes two sections that allow the state Election Commission to spend money to conduct the 2012 primary. Typically, if a section in the budget conflicts with state law, the budget overrides it - but only for one year.
But the counties say the 2011-2012 budget only gives the state Election Commission the option of spending the money. It does not require it, or the counties, to do so. To take two budget provisos and cobble them together, the counties say, would "resurrect a bill or a proviso that didn't pass" the Legislature, Collins said.
Associate Justice Donald Beatty appeared to agree, saying the GOP was asking the court to legislate, long a complaint made about judges by Republicans.
"The Legislature had conflicting opinions about funding these elections and requiring the counties to pay for it when this bill was passed in '07. That's why it was limited to 2008," Beatty told Mike Hitchcock, an attorney for state House Speaker Bobby Harrell, R-Charleston, and Senate President Pro Tempore Glenn McConnell, R-Charleston. "Now let us be candid. We've all been around the block a few times. What you're asking us to do as I see it is to do something the Legislature refused to do itself. You are asking us to perform as a super-legislature."
It's unclear when the court will rule. But Collins said a ruling is needed soon. The primary is only 10 weeks away.