South Carolina Libertarian Party Asks State Supreme Court to Clarify that it can Continue to Nominate by Convention

Before 2013, the South Carolina election law said that a party cannot switch from nominating by primary, to nominating by convention, unless three-fourths of the delegates to its state convention approve the idea. In 2013, the legislature made it even more difficult for a party that nominates by primary to switch to conventions. It amended the law to say that not only must a party get three-fourths of all the delegates to its state convention to approve the change, but it must also then put the question to the voters on its next primary ballot.

If one reads the new law literally, it seems to say that no party can nominate by convention unless it first has a primary in which a majority of voters at its primary approve the idea that the party should nominate by convention in the following election.

On April 15, the Libertarian Party asked the State Supreme Court to interpret the new law. The case is South Carolina Libertarian Party v South Carolina State Election Commission, 2014-775. The State Supreme Court need not hear the case unless it wishes to. Presumably, if the Court refuses to hear the case, the Libertarian Party will be more secure. The party worries that someone in the near future might challenge all the party’s convention nominees on the grounds that the party doesn’t have the right to nominate by convention, because it never had a primary in which it asked its primary voters for permission to nominate by convention at the next election.

The 2013 bill, SB 2, now known as Act 61, also said that the bill would not take effect until it was approved by the U.S. Justice Department, because at the time all South Carolina election law changes had to be approved by the U.S. Justice Department. But the Justice Department never precleared SB 2, because a few weeks after the bill was signed, the U.S. Supreme Court issued its opinion in Shelby County, Alabama v Holder, saying the preclearance formula is flawed. So the state takes the position that even though the bill says it won’t go into effect unless it it precleared, that that part of the bill is null and void. The Libertarian Party lawsuit asks the State Supreme Court to rule on that problem as well. If the Court accepts the case, the Libertarian Party will have performed a service to all of the state’s political parties and all of its voters, just to get this matter settled.

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