COLUMBIA, S.C. — South Carolina’s attorney general agrees the state Supreme Court should resolve questions over whether Gov. Henry McMaster can temporarily fill the seats of suspended legislators.
McMaster believes he lacks the legal authority to do so. Two lawsuits assert the governor not only can appoint a temporary replacement, but must.
“It is in the public interest” for the state’s highest court to directly take up the issue, Attorney General Alan Wilson said in court documents filed Friday.
While the filing says Wilson’s not taking a position, it concludes that a lawsuit seeking a temporary replacement for Columbia Sen. John Courson makes irrelevant arguments, and there’s nothing unconstitutional about a seat being unoccupied until a suspended legislator is either cleared or convicted.
“There is no true ‘vacancy,'” reads Wilson’s filing. “This is akin to a legislator’s temporary absence and it is rational for the Legislature simply to let the legal system play out during that absence.”
Wilson was responding to a lawsuit over Courson’s seat. A separate lawsuit filed Friday makes the same arguments in seeking a temporary replacement for Charleston Rep. Jim Merrill.
“The most basic principle of American democracy is that the citizens have the right to representation,” wrote Charleston attorney James Davis, who filed that suit on behalf of four of Merrill’s constituents. The roughly 40,000 people in Merrill’s district “are being deprived, through no fault of their own, of representation.”
Davis said Monday he’s pleased Wilson agrees the state Supreme Court can directly address the questions, but “we respectfully disagree” with his conclusion.
“We’re confident in the very clear language of the constitution,” said Davis, who’s also helping in the lawsuit over Courson’s seat.
The lawsuits point to a clause in the state constitution that directs the governor to suspend an officer believed to have embezzled public or trust funds and “appoint one in his stead” until acquittal or conviction. The lawsuits also point to state law that allows the governor to suspend an officer indicted for any crime, and if he chooses to do so, directs him to make a temporary appointment. They also point to rights guaranteed in the state constitution, including freedom of speech, equal protection, and the right to vote and be represented.
Wilson notes McMaster did not suspend Courson. Instead, as per state law, Courson was suspended by Lt. Gov. Kevin Bryant. Merrill was suspended by House Speaker Jay Lucas.
Lucas and Senate President Pro Tem Hugh Leatherman have asked the justices to take up the issue, only to dismiss it.
“The governor has no authority or duty to appoint” a legislator under any circumstance, reads their joint response, also filed Friday.
They point to a separate clause in the constitution that says the only way to become a legislator is by being elected.
Courson and Merrill are suspended pending the outcome of ethics charges against them. The Republicans are charged as part of a growing probe into potential Statehouse corruption.
Courson was indicted two months ago on allegations he paid his political consulting firm nearly $248,000 and received back nearly $133,000 for personal use. The 72-year-old Senate Education chairman, first elected in 1984, denies the accusations.
He “looks forward to being vindicated of these charges and continuing to serve his constituents,” his attorney, Rose Mary Parham, said Monday.
Merrill was indicted in December on 30 charges stemming from his public relations company and leadership role as House majority leader from 2004 to 2008. He’s accused of collecting more than $1 million between 2002 and 2016 from clients who hired him because of his office. He’s also accused of being a lobbyist and sponsoring legislation beneficial to two clients. Merrill, first elected in 2000, adamantly denies doing anything illegal.