| Scoppe: A legislative power grab? By Jay Lucas? Can this be real? By Cindi Ross Scoppe Jan 23, 2021 Updated 14 hrs ago It’s always noteworthy when the speaker of the S.C. House introduces a series of bills to make significant changes to the way our state government operates.
When he proposes to steal power from one of the weakest governors in the nation in order to increase the Legislature’s control over elections, remove the protections against the Legislature filling the judiciary with its barely qualified cronies and, having done that, pack the high court, it’s more than noteworthy. It’s time for a conversation.
Because while there are definitely problems with the way South Carolina runs elections, lack of legislative input is not one of them.
And while there is a massive flaw in our system of picking judges, it’s not that legislators don’t have enough freedom to select the judges they want.
When I caught up with Mr. Lucas Tuesday, he insisted that he wasn’t trying to pack the court or disempower the governor, and that in fact he’d be perfectly fine letting the governor keep appointing all the members of the State Election Commission. It’s the other part of H.3444 that really matters to him.
And the other part — which empowers the Election Commission to “supervise and standardize the performance, conduct, and practices” of county election commissions and “ensure those boards’ compliance with applicable state or federal law or State Election Commission policies, procedures, and regulations” — is actually a long-overdue reform.
The bill grew out of one of the many lawsuits this summer challenging how South Carolina conducts elections. As Mr. Lucas tells it, he realized a change was needed when U.S. District Judge Richard Gergel asked in court how the state verifies signatures on mail-in absentee ballots, and Election Commission Director Marci Andino said “we don’t really know; it’s kind of up to each county to decide.”
“And he immediately recessed, and they had to go call all 46 county election commissions,” Mr. Lucas told me. When court resumed, the commission reported that nine counties had a signature verification process, each a little different than the others, and several “weren’t sure what they were talking about.”
Mr. Lucas said he figured that if the State Election Commission was going to be telling county election commissions how to do their job, it made sense to have someone other than just the governor appointing its members, in the same way lawmakers got to appoint some members of the Ethics Commission once that panel started policing legislative ethics. Besides, he said, “generally you have more opportunity to get diversity if legislators are appointing” people.
The diversity argument sounds like a good point, but we actually get more diversity from gubernatorial appointments, because when the governor has five appointments, he can make it a priority to pick some women and some African Americans and a blend of people from the Upstate, Midlands and Lowcountry. In fact, our governors have tended to do that, just not as much as critics on the left prefer. But the Legislature is 170 people forming different coalitions for each of those five contests, and each coalition is working to get one particular person appointed, without regard to the overall mix.
I suspect a bigger reason for adding legislative appointments along with increased state authority is the political reality that has stopped the Legislature from abolishing county election commissions, whose members are selected by the legislators from each county. And while it would be better to let the governor keep appointing the entire board, giving half that authority to Mr. Lucas and Senate President Harvey Peeler would be a small price to pay for taking authority away from those county commissions, which can be far less than competent.
On the other hand, Mr. Lucas’ bill to change how we appoint judges misses the mark — although he does point to a real problem with the process, and he correctly notes that his change would at least theoretically reduce the speaker’s influence.
Under current law, the state Judicial Merit Selection Commission nominates three candidates for each position on the court, and the Legislature elects judges from among those nominees. Mr. Lucas’ H.3448 lets legislators consider any candidate deemed “qualified” by the commission, reflecting longstanding complaints that the commission sometimes nominates two weak candidates in order to ensure that its preferred candidate is elected.
That might actually happen. But the way to fix that isn’t to return to the free-for-alls we used to have before this process was created in 1997. It’s to make a more fundamental change, which would make this problem disappear.
Those commissioners are appointed by the House speaker and Senate president, a majority of them are legislators, and of course the Legislature elects the judges. Notice anything missing there? Like the third co-equal branch of government?
Let the governor appoint the commission’s nominees, or else let the governor appoint the judges, and the nominating function is no longer a problem; it’s an essential part of the balancing act.
Mr. Lucas says he wants to increase the size of the Supreme Court because larger states have larger high courts than South Carolina, which allows for more diversity of thought and geography. When I asked what prompted him to roll that proposal out this year, he said it was one of several changes he’d been thinking through in recent years, many of which he finally got around to introducing, “kind of like an artist who puts out a greatest hits album.”
I don’t think there’s anything nefarious here. But if I were putting together a list of Jay Lucas’ greatest hits — and there have been some great ones — expanding the court wouldn’t make my top 50 list. | 
