H 4558 Session 111 (1995-1996)
H 4558 Joint Resolution, By Whatley, R.C. Fulmer, H.M. Hallman, H.G. Hutson,
Limehouse and Seithel
A Joint Resolution proposing an amendment to Article XV of the Constitution of
South Carolina, 1895, relating to impeachment of certain Executive and
Judicial Officers of this State, by adding Section 4 so as to provide
procedures for recalling and removing from public office persons holding
public offices of the State, a specified district of the State, or a political
subdivision thereof in the Executive, Judicial, and Legislative branches of
government.
02/07/96 House Introduced and read first time HJ-8
02/07/96 House Referred to Committee on Judiciary HJ-8
A JOINT RESOLUTION
PROPOSING AN AMENDMENT TO ARTICLE XV OF THE
CONSTITUTION OF SOUTH CAROLINA, 1895, RELATING TO
IMPEACHMENT OF CERTAIN EXECUTIVE AND JUDICIAL
OFFICERS OF THIS STATE, BY ADDING SECTION 4 SO AS
TO PROVIDE PROCEDURES FOR RECALLING AND
REMOVING FROM PUBLIC OFFICE PERSONS HOLDING
PUBLIC OFFICES OF THE STATE, A SPECIFIED DISTRICT
OF THE STATE, OR A POLITICAL SUBDIVISION THEREOF
IN THE EXECUTIVE, JUDICIAL, AND LEGISLATIVE
BRANCHES OF GOVERNMENT.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. It is proposed that Article XV of the Constitution
of this State be amended by adding at the end:
"Section 4. Persons holding public office in the
executive, judicial, or legislative branch of state or local
governments may be recalled by the people in the manner provided
in this section.
(1) As used in this section:
(a) `Public office' means a position of duty, trust, or
authority in the executive, judicial, or legislative branch of
government created by the Constitution, the General Assembly, or a
political subdivision through authority conferred by the Constitution
or the General Assembly that is filled by a vote of qualified electors
or by vote of a public body for a definite term of office fixed by
law.
(b) `Political subdivision' means a local government unit
including, but not limited to, a county, municipality, school district,
or special purpose district.
(c) `State-district' means a house of representatives or
senatorial district or a judicial circuit.
(2)(a) Every person holding a public office of the State or any
of its political subdivisions in the executive, judicial, or legislative
branch of state or local government, filled by a vote of qualified
electors or by vote of a public body, is subject to recall from the
office.
(b) A public officer holding a popular elective office may be
recalled by the qualified electors entitled to vote for his successor,
or by the qualified electors of the State, state-district, or political
subdivision wherein the officer serves if he is elected by vote of a
public body.
(c) Physical or mental lack of fitness, incompetence, violation
of his oath of office, official misconduct, or conviction of a felony
offense enumerated in the statutory laws of South Carolina is the
only basis for recall. No person may be recalled for performing a
mandatory duty of the office he holds or for not performing any act
that, if performed, would subject him to prosecution for official
misconduct.
(3) The recall is cumulative and additional to, rather than a
substitute for, other methods for removal of public officers.
(4)(a) Every person who is a qualified elector of this State may
sign a petition for recall of a state officer.
(b) Every person who is a qualified elector of a district of the
State from which a state-district officer is elected may sign a
petition for recall of a state-district officer of that district.
(c) Every person who is a qualified elector of a political
subdivision of this State may sign a petition for recall of an officer
of that political subdivision. However, if a political subdivision is
divided into election districts, a person must be a qualified elector
in the election district to be eligible to sign a petition to recall an
officer elected from that election district and the signature
requirements of item (6) apply only to persons registered in the
appropriate election district.
(5)(a) A recall petition may not name more than one officer to
be recalled.
(b) No recall petition against an officer may be approved for
circulation, as required in item (9)(c) of this section, until he has
held office for three months.
(c) No recall petition may be filed against an officer for
whom a recall election has been held for a period of two years after
the preceding recall election.
(6) Recall petitions for state officers must contain the signatures
of qualified electors equaling at least fifteen percent of the number
of persons registered to vote at the preceding state general election.
A petition for the recall of a state-district officer must contain the
signatures of qualified electors equaling at least twenty-five percent
of the number of persons registered to vote in the last preceding
election in that district. Recall petitions for county officers must
contain the signatures of qualified electors equaling at least
twenty-five percent of the number of persons registered to vote at
the preceding county general election. Recall petitions for elected
officers of municipalities, special purpose districts, or school
districts must contain the signatures of qualified electors equaling at
least twenty-five percent of the number of persons registered to vote
at the preceding election for offices of the municipality, special
purpose district, or school district.
(7)(a) Recall petitions must be filed with the official or entity
which is required by law to accept the declaration of nomination or
petition for nomination for the office, except that in the case of
public officials selected by vote of a public body, the recall petition
must be filed with the Secretary of State.
(b) If the appropriate filing official refuses to accept and file
a petition for recall with the proper number of signatures of
qualified electors, an elector within ten days after the refusal may
apply to the circuit court for a writ of mandamus. If it is
determined that the petition is sufficient, the circuit court shall order
the petition to be filed with a certified copy of the writ attached as
of the date when it was offered for filing originally. On a showing
that a filed petition is not sufficient, the court may enjoin
certification, printing, or recall election.
(c) All suits or appeals therefrom must be advanced on the
court docket and heard and decided by the court as expeditiously as
possible.
(d) An aggrieved party may file an appeal within ten days
after an adverse order or decision as provided by law.
(8)(a) The form of the recall petition shall be substantially as
follows:
`RECALL PETITION
To the Honorable , (name and
office of filing officer): We, the undersigned qualified electors of
the State of South Carolina (or name of appropriate state-district or
political subdivision and appropriate election district) respectfully
petition that an election be held as provided by law on the question
of whether , holding the office of
, should be recalled for the following reasons: (Setting
out a general statement of the reasons for recall in not more than
two hundred words). By his signature each signer certifies: I have
personally signed this petition; I am a qualified elector of the State
of South Carolina and (name of appropriate political subdivision
and appropriate election district); and my residence and address are
correctly written after my name to the best of my knowledge and
belief.'
(b) Numbered lines must follow the above heading. Each
numbered line must contain spaces for the signature, address, and
printed last name of the signer. Each separate sheet of the petition
must contain the heading and reasons for the proposed recall as
prescribed above.
(9)(a) The signatures on each petition must be placed on sheets
of paper known as circulation sheets. Each circulation sheet must be
substantially 8 1/2 x 14 inches or a continuous sheet may be folded
so as to meet this size limitation. The circulation sheets must be
ruled with a horizontal line 1 1/2 inches from the top. The space
above the line must remain blank and must be for the purpose of
binding.
(b) The petition, for purposes of circulation, may be divided
into sections, each section to contain not more than twenty-five
circulation sheets.
(c) Before a petition may be circulated for signatures, a
sample circulation sheet must be submitted to the officer with
whom the petition must be filed in the form in which it must be
circulated. The filing officer shall review the petition for
sufficiency as to form and approve or reject the form of the petition
stating his reasons within one week of receiving the sheet.
(d) The petition form submitted must be accompanied by a
written statement containing the reasons for the desired recall as
stated on the petition. The truth of purported facts contained in the
statement must be sworn to by at least one of the petitioners before
a person authorized to administer oaths.
(e) The filing officer shall number serially all approved
petitions continuously from year to year.
(10)(a) Signed circulation sheets or sections of a petition for
recall must be submitted to the officer responsible for registration of
electors in the county in which the signatures were obtained within
three months of the date the form of the petition was approved
under item (9).
(b) An affidavit, in substantially the following form, must be
attached to each circulation sheet or section submitted to the county
officer:
` (Name of person circulating petition),
being first sworn, deposes and says: I circulated or assisted in
circulating the petition to which this affidavit is attached, and I
believe the signatures thereon are genuine, are the signatures of the
persons whose names they purport to be, and that the signers knew
the contents of the petition before signing it.
(Signature)
Subscribed and sworn
before me this day of
, 19
(Person authorized to take oaths)
(Title or notarial information) Seal'.
(11)(a) The county election commission in each county in
which a petition is signed shall verify and compare the signatures of
each person who has signed the petition to assure that he is an
elector in that county and, if satisfied the signatures are genuine,
certify that fact to the officer with whom the recall petition is to be
filed, in substantially the following form:
`To the Honorable , (Name and
title of filing officer):
I, , , (Title) of
County certify that I have compared the signatures
on sheets (specifying number of sheets) of the
petition for recall No. attached, in the manner
prescribed by law, and I believe (Number) signatures
are valid for the purpose of the petition. I further certify that the
affidavit of the circulator of the (sheet) (section) of the petition is
attached and that the address is completed for each valid signature.
Signed (Date)
(Signature)
Seal (Title)'.
(b) The certificate is prima facie evidence of the facts stated
in it, and the officer receiving the recall petition may consider and
count only the signatures as are certified. However, the officer with
whom the recall petition is filed shall consider and count any
remaining signatures of the registered voters which prove to be
genuine, and those signatures must be considered and counted if
they are attested to in the manner and form as provided contested
ballots in general elections.
(c) The county election commission may not retain any
portion of a petition for more than thirty days following the receipt
of that portion. At the expiration of the thirty-day period, the
commission shall certify the valid signatures on that portion of the
petition and deliver it to the person with whom the petition is
required to be filed.
(12) Upon filing the petition or a portion of the petition
containing the number of valid signatures required under item (6),
the official with whom it is filed shall give written notice
immediately to the officer named in the petition. The notice must
state that a recall petition has been filed, must set forth the reasons
contained in it, and must notify the officer named in the recall
petition that he has the right to prepare and have printed on the
ballot a statement containing not more than two hundred words
giving reasons why he should not be recalled. No statement of
justification may be printed on the ballot unless it is delivered to
the filing official within ten days of the date notice is given.
(13)(a) If the officer named in the petition for recall submits
his resignation in writing, it must be accepted and become effective
the day it is offered. The vacancy created by the resignation must
be filled as provided by law, provided that the officer named in the
petition for recall may not be appointed to fill the vacancy. If the
officer named in the petition for recall refuses to resign or does not
resign within five days after the petition is filed, a special election
must be called unless the filing is within ninety days of a general
election, in which case the question must be placed on a separate
ballot at the same time as the general election.
(b) The call of a special election must be made by the
Governor.
(14) The notice of a recall election must be in substantially the
following form:
`NOTICE OF RECALL ELECTION
Notice is hereby given pursuant to law that a recall election will
be held on (Date) for the purpose of voting
upon the recall of who holds the office
of DATED at
, (Date)'.
(15) A special election for recall must be conducted and the
results canvassed and certified as provided by law. The powers and
duties conferred or imposed by law upon election commissioners,
and other public officials who conduct general elections are
conferred and imposed upon similar officers conducting recall
elections under the provisions of this section.
(16)(a) The ballot at a recall election shall set forth the
statement contained in the recall petition stating the reasons for
demanding the recall of the officer and the officer's statement of
reasons why he should not be recalled. The question of whether the
officer should be recalled must be placed on the ballot in a form
similar to the following:
[] FOR recalling who
holds
the office of
[] AGAINST recalling
who holds
the office of
(b) The form of the ballot must be approved by the Secretary
of State or his designee.
(17) Expenses of a recall election must be paid by the State in
the case of the State or state-district officer, and by the political
subdivision concerned in the case of an officer of the political
subdivision.
(18) The officer named in the recall petition continues in office
until he resigns or the results of the recall election officially are
declared. If a majority of those voting on the question vote to
remove the officer, the office becomes vacant and the vacancy must
be filled as provided by law, provided that the officer recalled may
not be appointed to fill the vacancy."
SECTION 2. The proposed amendment must be submitted to
the qualified electors at the next general election for representatives.
Ballots must be provided at the various voting precincts with the
following words printed or written on the ballot:
"Shall Article XV of the Constitution of this State be
amended to add Section 4 so as to provide that any person holding
a public office of the State, a specified district of the State or a
political subdivision thereof in the executive, legislative, or judicial
branches of government who is elected by a vote of the qualified
electors or by vote of a public body for a definite term fixed by law
must be recalled and removed from office where a specified number
of electors by petition request a special election to determine
whether or not the qualified electors of the State district, or political
subdivision desire to recall and remove the official and if a majority
of those persons voting in the special election vote in favor of
recalling and removing the official?
Yes []
No []
Those voting in favor of the question shall deposit a ballot with a
check or cross mark in the square after the word `Yes', and those
voting against the question shall deposit a ballot with a check or
cross mark in the square after the word `No'."
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