H 3426 Session 109 (1991-1992)
H 3426 Joint Resolution, By J.M. Baxley
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 or its political subdivisions in the executive and
legislative branches of state or local governments.
02/05/91 House Introduced and read first time HJ-8
02/05/91 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 OR ITS POLITICAL SUBDIVISIONS IN THE
EXECUTIVE AND LEGISLATIVE BRANCHES OF STATE OR
LOCAL GOVERNMENTS.
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
or legislative branch of state or local governments may be recalled by
the people as follows:
(1) As used in this section:
(a) `Public office' means a position of duty, trust, or authority in
the executive 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 for a definite term of office fixed by
law.
(b) `Political subdivision' means a local government unit,
including, but not limited to, a county, municipal corporation, 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 or legislative branch of state
or local government, filled by a vote of qualified electors is subject to
recall from the office.
(b) A public officer holding an elective office may be
recalled by the qualified electors entitled to vote for his successor.
(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 current 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 an 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 paragraph (c) of item (9) 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 during his term
of office unless the State or political subdivision financing the recall
election is first reimbursed for all expenses of 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 or appointed 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 who is
provided by law to accept the declaration of nomination or petition for
nomination for the office.
(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 may within ten days after the refusal 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 originally
offered for filing. 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 is 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 post-office
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, post office 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 serially number 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 post office
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 clerk
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 (5), the
official with whom it is filed shall immediately give written notice 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 in the case of a state or state-district officer or by the board or
officer empowered by law, to call special elections for a political
subdivision in the case of an officer of a political subdivision of the
State.
(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 in the same manner that the law in effect
at the time of the election for recall requires for an election to fill the
office that is the subject of the recall petition, except as otherwise
provided in this section. The powers and duties conferred or imposed
by law upon election commissioners, registration officers, canvassing
boards, and other public officials who conduct general elections are
conferred and imposed upon similar officers conducting recall elections
under the provisions of this section together with the penalties
prescribed for breach.
(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 as provided in
the election laws of this State.
(17) Expenses of a recall election must be paid in the same
manner as the expenses for any other election. The expenditure of the
funds constitutes an emergency expenditure of funds, and the political
subdivision affected may fund the costs of a recall election through
emergency funding procedures. If a recall election is held for a state or
state-district officer, the General Assembly shall appropriate funds to
reimburse the counties involved for costs incurred in conducting the
election.
(18) The officer named in the recall petition continues in office
until he resigns or the results of the recall election are officially 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 thereon: "Shall Article XV of the
Constitution of this State be amended to add Section 4 so as to provide
that a person holding a public office of the State or any of its political
subdivisions who is elected by a vote of the qualified electors for a
definite term fixed by law must be recalled and removed from office if
at least fifteen percent of the qualified electors of this State, in the case
of a state-elected officer, or at least twenty-five percent of the qualified
electors of a state-district office in the case of a state-district officer, or
twenty-five percent of the qualified electors of a county, municipal
corporation, school district, or special purpose district or twenty-five
percent of an election district thereof in the case of single member
districts in the case of an officer of any of those entities, by petition
request a special election to determine whether or not the qualified
electors of the State 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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