In Case of Attack, Who Would Run the Legislature?

 
At least four other states passed similar succession laws: Delaware in 1953, Louisiana in 1963 and Texas in 1985. Maine passed a law in 1961 but repealed it 16 years later.

But there's one major problem evident in South Carolina. No one now serving in the General Assembly has submitted the necessary list of "emergency successors." Until this year, only one incumbent was even aware of the law. And there's a serious question about the statute's legality, according to experts on constitutional matters.

The "Emergency Interim Legislative Succession Act" requires each lawmaker to name three to seven people, any of whom could fill in if the elected lawmaker became a casualty of hostilities and so was unable to tend to legislative duties. The successors must be qualified to assume the duties, meaning he or she must live in the lawmaker's district, be eligible to vote and be at least 21 years old for a House seat, and 25 for a Senate seat. There are no requirements as to political party or ideology.

The successor law does not apply to statewide constitutional officers, such as governor or lieutenant governor. The gubernatorial line of succession goes from governor to lieutenant governor to president pro tem of the Senate to speaker of the House. If all four are unable to serve, then the General Assembly elects a new governor.

The law requires each legislator to file the list of possible successors with the South Carolina secretary of state. None has done so.

It may be just as well that the solons are scofflaws. University of South Carolina law professor Eldon Wedlock said he cannot imagine the successor statute would survive scrutiny by the courts. He and South Carolina Senate President Pro Tem Glenn McConnell, R-Charleston, who is considered to be an expert on state law and procedure, say the law is probably unconstitutional because the state Constitution bestows the powers of an office only to the person elected.

South Carolina's little-known legislative succession law dates back to the darkest days of the Cold War, when tensions between the United States and the old Soviet Union posed a near-constant threat of nuclear war.

Most lawmakers assume the law had been passed amid fears of a growing Communist threat in Cuba and worldwide nuclear proliferation during the Cold War.

"This was (during) crazy times. You just don't know," said state Rep. John Graham Altman, a Republican who represents a Charleston district. When the succession law was passed in 1962, Altman was press secretary to then-Gov. Fritz Hollings, who retired from the U.S. Senate this year.

"We were crazy over fallout shelters," he said.

In the aftermath of the Sept. 11, 2001, terrorist attacks on the World Trade Center and the Pentagon, there are renewed fears of attack and concerns about the continuity of government, giving such laws new relevance.

Security changes in the wake of 9/11 have been serious. Several entrances and exits to the parking garage underneath the South Carolina Statehouse have been closed permanently. Guards monitor the entrances that remain open, to check cars for parking stickers. Legislators, staff and media are required to wear identification badges, although few lawmakers actually do so.

Despite the need for new security precautions, some legislators say they'd have a hard time putting together a list of people who could step into their shoes if necessary. "I don't know anybody who'd want the job," Rep. Gilda Cobb-Hunter, a Democrat from rural Orangeburg, joked.

Sen. John Hawkins, a Republican from the Piedmont industrial hub of Spartanburg, called the succession law "an anachronism" and said that he rejects the "post-9/11 bunker mentality."

"This nation is going to be safer. We can take ourselves a little too seriously down here," Hawkins said.

Aaron Gould Sheinin covers the South Carolina Legislature for The State newspaper.

 
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