The legal framework governing South Carolina’s upcoming Republican special primary to replace the late U.S. Sen. Lindsey Graham is facing renewed scrutiny after attorney Danielle Bess argued that state election officials relied on outdated legal authorities to disqualify approximately 367,000 Democratic primary voters from participating in the contest.
In a legal analysis shared on social media, Bess contended that the South Carolina Election Commission’s ruling rests on attorney general opinions derived from a 1971 court decision interpreting statutory language that no longer exists in the South Carolina Code.
“The law today—the statute today—is not the same statute from 1971,” Bess said. “It is substantively different, and it is so different I don’t think you can rely on that ’71 case to decide the statute that exists in South Carolina today.”
Her comments come after the Election Commission determined that voters who participated in the June Democratic primary are ineligible to vote in the Republican special primary, while those who voted in the Republican primary—or who did not participate in either primary—remain eligible.
The ruling affects roughly 367,000 Democratic primary voters.
Attorney general opinions at center of dispute
Bess said she reviewed the legal authorities cited by election officials and found that the commission relied on attorney general opinions issued in 1976, 1984 and 1992.
While attorney general opinions often guide state agencies, they generally do not carry the force of binding judicial precedent.
According to Bess, the 1992 opinion relies on the 1984 opinion, which in turn relies on the 1976 opinion. She said the substantive legal analysis ultimately traces back to a 1971 judicial decision.
That decision, she argued, interpreted an earlier version of South Carolina’s election statute that has since been repealed and replaced.
“The statute today is substantively different,” Bess maintained, arguing that changes to the statutory text undermine continued reliance on the earlier interpretation.
Whether the statutory revisions are sufficient to distinguish the 1971 precedent would ultimately be a question for the courts if the commission’s interpretation is challenged.
Voting Rights Act implications
Bess also questioned the commission’s reliance on a case decided under the legal framework of Section 5 of the Voting Rights Act.
The 1971 decision cited by election officials was issued when Section 5’s federal preclearance requirements governed changes to election laws in covered jurisdictions.
That legal landscape changed significantly after the U.S. Supreme Court’s 2013 decision in Shelby County v. Holder, which invalidated the coverage formula contained in Section 4(b) of the Voting Rights Act, effectively rendering Section 5’s preclearance mechanism inoperable unless Congress adopts a new coverage formula.
“The 1971 case was a Voting Rights Act Section 5 case,” Bess said. “The Supreme Court made Section 5 inoperable in 2013.”
She argued that relying on precedent developed under a statutory framework that no longer operates raises legitimate legal questions regarding the commission’s interpretation of current South Carolina law.
Potential litigation remains uncertain
Although Bess questioned the legal reasoning supporting the commission’s decision, no court has yet ruled that the Election Commission misapplied South Carolina law.
The commission’s interpretation remains controlling unless overturned through judicial review or legislative action.
Bess also contrasted the litigation strategies of the major political parties, suggesting that Republicans have historically pursued repeated legal challenges to election rulings they oppose.
“They’re going to fight for any tactical and structural advantage that they can,” she said. “They’re going to file a lawsuit. They’re going to appeal that lawsuit… they’re going to keep doing it until they reach the Supreme Court.”
She questioned whether Democratic officials should similarly challenge the current interpretation of South Carolina’s election laws.
Legal questions ahead
Any future litigation would likely focus on several issues, including:
- Whether the current South Carolina election statute materially differs from the version interpreted in the 1971 decision;
- Whether subsequent statutory amendments supersede the earlier judicial interpretation;
- The precedential value of attorney general opinions relied upon by the Election Commission; and
- Whether existing South Carolina election law permits voters who participated in one party’s primary to vote in a subsequent special primary conducted by another political party.
Until those questions are resolved by a court, the Election Commission’s ruling remains the operative interpretation governing voter eligibility for the Republican special primary.
