Can a South Carolina county council keep a citizen-initiated ordinance off the ballot after refusing to pass it?

Official title

Opinion addressing questions pertaining to ordinances proposed by electors.

Requester

The Honorable Daniel Gibson, Member, South Carolina House of Representatives.

Plain-English summary

A state representative asked the Attorney General two questions about how South Carolina's county ordinance-initiative process works: whether qualified electors can petition their county council to act on an initiative ordinance signed by 15% of the county's electors, and whether a county council can "block" an elector-sponsored ordinance from ever reaching the ballot after the council refuses to adopt it.

On the first question, the AG pointed to the right statute. The legislator cited § 4-9-1220, but that section governs petitions to repeal certain bond ordinances. The initiative right is in S.C. Code § 4-9-1210, which lets the qualified electors of a county propose any ordinance, except one appropriating money or levying taxes, by a petition signed by at least 15% of the county's qualified electors. Once such a petition is submitted, the council may pass (or, for a repeal petition, repeal) the ordinance.

On the second question, the answer is that a council generally cannot block the measure. Under § 4-9-1230, if the council fails to pass an initiated ordinance, or passes it in a form substantially different from the petition, the question must be submitted to the voters not less than 30 days and not more than one year from the council's final vote, and the council is bound by the result. The AG noted one wrinkle: the voters do not get to decide until after the council takes its final vote.

The one situation where a council can keep an ordinance off the ballot is when the proposed ordinance itself violates constitutional or statutory law. The AG relied on the South Carolina Supreme Court's 1995 decision in Focus on Beaufort Cnty. v. Beaufort Cnty., where the Court allowed a county to refuse to place an ordinance on the ballot because it restricted the council's authority over the treasury and thus defeated the plain intent of § 4-9-1210. Consistent with a prior 1989 opinion, the AG explained that general laws cannot be set aside by the initiative process unless the general law allows it, so some limits are implicit. But barring such a legal defect, the office found no authority for a council to block an initiated ordinance from the ballot after declining to enact it.

What this means for you

County councils: Based on this opinion, if a valid initiative petition (15% of qualified electors) proposes a lawful ordinance and you decline to adopt it, § 4-9-1230 requires you to put it to the voters within 30 days to one year of your final vote, and you are bound by the result. You may keep it off the ballot only if the ordinance itself violates constitutional or statutory law, such as by improperly restricting the council's control over the treasury.

Citizens and initiative organizers: The opinion supports your right under § 4-9-1210 to force a council vote, and then a public vote, on a proposed ordinance, as long as it does not appropriate money, levy taxes, or otherwise violate the law. Note the trigger is the council's final vote, so the election follows that step.

Clerks and election officials: The opinion frames the council's duty as mandatory once the statutory conditions are met, with the election timed between 30 days and one year from the council's final vote.

Common questions

How many signatures does a county ordinance initiative need in South Carolina?
At least 15% of the qualified electors of the county, under § 4-9-1210.

Can a county council just refuse to put a citizen ordinance on the ballot?
Generally no. If the council fails to pass it (or passes a substantially different version), § 4-9-1230 requires submitting it to the voters within 30 days to one year. The exception is when the proposed ordinance violates constitutional or statutory law.

What kinds of ordinances cannot be proposed by initiative?
Section 4-9-1210 excludes ordinances that appropriate money or authorize the levy of taxes. The AG also noted, citing Focus on Beaufort County, that an ordinance restricting the council's authority over the treasury can be kept off the ballot.

Is § 4-9-1220 the initiative statute?
No. The AG clarified that § 4-9-1220 addresses petitions to repeal certain bond ordinances. The initiative right to propose an ordinance is in § 4-9-1210.

Background and statutory framework

Article 13 of Chapter 9 of Title 4 provides South Carolina's county initiative-and-referendum mechanism. S.C. Code Ann. § 4-9-1210 lets qualified electors propose any ordinance, except one appropriating money or levying taxes, by a petition signed by at least 15% of the county's qualified electors. S.C. Code Ann. § 4-9-1220 separately allows electors to petition for the repeal of certain ordinances authorizing bonds or other full-faith-and-credit debt, within 60 days of enactment and subject to stated exceptions. S.C. Code Ann. § 4-9-1230 requires that, if the council fails to pass an initiated ordinance (or passes a substantially different version) or fails to repeal an ordinance for which a repeal petition was presented, the question go to the electors not less than 30 days and not more than one year from the council's final vote, with all county councils bound by the referendum result.

The key case is Focus on Beaufort Cnty. v. Beaufort Cnty., 318 S.C. 227, 456 S.E.2d 910 (1995), in which the South Carolina Supreme Court held a county could refuse to place an ordinance on the ballot because it restricted the council's authority over the treasury and defeated the legislative intent of § 4-9-1210. The AG read that decision together with its own 1989 opinion recognizing that general laws cannot be set aside by initiative unless the general law permits it, so some limits on the process are implicit.

Citations

• S.C. Code Ann. § 4-9-1210 (county ordinance initiative; 15%-elector petition; exclusion for appropriations and taxes)
• S.C. Code Ann. § 4-9-1220 (petition to repeal certain bond ordinances)
• S.C. Code Ann. § 4-9-1230 (referendum required when council fails to act; 30-day-to-one-year window)
• Focus on Beaufort Cnty. v. Beaufort Cnty., 318 S.C. 227, 456 S.E.2d 910 (1995)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-questions-pertaining-to-ordinances-proposed-by-electors/
• Original PDF: https://www.scag.gov/media/cjvgoy1k/03517340.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

February 26, 2024

The Honorable Daniel Gibson

Member

South Carolina House of Representatives
2607 Highway 221 South

Greenwood, South Carolina 29646

Dear Representative Gibson:

We received your letter requesting an opinion concerning the process of adopting an ordinance by
petition. Specifically, you ask the following questions:

1, In your opinion, does SC Code § 4-9-1220 grant qualified electors the right
to petition their county council to vote on their ordinance initiative petitions
which have been signed by 15% of qualified electors?

2. In your opinion, do county councils have any statutory authority under SC
   Code § 4-9-1230, or any other section, to ‘block’ any qualified elector-
   sponsored ordinance initiative petitions from ever appearing on any ballot
   after they fail to adopt the requested ordinances?

Law/Analysis

Article 13 of chapter 9 of title 4 of the South Carolina Code (2021) provides a mechanism by
which the electorate can propose or reject certain county ordinances. Section 4-9-1210 of the South
Carolina Code (2021), contained in this article, provides:

The qualified electors of any county may propose any ordinance, except an
ordinance appropriating money or authorizing the levy of taxes, and adopt or
reject such ordinance at the polls. Any initiated ordinance may be submitted to
the council by a petition signed by qualified electors of the county equal in
number to at least fifteen percent of the qualified electors of the county.

Section 4-9-1220 of the South Carolina Code (2021) similarly allows electors to petition for the
repeal of certain ordinances, stating:

Within sixty days after the enactment by the council of any ordinance
authorizing the issuance of bonds, notes or other evidence of debt the repayment
of which requires a pledge of the full faith and credit of the county, or requires

REMBERT C. DENNIS BUILDING POST OFFICE BOX 11549 Columbia, SC 29211-1549 TELEPHONE 803-734-3970

The Honorable Daniel Gibson
Page 2
February 26, 2024

the approval of the issuance of bonds by a public service district within the
county a petition signed by qualified electors of the county equal in number to
at least fifteen percent of the qualified electors of the county, or if such
ordinance relates to a bond issue for a public service district, fifteen percent of
the qualified electors of the district may be filed with the clerk of the county
council requesting that any such ordinance be repealed; provided, however, that
this section shall not apply to bond issues approved by referendum or to notes
issued in anticipation of taxes.

Thus, to answer your first question, section 4-9-1210 allows electors to petition their county
council for the adoption of a proposed ordinance so long as that ordinance does not appropriate
money or authorize the levy of taxes. Section 4-9-1210 requires the petition be signed by at least
fifteen percent of the qualified electors in the county for it to be submitted to the county council.

Once submitted to the county council, it may either pass or repeal (as the case may be) the
ordinance. Ifthe county council fails to pass or repeal the ordinance, section 4-9-1230 of the South
Carolina Code (2021) requires the county to hold an election allowing the electors to decide
whether to adopt or repeal the ordinance. This provision states:

If the council shall fail to pass an ordinance proposed by initiative petition or
shall pass it in a form substantially different from that set forth in the petition
therefor or if the council shall fail to repeal an ordinance for which a petition
for repeal has been presented, the adoption or repeal of the ordinance concerned
shall be submitted to the electors not less than thirty days nor more than one
year from the date the council takes its final vote thereon. The council may, in
its discretion, and if no regular election is to be held within such period, provide
for a special election. All county councils shall be bound by the results of any
such referendum.

S.C. Code Ann. § 4-9-1230. This provision clearly requires the county council to either enact the
ordinance (or repeal it) or allow the voters to decide whether enact (or repeal) the ordinance.
However, we note the electorate does not have an opportunity to vote until after the county council
takes a final vote on the ordinance.

In your letter, you ask whether a county council may “block” elector-sponsored ordinances from
appearing on a ballot after they fail to adopt the petitioned ordinance. In 1995, our Supreme Court
considered whether a county could refuse to place an ordinance proposed by electors on the ballot.
Focus on Beaufort Cnty. v. Beaufort Cnty., 318 S.C. 227, 228, 456 S.E.2d 910, 911 (1995). The
county argued the ordinance presented violated both the South Carolina Constitution and section
4-9-1210. Id. The Court found no constitutional violation but determined the ordinance “restricts
County Council’s authority over the treasury and, thus, defeats the plain legislative intent of
section 4-9-1210.” Id. at 231, 456 S.E.2d at 912. This determination comports with our previous
finding that “[s]ection 4-9-1210 appears to permit the proposal of any referendum except one

The Honorable Daniel Gibson
Page 3
February 26, 2024

appropriating money or authorizing the levy of taxes, general laws must be taken into account and
cannot be set aside by the initiative and referendum process unless permitted by the general law in
question; thus, some limits to the process are implicit.” Op. Att’y Gen., 1989 WL 406232
(S.C.A.G. Dec. 21, 1989). However, we do not find a county council can refuse to place a proposed
ordinance on the ballot so long as it complies with constitutional and statutory law. Section 4-9-
1230 clearly requires a county council to conduct an election allowing the electorate to decide
whether to accept or reject the proposed ordinance if the county council fails to adopt the ordinance
or if it passes it in “a form substantially different from that set forth in the petition.” In addition,
the election must take place “not less than thirty days nor more than one year from the date the
council takes its final vote thereon.” S.C. Code Ann. § 4-9-1230. As such, if a county council
refuses to adopt the proposed ordinance, then it is required to submit the ordinance to the electors
no less than thirty days and no more than one year from the date it takes its final vote on the
proposed ordinance.

Conclusion

As explained above, section 4-9-1210 of the South Carolina Code gives electors the authority to
petition their county council to enact an ordinance and requires the signatures of at least fifteen
percent of the qualified electors of the county. If the county council either fails to pass the
ordinance as presented by the electors or passes the ordinance in a form that is substantially
different than the ordinance proposed by the electors, the county council must submit the ordinance
to the electors “not less than thirty days nor more than one year from the date the council takes its
final vote thereon.” S.C. Code Ann. § 4-9-1230. The only circumstance under which a county
council can refuse to place the proposed ordinance on the ballot after it refuses to enact it is if the
ordinance violates constitutional or statutory law. Barring such a violation, we do not find any
authority by which a county council can “block” an ordinance from appearing on the ballot should
it fail to adopt it.

Sincerely,

Cydney Milling

Assistant Attorney General
REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General