Island politicians pleased about sales tax ruling

August 28, 2003

By JAMES LEE
THE JOURNAL

   Attorney Trent Kernodle received a call from the S.C. Supreme Court Monday morning that seemed to be the answer he'd been waiting to hear since June.
   "If I've got this right, they tell me they have reversed the decision of the S.C. Election Commission in the halfcent sales tax case," he said. "It should mean that we won, but the opinion should be posted on their Web site by noon."
   Despite the uncertainty in Kernodle's voice, he had it right. Later that day the court announced its reversal of the State Election Commission's order and nullified the 2002 Sales and Use Tax Referendum in Charleston County.
   The tax was expected to raise $1.3 billion over the next 25 years for road improvements, green space and CARTA (the Charleston Area Transportation Authority).
   Charleston County voters approved the referendum -- which was strongly backed by Charleston Mayor Joseph P Riley Jr., Mount Pleasant Mayor Harry Hallman and North Charleston Mayor Keith Summey -- on Nov. 5 by about 600 votes.
   The vote quickly prompted one lawsuit from W J. "Joey" Douan and another by a group of complainants represented by Kernodle. The group included Folly Beach City Councilman Bob Linville; state Rep. Wallace Scarborough, R-James Island; James Island Mayor Mary Clark and Town Councilmen Joe Qualey, Bill Wilder, Pam's Williams and Bill Woolsey; James Island Public Service District Commissioner Eugene Platt; and James Island's representative on Charleston City Council, Robert George.
   Sales tax opponents said that the question on the November ballot was phrased in a way that favored the tax, and the Supreme Court agreed.
   In the order filed this week, the court states, "In our opinion, the Ballot used here does not conform with this statutorily mandated format, and the nonconformance is so substantial that it affects the fundamental integrity of the election.
   "While we do not fault County Council for advocating the passage of this tax before election day, the fundamental integrity of the election process requires that the voters be presented with an objectively phrased choice on election day," the order reads.
   In the appeal, the complainants also said that some 50,000 yellow fliers handed out at polling places violate the law. The fliers presented the question voters would see on the ballot and detailed the uses for the tax if approved.
   The Supreme Court stated that the resolution of this issue was unnecessary since the election had been voided.
   The order did recommend that the General Assembly offer local election officials guidance in this area and stated that the court could find no distinction between literature compiled by a governmental entity and that of a private party, which is prohibited within 200 feet of a polling place.
   For Clark, Monday's news couldn't have been any better. "This is a great day for the taxpayers of Charleston County," she said.
   Kernodle felt the decision followed closely with the intentions of the parties he represented, and that the victory is particularly noteworthy because of the prominent governmental figures involved.
   "My approach to it and my clients' approach to it was not so much about the sales tax, instead it was about the methods used to get it," said Kernodle. "This opinion says that they used language which was calculated to mislead.
   "What they did was try to extend their campaign into the polling booth and that's something no candidate would be allowed to do," he said.
   Kernodle said the issue of the ballot should have been avoided, citing the many complaints regarding the wording of the questions prior to the election.
   The county's move to proceed with the election using the controversial language is what jeopardized their revenue source, Kernodle said.
   George agreed, calling the lawsuit a "very unfortunate thing that really shouldn't have had to happen."
   "I think there were a couple of elected politicians in this county that knew full well what they were trying to do when they insisted that ballot be worded the way it was," he said. "Frankly, I think that they took a risk that no one would challenge it, and they lost."
   According to George, justice has prevailed and the court's decision shows the effectiveness of the judicial system.
   The most immediate effect of the decision could be the reduction of CARTA services, George said, but ultimately it will be reflected in the reduction of road projects that were earmarked for half-cent sales tax funds.
   "One of the issues here is, Do we want to build all those roads, and how do we want to build them and when do we want to build them and do we want to nourish that kind of growth and development with public tax dollars," said George. "I think it is going to have an impact upon the rate of growth and the rate of development in this area in Charleston County, and I'm not sure that's bad."
   "I think people are simply going to make harder choices countywide with fewer resources, and I think that by doing so, we are going to see those projects that are most beneficial and most cost-effective funded first," he said.
   Kernodle said the implications of the court's decision may not be immediately clear, but that it is a victory for all Charleston County voters.
   "To me it is a question of 'was this a fair and free election?' and it was not," said Kernodle.
   "Any time humans become desperate or tell you they become desperate for money, they bear watching even closer than usual because that is the nature of the human animal."
   George concurred. "In some sense I think this was a decision for the small man, for the small person, in the sense that it lets them know that politics as usual, Charleston County style, doesn't work - and when I say 'county style,' I mean everyone within the county."