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Gov. Henry McMaster


COLUMBIA — South Carolina's attorney general agrees that the state Supreme Court should resolve questions over whether Lt. Gov. Henry McMaster could pick his replacement if Gov. Nikki Haley becomes U.N. ambassador.

But the state's most powerful politician, Senate President Pro Tem Hugh Leatherman, does not — at least, not now.

In court documents filed Tuesday, Attorney General Alan Wilson agreed with state Sen. Tom Davis that the justices should settle a discrepancy on whether a constitutional amendment changing the lines of succession is in effect.

"There are several ambiguities the court must resolve," reads Wilson's response to Davis' Dec. 12 filing. "Public interest and public importance of the question" supports the high court directly taking the case.

Wilson's response made clear he takes no legal position on the justices' finding.

Still, Davis, R-Beaufort, applauded Wilson for "recognizing that no legislative remedy to the current predicament exists."

The question is how the lieutenant governor's office will be filled if the U.S. Senate confirms Haley as President-elect Donald Trump's pick for United Nations ambassador.

If a 2014 vote to change the constitution is in effect, Leatherman could easily keep his powerful leadership post, as the Senate's leader would not be called on to fill the largely ceremonial position. Regardless, Leatherman has refused to become lieutenant governor.

Wilson says there's confusion over whether the state constitution even requires the Senate president pro tem to fill the vacancy. He calls the constitution's wording over that vacancy "awkward" when compared to the automatic ascension of the lieutenant governor to governor.

Later Tuesday, Leatherman asked the justices not to decide anything until and if McMaster is actually sworn in as governor.

Davis' request is speculation, he contends, which relies on a series of assumptions, including that Trump becomes president, Haley is confirmed and then resigns.

Unless that happens, "the court would be wading into a hypothetical arena devoid of established facts," reads the response from Leatherman and Senate Judiciary Chairman Luke Rankin, filed minutes before the deadline.

Their joint response is similar to one filed Dec. 20 by House Speaker Jay Lucas and House Judiciary Chairman Greg Delleney, which went further in asking the high court to throw out Davis' request entirely.

The House Republican leaders also asked the justices — should they take the case — to remove them from the lawsuit, saying neither has a "claim or direct interest in who will be elected to or potentially" become lieutenant governor.

Davis contends legislators have disregarded voters' intentions, as they were clearly asked whether changes should occur after 2018.

"These facts are not disputed by anyone," he said.

Both a 2012 law that approved asking voters about the changes and the opening clause of the ballot question itself specified they were to begin "with the general election of 2018." But a law the Legislature passed in 2014 to ratify voters' approval created separate start dates for the various changes. While it changed the constitution to say candidates for governor and lieutenant governor will run on the same ticket beginning in 2018, it allowed a vacancy in the lieutenant governor's office to immediately be filled by the governor.

"A fraud is being perpetrated on the people of South Carolina, and I'm more than disappointed that legislative leaders aren't owning up to the mistake and doing what's right," Davis said Tuesday, adding that the entire Legislature is to blame. "Whatever the opposite of leadership and accepting responsibility is, that's what they're showing."

He had asked the high court to rule quickly.

During last month's postelection organizational session, senators re-elected Leatherman as their president pro tem, despite his refusal to become lieutenant governor. Leatherman declined then to opine about the constitutional questions involved, saying only, "We'll cross that bridge when we come to it."