||U.S. Department of Justice
Civil Rights Division
|Office of the Assistant Attorney General
||Washington, DC 20530
| ||June 16, 2003|
C. Havird Jones, Jr., Esq.
Senior Assistant Attorney General
P.O. Box 11549
Columbia, South Carolina 29211-1549
Keith R. Powell, Esq.
Kenneth L. Childs, Esq.
Childs & Halligan
P.O. Box 11367
Columbia, South Carolina 29211-1549
Dear Messrs. Jones, Powell, and Childs:
This refers to Act No. 416 (2002), which decreases the
number of school board members from nine to seven, adopts a
districting plan and an implementation schedule, raises the
candidate filing fee to $200, authorizes the school board to
further raise such fees, and the amended implementation schedule
for the Cherokee County School District No. 1 in Cherokee County,
South Carolina, submitted to the Attorney General pursuant to
Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received
your responses to our August 19, 2002, request for additional
information through May 30, 2003.
The Attorney General does not interpose any objection to the
change in candidate qualifying procedures, an increase in the
present qualifying fee to $200.00, and the ability of the school
board to increase such fees in the future. However, we note that
Section 5 expressly provides that the failure of the Attorney
General to object does not bar subsequent litigation to enjoin
the enforcement of the changes. See the Procedures for the
Administration of Section 5 (28 C.F.R. 51.41). With regard to
the board's ability to increase the qualifying fee, Section 5
preclearance is required for any future increase in filing fees.
With regard to decrease in the number of school board
members, we have carefully considered the information you have
provided, as well as information from our files, census data, and
information and comments from other persons. In light of the
considerations discussed below, I cannot conclude that your
burden under Section 5 has been sustained in this instance.
Therefore, on behalf of the Attorney General, I am compelled to
object to the reduction in the size of the school board.
According to the 2000 Census, the school district has a
population of 50,728 of whom 10,726 (21.1%) are black. The
school board currently consists of nine members, elected in
nonpartisan elections from single-member districts to serve
four-year, staggered terms. Under 2000 Census data, Districts 2 and 8
in the benchmark plan have black total population percentages of
69.5 and 63.5, respectively.
Under the proposed changes, the size of the board is reduced
to seven with black persons constituting a majority of the total
population in only one of the seven districts. That district,
District 1, has a black total population percentage of 60.6
percent and a black voting age population of 55.5 percent. The
plan also contains a district with a significant minority
population, District 4, which has a 41.3 percent black total
population and a 36.5 percent black voting age population.
A proposed change has a discriminatory effect when it will
"lead to a retrogression in the position of racial minorities
with respect to their effective exercise of the electoral
franchise." Beer v. United States, 425 U.S. 125, 141 (1976).
If the proposed plan materially reduces the ability of minority
voters to elect candidates of their choice to a level less than
what they enjoyed under the benchmark plan, preclearance must be
denied. State of Georgia v. Ashcroft, 195 F.Supp.2d 25 (D.D.C
2002) probable juris. noted, 123 S.Ct 964 (2003). In Texas v.
United States, the court held that "preclearance must be denied
under the 'effects' prong of Section 5 if a new system places
minority voters in a weaker position than the existing system."
866 F.Supp. 20, 27 (D.D.C. 1994).
Our review of electoral behavior indicates that the
benchmark plan has consistently provided black voters with the
ability to elect candidates of choice in two of the nine
The proposed plan contains only one majority black district,
District 1. With a total black population percentage of 60.6,
our examination of voting patterns leads us to conclude that
black voters will retain the ability to elect candidates of
choice. This conclusion is unchanged even considering the
pairing of a white and a black incumbent.
However, we can not reach a similar conclusion with regard
to the electoral ability of black voters in District 4 of the
proposed plan. In your submission, you suggest that this
district affords the minority community the potential to elect a
candidate of choice because it provides black-preferred
candidates support from a "viable cross-over phenomenon." The
school board points to the results of the 2002 general elections
for Cherokee County Clerk of Court and State Attorney General;
both featured an interracial contest.
We have also examined the results of recent school board
elections. Our regression analysis indicates that, generally,
the level of black voter cohesion is lower for school board
elections than it is for partisan elections. Similarly, the
level of cross-over voting by white residents in Cherokee County
is higher in the partisan elections. Since the black voting age
population in the proposed district would be only 36.5 percent
black, proposed District 4 would not provide black voters with
the ability to elect a candidate of choice.
Of equal significance to our conclusion that black voters
will not have the ability to elect a candidate of choice in
District 4 is the consistent emphasis by the state and school
board officials on the ability of the present black incumbent to
get re-elected in that district, rather than the ability of the
black community to elect a candidate of choice. Our analysis
suggests that it is not clear that someone other than the present
incumbent would benefit from the "cross-over phenomenon" that has
been ascribed to his past candidacies.
Since minority voters would not retain the ability to elect
a candidate of choice in District 4, they will be able to elect a
lower proportion of members to the school board. Currently, they
are able to elect two of the nine school board members; under the
proposed seven-member plan, that ability is reduced to one out of
seven. As such, the proposed election plan has a retrogressive
Further, it appears that there is no configuration of seven
districts that will not have a retrogressive effect. In
contrast, it is possible to devise such a plan with nine
districts, the size of the present board. In fact, the NAACP
presented just such a plan to Rep. Phillips, as chair of the
Cherokee County legislative delegation, at the May 2002 school
board meeting. This nine-member plan conformed to the
then-pending legislation that retained the number of officials at
nine, the same number of officials also supported by a majority
of the school board members. Here, the inability to devise any
seven-member plan that is not retrogressive means that it is the
voluntary change from nine to seven districts that the state has
failed to establish will not have the prohibited effect.
Beer v. United States, 425 U.S. at 141; Guidance Concerning Redistricting
and Retrogression under Section 5 of the Voting Rights Act, 66
Fed. Reg. 5412 (January 18, 2001).
Under Section 5 of the Voting Rights Act, the submitting
authority has the burden of showing that a submitted change does
not have a discriminatory effect. Georgia v. United States, 411
U.S. 526 (1973); Reno v. Bossier Parish School Board, 528 U.S.
320 (2000); see also the Procedures for the Administration of
Section 5 (28 C.F.R. 51.52). Based on the evidence detailed
above, I cannot conclude that your burden has been sustained in
this instance. Therefore, on behalf of the Attorney General, I
must object to the reduction in the size of the school board.
Because the adoption of the districting plan and the change
in the initial and amended implementation schedules are dependent
upon the objected-to reduction in the number of school board
members, it would be inappropriate for the Attorney General to
make a preclearance determination on these related changes. See
28 C.F.R. 51.22.
We note that under Section 5 you have the right to seek a
declaratory judgment from the United States District Court for
the District of Columbia that the proposed changes neither have
the purpose nor will have the effect of denying or abridging the
right to vote on account of race, color, or membership in a
language minority group. See 28 C.F.R. 51.44. In addition, you
may request that the Attorney General reconsider the objection.
See 28 C.F.R. 51.45. However, until the objection is withdrawn
or a judgment from the District of Columbia Court is obtained,
the changes continue to be legally unenforceable. Clark v.
Roemer, 500 U.S. 646 (1991); 28 C.F.R. 51.10.
To enable us to meet our responsibility to enforce the
Voting Rights Act, please inform us of the action the State of
South Carolina plans to take concerning the reduction in the size
of the school board for the Cherokee County School District.
If you have any questions, you should call Ms. Judybeth Greene
(202-616-2350), an attorney in the Voting Section. Refer to File
No. 2002-3457 in any response to this letter so that your
correspondence will be channeled properly.
Ralph F. Boyd, Jr.
Assistant Attorney General