C. Havird Jones, Jr., Esq.
Senior Assistant Attorney General
Rembert Dennis Building, Room 519
1000 Assembly Street
Columbia, South Carolina 29201
Dear Mr. Jones:
This refers to Act R135 (H 4431) (2010), which provides for the temporary transfer
of financial authority from the Board of Trustees to a five-member committee
appointed by the Fairfield County Legislative Delegation, and Act R136 (H 4432)
(2010), which provides for the temporary appointment of two seats on the Board
of Trustees by the legislative delegation, for the Fairfield County School
District in Fairfield County, South Carolina, submitted to the Attorney General
pursuant to Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c. We
received your response to our May 10, 2010 request for additional information
on June 15, 2010; additional information was received through August 12, 2010.
With respect to the changes contained in Act R135, the Attorney General does not
interpose an objection. 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 change. 42 U.S.C. 1973c(a); 28 C.F.R. 51.41.
We reach a different determination, however, with respect to Act R136. Under
Section 5, the submitting authority has the burden of establishing that a
proposed change is not motivated by a discriminatory purpose and will not have
a retrogressive effect on the ability of minority voters to participate in the
political process and elect candidates of choice. Georgia v. United States,
411 U.S. 526 (1973); 28 C.F.R 51.52. We have carefully considered the
information you have provided, as well as information from other interested
parties. As discussed further below, I cannot conclude that the state has
sustained its burden of showing that Act R136 will not have a discriminatory
effect. Therefore, on behalf of the Attorney General, I object to Act R136.
We are keenly aware that the financial and administrative management of the Fairfield
County School Board of Trustees, and the low academic performance of the
Fairfield County schools, are matters of serious concern to residents and
parents in the district. We appreciate that there must be wide local latitude
to implement reforms that promote greater educational opportunity for all of
As the experience of other states demonstrates, there are tools available to address these
serious educational challenges without causing a discriminatory effect that
violates the Voting Rights Act. A state may adopt legislation incorporating
such tools so long as that adoption and implementation complies with the Act,
as the Attorney General has previously determined. For example, Chapter 39 of
the Texas Education Code provides a graduated series of interventions that the
state may take regarding individual school districts to ensure the educational
needs of their students. The State of Texas submitted this legislation to the
Attorney General for review under Section 5 in the mid-1990s. On December 11,
1995, we informed the state that no objection would be interposed under Section
5 to that enabling legislation and likewise that any intervention taken pursuant
to it that affects voting in a local school district also would be subject to
review under Section 5. Since that time, the state has relied on those
procedures to assist local school districts that are in some form of distress.
In each instance that the state has submitted its proposed action, up to and
including the dissolution of a school district, the Attorney General has
determined that no objection was warranted.
The State of Mississippi has adopted a similar statutory approach to intervention in
under-performing local school districts through Miss. Code Section 37-17-13(l)
and 37-17-6(11)(b). This structure provides an objective basis for the state’s
actions, which can include removing all the powers previously held by elected
board members. As has been our experience with submissions from Texas, we have
reviewed several such state interventions and in none have we interposed an
objection under Section 5.
By contrast, Act R136 was adopted through an ad hoc local legislation
process rather than a uniform statewide approach. This process is neither
subject to the traditional legislative scrutiny nor accompanied by legislative
hearings or reports. We share the concern expressed by Governor Mark Sanford,
who originally vetoed both bills and indicated that the more appropriate
approach would be for the electorate in Fairfield County to express its will
through the ballot.
In the absence of a state statute similar to those in either Mississippi or Texas,
it appears that state education officials in South Carolina have taken action
with regard to only one such school district in recent years. The county
legislative delegation advises that it is for this reason that it turned to
local legislation to effectuate the changes it desired in the school district.
The county’s legislative delegation has represented that they have been aware
for several years of the district’s poor academic record, accusations of
financial impropriety against the school board, the perceived ineffective
leadership of the school board, the legislators’ inability to obtain any
assistance from state education officials, and the repeated requests from
constituents, both African American and white, for assistance in improving the
district’s schools, and that these factors prompted the delegation to take the
action under review.
In addition, Act R136 operates solely by reducing the proportion of positions for
which minority voters can elect candidates of choice on a local elected body. Changes
related to voting may not be implemented unless and until the submitting
authority establishes that, when compared to that jurisdiction’s benchmark
standard, practice, or procedure, the proposed change does not diminish the
ability of minority voters to participate in the political process. Beer v.
United States, 425 U.S. 130 (1976). The analysis must measure whether
the opportunities of minority voters to participate in the political process
and elect candidates of their choice will be “augmented, diminished, or not
affected by the change affecting voting.” Id. at 141.
The Fairfield County School District and Fairfield County have coterminous
boundaries. According to the 2000 Census, African Americans comprise 59.0
percent of Fairfield County’s total population and 55.6 percent of the county’s
voting age population. The benchmark method of election consists of seven
trustees elected to four-year, staggered terms, with elections held in
even-numbered years from seven single-member districts that are coterminous
with the districts used to elect the county council.
Act R136 provides for a proposed method of selection that results in the board of
trustees being increased in size to nine members, with two new members being
appointed, and the remaining seven members being elected from the existing
seven single-member districts. Under the proposed plan, the number of
districts in which African-Americans voters can elect candidates of choice
remains unchanged from the benchmark plan. What has changed is the context in
which those members operate. The act adds two board members who will be
appointed by the two-member county legislative delegation, and available
information indicates that neither member of the legislative delegation is a
candidate of choice of minority voters. As a result, the act expands the board’s
membership by more than a quarter, without a concomitant expansion of the
electoral franchise. Act R136 provides that the new appointed members will
remain part of the board of trustees for an exceptionally long term of twelve
years, until 2022, unless certain performance criteria are met earlier.
As support for its actions here, the state has advised that the addition of two
members was the least intrusive of various options that were considered,
including replacing the elected board with an all-appointed board or continuing
to elect all members of the board, but on countywide at-large basis, rather
than from single-member districts. While those options might indeed be more
drastic than the proposed plan, that fact does not obviate the conclusion that
the act reduces the proportion of positions on the board to which African
Americans can elect representatives of choice, a retrogressive effect
prohibited by Section 5. The fact of the matter is that the sole impact of the
decision is to reduce the level of electoral influence that African-American
voters have on the board.
In sum, the state has not met its burden under Section 5 of proving that the
changes affecting voting contained in Act R136 do not have a discriminatory effect.
This conclusion is informed by the fact that the action undertaken here is ad
hoc in nature and, unlike those actions we have reviewed in other
circumstances, proceeded in the first instance to employ a drastic intervention
of likely very long duration with a specific impact on the electoral influence
of African-American voters, rather than starting with alternatives that would
have a lesser retrogressive effect on African-American voting strength. We
encourage the state to examine the example of other states, like Texas and
Mississippi, that have enacted statewide legislation to address educational
deficiencies in local school districts in a uniform and transparent manner.
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. 28 C.F.R. 51.44. In addition, you may request that
the Attorney General reconsider the objection. 28 C.F.R. 51.45. However,
until the objection is withdrawn or a judgment from the United States District
Court for the District of Columbia is obtained, Act R136 will continue to be
legally unenforceable. Clark v. Roemer, 500 U.S. 646 (1991); 28 C.F.R.
51.10. Because the Section 5 status of these two state acts are at issue
before the Court in Murphy v. Harrell (D.S.C.), we are providing a copy
of this letter to the Court and counsel of record.
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
this matter. If you have any questions, you should call Robert S. Berman
(202-514-8690), a Deputy Chief in the Voting Section.
Thomas E. Perez
Assistant Attorney General
cc: Court and counsel
of record in Murphy v. Harrell (D.S.C.)