||U.S. Department of Justice
Civil Rights Division
|Office of the Assistant Attorney General
||Washington, DC 20530
| ||December 9, 2002|
Mr. C. Samuel Bennett II
P.O. Drawer 748
Clinton, South Carolina 29325
Dear Mr. Bennett:
This refers to four annexations (adopted on September 20,
1993, June 5 and August 7, 1995, and December 3, 2001), and their
designation to Ward 1 of the City of Clinton in Laurens 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 July 29, 2002, request for additional
information through October 31, 2002. We have carefully
considered the information you have provided, as well as census
data, comments and information from other interested parties, and
other information, including the city's previous submissions.
The Attorney General does not interpose any objection to the
annexations themselves; however, we note 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). In addition,
as authorized by Section 5, we reserve the right to reexamine
this submission if additional information that would otherwise
require an objection to these changes comes to our attention
during the remainder of the sixty-day review period. See 28
C.F.R. 51.41 and 51.43.
As discussed further below, however, I cannot conclude that
the city's burden under Section 5 has been sustained with respect
to the designation of the annexations to Ward 1 of the city.
Therefore, on behalf of the Attorney General, I must object to
the designation of the annexations.
Under Section 5, the submitting authority has the burden of
showing that a submitted change has neither a discriminatory
purpose nor a discriminatory effect. Georgia v. United States,
411 U.S. 526 (1973); see also the Procedures for the
Administration of Section 5 of the Voting Rights Act, 28 C.F.R.
According to the 2000 Census, the City of Clinton had a
total population of 8,091, of whom 3,074 (38.0%) are black
persons. We understand the city has challenged the official
counts for the 2000 Census, including those for the Lydia Mills
annexation that indicate 584 persons, of whom 144 (24.7%) are
black, reside in that area. Rather, the city contends that the
area contains approximately 700 persons, of whom 30 percent are
black. However, the difference in the statistical effect of the
annexations caused by the use of one set of data or the other is
relatively negligible. Using census data, the annexations result
in a drop in the city-wide black population percentage to 37.1
percent. Using the city's estimates, the drop is slightly less,
down to 37.4 percent. The slight difference caused by the use of
one set of data or the other is also true with respect to Ward 1.
Using the census data, the minority population percentage
decreases 9.3 percentage points from 59.3 percent to 50.0
percent. Using the city's estimate, it decreases 9.0 percentage
points from 59.3 percent to 50.3 percent. Moreover, regardless
of which data are used, the result of the proposed designation of
the annexations to Ward 1 results in lowering the black voting
age population in the ward to less than 50 percent.
The city is governed by a six-member council and a mayor,
who votes on all matters brought before the council. The
councilmembers are elected from wards to serve four-year,
staggered terms, while the mayor is elected at large. Our
analysis of local election returns, including county and
municipal elections conducted between 1992 and 2000, confirms the
presence of racial bloc voting in the City of Clinton, such that
there are three wards (Wards 1, 2, and 3) in which black
residents currently have the ability to elect a candidate of
The effect of the designation of the annexations to Ward 1
significantly reduces the level of black voting strength in that
district, and according to our election analysis, eliminates the
ability that black voters currently have to elect their candidate
of choice in the district. Concomitantly, the elimination of
Ward 1 as a district in which black voters can elect a candidate
of choice reduces the level of minority voting strength in the
expanded city from three out of seven (42.9 percent) to two out
of seven (28.6 percent), while their relative share of the city-wide
electorate drops no more than a percentage point to not less
than 37 percent.
Before we reached our final determination in this matter,
we sought to ascertain whether the elimination of the district as
one in which black voters could elect a candidate of choice, and
the resulting inability of the electoral system in the expanded
city boundaries to reflect minority voting strength, was
unavoidable. As part of that analysis, we prepared an
illustrative limited redistricting plan that affects only Wards 1
and 2. Our conclusion is that the failure to provide a fair
recognition of minority voting strength in the expanded city is
avoidable, through either a city-wide or a limited redistricting.
We recognize that the city is aware that such redistricting is
feasible, and has indicated it expects to redistrict in this
manner in the future, but has chosen not to do so at this time.
Where annexations significantly decrease minority voting
strength, the reasons for the annexations must be objectively
verifiable and legitimate, and the post-annexation election
system must fairly reflect the voting strength of the minority
community in the expanded electorate. City of Richmond v. United
States, 422 U.S. 358 at 371-773 (1975). See also, City of
Pleasant Grove v. United States, 479 U.S. 462 (1987); City of
Port Arthur v. United States, 459 U.S. 159 (1982).
Here, the reasons for the annexations themselves are
objectively verifiable and appear to be legitimate. However, the
designation of the annexations to Ward 1 is likely to result in
the elimination of representation for a minority community which
the submitted data suggest comprise 37 percent of the expanded
city, an elimination that was avoidable. Thus, the city has not
carried its burden of showing that the post-annexation system
will fairly reflect the post-annexation strength of the minority
We recognize that there may be some practical reasons for
the city wanting to defer its post-2000 redistricting until after
its dispute with the Census Bureau concerning the 2000 Census
counts is resolved. We believe, and have so indicated to city
officials, that under these circumstances, it may be appropriate
for the city to withdraw the instant submission until such time
as it can devise and present for review a complete redistricting
plan with "final" census numbers. Similarly, we have also
indicated that a limited redistricting of only Wards 1 and 2, in
which the Lydia Mills area is divided between those two wards
would allow the city to meet its burden in this instance.
However, the city has chosen to continue to seek Section 5 review
at this time.
This course of action also raises a concern that, by
obtaining preclearance of the designation of these annexations to
Ward 1 at this time, the city establishes a benchmark plan of
only two viable districts for minority voters against which any
future redistricting plan would be measured. Although the city
asserts that the annexations will not affect its goal of
maintaining three districts with majority black populations when
it does decide to redistrict, the city, under a non-retrogression
standard, is free to devise a plan that does nothing more than
replicate the plan that would be in effect following the
annexations: three districts with a majority black total
population, but only two in which black voters can elect a
candidate of choice.
Under Section 5 of the Voting Rights Act, the submitting
authority has the burden of showing that a submitted change has
neither a discriminatory purpose nor a discriminatory effect.
Georgia v. United States, 411 U.S. 526 (1973); see also the
Procedures for the Administration of Section 5 (28 C.F.R. 51.52).
In light of the considerations discussed 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
designation of the annexations to Ward 1.
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 have neither
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 designation of the annexations adopted on September 20, 1993,
June 5 and August 7, 1995, and December 3, 2001, to Council Ward
1 continue to be legally unenforceable insofar as they affect
voting. Clark v. Roemer, 500 U.S. 646 (1991); 28 C.F.R. 51.10.
Therefore, while residents of the annexed areas may vote for the
at-large mayoral position when the election is rescheduled, they
may not vote in a city council race until such time as the
annexations have been redesignated and the designations
precleared under Section 5.
To enable us to meet our responsibility to enforce the Voting
Rights Act, please inform us of the action the City of Clinton
plans to take concerning this matter. If you have any questions,
you should call Mr. Robert P. Lowell (202-514-3539), an attorney
in the Voting Section. Refer to File Nos. 2001-1512 and 2002-2706
in any response to this letter so that your correspondence
will be channeled properly.
Ralph F. Boyd, Jr.
Assistant Attorney General