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Voting Rights Act review could affect elections here

Posted: November 20, 2012 4:49 p.m.
Updated: November 21, 2012 5:00 a.m.

The U.S. Supreme Court’s decision this month to revisit the Voting Rights Act of 1965 could have major implications for elections in South Carolina, including Kershaw County.

The court’s reconsideration originated out of a case in Shelby County, Ala., that challenges the constitutionality of certain sections of the law. Shelby County government leaders are arguing that federal mandates on voting are unnecessary and are based on outdated records and views from the segregated South. Regardless of the court’s final decision, the case has rekindled the debate on the best action for election laws in Southern states.

Bobby Bowers, director of the S.C. Budget and Control Board’s Office of Research and Statistics, said that every proposal dealing with elections in South Carolina falls under the Act. 

The intent of the Act, which was crafted during the Civil Rights Movement of the 1960s, is to ensure that there is “no discriminatory action in a jurisdiction in denying minorities the right to elect candidates of their choice,” Bowers said.

Before certain states, including South Carolina, can change their voting laws, they must get pre-clearance from the U.S. Department of Justice (DOJ). Such actions, however, can still be revisited according to Bowers.

“Anything that we do that affects voting must go to the Department of Justice for pre-clearance, but that’s different than approval,” he said. “They can say ‘although we’ve pre-cleared this action, should we find discriminatory intent or action after the fact, we can reopen it.’ So if they find something they don’t like, they can reopen it.”

The preclearance requirement also applies to the states of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, Texas and Virginia.

Bowers said initially there were only six states under the provision, but coverage expanded in later years to cover jurisdictions with significant “African American population, Hispanic population, and other types of minority populations.”

He said the Supreme Court’s recent decision to revisit the Act has spurred debate about the need for pre-clearance, which is outlined in Section 5.

“What people are saying now is that there has been so much improvement over discrimination that there is no need to have Section 5,” Bowers said. “Some think there has been so much progress that there’s not a discrimination level that there was when the Voting Acts Right was put in place.”

Depending on the court’s decision, he said certain electoral decisions in the state could, ultimately, be initiated more quickly.

“There are certain things they could leave out of the pre-clearance part, such as annexation, such as changing precincts, those things that have a minimal affect on the entire process,” Bowers said.  

He said certain revisions could have curbed problems that occurred during South Carolina’s elections this year, including in Kershaw County, but that the “election process is not a simple process.”

This summer, Kershaw County Council District 1 candidates Al Bozard, Willie Mickle and Barbara Swindall filed papers to run for office, but were ruled ineligible because of certain election laws pertaining to statements of economic interest (SEI). S.C. House of Representative District 52 candidate Kim Demer was also deemed ineligible to be on the ballot due to the provision.

The S.C. Supreme Court removed approximately 200 South Carolina candidates during the election cycle due to the improper filings of SEIs, spurring significant controversy.

S.C. Sen. Vincent Sheheen indicted in May that the state Senate’s Judiciary Committee was considering “legislative fixes” to the problems associated with the SEIs. He noted, however, that any proposed remedy would have to be pre-cleared by the DOJ.

Bowers reiterated Sheheen’s statement, indicating that the pre-clearance timeframe can sometimes bump election changes to later dates.

“They have 60 days to pre-clear something. If they ask for additional information anytime during those 60 days, they have 60 more days,” Bowers said. “They have a potential 120 days to give you pre-clearance on an action. That’s a lot of time.”

He noted that despite efforts to revise Section 5, Section 2 of the act, which covers the entire nation, “prohibits voting practices or procedures that discriminate on the basis of race or color.”

“That is still in place, meaning if somebody is intentionally discriminating a group, they could still be sued. That’s a heavy burden right there to try and overcome that section,” he said. “You have to be sure that your plan does not intentionally discriminate against anybody or they’re going to haul you into court.”

The pre-clearance provision must be periodically renewed by Congress. In 2006, Congress overwhelmingly reapproved the act and President George W. Bush signed a 25-year extension through 2031.

Bowers indicated that there is no timetable in place for the Supreme Court to reach a decision, saying “they can take as much time as they want to.”

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