By Mary Orndorff Troyan, Gannett Washington Bureau
WASHINGTON - South Carolina will be one misstep away from renewed federal supervision of its elections if legislation to restore part of the Voting Rights Act becomes law.
The bill introduced Thursday would rewrite the rules that would determine which states need strict oversight based on the chance their election-related changes could harm minority voters.
The old rules, which applied to South Carolina and all or part of 14 other states, were thrown out by the U.S. Supreme Court last year because they were based on outdated voting data.
Under the proposed update, states that violated the federal Voting Rights Act at least five times in the most recent 15-year period would be subject to "pre-clearance." That means they would have to prove to the Justice Department or a federal court in advance that any proposed change to their election procedures wouldn't disenfranchise minority voters. At least one of the five violations would have to be statewide.
The four states that would immediately qualify are Georgia, Mississippi, Louisiana and Texas.
In South Carolina, a federal court or the Justice Department has objected to 11 election changes in the last 15 years, most of them in cities and counties, according to the Justice Department's civil rights division. The only statewide case on the list is the 2011 objection to the state's new voter identification law, but the proposed legislation would exempt voter ID cases from consideration of a state's record.
So while South Carolina would not immediately be subject to pre-clearance, one more statewide violation of the Voting Rights Act would put it back on the list.
"They're not just walking on ice, they're walking on thin ice," said Armand Derfner, a civil rights lawyer in Charleston.
Lawmakers said the five-violations-in-15-years formula was written specifically to address last year's Supreme Court ruling, which said the criteria for pre-clearance should be based on current conditions, not on what life was like in discrimination-prone jurisdictions in the 1960s.
Derfner said that even though South Carolina would start out in the clear, the new formula would provide a strong incentive for the state to make sure its future voting procedures are fair.
"This keeps the concept of pre-clearance alive, which has been so successful in preventing states and counties from doing bad things," Derfner said. "And the notion that they could bring it on themselves, that has to be a deterrent."
States would automatically fall off the pre-clearance list after 10 years with a clean record, according to the legislation. A city or county could be subject to pre-clearance with three violations in 15 years, or one violation accompanied by a persistently low minority voter turnout.
Gerald Hebert, executive director of the Campaign Legal Center in Washington and an attorney specializing in voting rights cases, said the legislation would make it easier to catch wrongdoing, in part because it would require more disclosure of voting changes before they're implemented. And states with a long record of infractions would be fairly warned that repeat violations would have consequences.
"To the extent there is ongoing voting discrimination in those places, they could in the future be captured (by the formula for pre-clearance) and perhaps in the not too distant future," Hebert said.
Most of South Carolina's recent Voting Rights Act violations were by local entities, such as counties and school districts, especially for redistricting plans that would have diminished a minority candidate's ability to get elected. In 2001, for example, the Justice Department objected to a redistricting plan for elections in the city of Greer because of its potential impact on minority voters.
The updated Voting Rights Act proposal has bipartisan support on the House Judiciary Committee, where hearings are expected later this year. Republicans from Alabama, Ohio and Wisconsin support it, and it's backed by Democrats from around the country.
Rep. James Clyburn, the lone Democrat in South Carolina's delegation, disagreed with the Supreme Court decision striking down the old formula and supports the updated proposal. Even though South Carolina would be free from pre-clearance at first, Clyburn said the law would make state officials more careful.
"If they start with those shenanigans that they've specialized in in years past, it takes only one more event on the part of the state," Clyburn said Friday. "If the state doesn't want to be covered, it is in their hands."
Edward Blum of the Project on Fair Representation, who engineered the Supreme Court case that led to the old formula being declared unconstitutional, said Friday the 15-year time frame is too long. He said it's one reason the bill, if it becomes law, would be challenged in court.
While a record of discrimination within the most recent 15 years is more current than voter turnout data from the 1970s, Blum said a term of two presidential elections would be better.
"Fifteen years is a very long time in American political history, and it may indeed be something this court will not tolerate," Blum said.
Blum also questioned whether it's fair to hold a large state like Texas, with thousands of small, local jurisdictions, accountable for the actions of any five of them.
"(With) a clear pattern of intentional racial discrimination and animus, then perhaps a pre-clearance provision does have a place," Blum said. "But the formula Congress has offered in this bill is not the one."
South Carolina, led by GOP Attorney General Alan Wilson, was among states that urged the Supreme Court to end pre-clearance because it continuously punished the state for its long-past history of trying to prevent blacks from voting.
Another advocate of the new bill said it would make state officials more responsible for the actions of their local cities and counties that redraw a boundary or move a polling place.
Barbara Arnwine, president and executive director of the national Lawyers' Committee for Civil Rights Under Law, said the five-in-15 formula would prompt state officials who are wary of being forced back into pre-clearance to more closely monitor voting changes at the local level.
"The states would talk to their local jurisdictions and dissuade them from taking action that would trigger coverage, and that really changes the dynamic," Arnwine said Friday.