The change made in Fairfield County, which adds two appointed seats to the school board, does not fall into any of these four categories. Had the legislation made any changes to the seven elected seats on the board, it certainly would be subject to Section 5 review under other relevant Supreme Court case law (Allen v. State Board of Education and Holder v. Hall). But this change neither “creates” nor “abolishes” any elected office. In fact, the Justice Department admitted in its letter that even under the expanded board, “the number of districts in which African-Americans [sic] voters can elect candidates of choice remains unchanged from the benchmark plan.”
This is a crucial admission, because the key to a Section 5 review is comparing a proposed change to the existing procedure — what is termed the “benchmark” — and the Department is actually conceding that the number of elected positions in the benchmark plan remains unchanged. So there is no Section 5 violation.
But the Division claims there is a violation because the change reduces “the proportion of positions for which minority voters can elect candidates of choice.” That claim also goes directly against the holding in Etowah, which involved the transfer of certain authority for road operations from elected county commissioners to a county engineer. The Supreme Court specifically held that such a change in a county governmental body is not subject to Section 5 because it only concerns the distribution of power among officials; it has no direct relation to, or impact on, voting. The fact that there are now nine members of the Fairfield Board of Trustees, instead of seven, only concerns the distribution of power among its members and has no direct relation to, or impact on, the voting of the citizens of the county for the seven unchanged elected seats.
The Department’s lack of a sound legal basis for its objection is evident in its letter to the school district. It consists almost entirely of a recital of how other states like Mississippi and Texas have handled similar problems with bad local school boards. And none of that has any relevance whatsoever to a Section 5 legal analysis of the effect of what the South Carolina legislature enacted in Fairfield County. Section 5 requires a comparison between a proposed change and the benchmark in that particular jurisdiction. What may have been done in other states is simply irrelevant. The Department also put great emphasis on the fact that the legislature in this case undertook its actions on an ad hoc nature. Once again, there is no relevance whatsoever to that point in a Section 5 review of the supposedly retrogressive effect of a “voting” change.
But the most troubling revelation about this case is the way it shows, once again, the skewed enforcement views of Fernandes’ Civil Rights Division. Even if the increase in school board seats were subject to Section 5 review, the VRA is supposed to protect the racial minority in a jurisdiction. Yet the four-page Justice Department letter talks only about the supposed effect of this change on the county’s majority population: blacks. Julie Fernandes and Tom Perez evince no interest in protecting minority voters if they are white.