Can State Laws Fill the Gap Left by Shelby County v. Holder?
October 30, 2019
By: Trevor Bernardo
Following the Supreme Court’s landmark decision to invalidate the coverage formula of the Voting Rights Act in Shelby County v. Holder, many wondered what impact the decision would have on minority voting access. The Brennan Center has found that formerly covered jurisdictions, like Texas and North Carolina, have passed restrictive voting laws (think voter ID) and purged voters from voter rolls at higher rates than non-covered jurisdictions.
Another result has been the closure of polling places which lengthens lines, increases the time to vote, and may, in turn, deter voters. According to Reuters, the south has closed at least 1,200 polling places since Shelby County.
Interestingly, many of the same studies have found that the formerly covered jurisdictions have not all responded in the same way, and that South Carolina, in particular, is unique among the newly unshackled jurisdictions in that it has closed fewer polling places. The reason, according to these studies, is that South Carolina’s code creates a system of internal state and local checks that operate similarly to the VRA’s preclearance scheme.
Section 7-7-10 of the South Carolina code says that “voting precincts and voting places… shall be designated, fixed, and established by the General Assembly. Nothing in this chapter prohibits a county board of voter registration and elections from establishing multiple polling places within a precinct, provided [approval] by a majority of that county’s legislative delegation.”
Section 7-7-710 of the code says that the “State Election Commission shall report certain precincts to General Assembly for alteration; alteration by county boards of voter registration and elections where General Assembly fails to act.”
However, South Carolina voters in Charleston County experienced polling place closures and long lines in a closely watched race for South Carolina’s 1st Congressional District where Joe Cunningham (D) narrowly defeated Katie Arrington (R) for the seat, getting 145,455 votes to Arrington’s 141,473 votes.
Long lines and polling place closures often have mundane and valid reasons, like a shortage of poll workers, shifts in voting population, or simply high voter turnout. That is precisely what Charleston voting officials claimed when South Carolina state officials accused the county of “widespread consolidation of precincts not permitted by law.”
In a letter, state officials claimed that in the 2018 election, “only 94 polling places were made available for Charleston County’s 182 precincts[,] 52 consolidated or pooled precincts were utilized[, t]he number of precincts pooled together with a single voting location ranged from two to eight[, and] [t]he range of registered voters assigned to a single voting location ranged from 1,746 to 9,737.”
Charleston county officials urged a different interpretation of the law, pointing to § 7-7-140(C), which says that “[t]he Board of Voter Registration and Elections of Charleston County shall designate the polling place in each precinct.” According to Charleston county officials, “there is no state law requirement for [the] Board to . . . locat[e] polling places for more than one precinct in a single polling place” because the statute transfers “authority from the General Assembly to this Board to designate polling locations.”
Additionally, Charleston county officials claimed that the county has used this practice since at least 1984; that all polling locations were ADA accessible; that the process was transparent and open to the public; and that the county submitted polling location changes to the Department of Justice, although it was no longer required to do so under the VRA.
Regardless of which interpretation of the law is correct, it is clear that South Carolina’s laws may not provide the same shield as the VRA’s preclearance scheme. Individual poll closures or consolidations are not necessarily suspect in and of themselves. However, conflicting interpretations by state and local voting officials over which body has the statutory authority to designate polling locations and precincts, especially without federal oversight, raises some serious concerns. After all, the 2020 election is just around the corner and South Carolina’s early primary position makes this topic even more relevant.