Gray et al v. South Carolina State Election Commission et al

Filing 52

ORDER granting 13 Motion for Preliminary Injunction, directing that the defendants are enjoined from requiring submission of multiple Statements of Intent where a candidate timely files a single Statement of Intent and seeks to run as a candidate on multiple party tickets. Signed by Honorable Joseph F Anderson, Jr on 03/01/2010.(bshr, )

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA C O L U M B IA DIVISION K e v in Alexander Gray; Glen Davis; C a ss a n d ra Fralix; Gerald Rudolph; M a rjo rie Brittain Hammock; Efia N w a n g a za ; and United Citizens Party of S o u th Carolina, ) ) ) ) ) ) P l a i n t if f s , ) ) vs. ) ) S o u th Carolina State Election ) C o m m is s io n ; John H. Hudgens, Cynthia ) M . Bensch, Tracey C. Green, Pamella B. ) P inso n , and Thomas Waring, in their ) o f f ic ia l capacities as chairman and ) m e m b e r s respectively of the South ) C a ro lin a State Election Commission; ) a n d Henry McMaster, in his official ) c a p a c ity as Attorney General of the State ) o f South Carolina, ) ) D e f e n d a n ts . ) ) P E R CURIAM T h is matter comes before the court on the plaintiffs' motion for permanent injunction. P la in t if f s seek to enjoin defendants from enforcing a voting practice plaintiffs contend must b e precleared pursuant to the Voting Rights Act of 1965, 42 U.S.C. § 1973c (2006). As set f o rth herein, the court grants plaintiffs' motion and enjoins the defendants from enforcing th e subject voting practice until the same is precleared. C /A No.: 3:09-2126-JFA-CMC-DWS ORDER I. F a c tu a l and Procedural Background T h e South Carolina Legislature passed Act Number 363 in 1988 (the "Act") (R a tif ic a tio n No. 382 or R382), which became law upon the Governor's signature on March 1 4 , 1988. 1988 S.C. Acts 2693 (codified at S.C. Code Ann. § 7-11-15). On March 24, 1988, S o u th Carolina's attorney general submitted the Act to the United States Attorney General f o r preclearance, which it received on May 31, 1988 (Defs.' Supp'l Disc. Ex. 2 at 41). As d e sc rib e d in the preclearance submission: S e c tio n 1 of R382 adds §7-11-15 to further provide for qualifying as a c a n d id a te in the general election. In the past when a candidate sought n o m i n a tio n by petition, he did not have to file a statement of candidacy. C a n d id a tes by party primary or party convention, on the other hand, had to file a statement to offer for nomination. This amendment would place the same re q u ire m e n ts on the petition candidate as the candidate for nomination by party o r party convention. (Id . at 42.) The text of the Act set forth qualifications for candidates to run in a general e le c tio n , requiring all candidates to file a statement of intention of candidacy ("Statement of In te n t" ). Later amendments to S.C. Code Ann. § 7-11-15 fixed the filing period between n o o n on March sixteenth and noon on March thirtieth in an election year (the "filing period") a n d narrowed the section's application to candidates seeking nomination by political party p rim a ry or convention in order to comply with Cromer v. South Carolina, 917 F.2d 819 (4th C i r. 1990) (holding S.C. Code Ann. § 7-11-15 unconstitutional as it related to petition ca n d idates). T h e South Carolina State Election Commission (the "Election Commission") is the 2 sta te agency responsible for enforcing S.C. Code Ann. § 7-11-15. Between 1998 and April 1 6 , 2008, the Election Commission interpreted the section to allow candidates to run as the c a n d id a te for one or more political parties in the general election so long as they filed a S tatem en t of Intent for one political party during the filing period (the "Initial Policy"). (Join t Stip. ¶¶ 11, 18.) On April 16, 2008, the Election Commission voted to require c a n d id a te s seeking party nominations to file a Statement of Intent during the filing period for e a c h political party in which the candidate wished to run (the "Subsequent Policy"). (Id. ¶ 2 3 .) O n August 12, 2009, the plaintiffs filed this action pursuant to Section 5 of the Voting R ig h ts Act of 1965, 42 U.S.C. § 1973c, and on August 14, 2009, plaintiffs filed a motion for p re lim in a ry injunction to enjoin the defendants from implementing the Subsequent Policy. P u r s u a n t to 42 U.S.C. § 1973c and 28 U.S.C. § 2284(a), plaintiffs moved for and received a three-judge court to serve in the hearing and determination of this action [dkt. # 26]. The c o u rt held a brief status conference shortly after this action commenced where the parties in d ic a te d that there did not appear to be any material facts in dispute. In addition, and at the co u rt's suggestion, the parties agreed to dispense with a hearing on the request for a p re lim in a ry injunction and proceed directly to a hearing on the merits. The parties stipulated to the facts they viewed as material and offered oral argument at a hearing held on November 1 8 , 2009. The stipulated facts and the argument to the court at the November 18 hearing p ro v e d insufficient to resolve the issue before the court, necessitating the court's request of 3 a d d itio n a l targeted discovery [dkt. # 47], which it received on February 16, 2010 [dkt. # 50, d k t. # 51]. II. D is c u ss io n S e c tio n 5 of the Voting Rights Act of 1965 requires covered jurisdictions, including S o u th Carolina, to submit for the approval of the federal government "any voting q u a lifi c a tio n or prerequisite to voting, or standard, practice, or procedure with respect to v o t i n g different from that in force or effect on November 1, 1964." 42 U.S.C. § 1973c(a) (20 0 6 ). The required approval, or preclearance, may be obtained through filing a declaratory ju d g m e n t action initiated in the United States District Court for the District of Columbia or b y way of a submission to the United States Attorney General. Id. If the Attorney General a p p ro v e s the change, or fails to register an objection to the change within sixty days, the c h a n g e is precleared. Id. In order to resolve "whether an election practice constitutes a `change' as that term is defined in [United States Supreme Court] § 5 precedents, [a district court must] compare th e practice with the covered jurisdiction's `baseline.'" Riley v. Kennedy, __U.S.__, 128 S. C t. 1970, 1982 (2008). The "baseline" is "the most recent practice that was both precleared a n d `in force or effect'--or, absent any changes since the jurisdiction's coverage date, the p ra c tic e that was `in force or effect' on that date." Id. The procedure "in force or effect" on a particular date "must be taken to mean the procedure that would have been followed if the e le c tio n had been held on that date." Perkins v. Matthews, 400 U.S. 379, 394 (1971). 4 P la in tif f s assert that the Election Commission's April 16, 2008 vote to implement the S u b s e q u e n t Policy effects a change for the purposes of Section 5 and requires preclearance. A s an initial matter, the court finds that requiring multiple Statements of Intent where a s in g le filing sufficed before implicates Section 5 concerns. See, e.g., Allen v. State Bd. of E le c tio n s , 393 U.S. 544, 568 (indicating that even small changes, such as a change from p a p e r ballots to voting machines, require preclearance); Perkins v. Matthews, 400 U.S. 379, 3 8 7 (1971) (requiring preclearance for changes in polling locations). However, a d e ter m in a tio n that a shift in policy occurred does not end the inquiry. In order to effect a c h a n g e for the purposes of Section 5, the implementation of the Subsequent Policy must re s u lt in an election practice that differs from the baseline. Section 7-11-15 was precleared by the United States Attorney General on May 24, 1 9 8 8 . The Election Commission, at its first opportunity to enforce the section in 1998, re q u ire d Dr. Peter J. Ashy to file only a single Statement of Intent, allowing subsequent S ta te m e n ts of Intent to relate back to the initial, timely, filing. [dkt. # 50, 9.] While no clear s ta te m e n t of Election Commission policy relating to Statements of Intent issued between the d a te of preclearance and 1998, Perkins requires this court to determine the "procedure that w o u ld have been followed if the election had been held" on the baseline date. 400 U.S. 379, 3 9 4 . The court finds that on May 24, 1988, the day the Attorney General precleared S.C. C o d e Ann. § 7-11-15, the Election Commission would have enforced the section as it did w h e n it first had the opportunity in 1998, and allowed the relation back of multiple 5 S ta te m e n ts of Intent where a candidate files at least one Statement of Intent during the filing p e rio d . Accordingly, the relevant baseline for comparison purposes is May 24, 1988, the day th e then-recently-enacted S.C. Code Ann. § 7-11-15 received preclearance. The court finds th a t the Election Commission's April 16, 2008 vote to create and implement the Subsequent P o lic y effected a change for the purposes of Section 5, a change that did not receive p r e c l e a ra n c e from the Attorney General, nor from the United States District Court for the D is tric t of Columbia. III. C o n c lu s io n A s "[n]o new voting practice is enforceable unless the covered jurisdiction has s u c c ee d e d in obtaining preclearance," the defendants may not enforce the Subsequent Policy u n til they have sought and obtained preclearance of this change. Lopez v. Monterey County, 5 1 9 U.S. 9, 20 (1996). Accordingly, the defendants are hereby enjoined from requiring s u b m is s io n of multiple Statements of Intent where a candidate timely files a single Statement o f Intent and seeks to run as a candidate on multiple party tickets. 6 IT IS SO ORDERED. F O R THE COURT M arc h 1, 2010 C o lu m b ia , South Carolina J o s e p h F. Anderson, Jr. U n ite d States District Judge 7

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