Was South Carolina's new probate-judge qualification enforceable without federal voting-rights preclearance?

Plain-English summary

A House committee lawyer asked whether a South Carolina amendment setting education or experience qualifications for probate judges was valid after it had not received federal voting-rights preclearance. In a short May 2002 letter, an Assistant Attorney General said the 1989 amendment required preclearance under Section 5 of the Voting Rights Act of 1965. He quoted the U.S. Supreme Court's rule that failing to obtain preclearance made a change unenforceable and said that ruling appeared applicable to the probate-judge amendment.

The letter described the amendment as requiring either a four-year bachelor's degree from an accredited postsecondary institution or, without a degree, four years of work in a South Carolina probate judge's office. It did not describe a later preclearance decision, a court ruling on the amendment itself or qualifications under any subsequent law.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Probate-judge candidates

The letter treated the 1989 qualification amendment as a change requiring federal preclearance. On the facts presented, the AG said the Supreme Court's unenforceability rule appeared applicable. He did not decide whether any later approval changed that status.

Election officials and legislators

The opinion cited Clark v. Roemer for the effect of failing to obtain preclearance. It did not purport to strike the statute itself or supply an alternative qualification rule.

Common questions

What new qualification did the 1989 amendment add?
A: As quoted in the opinion, a candidate needed a four-year bachelor's degree or, without a degree, four years' experience as an employee in a South Carolina probate judge's office.

Did the AG say the amendment had been precleared?
A: No. The request said it had not, and the letter analyzed that premise.

What was the AG's conclusion about enforceability?
A: He quoted the Supreme Court's rule that a change without required preclearance is unenforceable and said it appeared applicable to this amendment.

Background and statutory framework

The General Assembly amended Section 14-23-1040 effective January 1, 1989. The letter said the change required Department of Justice preclearance under Section 5 of the Voting Rights Act of 1965. It cited Clark v. Roemer, 500 U.S. 646 (1991), for the unenforceability rule and applied that ruling cautiously to the amendment presented. The letter's source is a one-page PDF bearing an Assistant Attorney General signature block.

Citations and references

• Section 14-23-1040: probate-judge qualifications amended in 1989.
• Section 5 of the Voting Rights Act of 1965: federal preclearance rule cited in the letter.
• Clark v. Roemer, 500 U.S. 646 (1991): Supreme Court decision quoted on unenforceability without preclearance.

Official title

Validity of the probate-judge qualification amendment without federal preclearance.

Requester

Helen Ann S. Thrower, Staff Counsel, Labor, Commerce and Industry Committee, South Carolina House of Representatives

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-2-2002-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02may2thrower.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M . CONDON
ATIORNEY GENERAL

May 2, 2002

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Helen Ann S. Thrower
Staff Counsel
Labor, Commerce and Industry Committee
South Carolina House of Representatives
P.O. Box 11867
Columbia, South Carolina 29211

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Re: S.C. Code Ann. §14-23-1040
Dear Ms. Thrower:
In a letter to this Office, you have requested "a formal opinion ... interpreting §14-231040 of the South Carolina Code." By way of background you indicate that "[t]he statute should have received pre-clearance from the Justice Department prior to enactment, but did not. In light of this, you ask for our "interpretation of the validity of this statute."

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Effective January I, 1989, the General Assembly amended Section 14-23-1040 to provide that, to be eligible to hold the office of probate judge, a person must have "a four-year bachelor's degree from an accredited post-secondary institution or if he has received no degree he must have four years' experience as an employee in a probate judge's office in this State." Such an amendment required that pre-clearance be obtained from the United States Department of Justice pursuant to Section 5 of the Voting Rights Act of 1965. The United States Supreme Court has held that "[f]ailure to obtain ... preclearance renders the change unenforceable." Clark v. Roemer, 500 U.S. 646 (1991 ). This holding by the Supreme Court appears to be applicable to the 1989 amendments to Section 14-23-1040.

Assistant Attorney General

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POST OFFICE Box 11549

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COLUMBIA, S.C. 29211-1549

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TELEPHONE: 803-734-3970

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