Can someone become a South Carolina probate judge without a college degree or four years' experience in a probate office?

Official title

Opinion addressing whether a specific statutory requirement to hold office as a probate judge in S.C. Code Section 14-23-1040 is enforceable.

Requester

Requested by The Honorable Brenda S. Griffith, Probate Judge, Saluda County.

Plain-English summary

A Saluda County probate judge asked whether one of the eligibility requirements in S.C. Code § 14-23-1040 can actually be enforced. The statute says a probate judge must, among other things, have a four-year bachelor's degree from an accredited institution, or, with no degree, four years' experience working in a probate judge's office. An editor's note in the code warns that this degree-or-experience qualification "has not been precleared by the U.S. Department of Justice and cannot be put into effect."

The Attorney General agreed the requirement is unenforceable. Here is the history it laid out. South Carolina was a covered jurisdiction under Section 5 of the Voting Rights Act of 1965, which required federal preclearance of changes affecting elections, including judicial elections. When the state submitted the 1988 amendment (Act No. 678) adding the new qualifications, the DOJ objected in an October 15, 1990 letter, finding the state had not shown the change was free of discriminatory effect on Black constituents. Under the Voting Rights Act, that objection made the qualification "legally unenforceable," and South Carolina never sought reconsideration or a declaratory judgment to clear it.

The judge's real question was whether the Supreme Court's decision in Shelby County, Alabama v. Holder, 570 U.S. 529 (2013), which struck down the VRA's coverage formula in Section 4(b), revived the dormant qualification. The AG said no. Shelby County addressed only the 2006 reauthorization's coverage formula, did not strike down Section 5 itself, and did not say previously objected-to legislation could now be enforced. The office found no Fourth Circuit decision authorizing enforcement of pre-2006 objected-to legislation, and noted the South Carolina case is distinguishable from Eleventh Circuit cases like Voketz because Act No. 678 was not merely unsubmitted, it was submitted and affirmatively objected to.

The bottom line: until the General Assembly re-enacts the qualification or a court rules otherwise, a qualified elector in the county who is at least 21 years old may serve as probate judge without holding a four-year degree or four years' probate-office experience.

What this means for you

People considering running for probate judge: Based on this opinion, the degree-or-experience requirement in § 14-23-1040 is not currently enforceable. The qualifications that do apply are the ones the AG identified as still in force: U.S. and South Carolina citizenship, age 21 at election, and being a qualified elector of the county.

County election officials and clerks: The opinion concludes a candidate cannot be disqualified solely for lacking the bachelor's degree or the four years of probate-office experience, because that 1988 addition remains blocked by the unwithdrawn 1990 DOJ objection.

The General Assembly: The AG noted that after Shelby County the Legislature "may enact legislation adding qualifications for probate judges," including the four-years'-experience provision. The point is that reviving the requirement would take new legislative action, not just reliance on the old amendment.

Common questions

Can a person without four years' probate experience run for probate judge in South Carolina?
Yes, according to this opinion. The experience-or-degree requirement was never precleared and remains unenforceable, so its absence does not disqualify a candidate.

Why is a requirement that is printed in the statute unenforceable?
Because South Carolina was a Voting Rights Act covered jurisdiction and the 1988 amendment adding it was objected to by the DOJ in 1990. A DOJ objection under Section 5 made the change legally unenforceable, and the state never got the objection withdrawn or obtained a court judgment clearing it.

Didn't the Supreme Court end VRA preclearance in Shelby County?
The AG read Shelby County narrowly. It struck down the Section 4(b) coverage formula but expressly did not strike Section 5, and it did not address whether legislation already objected to before 2006 could now be enforced. So the office concluded the old objection still blocks the qualification.

What qualifications still apply to probate judges then?
The opinion treats the remaining statutory qualifications as effective: being a U.S. and South Carolina citizen, having attained age 21 upon election, and being a qualified elector of the county where the person would serve.

Background and statutory framework

S.C. Code § 14-23-1040 lists who is eligible to hold the office of probate judge. The 1988 amendment (Act No. 678) added the requirement of a four-year bachelor's degree or, absent a degree, four years' experience as an employee in a probate judge's office. The code carries an editor's note stating that this provision "has not been precleared by the U.S. Department of Justice and cannot be put into effect," citing Section 5 of the Voting Rights Act of 1965.

Under Section 5, covered jurisdictions had to obtain preclearance, from the DOJ or the District Court for the District of Columbia, before changing voting procedures, and the Supreme Court applied that to judicial elections in Clark v. Roemer, 500 U.S. 646 (1991). The DOJ's October 15, 1990 objection letter relied on the burden-shifting framework from cases such as Doughtery County Board of Education v. White, 439 U.S. 32 (1978), and Georgia v. United States, 411 U.S. 526 (1973), and concluded the state had not carried its burden. Federal regulations cited in the letter, 28 C.F.R. 51.52 and 28 C.F.R. 51.10, govern the administration and effect of Section 5 objections.

Shelby County, Alabama v. Holder, 570 U.S. 529 (2013), held the Section 4(b) coverage formula unconstitutional but left Section 5 intact and invited Congress to draft a new formula. The AG distinguished the Eleventh Circuit's decision in Voketz v. Decatur, Ala., 904 F.3d 902 (11th Cir. 2018), and the district court's decision in Thompson v. Att'y Gen, of Mississippi, 555 F. Supp. 3d 297 (S.D. Miss. 2021), on the ground that those cases involved changes never objected to, whereas Act No. 678 was both submitted and objected to.

Citations

• S.C. Code § 14-23-1040 (eligibility to hold office of probate judge)
• Section 5 of the Voting Rights Act of 1965 (preclearance of voting changes in covered jurisdictions)
• 28 C.F.R. 51.52, 28 C.F.R. 51.10 (administration and effect of Section 5 objections)
• Shelby County, Alabama v. Holder, 570 U.S. 529 (2013)
• Clark v. Roemer, 500 U.S. 646 (1991)
• Doughtery County Board of Education v. White, 439 U.S. 32 (1978)
• Georgia v. United States, 411 U.S. 526 (1973)
• Voketz v. Decatur, Ala., 904 F.3d 902 (11th Cir. 2018)
• Thompson v. Att'y Gen, of Mississippi, 555 F. Supp. 3d 297 (S.D. Miss. 2021)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-a-specific-statutory-requirement-to-hold-office-as-a-probate-judge-in-s-c-code-section-14-23-1040-is-enforceable/
• Original PDF: https://www.scag.gov/media/4h3h201n/03556616.pdf

Original opinion text

HAdfeiAJr
Alan Wilson
Attorney General

April 15, 2024

The Honorable Brenda S. Griffith
Probate Judge

Probate Court of Saluda County

1 00 East Church Street, Suite 4
Saluda, SC 29138

Dear Judge Griffith:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter
questions whether a particular statutory requirement to hold office as a probate judge in S.C. Code
§ 14-23-1040 is enforceable. The statute states:
No person is eligible to hold the office ofjudge of probate who is not at the time of
his election a citizen of the United States and of this State, has not attained the age

of twenty-one years upon his election, has not become a qualified elector of the
county in which he is to be a judge, and has not received 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.
S.C. Code §

14-23-1040 (2017) (emphasis added).

As you point out, the Editor’s note

accompanying this statute states that the emphasized portion has not been precleared by the

Department of Justice. The note reads in full:
NOTE:

The provision of Section 14-23-1040 requiring a four-year college degree

or four years’ experience as an employee in a probate judge’s office in the State in

order to serve as a probate judge has not been precleared by the U.S. Department

of Justice and cannot be put into effect. See Section 5 of the Voting Rights Act of
1965, as amended.

(emphasis in original). In light of the above, you ask, “Can a person without the four (4) years’
experience as an employee in Probate Court run for the position?”

K'.-haiERi C. Dennis Building

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The Honorable Brenda S. Griffith
Page 2

April 15,2024

Law/Analysis

It is this Office’s opinion that the provisions of the 1988 amendment to S.C. Code § 14-231040

which added qualifications

for serving as a probate judge remain unenforceable,

notwithstanding the United States Supreme Court’s ruling in Shelby County, Alabama v. Holder,

570 U.S. 529, 133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013). The Voting Rights Act of 1965 required
covered jurisdictions to obtain preclearance, from either the Attorney General or the District Court
for the District of Columbia, for changes in voting procedures including for judicial elections. See
Clark v. Roemer, 500 U.S. 646 (1991) (Preclearance requirement in § 5 is applicable to judges).

This Office submitted Act No. 678 of 1988 to the United States Department of Justice, Civil Rights
Division (DOJ) to obtain preclearance and received a response dated October 15, 1990. The DOJ
objected to the Act stating:

While

we

recognize

the

state’s

interest

in

establishing

reasonable

qualifications for those who are to hold office, especially those of the nature here,
it cannot do so in a manner which weighs disproportionately upon its black

constituents, absent a convincing reason. See Doughtery County Board of
Education v. White, 439 U.S. 32, 42 n.12 (1978). Under Section 5 of the Voting

Rights Act, the submitting authority has the burden of showing that a submitted
change has no discriminatory purpose or effect. See Georgia v. United States, 41 1

U.S. 526 (1973); see also the Procedures for the Administration of Section 5 (28
C.F.R. 51.52). We are not yet persuaded that the state’s legitimate interest cannot
be met through other means which do not produce the “undesirable racial effect[]”
of the qualifications proposed. See Wards Cove Packing Co. v. Atonio, 109 S. Ct.

2115 (1989). In light of the considerations considered above, I cannot conclude, as
I must under the Voting Rights Act, that the state’s burden has been sustained in
this instance. Therefore, on behalf of the Attorney General, I must object to the
implementation of the changed qualifications to serve as probate judge as defined
in Act No. 678.
Of course, as provided by Section 5 of the Voting Rights Act, you have the
right to seek a declaratory judgment from the United States District Court for the
District of Columbia that this change has neither the purpose nor will have the effect
of denying or abridging the right to vote on account of race or color. In addition,

Section 5 1 .45 of the guidelines permits you to request that the Attorney General
reconsider the objection. However, until this objection is withdrawn or a judgment

from the District of Columbia Court is obtained, the effect of the objection by the
Attorney General is to make the proposed qualification legally unenforceable. 28
C.F.R. 51.10.

The Honorable Brenda S. Griffith
Page 3

April 15, 2024

(emphasis added). An April 3, 1998, letter authored by this Office confirmed that no request for
reconsideration had been submitted to the DOJ. In 2002, we opined, “The United States Supreme
Court has held that ‘[fjailure 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.’’ Op. S.C. Att’y Gen., 2002 WL 1340426 (May 2, 2002).
Finally, a November 18, 2005, letter stated “there has been no change by the Justice Department

regarding [their objection to] the qualifications for Probate Judge pursuant to S.C. Code § 14-231040.” In light of this history, this Office’s opinion would continue to be that the 1989 amendment
to S.C. Code § 14-23-1040 is unenforceable absent a change in law. See Op. S.C. Att’y Gen., 2017
WL 5203263 (October 31, 2017) (“This Office recognizes a long-standing rule that it will not

overrule a prior opinion unless it is clearly erroneous or there has been a change in applicable
law.”).

There has, in fact, been a significant change to the preclearance regime of the Voting Rights

Act since the United States Supreme Court’s decision in Shelby County, Alabama v. Holder, 570
U.S. 529 (2013). In Shelby County the Court held that the coverage formula contained in § 4 of

the 2006 reauthorization of the Voting Rights Act was unconstitutional because it relied on decades
old data to determine which jurisdictions were covered jurisdictions subject to preclearance.
There is no valid reason to insulate the coverage formula from review merely
because it was previously enacted 40 years ago. If Congress had started from
scratch in 2006, it plainly could not have enacted the present coverage formula. It
would have been irrational for Congress to distinguish between States in such a
fundamental way based on 40-year-old data, when today’s statistics tell an entirely

different story. And it would have been irrational to base coverage on the use of
voting tests 40 years ago, when such tests have been illegal since that time. But that

is exactly what Congress has done.
Striking down an Act of Congress “is the gravest and most delicate duty that this
Court is called on to perform.” Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 1 05,
72 L.Ed. 206 (1927) (Holmes, J., concurring). We do not do so lightly. That is why,
in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights
Act when asked to do so, and instead resolved the case then before us on statutory
grounds. But in issuing that decision, we expressed our broader concerns about the
constitutionality of the Act. Congress could have updated the coverage formula at

that time, but did not do so. Its failure to act leaves us today with no choice but to
declare § 4(b) unconstitutional. The formula in that section can no longer be used
as a basis for subjecting jurisdictions to preclearance.
Id. at 556-57 (emphasis added).

While the Court held the coverage formula in the 2006

reauthorization was unconstitutional, Chief Justice Robert’s opinion made clear that the

The Honorable Brenda S. Griffith
Page 4
April 15,2024

preclearance provisions in § 5 were not found to be unconstitutional. Id.1

However, Justice

Ginsburg noted in dissent that, until Congress passes a new coverage formula, the Court’s holding
rendered the preclearance provisions in § 5 unenforceable. Id. at 587 (Ginsburg, J., dissenting)

(“The Court stops any application of § 5 by holding that § 4(b)’ s coverage formula is
unconstitutional.”).

The Shelby County decision did not directly address whether previously enacted legislation
that was objected to by the DOJ may now be enforced. The Court’s decision only applied to the

2006 reauthorization rather than earlier iterations of the Voting Rights Act. See Shelby Cnty, 570
U.S. at 553) (“And yet the coverage formula that Congress reauthorized in 2006 ignores these
developments, keeping the focus on decades-old data relevant to decades-old problems, rather than
current data reflecting current needs.”); see also Voketz v. Decatur, Ala., 904 F.3d 902, 908 (1 1th
Cir. 2018) (“Section 5's preclearance requirements no longer apply because, without § 4(b)’s
coverage formula, there are no covered jurisdictions for § 5 to apply to.”) (emphasis added). This
Office is unaware of any decision issued by the Fourth Circuit Court of Appeals authorizing

enforcement of legislation objected to by the DOJ before the 2006 reauthorization.2 In the absence

1 In fact, the opinion expressly stated Congress could draft a new coverage formula based on more current
data that may well be constitutional.

We issue no holding on § 5 itself, only on the coverage formula. Congress may draft
another formula based on current conditions. Such a formula is an initial prerequisite to a

determination that exceptional conditions still exist justifying such an “extraordinary
departure from the traditional course of relations between the States and the Federal
Government.” Presley, 502 U.S., at 500-501, 1 12 S.Ct. 820. Our country has changed, and

while any racial discrimination in voting is too much, Congress must ensure that the
legislation it passes to remedy that problem speaks to current conditions.
Id. (emphasis added).

2 The Mississippi Attorney General’s Office issued an opinion on this issue on October 28, 2013.

It

concluded that the Shelby County decision did not permit the enforcement of legislation objected to by the
DOJ.

We are of the opinion that any objections to legislation by the U.S. Department of Justice
pursuant to the preclearance requirements of Section 5 of the Voting Rights Act prior to
the decision in Shelby County are valid and prevent such legislation from being
effectuated.

Had the Court held that the coverage formula was unconstitutional when Congress
reauthorized it in 2006, it would not have said it was declaring the coverage formula
unconstitutional today, the date of the decision. It is clear from the above quoted language

The Honorable Brenda S. Griffith
Page 5

April 15, 2024

of any controlling precedent to the contrary, it is this Office’s opinion that the provisions of the

1988 amendment to S.C. Code § 14-23-1040 which added qualifications for serving as a probate

judge remain unenforceable.3
Conclusion

As is discussed more fully above, it is this Office’s opinion that the provisions of the 1988

amendment to S.C. Code § 14-23-1040 which added qualifications for serving as a probate judge
remain unenforceable, notwithstanding the United States Supreme Court’s ruling in Shelby
County. Alabama v. Holder. 570 U.S. 529, 133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013). This Office
submitted Act No. 678 of 1988 to the United States Department of Justice, Civil Rights Division

(DOJ) to obtain preclearance and received a response dated October 15, 1990. The DOJ objected
to the Act stating, “While we recognize the state’s interest in establishing reasonable qualifications

for those who are to hold office, especially those of the nature here, it cannot do so in a manner
which weighs disproportionately upon its black constituents, absent a convincing reason.” This
Office is unaware of any decision issued by the Fourth Circuit Court of Appeals authorizing

enforcement of legislation objected to by the DOJ before the 2006 reauthorization of the Voting
Rights Act. Therefore, in the absence of any controlling precedent to the contrary, it is this Office’s
opinion that the provisions of the 1988 amendment to S.C. Code § 14-23-1040 which added

qualifications for serving as a probate judge remain unenforceable. Subsequent to Shelby County,
the General Assembly may enact legislation adding qualifications for probate judges, including a
provision requiring four years’ experience as an employee in a probate judge’s office. However,

until such legislation is enacted or a court rules to the contrary, a qualified elector in a county who
has attained twenty-one years of age may serve as probate judge for that county without having

that, while the Court questioned the constitutionality of the 2006 reauthorization, it avoided
declaring Section 4(b) unconstitutional until it made its decision in Shelby County on June

25, 2013. The language used by the Court is a clear indication that it did not view the
decision as being retroactive.

2013 WL 5975618, at *3-4 (Miss. A.G. Oct. 28, 2013) (emphasis in original).
3 This Office is aware of decisions issued by the Eleventh Circuit Court of Appeals and the Federal District

Courts therein that have held legislation related to elections and voting in covered jurisdictions which were
not submitted for preclearance may be enforceable after Shelby County. See Voketz v. Decatur,
Alabama. City of, 904 F.3d 902 (11th Cir. 2018) (finding § 5 of the Voting Rights Act did not prohibit
implementation of a plan to change to change a city’s form of government that was submitted to the DOJ
but was later withdrawn before a determination issued.); see also Thompson v. Atfy Gen, of Mississippi,
555 F. Supp. 3d 297, 305 (S.D. Miss. 2021) (finding §5 of the Voting Rights Act does not continue to render
“un-precleared voting changes” unenforceable.). The present case is distinguishable as Act No. 678 of
1988 was not only submitted to the DOJ for preclearance, but was, in fact, objected to under the Voting
Rights Act.

The Honorable Brenda S. Griffith
Page 6
April 15, 2024

met either qualification of having a four-year bachelor’s degree or four-years’ experience in a
probate court as those provisions remain unenforceable.

Sincerely,

//

Matthew Houck

Assistant Attorney General
REVIEWED AND APPROVED BY:

'Robert D. Cook
Solicitor General