The long road to voters' rights
BY BRETT BURSEY
South Carolina fired the latest volley in the war for state's rights on Jan. 24, 1995, the date Gov. David Beasley sued the federal government to block implementation of the national Voter's Rights Act.
Like some obligatory old South rite of passage, Beasley and Atty. Gen. Charles Condon dusted off the arguments for this state's opposition to every federal voting mandate since the Civil War.
While the governor's arguments against the Voter's Rights Act are the same as the state's arguments against other voting acts and legal rulings during times of strict racial segregation, Gov. Beasley has offered assurances that the state's position this time isn't racist.
But since state demographics , including voter registration, are severely tilted against black citizens, it is unclear what criterion the governor uses to make this distinction.
The national Voter's Rights Act, known as Motor Voter because it requires states to allow people to register to vote when they get a driver's license, was signed into law in 1993.
The act was designed to boost participation in elections by registering voters when they pass through state highway departments and social service agencies.
The South Carolina congressional delegation split on party lines. Democrats supported it; Republicans opposed it.
South Carolina passed the necessary legislation to implement Motor Voter in 1994, and the State Election Commission said it was ready to comply with the necessary changes without additional funding.
Last January, on one of his last days in office, Gov. Carroll Campbell vetoed the state motor voter legislation, claiming it was too costly to implement.
Beasley called the Voter's Rights Act "an unfunded and unconstitutional federal mandate" which "impinges on the State's sovereign rights." He warned that South Carolina would "take a hard stand" against it.
Condon announced the suit with bravado. "We will not wait and see whether General Reno decides to sue us. We are suing her."
Condon quoted South Carolinian William Travis at the Alamo: "We have responded to their call for our surrender with a cannon shot."
Condon failed to mention that the war between Texas and Mexico was, in part, fought over Texas' refusal to go along with Mexico's ban on slavery.
The act was a result of a Congressional study that tracked the percentage of Americans who vote. The United States ranks last among industrialized democracies in voter participation.
One explanation for the statistics is that, unlike the United States, other countries insure their citizens' right to vote without requiring them to go through a voter registration process.
An international comparison of the voting statistics between eligible voters and registered voters shows that the United States is the only country where "eligible voters" are not allowed to vote unless they are "registered." In every other country, voting is an inherent right of citizenship.
Only slightly more than half of eligible voters in the United States voted in the last presidential election. South Carolina ranked 49th up from 50th two years ago among states for citizen participation in the last presidential election, with only 45 percent of eligible citizens voting.
Beasley was elected governor with only 17 percent of the state's voters. While 46 percent of South Carolinians are not registered, 66 percent of the voting age population of our state chose not to vote in the 1994 gubernatorial election.
With such obvious flaws in the fabric of the state's and nation's democratic process, why would anybody oppose a congressional mandate to open the voting process?
Rusty DePass, Republican chairman of the State Election Commission, admitted in May 1993 why his party opposes the Voter's Rights Act, which would allow for voter registration at social service offices.
"We all know who's on welfare," DePass said. "We all know who those people vote for."
While it is Republicans who are fighting today's Voter's Rights Act, for most of this century opposition to widening access to the polls came from Southern Democrats. Apparently, whoever is in power got there because they had enough votes to win, and naturally view any change in the status quo as a threat.
Washington Sec. of State Ralph Munro testified before the House Subcommittee on Elections, which considered the Motor Voter Act in 1993. Washington has had a Motor Voter law since 1992.
"I am here today as a Republican Secretary of State to tell you that Motor Voter works," Munro said. "It is bringing citizens back to the voting booth in dramatic numbers.
"On average, Motor Voter registered 875 people every working day of 1992. In just nine months of operation, Motor Voter accounted for 58 percent of the total net increase in registrations from 1988 to 1992."
Recent elections in states with Motor Vote discount the notion that easing registration procedures means an increase in Democrat voters. Republicans have experienced increased electoral support in Georgia in the year that Motor Voter has been in place.
The states that don't have advance registration requirements have the highest percentage of voters. Minnesota, Wisconsin and Maine have allowed same-day registration for nearly 30 years. There, a citizen needs only show up at the polling place on election day and show identification to register and vote.
Maine had 72 percent of its citizens cast ballots in 1992; Minnesota 71.6 percent; and Wisconsin 69 percent. South Carolina had 45 percent.
Voter registration is a uniquely American tradition started after the Civil War. Since then, voter registration procedures have been used to restrict citizens access to voting.
When the 15th Amendment granted blacks the right to vote in 1870, federal troops had occupied South Carolina for five years.
The "reconstruction" forces opened the political process to blacks, 60 percent of the population. As a result, blacks were elected to a majority of the seats in the House of Representatives in 1868 and 1972.
When federal troops pulled out of South Carolina in 1876, black voting access began to shrink. Due to stringent and racist voter registration requirements, by 1902 the state legislature was once again all-white.
In 1895, under the leadership of Gov. "Pitchfork" Ben Tillman, a new state constitution was crafted to disenfranchise the majority black population.
New voter registration laws required a voter to pay taxes on property and pass a literacy test, administered at the discretion of the local registrar and used to prevent blacks from registering. While the requirements were designed to disenfranchise black citizens, poor whites also were shut out.
In 1880, nearly 84 percent of eligible voters of South Carolina cast ballots. By 1900, the number had fallen to 18 percent.
Not content with restricting black access to the polls, Tillman forces created white-only Democratic primaries. Since Democrats were the only party, their primaries actually elected the winner. Since the 15th Amendment only regulated federal elections, the segregationist rationale was that party primaries need not include blacks.
When the Supreme Court ruled against white-only primaries in the mid-1940s, South Carolina politicians unleashed the same state's rights arguments that Beasley and Condon now espouse.
Sen. Burnet Maybank of Charleston said, "Regardless of the Supreme Court decision and any laws that may be passed by Congress, we in South Carolina are going to do whatever we can to protect our white primaries."
Rep. John D. Long from Union said, "As for the Negro voting in my primary, we'll fight him at the precinct meeting, we'll fight him at the county convention, we'll fight him at the enrollment books and, by God, we'll fight him at the polls if I have to bite the dust as did my ancestors!"
When white-only primaries were forced open, Democrats responded by requiring a loyalty oath to white supremacy and racial segregation as a condition to voting in the Democratic primary. When that practice was struck down, Gov. Olin Johnson called a special session of the legislature to wipe all laws regulating parties off the books, and declared the Democratic Party a private club.
"I was working for Attorney General Dan McCloud when the Voting Rights Act passed in 1967," recalls Jim Ellisor, director of the State Election Commission from 1965 until he retired in 1992. "We still had literacy tests and a long list of things that could prohibit voting when McCloud sued to block the Act."
Noting the similarities in McCloud's arguments against the Voting Rights Act in 1967 and Condon's current arguments against the Voter's Rights Act, Ellisor said, "Unfortunately, we're back in 1860 with our mentality. Our state seems destined to fight the same losing battle again and again."
Until 1981, there was a list of crimes that prohibited a citizen from registering to vote. They included: adultery, bigamy, wife beating, sodomy, fornication as well as murder, rape and robbery.
When South Carolina's case to block Motor Voter made it to federal court last November, the judge hearing the case was Matthew Perry, South Carolina's only black federal judge. Perry cut his legal teeth fighting voting rights battles in the early 1960s as a lawyer for the NAACP.
In a blunt ruling on Dec. 12, Perry ordered the state to implement the Voter's Rights Act. Perry picked apart the State's argument that implementing the act was a costly and unfunded mandate, concluding that the state's evidence "served to buttress Congressional findings and purposes underlying the National Voting Rights Act rather than supporting South Carolina's contentions."
Perry wrote, "It is apparent that each agency assumed that it would register (and thus bear the cost of registering) every unregistered voter in South Carolina, seemingly not once but on a recurring basis."
Judge Perry noted that all of the state's financial projections for Motor Voter implementation were grossly exaggerated and depended on what Jim Hendrix, director of the State Election Commission, called the "worst possible scenario" of total registration.
"Surely a curious term to use in referring to increased voter participation," Perry remarked in a footnote.
Perry took the director of the Department of Revenue, Burnet Maybank, to task for his cost estimate of $1 million annually for the Department of Motor Vehicles to register people to vote.
"This estimate," Perry said, "was based on DMV alone registering 700,000 people more than the entire unregistered population of the State of South Carolina and taking twice as much time as the DSS personnel to register each of those voters."
Under cross examination, Maybank admitted that his agency's cost estimates were based on "a good deal of discretion" and "can be" political.
Perry also skewered DSS economist Gwen Kuhns for admitting that her estimation of a $350,000 annual cost to register voters was based on the assumption that all 600,000 people the agency sees annually would require registration every year.
Perry pointed to the state's own exhibits to show that the federal government provides half of DSS' administrative costs and that the federal government's half-billion dollar contribution to the DSS budget in 1994 was four times greater than South Carolina's.
Last month, Condon appealed to the U.S. Supreme CourtJudge Perry's order to implement the Motor Voter Act . On Jan. 22, the Supreme Court rejected a similar appeal by the state of California's Republican governor, leading South Carolina to admit defeat.
Following the California ruling, attorneys for the Justice Department and citizens groups met with state representatives and agreed to a plan to implement the Voter's Rights Act in South Carolina.
Armand Durfner, a Charleston civil rights attorney for 25 years, worked with the ACLU to represent two grassroots organizations, South Carolina United Action and the Natural Guard in the case.
"Our governor and attorney general are supposed to be public servants," Durfner said. "You would think they would want people voting, but they have chosen to go on with the long tradition of preventing people from voting."
The governor's opposition to Motor Voter comes from "both partisanship and racism," said Columbia NAACP attorney John Harper.
"Parties have historically been built in this state on racism." he said. "The dynamics of South Carolina politics haven't changed; just the labels."
Judge Perry gave the state 90 days, beginning Jan. 29, to have the mechanisms for the Voter's Rights Act in place. By April 28, South Carolinians will be asked if they want to register to vote when they get a drivers license or receive social services.
While there is no doubt that Motor Voter will increase the number of registered voters, there is no guarantee that voting will increase proportionately.
Since 1975, Michigan has been registering voters when they get their driver's licenses, yet only 61 percent of voters turned out in 1992. That rated Michigan sixth in the nation, but still well below the average for other democracies.
Frances Piven and Richard Cloward are social scientists and the leading authorities on voter registration reform since shortly after Ronald Reagan was elected president in 1984.
They started the Human Service Employees Voter Registration and Education (SERVE) organization to register poor people through nonprofit human service organizations.
Cloward and Piven saw in mass registration of the poor, "the capacity to set forces in motion leading to a class-based political realignment."
They quickly discovered that the poor could not be registered in sufficient numbers to make a difference without totally transforming the country's archaic voter registration apparatus.
Human SERVE set out on a decade-long effort to establish a federal mandate for state human service organizations to register voters.
The broad coalition they assembled was responsible for getting the Voters' Rights Act passed through Congress.
The forces that Piven and Cloward hoped to set in motion by massive voter registration have been unleashed. They are, however, only an initial step leading to the political realignment they hoped for.
Piven and Cloward predicted South Carolina's current situation a decade ago when they warned, "If the elites clamp down on the exercise of political rights in reaction to a registration movement, they will reveal that the interests of business and industry depend on excluding the poor and minorities from the political system."
The notion of a class-based political realignment has some roots in reality with the passage of the Voter's Rights Act. There are enough unregistered South Carolinians who make less than $20,000 a year to win any election they voted in.
The victory isn't in getting the right to vote; it is in winning a vote that reflects true interests.
The South Carolina Progressive Network is a statewide coalition working to reach the majority of South Carolinians who don't vote. To help improve democracy in South Carolina, call the Network at 254-9398 or 1-800-849-1803.
"Unfortunately, we're back in 1860 with our mentality. Our state seems destined to fight the same losing battle again and again."
Jim Ellisor, Election Commission director, 1965-1992
"Our governor and attorney general are supposed to be public servants. You would think they would want people voting, but they have chosen to go on with the long tradition of preventing people from voting."
Armand Durfner, attorney