Arizona's Case Against the Voting Rights Act

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As ballot restrictions multiply, the state is bringing a lawsuit against the right to vote

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In the past few years, the right to vote--basic to any real democratic self-government--has become controversial again.  Since the Republican sweep of state legislatures in 2010, seven states have enacted fashionable new "voter ID" laws.  No one even pretends these laws won't make it harder for older, poorer, less white (and, coincidentally, more Democratic) voters to cast a ballot.  (The Supreme Court regrettably gave the go-ahead to these laws in the 2007 case of Crawford v. Marion County Board of Elections.)

It is almost surreal that in this moment that Arizona, which is becoming to Latinos what Mississippi once was to African Americans, is now seeking a judicial decree that voting rights are no longer a matter for Congressional concern. 

Arizona's new Republican Attorney General, Tom Horne, filed a suit last month asking a federal court to declare that § 5 of the Voting Rights Act of 1965 is unconstitutional.  Arizona--in some ways the Mississippi of the 21st Century--is a weird plaintiff, and its claims are even weirder; but weirder claims have succeeded in the past. The Supreme Court signaled in 2009 that it was a bit weary of all this right-to-vote business.  If "state's-rights" advocates succeed in weakening the Act, and gutting Congress's enforcement power under the Fifteenth Amendment, it will be a matter of serious concern.

Few pieces of legislation in American history have been so successful as the Voting Rights Act, passed in 1965 at the height of the Civil Rights Movement.  It revolutionized Southern politics, opening the voting rolls to all, enabling the election of minority candidates and further creating an incentive for coalition politics that the old white South could never have produced.

The Act uses two major tools.  Section Two forbids any state from imposing a "voting qualification or prerequisite to voting, or standard, practice, or procedure" that will in effect "deny or abridge the right of any citizen of the United States to vote on account of race or color."  Obviously, Section Two outlaws white primaries and discriminatory literacy tests of the old-South kind; but it covers much more than the right to cast a ballot--it forbids states from changing election procedures, registration schedules, districts, or anything else if the effect will to block or dilute the voting power of minorities.  Section Two can be enforced by a lawsuit by the federal government or by private parties.

Section Two isn't at issue in the Arizona case; what the state is challenging is Section Five, the "pre-clearance" section.  Preclearance is designed to pick out those states and counties where discrimination has been most rampant and make lawsuits unnecessary. The original Act specified special procedures for states that, in 1964, had racially disparate procedures in effect, if those racist procedures had been successful in keeping voter registration or participation at less than 50 percent of the eligible voters in the 1964 elections. Those states were required to obtain "preclearance" from the U.S. Department of Justice--a procedure that was to take 60 days--of any changes in election laws. States that didn't want to seek preclearance could go to court seeking a judgment that those changes don't violate the act.  

The VRA as passed was a temporary measure, set to expire in 1970.  But as I said above, the Act was a thumping success. Congress has re-examined the question and re-authorized the Act repeatedly--in 1970, 1975, 1982, 1992, and 2006--tweaking the test for which jurisdictions require preclearance.  The most recent reauthorization, in 2006, passed a Republican-majority House by  390-33 and a Republican-led Senate by 98-0.  The considered, bipartisan judgment of our nation's political leadership is that blocking racial bars to voting is good policy.  

Under the amended VRA, Arizona is a "covered jurisdiction," required to obtain pre-clearance, because until 1975 it provided election materials only in English, despite a substantial Latino population.   The state has a long history of hostility to voting by Latinos and by Native Americans, and for much of the 20th Century it used discriminatory literacy tests--and informal harassment at the polls--to keep the their vote down. (One participant in such "voter challenges" was none other than the young William H. Rehnquist.)  

AG Horne, however, says that's all in the past.  "We are being severely penalized for something that happened in 1972 that was corrected in 1975. It's not only unconstitutional, I think you could describe it as crazy." Remarkably, he adds, "And nobody's out there trying to stop people with Hispanic surnames from voting."

For anyone who has visited Arizona recently (as I have) or, for that matter, reads newspapers, the idea that voting rights in Arizona are uncontroversial is a bit peculiar. As for Horne's claim that "nobody" is trying to stop Latinos from voting, Arizona Rep. Steve Farley (D-Tucson) offers a slight amendment: "Except the people with black shirts and video cameras that have been intimidating people at predominately Latino polling places." 

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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