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."
As Professor Daniel Tokaji, an election-law specialist at Ohio State University, rather dryly says, "If I were a lawyer I wouldn't pick Arizona as the plaintiff, given that state's recent history."
The other peculiar thing about Horne's challenge to § 5 is how little injury Arizona seems to be suffering from the application of § 5. Compliance with § 5, he says in the state's complaint, is "costly and burdensome." He doesn't discuss cost (estimates submitted to the Supreme Court a few years ago in a VRA-related case placed the cost of "pre-clearance" requests for the appellant, a utility district at about $234 a year).
As for burdens, Horne cites two examples. On one occasion, the state asked the Department of Justice to use less than the full 60-day period allowed by law to consider a measure for a special election. Those arrogant bureaucrats actually complied, using only 49 days; but that was still too many, Horne says. On another occasion, DOJ used the full 60 day period, even though the State had asked them to hurry the &*$% up.
In fact, the DOJ proves a very unsatisfactory villain, in Horne's account: "Although the U.S. Attorney General rarely objects to proposed changes in voting practices in Arizona and its political subdivisions, the process imposes unnecessary and significant costs on government units of this State not only in terms of money and time, but also in terms of the federal government's intrusion on the sovereignty of state and local governments."
This is the nub of the complaints against § 5: it hurts a state's feelings to have to seek approval from Washington for changes in its election system. The language of "sovereignty," however, is deceptive. There's no provision in the Constitution that makes states (much less counties) "sovereign" over voting procedures. From 1787 on, Article I § 4 cl. 1 has placed Congress in ultimate charge of "the times, places and manners of holding elections for Senators and Representatives." And after the Civil War, the people added the Fifteenth Amendment--the basis of the VRA--which provides that "Congress shall have the power" to enforce a ban on any restriction of voting rights, for any state or federal office, by race. Since then subsequent amendments have outlawed discrimination by race, by failure to pay a poll tax, and against those between 18 and 21. The federal government is all over "the right to vote," which is referenced in the text no fewer than five times.