Arizona's Case Against the Voting Rights Act

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."

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.

Congress, as we've seen above, seems to have exercised its textual power successfully, in a model of bipartisanship, to prevent racism at the polls.  The nub of Arizona's complaint is that Congress shouldn't get so wrought up about ancient history. "There is no reason to require Arizona to be subject to preclearance requirements when it has not engaged in discriminatory practices against Hispanic voters for more than 35 years."  For this reason, the state argues, § 5 "should be stricken as unconstitutional under the Tenth, Fourteenth, and Fifteenth Amendments."

There are perfectly good policy arguments why § 5 shouldn't have been reauthorized.  The Supreme Court in 2009 ducked a constitutional challenge to § 5 but signaled that the state-oriented conservative majority was uncomfortable with the "federalism costs" of the provision.  It's not just the Court: Samuel Issacharoff, a first-rate scholar at NYU Law School, was among those suggesting it should be allowed to lapse in 2006.  But those policy arguments were resolved as they should have been--through the legislative process--and Congress reaffirmed the law.

Lurking in the background to this challenge is the issue of redistricting of Congressional and legislating districts.  Drawing district lines has long been a key battleground between minority-right advocates and state governments; the racial makeup of districts can determine powerfully whether minority communities have an opportunity for meaningful representation.  Knocking the Justice Department out of the equation now could have serious consequences in the covered jurisdictions.

And beyond redistricting, there's the effect of suspending preclearance at the local, as well as the state level.  Many experts, like OSU's Tokaji, now think that small city and county elections might be major sites of skullduggery in covered jurisdictions if § 5 goes down.  If you doubt there is still mischief afoot, consider the case of Kilmichael, Mississippi, where the all-white city government faced its first-ever serious challenge by black candidates in 2001. Their response? Three weeks before the election, without public notice, the City Council canceled the election.