Arizona’s Attorney General Tom Horne filed a lawsuit on Thursday against the federal government for an injunction and declaratory judgment that the preclearance potions of the Voting Rights Act are unconstitutional. Arizona, like Mississippi, is one of several states that needs to get the OK from the Justice Department before making any voting changes.
The progression of this will be interesting to watch. A couple years ago the issue was before the Supreme Court and they basically punted, but most knew it would eventually come back. As the JD will note in their defense, a bipartisan majority in Congress recently reauthorized the legislation for another 25 years. (Section 5 was originally in place as a temporary/ emergency five year provision). But Congress will never touch this. Its future will be determined by the courts.
A copy of the suit is here, and the press release from Horne is below.
Horne stated: “the portions of the Voting Rights Act requiring preclearance of all voting changes are either archaic, not based in fact, or subject to completely subjective enforcement based on the whim of federal authorities. Arizona has been subjected to enforcement actions for problems that were either corrected nearly 40 years ago and have not been repeated, or penalized for alleged violations that have no basis in the Constitution. That needs to stop.”
Based on the 1975 amendments to the Voting Rights Act, Arizona is required to seek federal approval for any change affecting voting. The federal rules require Arizona to seek approval for a change ‘even though it appears to be minor or indirect, returns to a practice or procedure, ostensibly expands voting rights, or is designated to remove the elements that caused objection by the Attorney General to a prior submitted change.” 28 C.F.R. § 51.12.
In 1975, the Voting Rights Act was amended to protect “language minorities,” Any jurisdiction with more than 5% of a language minority would be a “covered jurisdiction” requiring preclearance, if the state did not have a bi-lingual ballot. Knowing that Arizona went to bi-lingual ballots in 1974, congress, acting in 1975, made the cutoff date 1972. Arizona was made “a covered jurisdiction” for this irrational reason.
In 1974, Arizona became only the second state in the nation to popularly elect a Hispanic governor. There was no reason in 1975 to subject Arizona to the extraordinary burden of seeking approval from the Department of Justice for changes to its laws in 1975, and there certainly is no rationale to continue the practice today. As Congress recognized, despite reauthorizing the Voting Rights Act in 2006, “significant progress” has been made in addressing the concerns that originally justified the VRA. Congress noted “increased numbers of registered minority voters, minority voter turnout, and minority representation.”
The filing cites four claims, summarized here:
The 2006 reauthorization of the Voting Rights Act is facially unconstitutional. It exceeds Congress’s authority under the 14th and 15th Amendments because it suspends all changes to state election law – however innocuous – until preclearance is given by the federal government. There is no rational relationship to the powers given to the federal government in the constitution.
The formula for determining which states should be covered jurisdictions, found in Section 4(b) of the Voting Rights Act, is unconstitutional. It places enforcement burdens on Arizona for problems that have been corrected for decades. For example, Arizona is still penalized for archaic violations that were corrected with the implementation of bi-lingual ballots prior to the 1974 elections.
The Voting Rights Act is facially unconstitutional because it treats states within the union differently without a rational justification. For example, the “language minority” coverage formula unconstitutionally differentiates between states by applying three different standards for “Spanish heritage” to three different groups of states.
In 1975, Arizona would not have been a covered jurisdiction if the Census Bureau had applied the definition of Spanish heritage it applied to New Jersey, New York, and Pennsylvania, to Arizona. Just because a person claims that Spanish is his mother tongue does not mean that he cannot speak or read English or that he suffers from discrimination, but the Act treats him that way. The same is true of those with a Spanish surname. There is no basis to claim that a person with a Hispanic surname cannot read or speak English or suffers from discrimination.
The entire classification system is flawed, arbitrary, and irrational. No explanation was given as to why persons with a “Spanish surname” (but who did not speak Spanish as their native language) would encounter discrimination in Denver but not Las Vegas or Orlando; why a person who did not speak Spanish but had one Puerto Rican parent would face discrimination in Erie but not Stamford or Chicago; or why persons who spoke Spanish as their native language and did not have “Puerto Rican birth or parentage” faced discrimination only in the forty-seven states not in New Jersey, New York, or Pennsylvania. Yet, there are all results of the Act and its application.
The definitions of “Spanish language” and “Puerto Rican birth or parentage” included white English speakers raised in the United States within the calculation of “language minorities” if they married a native Spanish speaker or were born to vacationers in Puerto Rico. As such, a white English speaker would be classified as a “language minority” upon marriage to a Spanish speaker in Baltimore but not when the couple moved to Atlantic City, and a non-Hispanic English speaker born to vacationers in Puerto Rico would be classified as a “language minority” while residing in Pittsburg but not upon moving to Cleveland.
In the alternative, the provisions are unconstitutional as applied to Arizona.