Major Voting Rights Provision Up For Supreme Court Review
The Supreme Court of the United States.
February 26, 2013

PHOENIX -- When Arizona or Texas want to change any part of their election process, they have to run it by the U.S. Justice Department — that means everything from redistricting maps to voter ID laws to moving or closing a precinct.

Seven other states, mostly in the South, are under the same so-called "pre-clearance requirement." A case before the U.S. Supreme Court on Wednesday argues that Justice Department oversight has outlived its usefulness.

The Voting Rights Act of 1965 was passed to stop the practices in many states that made it difficult for minorities to vote. The law was amended twice. The second of the two amendments came in 1975, and made Arizona subject to Section 5 of the law, which freezes election practices in place and says they can’t be changed unless the U.S. Attorney General says it's okay.

That doesn't sit well with Arizona Attorney General Tom Horne. He thinks Arizona was a target for lawmakers -- the state fell under the part of the law requiring bilingual ballots by 1972.

"The reason is, they wanted to get Arizona, and Arizona had bilingual ballots in 1974," Horne said. "So they backdated it to 1972 so that Arizona would be covered."

There is precedent in Arizona of trying to keep minorities from the polls, but Horne said that's ancient history. Arizona has its own case challenging Section 5 that's on hold at the Supreme Court. But the state's joined a similar case, filed by Shelby County, Ala.

Horne said running every election change past the feds is an unreasonable burden on the state. But he said placing certain burdens on voters makes sense.

"I mean, it's rational to ask people for evidence they're citizens when they register to vote. It's not rational [to require pre-clearance] for a state like Arizona, where I haven't met anybody ever in my 40 years living here who wanted to stop Hispanics from voting," Horne said.

Photo courtesy azag.gov
Arizona Attorney General Tom Horne.

Many activists and voting rights advocates would likely disagree. Last November's election and its aftermath were filled with charges of voter disenfranchisement and concern that Latino votes went uncounted.

"The last election cycle may have some impact on how this comes out," said Gabriel Chin, a professor of law at UC Davis, and formerly at the University of Arizona. "I think the Supreme Court, having seen all of the problems, and all the curve balls and obstacles that were put in the way of people trying to vote, having seen that and having seen the outcome, they may be a little more hesitant to say that Section 5's day has ended."

Chin said when the Voting Rights Act was reauthorized in 2006, it passed with bipartisan support.

"It was an overwhelmingly popular bill because of the central role that it's played in protecting the right to vote all across the country," Chin said.

In this case, the Supreme Court is only considering the formula that determines whether jurisdictions are covered by Section 5, but supporters of the Voting Rights Act are still concerned. Many observers think Section 5 isn't likely to have any teeth after the court's ruling. Chief Justice John Roberts is known to be skeptical. In an earlier case, he said the provision poses "a difficult constitutional question."

Horne hopes that means pre-clearance will soon be a thing of the past.

"There's a ton of work that has to be done that is really from a policy standpoint completely unnecessary, and it's a huge burden on us to do it," Horne said. "And it's an unconstitutional infringement by the federal government on Arizona's sovereign rights under the Constitution."

The Supreme Court will hear oral arguments in the case Wednesday. A decision is expected sometime this summer.