by Kevin Elliker

On August 25, 2011, Arizona Attorney General Tom Horne filed suit on behalf of the state of Arizona against the Department of Justice alleging the unconstitutionality of the Voting Rights Act. Horne specifically challenged the preclearance requirements of Section 5 of the act. Attorney General Eric Holder vowed to defend the Voting Rights Act, declaring that it plays “a vital role” in ensuring fairness for American democracy.

A brief primer on Section 5 of the Voting Rights Act:

In 1965, Congress passed the VRA in order to better enforce the 15th Amendment. Jurisdictions with histories of pronounced racial discrimination in voting practices were singled out by Section 5 and required to receive preclearance from the Attorney General or a three-judge panel of the District Court of the District of Columbia for any changes to their voting laws. The 1965 iteration of the preclearance formula forced mostly southern states into this category, but also specific jurisdictions within Arizona. In 1970, Arizona was once more included as partially covered by preclearance requirements. It was not until 1975, when the formula for preclearance was changed to include states that provided election materials in only English despite having at least five percent of voting age citizens from “a single language minority” that Arizona became an entirely covered jurisdiction. The 1975 iteration relied on 1972 election data, which meant that Arizona’s 1974 implementation of bilingual voter materials did not preclude them from preclearance requirements. The 1982 and 2006 renewals of VRA followed the 1975 formula.

This, Horne argues, applies an unfair measure of discrimination on the state; he contends that 1972 data is used to unfairly imply present-day discrimination. Horne believes discrimination in voting practices no longer exists in his state and so Arizona should not be made to receive preclearance for voting and election changes. (Some of the things that required preclearance in 2011 included revised drivers license application forms, additions to state voter electronic voter registration, and even the actual recall election of a state senator scheduled for November. most of these preclearances were approved within less than two months.)

So what is the fate of the Arizona lawsuit?

In 2009, the Supreme Court heard a case challenging the Voting Rights Act, but sidestepped the issue of its constitutionality, opting instead for an alternate solution for relief on the plaintiff, a Texas utility district seeking to bailout of Section 5. Chief Justice Roberts wrote for the Court, praised the substantial effectiveness of the law (“the historic accomplishments of the Voting Rights Act are undeniable…”) but alluded to uneasiness with enforcing voter discrimination laws based on data over three decades old (“…the Act imposes current burdens and must be justified by current needs”).

In contrast, Horne’s lawsuit strikes squarely at the constitutional question. The suit may not fare well, however, since a similar lawsuit claiming the unconstitutionality of preclearance, filed by Shelby County, Alabama, was denied in federal court on September 21 by the same judge who is assigned to the Arizona case. Judge Bates, the Bush-appointee who wrote the district court’s 151-page opinion in the Shelby County decision, agreed that the Supreme Court’s concern over “current needs” forced the constitutional question of Section 5, but determined that those current needs actually do “justify Congress’ 2006 reauthorization of the preclearance requirement.” Some reason that Arizona’s suit will meet the same fate. The same could be said for Georgia’s almost identical suit, filed last month.

This leaves Arizona with two options: (1) hope to appeal the District Court’s ruling and gain a favorable answer from the Court of Appeals for the DC Circuit (or eventually the Supreme Court); or (2) begin the process of bailing out. Bailing out of Section 5 would solve the problem in a more practical manner by removing preclearance requirements. This should be favorable to Horne, after all, since his lawsuit asked that, if nothing else, Section 5 should be declared unconstitutional only with respect to Arizona. Bailing out, however, would require proving a sustained period of non-discrimination in election practices and policies.

A jurisdiction seeking bailout from Section 5 must not have discriminated in voting practices, policies, or regulations for at least a decade prior. All voting changes had to have been submitted through Section 5 for preclearance with none of them challenged by either the Attorney General or DC District Court. Furthermore, there may be neither pending lawsuits alleging voter discrimination nor any “adverse judgments in lawsuits alleging voting discrimination.” Essentially, a jurisdiction seeking bailout must prove that there really hasn’t been institutional voter discrimination in the past decade.

This presents a difficult task for the state of Arizona, where immigration law SB 1070 created political fervor only a few months ago. In fact, due to Arizona’s contentious place on the stage of anti-discrimination law, some have raised the question as to why Arizona should be among the first states to challenge the constitutionality of the Voting Rights Act.

Horne’s adamant belief in the unconstitutionality of Section 5 logically precludes any hope that Arizona jurisdictions will seek bailout. Instead, the argument will play out in courts.

Critics of the 2006 Act contend the old data doesn’t support the current context. Changing landmark legislation to meet contemporary needs, however, would require the uncomfortable confrontation of current discrimination, especially that based on race. (How uncomfortable was Congress with making any changes in 2006? The bill passed 390-33 in the House and 98-0 in the Senate). The Courts will instead have to face this issue head-on. If they believe current needs dictate preclearance requirements, they will uphold the law. If they think current needs dictate the use of criteria different than those of 1972, a significant change in this landmark legislation will be required.

Kevin Elliker is a first-year law student at William & Mary.


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