The decision by a federal judge Wednesday to reject challenges by an Alabama county to the Voting Rights Act likely will mean a similar fate for Arizona’s lawsuit, state Attorney General Tom Horne said.
Horne acknowledged that the lawsuit he filed last month is based on many of the same arguments that Shelby County made. More to the point, the judge who issued Wednesday’s ruling upholding the federal law is the same one assigned to hear Arizona’s challenge.
But there are other signs that Horne will have a hard time arguing that there’s no reason the Voting Rights Act should extend to Arizona.
Horne contends that any discrimination against minorities that may have occurred in the past in Arizona is ancient history. He said there is no evidence of ongoing problems.
But in his 151-page ruling in the Alabama case, Judge John Bates said there are studies as recent as 2004 showing a significant disparity between voter turnout of Hispanics and Anglos. And he cited evidence presented to Congress in 2006 when it renewed the Voting Rights Act, of “men (in Arizona) wearing military or tool belts and black T-shirts reading ‘U.S. Constitutional Enforcement’ approaching Latinos waiting in line to vote, demanding proof of citizenship.”
Horne conceded that, based on what Bates ruled, the chances are not good that the same judge would rule differently on Arizona’s claim. But he said that case — and probably his own — likely will wind up going to the U.S. Supreme Court where he thinks Arizona will prevail.
The fight is over a section of the 1965 law that requires states with a history of discrimination to get “preclearance” from the U.S. Department of Justice before implementing any changes in election law.
These range from identification required at the polls to changes in legislative and congressional district boundaries. If the federal agency does not object in 60 days, the changes can take effect.
Bates said preclearance is designed to keep states from passing new discriminatory laws the moment old ones were struck down.
Arizona was added to the list a decade later because it had not had bilingual ballots for at least three years before the law was amended in 1975.
Shelby County, like Arizona, argued in essence that there was no longer any legal need for such intense federal oversight. And attorneys for the county said the record showed that the rate of voter participation by minorities — in the case of Alabama, meaning blacks — had far increased.
Bates, however, wasn’t convinced, saying the record showed that minority turnout still lagged behind whites.
Horne’s contends that nothing in the U.S. Constitution gives Congress the power to require Arizona to seek Department of Justice approval for every tiny change in election law. He said that requirement clearly interferes with state-only issues, like when Arizona had to get preclearance for how it planned to hold a special election last year to ask voters for a temporary increase in state sales taxes.
“It’s a tremendous incursion on what’s going on in our state,” Horne said of the law.
Horne, however, has a fallback position he already is planning for the Supreme Court: If the justices don’t buy his argument, they should at least exempt Arizona from the preclearance requirements.
That, however, could turn on whether the justices believe that discrimination is no longer a problem in Arizona.
Horne said he’s not convinced that the current percentage of Hispanics registered to vote is significantly different than their share of the voting-age population. And he said if someone had confronted Latino voters at the polls, it could “just be an isolated incident.”
He also said the approval by lawmakers last year of SB 1070 is not a sign of ongoing racism in Arizona. Instead, he said, it is designed solely to give state and local police more power to enforce laws against illegal immigration.
Horne said one of the best pieces of evidence he has that Arizona does not discriminate against Hispanics is the fact that voters here elected Raul Castro as governor in 1974. Anyway, he said, including Arizona in the preclearance requirement of the Voting Rights Act is a form of discrimination itself.
“There is data that show that Arizona has as perfectly as good a record as lots of state that are not covered” by the law.
Shelby County attorneys made the same arguments to Bates, without success.
Horne said one reason he believes the U.S. Supreme Court ultimately will see things his way is that Arizona’s lawsuit challenges not the entire federal law making voting discrimination illegal but only the preclearance requirement.
“So if something were done that is a violation of the Voting Rights Act, a victim could still bring a legal action to challenge it,” he said. “But there would be no need to send hundreds of issues for preclearance to the Justice Department,” like the rules for running that special sales tax election.