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Voting Rights Act

Horne: Outdated law requires feds review Az election changes

With the U.S. Supreme Court set to review a law that requires federal approval of any changes to Arizona’s election laws and procedures, Attorney General Tom Horne said Tuesday the measure has outlived its usefulness.

Since the Section 5 of the Voting Rights Act took effect nearly 50 years ago, the state began offering bilingual ballots, negating one of the reasons the state was originally put under review, Horne said.

The law also requires jurisdictions to pre-clear laws and procedures if more than 5 percent of the population isn’t fluent in English. But Horne noted that the method the U.S. Department of Justice uses to determine that is a person’s heritage, not whether he or she can actually speak English. Arizona’s rate by the latter is less than 2 percent, Horne said.

“In the case of Arizona, it absolutely makes no sense to have preclearance any longer,” Horne said.

The Supreme Court announced late last week that it would hear a challenge brought by Alabama’s Shelby County to Section 5 of the Voting Rights Act. The law requires jurisdictions in 16 states, including the entire state of Arizona, to clear any changes to election procedures with the federal government to prevent ethnic or language discrimination at the polls.

The U.S. Department of Justice reviews between 14,000 and 22,000 voting changes every year, according to the agency’s website, and has filed formal objections to changes in Arizona 22 times since 1973.

Attorneys general in six states, including Arizona, are supporting the challenge, which alleges that Congress erred when it reauthorized Section 5 in 2006 by relying on outdated data and assumptions about voting demographics and realities in the states where the law applies.

In a brief filed with the Supreme Court, Horne wrote that “costs associated with Section 5 have only continued to increase while the statute’s benefits have all but vanished.” As a result, it said, affected states “spend millions of dollars and thousands of attorney hours to preclear an ever-expanding array of laws.”

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Horne, a Republican, said he’s confident that the law will be declared unconstitutional but is prepared to file an Arizona-specific claim to the Supreme Court if the current challenge fails.

Terry Goddard, Horne’s predecessor as Arizona attorney general, said the federal government is well within its rights to keep an eye on elections in Arizona.

“I don’t like it, but given the fact that we only have two options (federal review or none at all), I think they have more than enough reason to keep us in the category of states that deserve scrutiny,” he said.

Goddard, a Democrat, said the U.S. Department of Justice will only have to look at the Nov. 6 election to see that minorities still potentially face challenges at the polls.

State election officials have faced stiff criticism and received national attention for what Goddard called a large number of provisional ballots used on election day. He said he’s heard and has a “hunch” that the majority of the provisional ballots were cast in minority areas.

“It’s an indication that we’re not out of the woods,” Goddard said. “That there are procedures probably which are apparently making minorities having their voting rights at least interfered with, if not curtailed. That indicates to me we have some systemic problems that are the kind of thing the Voting Rights Act was designed to attack.”

Goddard agreed with Horne that even seemingly innocuous changes that have to be precleared can be onerous, with the federal government taking several months or longer to approve changes. He said that as attorney general he talked to the U.S. Department of Justice about easing the burdens on Arizona.

“It was pretty short,” Goddard said. “They said ‘no.’”

Colleen Connor, Maricopa County’s deputy county attorney, said the county hasn’t been able to fully evaluate the potential impact of life without Section 5 requirements.

“It really would be a drastic change,” she said.

In 2009, the U.S. Supreme Court heard arguments against Section 5 brought by a small utility district with an elected board in Texas. The court didn’t rule on the constitutionality of the law, but Chief Justice John Roberts indicated that the court might deem the law unconstitutional if it ever addressed the question.

“The historic accomplishments of the Voting Rights Act are undeniable, but the Act now raises serious constitutional concerns,” Roberts wrote. “The preclearance requirement represents an intrusion into areas of state and local responsibility that is otherwise unfamiliar to our federal system.”

Paul Bender, a law professor at the Sandra Day O’Connor College of Law at Arizona State University and former principal deputy solicitor general of the United States, said there’s a good chance the court will strike down the law based on what Roberts wrote in the 2009 opinion. But he still supports the law.

“It may be unnecessary in some places, but it seems to me it does very little harm and is capable of stopping some very bad things from happening,” Bender said. “The price you pay is a bit of a delay, which can be a problem sometimes. But that’s pretty minor it seems to me as compared to the real danger that minorities would not have full voting rights.”

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Latest comments on this storyRead all 4 »

Nov 14, 2012, 7:30 am
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The rosters were printed WAY too early, back in September. How do I know this? Well, comparing notes with the guy at the recorder’s office we determined they were printed well before the voter registration deadline, which was a stupid and irresponsible decision on the part of the Recorder’s office. My wife and I moved this summer (yes, together). Upon getting settled, we both went to the DMV’s website to change our address and re-register to vote. However, my wife did her’s about a week before I got around to doing mine.

So, the series of events went like this…my wife changed her address with the DMV, the rosters were printed, and then I changed my address with the DMV. This all happened in September. When is the voter registration deadline? Something like October 5? Whatever it was, I beat the clock with registering by a comfortable margin.

Now, to answer your question as to how this gets laid on the recorder. Something a huge as printing the polling places rosters early is a huge undertaking that she HAD to know about and HAD to have signed off on before it was done. It was a stupid mistake that should have never been made, should have never been suggested, should have never have been approved, and the recorder is ultimately responsible for her staff and what goes on in her office.

Having read what I just told you…if the blame for this situation doesn’t lie on the recorder, then I would love to read why not.

Nov 14, 2012, 7:29 am
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Dylan Smith wrote:

@Bret Linden,
If responsibility can be laid on the recorders, why is every county in the state seeing the same difficulties?

I am glad you asked.

I’m not going to try to speak to what goes on in other counties, but I have a difficult time believing they all made the same mistake I’m about to share. Besides, based on what I’ve been reading, none of the other counties are experiencing the troubles to the degree that we are. Anyway, here’s what I know…

On election day, my wife and I went to our polling place to vote, as true patriots do. As is the case with many married couples, my wife and I live together, and share a last name. So, it would stand to reason that either we would both be on the polling place’s roster, or neither of us would, right? Well, wasn’t the case…my wife’s name was on the roster, and mine was not. My wife got to vote the proper way, and I was forced to vote via provisional ballot (which STILL hasn’t been counted). Anyway, before election day, we each received those yellow cards telling us where our polling place is, and they both said the same thing. So, based on that and the sample ballot, I knew I was in the right place…well, that, and the whole married thing and living together and wife’s name on the roster thing…

Upset about this situation, I went to the recorder’s office in proper person, with sample ballot, yellow card, and voter registration card in hand, to register a complaint about this situation. I spoke to a very kind and professional gentleman. I am not going to reveal his name, because based on what I later read in the papers, he probably told me way too much (Rodriguez spoonfed that bullshit “don’t want to speculate” line to local media when asked what went wrong). I don’t want to do anything to jeopardize this guy’s employment or give him any headaches for doing the right thing and telling me what was really going on. Anyway, back to the story…

The guy looked at my materials, consulted his computer, and confirmed that both my wife and I did everything we were supposed to do, that we both went to the correct polling place, and that absolutely my name should have been on the polling place’s roster right next to my wife’s name. The guy promised he would look in to the situation, and give me a call to let me know what happened. True to his word, he did indeed call me the next morning to inform me of what he found out.


Nov 13, 2012, 11:03 pm
-0 +0

@Bret Linden,

If responsibility can be laid on the recorders, why is every county in the state seeing the same difficulties?

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Natasha Khan/Cronkite News Service

See an interactive map of states or counties covered under the preclearance provisions of the Voting Rights Act.

Voting Rights Act

Passed in 1965 in the wake of the civil rights battles of the early 1960s. Section 5 was created to prevent jurisdictions in areas with a history of discrimination from implementing any changes to the voting process without federal review. Section 5 was originally enacted as temporary legislation but has been renewed by Congress four times, the most recent being in 2006 for 25 years.