Arizona Attorney General Tom Horne has filed a lawsuit against the federal government claiming the portion of the Voting Rights Act requiring Arizona to pre-clear all voting changes with the U.S. Justice Department is unconstitutional.
In a suit filed Aug. 25, Horne said, “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,” he said.
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, or ostensibly expands voting rights,” as the law states.
In 1975, the Voting Rights Act was amended to protect “language minorities.” Any jurisdiction with more than five percent of a language minority would be a “covered jurisdiction” requiring preclearance, if the state did not have a bilingual ballot. Knowing that Arizona went to bilingual ballots in 1974, Congress, acting in 1975, made the cutoff date for bilingual ballots 1972, said Horne.
“Arizona was made a covered jurisdiction for this irrational reason,” said Horne.
In 1974, Arizona became the second state in the U.S. 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,” Horne continued.
As Congress recognized, despite reauthorizing the Voting Rights Act in 2006, “significant progress” has been made in addressing the concerns that originally justified the Voting Rights Act, Horne asserts.
He summarized the four claims cited in his lawsuit as follows:
“1. 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.
“2. The formula for determining which states should be covered jurisdictions is unconstitutional. For example, Arizona is still penalized for archaic violations that were corrected with the implementation of bi-lingual ballots prior to the 1974 elections.
“3. 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. The entire classification system is flawed, arbitrary and irrational.”
Attorney General Eric Holder issued a statement in response to Horne’s lawsuit that said, “The Voting Rights Act plays a vital role in our society by ensuring that every American has the right to vote and to have that vote counted. The Department of Justice will vigorously defend the constitutionality of the Voting Rights Act in this case, as it has done successfully in the past. The Justice Department will continue to enforce the
Voting Rights Act, including each of the provisions challenged today.”
