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are supporting the challenge, which alleges that Congress erred when it reauthorized Section 5 in 2006 by relying on outdated data and assumptions about voting demographics and realities in the states where the law applies.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