Hoover Daily Report

Why Is Arizona in the Jim Crow Penalty Box?

via Wall Street Journal
Saturday, September 17, 2011

Last week Arizona became the first state to challenge a particularly egregious overreach of federal power: Washington's current interpretation of Section 5 of the Voting Rights Act. Enacted in 1965, the Voting Rights Act ensures equal access to the ballot regardless of race.

Section 5 was meant to deal with a handful of jurisdictions, mainly deep-South states, that resisted equal rights. Jurisdictions covered by Section 5 would have to ask the U.S. Justice Department for permission to make any changes in voting procedures—literally anything from one municipality annexing another to changes in polling-place locations.

Those special burdens were justified as temporary measures aimed only at the most recalcitrant states, and initially Arizona was not among them. But in 1975, the act was amended to protect "language minorities," even though such groups never had been subjected to the systematic deprivation of voting rights to the same extent as blacks.

Under the amendment, any state with language minorities encompassing 5% of the population was subjected to Section 5 if it did not have bilingual ballots as of 1972, and if voting participation by language minorities was below a certain level. So starting in 1975, Arizona, despite having adopted bilingual ballots and elected the nation's second Hispanic governor only the year before, was swept into the draconian Section 5 penalty box.

The imposition is severe. Section 5 coverage presumes that states and their subdivisions cannot be trusted to ensure equal voting rights absent pervasive and perpetual federal monitoring of their most mundane and inconsequential actions. States are reduced to "May I please, sir?" supplication in their relationship with the federal government.

When the Arizona Motor Vehicle Department, which registers voters as well as drivers, wanted to close 22 offices for budget reasons, it had to seek preclearance from Washington. Ditto the City of Mesa when it added a second page to its ballot to accommodate bond issues and propositions.

The cumbersome procedure is a remedy in search of a problem: Over a recent 10-year period, Arizona jurisdictions sought preclearance on 2,779 occasions, and the Justice Department objected to a whopping two. The same preclearance process is imposed on most or all of nine states, plus far-flung local jurisdictions from Monterey, Calif., to the Bronx.

Making matters worse, the requirements did not recede along with the conditions that gave rise to them. When Congress considered renewing the Voting Rights Act in 2006, the U.S. Commission on Civil Rights, joined by legal scholars spanning the ideological spectrum, urged Congress to rethink the necessity of Section 5, given the dramatically changed racial landscape after the law's first 40 years. At least consider removing some jurisdictions, they urged. Instead, by an overwhelming majority, Congress approved a carte blanche extension of Section 5, making the "temporary" imposition essentially permanent.

Covered jurisdictions took to the courts. In 2009, eight members of the U.S. Supreme Court ducked the constitutional question—though conceding that it raised serious "federalism concerns"—but allowed a Texas special district providing utility services to "bail out" from Section 5 coverage because no complaints had been filed against it in 10 years.

The ninth justice was not so reticent. The "lack of current evidence of intentional discrimination with respect to voting renders [Section] 5 unconstitutional," Justice Clarence Thomas declared. "State autonomy with respect to the machinery of self-government defines the States as sovereign entities rather than mere provincial outposts subject to every dictate of a central governing authority."

Unlike the Texas utility district, Arizona is not eligible to bail out from Section 5, because the Justice department has declined preclearance in a handful of cases over the past decade. Hence its lawsuit places squarely before the courts the constitutional issue of whether federal law can continue to subject state and local decisions, as Arizona Attorney General Tom Horne puts it, to "completely subjective enforcement based on the whims of federal authorities." Mr. Horne's Washington counterpart, U.S. Attorney General Eric Holder, has pledged to vigorously defend Section 5.

Locally, the lawsuit has drawn fire. Liberal Arizona State University law Prof. Paul Bender called it "mean-spirited." A tad more hyperbolic, Democratic State Sen. Steve Gallardo predicted that if the lawsuit succeeds, the state's sizable minority population will be "locked out" from the "opportunity to exercise the most fundamental right we have: the right to vote."

But Republican political consultants, though unwilling to speak on the record to reporters, also were apoplectic about the lawsuit. One said that "from a Republican Party perspective, it's stupid. The Voting Rights Act has been good for Republicans" because it leads to minority-packed voting districts that in turn yield more-Republican ones. A party attorney called the lawsuit a longshot because the state will have to show "that there is no more racism in Arizona."

Surely racism remains in society, but the real question is whether equal voting rights have been established in the jurisdictions subject to the law—and unquestionably they have been. Indeed, Congress in 2006 heard (and ignored) evidence that more voting-rights complaints arose in non-covered jurisdictions than in those subject to Section 5.

When the federal government directly regulates the sovereign function of a state, it is permitted to do so only for urgent reasons and in ways carefully tailored so as not to exceed its constitutional powers. In Arizona's case, the ground for justification, which was thin enough 36 years ago, is nonexistent today—yet still the federal government's heavy hand remains. Moreover, the administration will have to explain why the burden applies to some parts of the country but not to others, based on criteria that were met in Arizona not when the law was renewed in 2006, but nearly half a century ago.

Federalism is the defining constitutional issue in the Age of Obama. On issues from the new federal health-care mandates to the right to the secret ballot in union elections, states are fighting to protect not only their own autonomy but the freedom of their citizens against a federal government determined to exceed its constitutional boundaries. In such circumstances, it is the judiciary's paramount duty to enforce those boundaries. Arizona's Section 5 challenge presents the courts an opportunity to vindicate the Founders' federalist design and the freedoms that design was meant to preserve.

Mr. Bolick is litigation director at the Goldwater Institute in Phoenix and a research fellow at Stanford University's Hoover Institution.