Arizona Attorney General

Mark Brnovich



Preclearance of voting laws now irrational

The U.S. Supreme Court will soon rule on a portion of federal law affecting Arizonans in ways you have not imagined.

Section 5 of the Voting Rights Act requires that certain states preclear with the U.S. Department of Justice any changes - no matter how minor - that affect voting. As my office explained in a friend of the court brief, preclearance for Arizona is irrational.

The case is brought by Alabama, with several other states joining Arizona’s brief.

The oral argument was prominent in the news last week, because of indications Section 5 would be declared unconstitutional, including a question by a justice believed to be the crucial Supreme Court vote. He asked whether Alabama today is an “independent sovereign” or whether it must live “under the trusteeship of the United States government.”

The Voting Rights Act of 1965 required preclearance only from states in the Deep South that had a history of voting discrimination against African-Americans.

When the Supreme Court considered the constitutionality of preclearance, it recognized that preclearance was a severe remedy, but the court approved it for a limited time due to the severity of the discrimination that had occurred.

In 1975, the act was amended to include “language minorities.” Any state that had a population of more than 5% belonging to a language minority and that did not have bilingual ballots by 1972 would be an included state.

This amendment was reverse-engineered to take in Arizona, which adopted bilingual ballots in 1974, not 1972. Now, more than a third of a century later, we are still being punished for having adopted bilingual ballots in 1974, rather than in 1972.

The definition of language minorities was completely irrational. Less than 2% of our citizens can truly be considered to belong to a language minority. They got the figure of over 5% by including everyone with a Hispanic last name.

Many people with Hispanic last names have a perfect command of English. To consider them (with most of the 5%) as part of a “language minority” needing special protection against voting discrimination is absurd.

A change as trivial as moving a precinct across the street must be precleared by the Justice Department. Because voter registration is offered on driver’s license applications, every voting change to driver’s license applications must be precleared, which is, a huge administrative burden.

About 40 to 50 Arizona laws must be precleared each year, and the Justice Department form is detailed.

Two lawyers and a paralegal in my office spend their full time on these applications during part of the year, when their time can be much better spent fighting crime.

If, as Alabama and Arizona have urged, Section 5 is declared unconstitutional, people can still bring lawsuits under Section 2 for any alleged discrimination. But the huge and expensive administrative burden of preclearance, which humiliates Arizona by making it say, “Mother may I?” to the federal government every time it wants to change some remarkably minor laws, will have been eliminated.

Tom Horne is attorney general of Arizona.
Article originally printed here on AZ Central.