PHOENIX (CN) – Arizona challenged the constitutionality of “preclearance” sections of the Voting Rights Act, which require it to seek approval from the federal government to change its election laws and regulations.
The lawsuit in Federal Court in Washington, D.C., claims that Arizona is being punished “for conditions that predated the enactment” of the 1975 Voting Rights Act, and which were “remedied in 1974 when Arizona provided equal access to the electoral process for limited-English Hispanic voters.”
Arizona was determined to be a “covered jurisdiction” based on the state’s large Hispanic population and the fact that in 1972 only English-language voting materials were used, the state’s Attorney General Tom Horne says in the 16-page complaint.
By 1974, Arizona had “switched to a bilingual election system, which included ballots, voting machine forms, and voting machine instructions in both Spanish and English,” and in 1974, the state elected Raul Castro its governor, becoming the second state in the nation to elect a Latino governor, Horne says.
Amendments to the Voting Rights Act in 1975 “sought to protect ‘language minorities’ by requiring ‘covered jurisdictions’ to be subject to prescribed preclearance procedures of the Justice Department before a new voting law and/or qualification could be adopted or implemented,” the complaint states. The law sought to “prevent covered jurisdictions from replacing discriminatory and invalid voting laws with new discriminatory enactments.”
Horne says Arizona was a “covered state” because at least 5 percent of its population were people with Spanish as their “mother tongue” and people with a Spanish surname “originally complied by the Immigration and Naturalization Service.”
But Horne says that just because a person says that Spanish “is his mother tongue does not mean that he cannot speak or read English or that he suffers from discrimination.” He says there is “no basis to claim that a person with a Hispanic surname cannot read or speak English or suffers from discrimination.” Horne claims that the “entire classification systems is flawed, arbitrary, and irrational.”
Arizona claims that under the classification system, “a white English speaker would be classified as a ‘language minority’ upon marriage to a Spanish speaker in Baltimore but not when the couple moved to Atlantic City, and a non-Hispanic English speaker born to vacationers in Puerto Rico would be classified as a ‘language minority’ while residing in Pittsburgh but not upon moving the Cleveland.”
Arizona says that voting changes subject to preclearance include any change in qualifications or eligibility, balloting or registration, and the boundaries of voting precincts or the method determining the outcome of an election. The state also must get permission for any change in the term of an elected official or the ability to participate in political campaigns.
U.S. Attorney General Eric Holder Jr., the defendant in Horne’s case, responded with a statement: “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 provisions challenged in this case, including the preclearance requirement, were reauthorized by Congress in 2006 with overwhelming and bipartisan support.”
Horne wrote in his complaint that on Feb. 9, 2010, Gov. Jan Brewer signed Arizona S.B. 1001, authorizing a “special election to be held on May 18, 2010, to allow the citizens of Arizona to vote on an early tax increase to avoid further cuts to education.”
Arizona submitted the bill to the U.S. Justice Department and asked for “expedited consideration,” but the Justice Department “failed to notify Arizona that it would not interpose and objected to SB 1001 until April 12, 2010, a month and a half later,” the complaint states.
Horne says that though the U.S. Attorney General “rarely objects to proposed changes in voting practices of Arizona and its political subdivisions, the process imposes unnecessary and significant costs on government units of this state not only in terms of money and time, but also in terms of the federal government’s intrusion on the sovereignty of state and local governments.”
Many states are not subjected to the same preclearance procedures as Arizona, but “are no more or less likely that Arizona to deny limited-English proficient Hispanic voters the opportunity to participate in the electoral process on an equal basis with other members of the electorate,” Horne says in the complaint.
Horne claims that Hispanic citizens in Arizona, “including those who are ‘limited English proficient’ participate fully in the electoral process, register to vote, cast votes for representatives of their choice, have access to voting materials in English and in Spanish, and can mark ballots in English or in Spanish.”
Horne seeks declaratory judgment that the preclearance requirement of the Voting Rights Act is unconstitutional.