U.S. Supreme Court guts key part of Voting Rights Act

June 25, 2013

For the second time in as many weeks, the U.S. Supreme Court has handed down an opinion that could have a big impact on elections in Arizona. The court’s conservative justices struck down a key part of landmark civil rights-era legislation.

The Voting Rights Act was passed in 1965 to ensure minorities were not kept from the polls. Section 5 of that law requires Arizona, seven other states and dozens of counties to get Justice Department approval any time they want to change election laws or procedures -- everything from redistricting to voter ID to moving a polling place.

On a 5-4 vote Tuesday, the Supreme Court ruled the formula that determines who must get so-called preclearance is unconstitutional. The case was filed by a county in Alabama and joined by Arizona Attorney General Tom Horne.

“We had to pre-clear about 40 to 50 Arizona laws each year, and the Justice Department form is very detailed," Horne said, "so I had two lawyers and a paralegal in my office spend full-time on these applications during part of the year when their time could be much better spent and now will be spent fighting crime.”

Section 5 was initially supposed to be a temporary measure -- strong medicine against rampant racial discrimination. Clint Bolick is an attorney with the Goldwater Institute. He said Section 5’s time has come and gone.

“It’s sort of like saying, ‘We had a fire, we brought out the fire department to put out the fire, we need to keep the hoses on the house in the fear that the fire is going to rekindle,'" Bolick said.

And Bolick said without Section 5, it is not as though elections will become a free-for-all.

“Nothing that was illegal yesterday is legal today. All of the substantive protections of the Voting Rights Act remain intact," Bolick said.

“The current [voting landscape] looks in part as it does because of Section 5," said Justin Levitt, who teaches at the Loyola Law School in Los Angeles.

He thinks the Supreme Court got it wrong and said while other parts of the Voting Rights Act still provide grounds to sue over voter disenfranchisement, “it’s costly, both in terms of time and resources to bring this sort of litigation. And in the meantime, you may well see laws that cut back either on minority representation or on minorities’ ability to participate.”

“I see it as a victory for Arizona," said Shane Krauser, an attorney with the firm Davis Miles in Tempe. "I see it as a victory for the Tenth Amendment.”

(If you’re a little rusty on civics, it says powers not reserved for the federal government are granted to the states.) Krauser thinks preclearance is federal overreach -- based on outdated information.

“If you believe that these states are engaging in discriminatory practices, that’s fine, but use contemporary data to illustrate that they are, in fact, doing that, not data from 50 years ago," Krauser said.

While the Act was initially passed in the 60s, it has been renewed several times, most recently in 2006, with near-unanimous support. Phoenix attorney Joaquin Rios said Congress could have changed the coverage formula then but chose not to. He said Tuesday’s ruling is legislating from the bench.

“Here is a judiciary where judges, who in other instances pride themselves on supposedly being literalists, taking a law that was duly passed, in effect, that passed by really remarkable margins the last time it was renewed, looking at that law, saying that it’s outdated, and changing it," Rios said.

And Justin Levitt said the formula was designed to change as needed. “There were provisions to get additional jurisdictions in and provisions to get jurisdictions out if they demonstrated that they had done right by their minority communities for a decade. Many people don’t know that, for example, parts of Maine were once covered. Parts of Massachusetts were once covered.”

Writing for the majority, Chief Justice John Roberts said the court does not overturn an act of Congress lightly, but that, “while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

That being said, Attorney General Tom Horne does not think much will happen on Capitol Hill.

“As long as Congress has a majority of Republicans in the House of Representatives, it’s pretty safe to predict that it will not be passed and preclearance is a thing of the past," Horne said.

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