by Clint Bolick
Goldwater Institute
One of the most abusive assaults on Arizona sovereignty is one of the least-known: the inclusion of Arizona among a handful of states subject to Section 5 of the Voting Rights Act.
Section 5 requires covered jurisdictions—mostly deep-South states—to get approval beforehand from the U.S. Justice Department for every legal change that might affect an election. That means every tiny adjustment by any government entity within these states must comply with this costly and cumbersome procedure, including election locations, voter registration forms, property annexations, and the like.
Arizona was roped into the requirement through a 1975 Voting Rights Act amendment that extended protection to people who speak a foreign language. The law outlived its purpose long ago—the Justice Department approves 999 out of every 1,000 pre-clearances—but the federal government continues to put Arizona in an undeserved penalty box.
Governor Jan Brewer has encouraged Arizona local governments to “bail out” of coverage under Section 5. With statewide redistricting looming, the potential costs and burdens for complying with Section 5 will be enormous.
Jurisdictions may opt out of Section 5 if they’ve had no voting rights complaints for 10 years. But it requires asking permission from a federal court in Washington, D.C. The cost of hundreds of local governments doing so would be hefty.
Here’s a better idea: The state should challenge the constitutionality of Section 5 as it applies to Arizona. In a 2009 decision, the U.S. Supreme Court nearly struck down Section 5, opting instead to allow a utility district to bail out.
The case for placing Arizona in the penalty box was flimsy in the first place; today it is nonexistent and a serious affront to federalism. At the same time, striking down Section 5 would leave intact other voting rights protections that apply everywhere in the country.
We have offered to represent Secretary of State Ken Bennett for free in such a challenge, and made the same offer to Jan Brewer when she occupied that post. Neither one has accepted. But the offer still stands.
Clint Bolick is director of the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.
Learn More:
Office of the Governor: Four Cornerstones of Reform
U.S. Supreme Court: Northwest Austin Municipal Utility Dist. No. 1 v. Holder
East Valley Tribune: Permission required
Great idea, let’s just give the Democrats all the cards for redistricting.
Excellent piece, Clint. This is another great way to limit the power of the federal government, something needed more now that ever before.
And the Republicans in Congress voted to extend this abomination when they held Congress in the early 2000′s
Clint, great article. Suggesiton – why not look at one of the cities or counties to see if you could pursue this course? Any municipality could challange this from my understanding.
Great article and thank you for bringing it to the light of day.
We should use our “Tea Party” powers for good and flood Ken Bennetts office will friendly encouragement to take Goldwater up on their very generous offer.
Absolutely “go for it Arizona.”
This law is exactly what our democrat county recorders hide behind when they refuse to audit voter rolls or verify new-voter registrations.
It is also the reason that the Arizona voter registration forms have blocks specifically designed to allow illegal or legal aliens to register to vote.
With Mr. Bolick’s permission, portions of this article could be sent to our governor and sec’y of state to encourage just such an action by the state.
Thanks Mr. Bolick for raising the issue for public scrutiny.
God bless America.
#4
It would be a good thing to work with local municipalities on this issue. Unfortunately for GWI, Clint has spent years (and other people’s money) threatening and harrassing municipalities instead of working with them on other issues. Good luck getting any help now.
When you choose to threaten your allies for political gain, soon you will find that you have none.