Justices free Arizona to alter laws on voting

State, 8 others no longer need feds' OK under landmark '65 act
2013-06-26T00:00:00Z Justices free Arizona to alter laws on votingHoward Fischer Capitol Media Services Arizona Daily Star
June 26, 2013 12:00 am  • 

PHOENIX - Arizona no longer needs to get federal government sign-off on changes in its voting laws.

The U.S. Supreme Court, in a 5-4 ruling Tuesday, overturned a section of the Voting Rights Act that created a formula to identify which states and counties have a history of discrimination and therefore must submit any changes in voting laws to the Department of Justice for "preclearance." The list of nine states included Arizona.

Chief Justice John Roberts, writing for the majority, said the majority did not find there is no longer a problem. "Voting discrimination still exists," he said. "No one doubts that."

But Roberts said the existing half-century-old formula can no longer be the basis for singling out states for special treatment.

Roberts was careful to say other sections of the 1965 Voting Rights Act, and its amendments, survive, and Tuesday's ruling is not a license for states to enact new discriminatory laws.

Further, Roberts said the court was not blocking preclearance outright. He said Congress can adopt a new formula, based on current conditions, to determine which states still need to have their laws reviewed.

Gov. Jan Brewer said the ruling is overdue.

"I think we were being punished by the Voting Rights Act for indiscretions, bad things that took place decades ago," she said.

But state Rep. Steve Gallardo, D-Phoenix, said a bill signed by Brewer last week proves discrimination remains in Arizona.

That legislation let county officials stop mailing early ballots to people who have not been using them and limits who can take someone else's early ballot to the polls.

Until Tuesday, foes had planned to ask the Department of Justice to bar it from taking effect. While they can still challenge the law in court, he said Tuesday's ruling means the law is presumed valid and can take effect unless it is struck down by the courts.

Attorney General Tom Horne, who filed a brief urging the justices to strike down preclearance, called the practice "irrational."

He said it forces Arizona to jump through procedural hoops for dozens of laws each year that have some effect on voting, including changes in the application for a driver's license since the state lets someone register and at the same time apply for a license.

Horne said the Department of Justice has questioned, and rejected, some changes in law, but he insisted that did not make them discriminatory. "It just means that somebody in the Justice Department didn't like it and we didn't think it was worth fighting about," he said.

Besides, with the rest of the Voting Rights Act intact, there is still a way to challenge laws someone considers discriminatory.

That is what happened last week, when, as Roberts cited in the majority opinion, the court ruled Arizona cannot demand proof of citizenship from those who use a federal voter registration form.

"The federal government does not, however, have a general right to review and veto state enactments before they go into effect," Roberts wrote. In fact, he said, the Constitutional Convention considered but rejected such authority, instead saying state laws should be allowed to take effect "subject to later challenge under the Supremacy Clause."

Roberts also said states are not only sovereign but constitutionally equal, raising a problem under that provision in the Voting Rights Act because it applied to only some states, creating an inequity.

Voting laws in most states take immediate effect, and it is up to the challenger to prove discrimination. But Arizona and other affected states have been forced to first prove any change is not discriminatory, he said.

Roberts acknowledged the high court upheld the law in 1966. But he said there were "exceptional circumstances" at that time, including the fact some states had laws and tests "specifically designed" to prevent African-Americans from voting. He said case-by-case challenges "proved inadequate" because the states would just enact a different discriminatory practice.

Half a century later, Roberts said things have changed, in large measure because of the Voting Rights Act.

Roberts said Congress still can decide some states need special scrutiny, but it must be done "on a basis that makes sense in light of current conditions."

Justice Ruth Bader Ginsburg, in her dissent, chided the majority for saying the preclearance provision of the 1965 law has worked to reduce discrimination - and then using that fact as an excuse to nullify it.

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Activate

Latest Election 2014 video

More

Election 2014: Election night

Reporters Becky Pallack and Joe Ferguson​ discuss their plans for election night next week.

Follow the Arizona Daily Star

Featured businesses

View more...

Deals, offers & events

View more...
Get weekly ads via e-mail