Permission Required

Posted on September 02, 2007 | Type: In the News
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Riddle me this: Why is it that Arizona and its municipalities cannot make the most basic governmental decisions without first asking the federal government for permission.

When the Division of Motor Vehicles decided to close 22 offices for budget reasons, it first needed approval from the U.S. Department of Justice. Ditto for Mesa when it wanted to add a second page to its ballot to accommodate bond issues and propositions. And when Oro valley tried to annex the town of Tortolita, a federal judge enjoined the action as well as the provision of police services and road work because you guessed it the city hadnt sought the Justice Departments permission first.

Why is it that Arizona is in what one leading scholar has called a state of federal receivership? Because the national government considers Arizona an unrepentant lawbreaker, incapable of fairly administering voting procedures without the close supervision and advance approval of the Justice Department a view shared apparently by a majority of our states congressional delegation, who voted last year to keep it that way.

Good Intentions

When Congress voted overwhelmingly to extend provisions of the Voting Rights Act that were set to expire, they retained a provision, Section 5, that subjects certain states mostly in the deep south but also Arizona to draconian requirements anytime they or their subdivisions take actions that might change voting procedures. So every time Arizona or its subdivisions do anything from annexation to redistricting to changing the location of a polling place, they must first seek permission of the Justice Department and prove that the change is discriminatory neither in intent or effect. The pre-clearance requirement is costly, cumbersome and a blatant violation of the constitutional provisions of federalism.

Section 5, first adopted when the Voting Rights Act was passed in 1965, was an emergency measure above and beyond the acts basic provisions, aimed at southern states that were systematically preventing blacks from voting.?á Methods of disenfranchisement in those states were often as subtle as they were pervasive, so it made sense to assume that any change affecting voting merited suspicion and review by neutral federal officials.

It worked: black voter participation in the covered jurisdictions soared. But instead of lapsing, the emergency provisions grew. During the 1970s, congress expanded Section 5, enlarging its scope to sweep in states that used English-only ballots and in which 5 percent of the population was a language minority. As a result, certain counties in New York and California and states as diverse as Texas, Arizona and Alaska suddenly were subject to the onerous requirements of Section 5, even if they had no history of systemic voting rights violations that justified the extraordinary federal intervention in the first place.

However then the justification for including Arizona in this legal penalty box in the 1970s, it is nonexistent today. Hispanic voter participation in Arizona largely mirrors levels for the nation as a whole. Compliance with the law is beyond dispute: although Arizona and its subdivisions had to request permission for changes affecting voting on 2,779 occasions between 1996-2007, the Department of Justice objected on a grand total of two occasions.

But thanks to congressional reauthorization of Section 5, Arizona will continue to endure a presumption of guilt and have to seek permission from the Justice Department to engage in basic governmental decision-making for at least another two dozen years. Despite a call by the U.S. Commission on Civil Rights and both liberal and conservative scholars to engage in careful analysis of whether Section 5 remained necessary in light of dramatically changed circumstances, or whether the lines of demarcation between states presumed guilty or innocent make any sense, Congress extended the temporary provisions without change.

Remarkably, only two of Arizona's House and Senate delegations to stand up for Arizona: Reps. John Shadegg and Trent Franks, both Republicans. They were lonely: The extension passed 98-0 in the Senate and 390-33 in the House of Representatives. Political symbolism trumped principles of federalism.

Mounting a Challenge

But the fight is far from over, because the extension exceeded congressional authority. The 15th Amendment, which forbids states from denying voting rights on the basis of race, color or previous conditions of servitude, authorizes Congress to enforce those rights by appropriate legislation. The 15th Amendment coexists with the 10th Amendment, which reserves to states all powers not expressly conferred upon the federal government, and the 11th Amendment, which denies access to federal courts to sue the states.

The U.S. Supreme Court has harmonized such competing provisions by tethering the federal government to the prescribed limits of its authority, and by holding that congress may enforce but not expand the underlying constitutional rights. To determine whether a particular enforcement action is proper, the court has ruled that there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.

The extension of Section 5 violates two bedrock principles guiding the exercise of federal remedial authority when it displaces traditional state prerogatives. First, the nature and duration of the remedy are limited by the nature and scope of the constitutional violation. Second, the ultimate objective of federal supervision is to return control to local authorities at the earliest practicable time.

Section 5 was designed to address and emergency, employing draconian but demonstrably necessary tactics for a limited time. Its success was intended to spell its own demise. But the provision expanded as the emergency receded. Today, little justification exists to go above and beyond the core continuing guarantees of the Voting Rights Act to impose extraordinary pre-clearance obligations upon any jurisdictions and none whatsoever exists to perpetuate the arbitrary between jurisdictions that are subject to the onerous requirements of Section 5 and those that are not.

Even if Section 5 is declared unconstitutional, the core protections of the Voting Rights Act applicable to all jurisdictions will persist. Nothing will change in terms of voting rights protections, except that the burden of proving discrimination will shift in the currently covered jurisdictions to those challenging governmental actions in other words, the presumption of innocence so basic to the American system of justice will be restored in jurisdictions after decades in the penalty box.

Outlived Usefulness

The failure of courage and principle in Congress means that the courts are the last recourse to protect Arizona's integrity and principles of federalism. Already, a Texas utility district has filed a lawsuit challenging the constitutionality of extending Section 5. State and local officials in Arizona should take similar action.

Unfortunately, as it does recurrently of late, Congress in its all-encompassing effort to score political points failed to heed the limits of its constitutional authority. Instead of updating a venerable and important law to reflect contemporary circumstances as its framers intended would happen Congress renewed emergency provisions that have long outlasted their purpose. It may be that the courts will pronounce their epitaph, but it was Congress that injected the fatal toxin.

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