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.
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