The U.S. Supreme Court this week narrowly interpreted a key section of the Voting Rights Act, giving Arizona municipalities and government entities the ability to apply for exemptions from what would otherwise be strict Justice Department oversight of election practices.
In an 8-1 decision, the court held that a Texas utility district, created well after the landmark civil rights bill was implemented, could attempt to prove it did not have a history of racial discrimination and, therefore, could opt out of a Department of Justice program that has provided strict oversight of certain minority-heavy jurisdictions for two generations.
Until now, the Voting Rights Act required areas and states with significant minority populations to clear any changes in voting practices – from moving the location of polling places to changing election dates. Those jurisdictions were required to prove to the Justice Department that any change would not have negative impacts on minority groups’ election participation.
Section 5 of the act, which requires so-called “preclearance,” is aimed at several states with a long history in discriminating against minority voters, from levying poll taxes to requiring literacy tests at the polling station. States like Alabama, Georgia, Mississippi and South Carolina are among those requiring preclearance.
The section is designed to protect other minorities as well, including those of Hispanic descent. And that means Arizona made the Justice Department’s list, as has Alaska, which has a significant Inuit population, and certain counties in South Dakota, where Native Americans make up large majorities.
Section 5 requires preclearance for states such as Arizona that had a wide disparity between voter participation among white and minority voters in 1972, the presidential election before 1975, when key reauthorization of the entire act took effect.
In 1972, Arizona did not use bilingual ballots, which weren’t required until 1975, and Hispanic turnout was dramatically lower than white turnout.
The 1964 Act passed as a major advancement in civil rights in an era when racial tensions ran high. But 45 years and five renewals later, some question whether the act – especially Section 5 – remains necessary.
And though Congress passed the act’s reauthorization over just 33 dissenting votes in the House and none in the Senate in 2006, liberals and civil libertarians worried the Supreme Court could overturn the act as the Texas case made its way through the judicial system.
Indeed, Chief Justice John Roberts, appointed by President George W. Bush, virtually flayed the government lawyer assigned to argue his side before the court.
Noting the rocky racial history of the Old South, Roberts suggested the act’s 25-year reauthorization is beginning to look like the region will be punished in perpetuity. “At what point does that history … stop justifying action with respect to some jurisdictions but not with respect to others that show greater disparities?” Roberts asked.
He suggested the government’s position would “impose this disparate treatment forever because of the history in the South.”
“I mean, at some point it begins to look like the idea is that this is going to go on forever,” Roberts sighed.
But in the opinion released this week, Roberts led a wide majority that ruled narrowly in allowing the Northwest Austin Municipal Utility District to “bail out” of Section 5. The majority upheld the bulk of Section 5, while noting significant changes since the law was implemented four and a half decades ago.
“Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare,” Roberts wrote for the court. “These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success.”
In upholding the section while broadening the so-called “bailout” provision, the court avoided ruling on the constitutionality of the larger act.
“The court opted for a narrow statutory holding instead of a broad declaration that the Voting Rights Act was unconstitutional,” said Nathan Persily, a Columbia University law professor and a Supreme Court expert. “The decision … will have little practical impact.”
But Arizona jurisdictions will be able to take advantage of the new bailout provisions. Hispanic voter registration and participation has soared, bilingual ballots are commonplace, and two of Arizona’s eight members of Congress are Hispanic.
If the state does opt to bail out of Section 5 provisions, it would join a select group of jurisdictions covered by the Voting Rights Act. Out of the 12,000 jurisdictions covered under the act, Persily said, just 17 have bailed out since the provision was added to the act in 1982.
-Reid Wilson is a staff reporter for The Hill in Washington D.C. He also is a freelance contributor to the Arizona Capitol Times.