Even if Republican lawmakers and Gov. Jan Brewer can reach an agreement on a Feb. 28 special election on redistricting, the U.S. Department of Justice may still keep the proposed repeal of the Independent Redistricting Commission off the ballot.
Republican lawmakers want to refer Prop. 106, the 2000 ballot measure that created the IRC, back to the ballot in the hopes that voters will repeal it. But Arizona is one of a handful of states that is required by Section 5 of the Voting Rights Act to get DOJ approval – known as preclearance – for all election and voting changes, including the dates of special elections.
Because minority voters, such as Latinos and Native Americans, predominantly vote Democratic, the feds might determine that a special election on the date of the Republican-only presidential preference election would be racially discriminatory, said Gerald Hebert, a former DOJ civil rights attorney who now works as an election consultant.
“DOJ would focus on the minority aspect of that. But if there’s a correlation between minorities voting Democratic, which I assume there is, then DOJ would look pretty closely at that,” he said.
The Department of Justice has rejected special elections in the past when it felt the date would suppress minority turnout. For example, in 1993, DOJ objected when Twiggs County, Ga., moved a planned vote on a racially polarized tax issue from the 1992 general election to an off-year date the following year. In a letter to the county attorney, DOJ noted that turnout is far lower in special elections than in general elections, a trend that was even more prevalent among the county’s black voters.
Sen. Steve Gallardo, D-Phoenix, said he already contacted DOJ about his concerns that a Feb. 28 special election would suppress minority turnout. Gallardo said he would file an objection with the feds immediately if the Legislature approves the election date, which must be done by Wednesday.
“I would definitely have a letter out to the Department of Justice the very next morning,” he said. “And I would not be the only one.”
Gov. Jan Brewer and Republican lawmakers say Feb. 28 would be an ideal date for the special election because it will cost less money if the vote is held on a day when the state’s election machinery is already in place. But Gallardo accused them of pushing the date to ensure higher Republican turnout.
“I believe the Republicans are trying to keep Democrats from coming to the polls,” Gallardo said.
The IRC has become an extraordinarily partisan issue, with Republicans accusing Chairwoman Colleen Mathis of colluding with the commission’s two Democratic members. Brewer and the Senate removed Mathis from office on Nov. 1, with the Senate ousting her on a party-line vote. The Arizona Supreme Court later reinstated her.
Republicans denied that the date was motivated by partisan turnout issues, and predicted that Democrats would come out to the polls as well.
“Everybody has the same opportunity to go to vote, regardless of what is on the ballot,” said Sen. Linda Gray, R-Glendale.
Brewer echoed Gray’s sentiment. “I believe that the issue itself would bring everybody out to the polls. I know I would show up, whether I was a Democrat or an independent or a Green person,” she said.
Sen. Frank Antenori, R-Tucson, said DOJ may reject a Feb. 28 election, but believes the department under President Barack Obama and Attorney General Eric Holder is more interested in partisanship than protecting minority voters.
“They are more geared toward outcome and not toward protecting and preventing the disenfranchisement of minorities. I don’t see it that way,” Antenori said. “There’s no effort to disenfranchise minority voters. None. Simply because they don’t turn out, how is that disenfranchising? So it comes down, again, to political outcome.”
But even if the special election date weren’t intended to suppress minority turnout, DOJ would likely look at whether that would be an unintentional effect. In its 1993 letter to Twiggs County, DOJ wrote that the county must show that its special election date is “not racially discriminatory in purpose or effect.”
Turnout numbers from recent presidential primaries and special elections may bode well for Republicans who support the Feb. 28 special election. While turnout in both presidential primaries in 2008 was slightly above 50 percent, turnout was at just 30 percent for the Democratic primary in 2004 and 35.5 percent for the 2000 Republican primary. Turnout for the 1996 Republican primary was nearly 37 percent.
By contrast, total turnout for the May 2010 special election on a temporary sales tax increase was about 38 percent.
Secretary of State Ken Bennett, the state’s top election official, did not return a message seeking comment. A spokeswoman for Attorney General Tom Horne, who is challenging the constitutionality of Section 5 in federal court, also did not return a message from the Arizona Capitol Times.