U.S. Attorney General Eric Holder’s quest to reassert federal scrutiny in states formerly covered by the Voting Rights Act’s preclearance requirement is giving some Arizona lawmakers hope that the state may again find itself in the Department of Justice’s sights.
Holder recently threw DOJ’s support behind a lawsuit in Texas that seeks to put the state back under the preclearance requirement that was lifted by the U.S. Supreme Court’s historic ruling in Shelby County v. Holder. DOJ is also expected to more vigorously challenge individual election law changes, such as voter ID laws in North Carolina and Texas.
Sen. Steve Gallardo and Rep. Martin Quezada want to see the Department of Justice take a more aggressive approach in Arizona in enforcing Section 2 of the Voting Rights Act, which allows the feds and individuals to file suit against discriminatory election law changes.
They would also like to see DOJ try to “bail in” Arizona to the preclearance requirement that was lifted by the Supreme Court, as the attorney general wants to do with Texas.
Gallardo, D-Phoenix, said he has already spoken with attorneys and civil rights groups such as the Mexican-American Legal Defense and Education Fund about the possibility of going to court to get Arizona placed back under preclearance via Section 3 of the Voting Rights Act.
“It’s actually a discussion I have had with a lot of folks, that Section 3 is an option,” Gallardo said. “We should be under the approval of the Department of Justice when it comes to election changes. Arizona is a prime example of a state that can actually show discriminatory practices.”
But the courts have a very high standard for subjecting states or local jurisdictions to preclearance under Section 3. And Texas has a very recent, documented court record stemming from its last redistricting process that makes it an ideal candidate for a bail-in, said Justin Levitt, a law professor at Loyola Law School, Los Angeles.
“If you can make it anywhere, you can make this case in Texas,” Levitt said. “It’s a very heightened standard.”
Proof of discrimination
To get a Section 3 bail-in, DOJ or other plaintiffs must show proof of intentional discrimination, Levitt said. A three-judge panel in 2012 ruled that the state’s redistricting plan reduced minorities’
political influence and struck it down on the grounds that Texas couldn’t show that it wasn’t intentionally discriminatory. That ruling formed the backbone of Section 3 case against Texas, which began with private plaintiffs and was later joined by DOJ.
Bruce Adelson, a former attorney in DOJ’s Civil Rights Division, said you don’t necessarily need such a court ruling to show discrimination.
There may be other examples.
But a court ruling helps if someone wants to get a bail-in. In addition to lacking the legal precedent that Texas had, Adelson said Arizona’s chances of staying out of DOJ’s crosshairs is bolstered by its recent lack of preclearance rejections. The last rejection of a state-level law was a 2002 rejection of the state’s newly drawn legislative map. The last rejection anywhere in Arizona was in 2003, when DOJ scrapped a change in the way the Coconino Association for Vocations, Industry and Technology board elected its members.
Hans Von Spakovsky, of the conservative Heritage Foundation, said the low number of preclearance objections, as well as the total lack of successful Section 2 lawsuits against the state, would bode well for Arizona if Holder or anyone else goes to court for a bail-in.
“They have such a clean record that I don’t think you could convince a judge,” said Von Spakovsky, who is also a former civil rights attorney at DOJ.
“Arizona is not in the same position right now as Texas,” said Adelson, who was part of the DOJ team that rejected Arizona’s 2002 legislative map.
Only two states, Arkansas and New Mexico, have ever been subjected to preclearance under Section 3. Levitt said the other 16 jurisdictions that have been bailed in were counties, cities, school districts and other subdivisions of states.
Levitt said he isn’t familiar enough with Arizona’s recent history to say whether the state could be subjected to a bail-in. But anyone asking a judge to impose federal supervision on the state must build a case that shows intentional discrimination, he said.
Gallardo and Quezada believe that record exists. They point to laws passed in recent years such a 2011 bill that required people to register with the state if they deliver more than 10 early ballots to election officials, or a 2010 law that adds two new at-large seats to the Maricopa County Community College District board. The Arizona Attorney General’s Office withdrew preclearance applications for both bills after DOJ requested additional information to determine whether they would have a discriminatory effect.
More recently, the two Phoenix Democrats cited HB2305, which the Legislature passed this year. Among other provisions, the bill prohibits political organizations from collecting voters’ early ballots, a staple of Democratic and Latino get-out-the-vote efforts.
Critics allege that the bill is meant to suppress Latino votes, while supporters say it is needed to protect elections from voter fraud and make the vote-counting process easier for election officials.
A red flag
Gallardo also pointed to issues that weren’t related to elections, such as SB1070, the landmark illegal immigration bill that elicited howls of protest from civil rights groups across the country, or a federal judge’s recent ruling that the Maricopa County Sheriff’s Office is guilty of racial profiling against Latinos.
Adelson said those factors would only be considered in a Section 3 case if they could be tied to voting. For example, the ruling against MCSO could be relevant because of a complaint related to the 2011 municipal election in Guadalupe. After voters complained that their polling place was near an MCSO substation, DOJ informed a federal court that it was certifying observers for the town in the 2012 election.
Several recent instances of Arizona withdrawing preclearance applications after DOJ requested more information, a red flag that often signaled an impending rejection, could work against Arizona in a bail-in attempt, Adelson said. But that on its own wouldn’t factor into a judge’s decision unless someone could show that the laws were discriminatory.
A recent U.S. Supreme Court ruling that gutted an Arizona law requiring people to show proof of citizenship to register to vote probably wouldn’t be a factor in any bail-in attempt either, Adelson said. Though critics alleged the law was discriminatory, the high court ruled against it on preemption, not civil rights grounds.
Quezada said he needs to examine Arizona’s record to see whether it would warrant a bail-in. He said he and other advocates of federal preclearance may have to first build a record by challenging discriminatory laws under Section 2 of the Voting Rights Act.
The first target may be HB2261, the 2010 law that expanded the Maricopa County Community College District board. At-large districts tend to dilute minority voting strength and have long been viewed with skepticism by DOJ. The law was never implemented because it never received preclearance, but might go into effect now that Arizona is no longer subject to Section 5.
“That’s a bill that’s ripe for a Section 2 challenge and that we could really (use to) develop some arguments that would get us to a Section 3 avenue later,” said Quezada. “You’ve got one law, but it sets a standard. It sets a precedent.”
Gallardo agreed that the community college bill could help set the state for a future bail-in.
“I think that is going to be the one bill that we walk into court with and start the discussion on Section 3,” he said.
DOJ declined to comment on whether it was considering legal action against Arizona under Section 2 or Section 3.
Voting rights act timeline
1867 Civil Rights Act grants citizenship, but not the right to vote, to all native-born Americans.
1869 Congress passes the Fifteenth Amendment giving African American men the right to vote.
1940 Only 3% of eligible African Americans in the South are registered to vote. Jim Crow laws like literacy tests and poll taxes keep African Americans from voting.
1965 President Lyndon B. Johnson signs the Voting Rights Act into law, permanently barring barriers to political participation by racial and ethnic minorities, prohibiting any election practice that denies the right to vote on account of race.
1970 President Richard Nixon signed an extension of the Voting Rights Act.
1975 President Gerald Ford signed an extension of the Voting Rights Act.
1982 President Ronald Reagan signed a 25-year extension of the Voting Rights Act.
2006 Congress extended Section 5 of the Voting Rights Act for an additional 25 years.
2011 A record number of restrictions to voting were introduced in state legislatures nationwide, including photo ID requirements.
2013 2013 U.S. Supreme Court strikes down a key portion of the Voting Rights Act in the case of Shelby v Holder.
— Source: ACLU