Saturday, September 3, 2011

Arizona Files Lawsuit Saying 1965 Voting Rights Act Violates 10th Amendment States' Rights

On August 25th Arizona's Republican Attorney General Tom Horne, who took office this year after winning election in the Tea-Party wave of Republican victories in the 2010 Congressional elections, filed a lawsuit challenging the Voting Rights Act (VRA) of 1965. Horne holds in his lawsuit (The State of Arizona v. Holder) that “Arizona does now and has always supported full and open voting rights for all residents and submission to pre-clearance procedures is not only unnecessary, but also unconstitutional.”

Horne's press release says: "Attorney General Tom Horne today filed lawsuit against the federal government for an injunction and a declaratory judgment that the portion of the Voting Rights Act requiring Arizona to pre-clear all voting changes with the Justice Department are unconstitutional..."

The filing itself says, "The State of Arizona, through undersigned counsel, brings this civil action for declaratory judgment that §§ 4 and 5 of the Voting Rights Act of 1965, as amended in 2006 (the "VRA" or the "Act") are unconstitutional..."

Horne filed the lawsuit in the U.S. District Court for Washington, D.C., and asked for a hearing before a three-judge panel. The lawsuit asks the court to either eliminate the original criteria for scrutiny as well as the pre-approval requirement or at least exempt Arizona from the requirement.

The pre-clearance rule, included in Section 5 of the VRA, which has been reviewed by the Supreme Court as recently as two years ago, mandates that certain state, county and municipal jurisdictions with a history of racial problems must obtain a review and pre-clearance by the federal Department of Justice (DOJ) on any proposed changes in voting laws. The main reason for the DOJ pre-clearance requirement is to insure that any proposed changes would not "deny or abridge the right to vote on account of race, color, or membership in a language minority group," as guaranteed by the 14th and 15th Amendments to the U.S. Constitution.

President Lyndon Johnson signed the Voting Rights Act into law on August 6, 1965. In the wake of violence and civil rights protests, the Johnson Administration drafted the VRA to enforce the 14th and 15th Amendments, aiming to eliminate various Jim Crow election law strategies to prevent blacks and other minorities from voting. Congress amended Section 2 of the law during the Reagan administration in 1982. On July 27, 2006 President George W. Bush signed a bill extending the Voting Rights Act for another 25 years.

Before the VRA, many states had poll taxes, literacy tests and a whole array of so called "Jim Crow" schemes and gimmicks encoded in legal statutes to make sure that whites of a certain status were the only ones "qualified" to vote. Arizona was one of these.

The VRA not only forbids state laws that are intended to specifically target minority voters -- it also forbids state laws that have a greater impact on minority voters than on others. Because voter ID laws disproportionately affect minority communities, it is difficult to see how many of the voter ID laws already passed or under consideration in GOP-controlled states could survive scrutiny under this law.

States that must request pre-clearance from the federal DOJ for any change to election laws or districts. More about the Voting Rights Act:

The Voting Rights Act of 1965 established federal Department of Justice oversight of election laws passed by certain southern states with a history of discrimination.

Arizona is the first state to challenge the constitutionality of sections of the VRA that forbid states from enacting a law or process that denies or limits someone's right to vote based on their race or color.

The lawsuit may be unique in its frank use of 10th Amendment language to argue implicitly that the VRA is an unconstitutional burden on states covered by the VRA.

Arizona's lawsuit declares of the VRA, "such heavy handed intrusion on state sovereignty exceeds Congress’s authority under the Fourteenth and Fifteenth Amendments ... Such laws cannot be justified by any power delegated to the federal government by the Constitution."

Arizona's lawsuit raises a new and deeply radical 10th Amendment objection to the law, claiming that the VRA "exceeds Congress's authority under the 14th and 15th Amendments because it suspends all changes to state election law - however innocuous - until preclearance is given by the federal government." If this theory were actually adopted by the Supreme Court, it would mean that the Voting Rights Act was unconstitutional the day it was first signed in 1965.

So even when black people had been murdered in the South for 100 years for trying to exercise their right to vote, the 1965 Voting Rights Act, which enforced the 14th and 15th Constitutional Amendment voting rights of all voters, was an unconstitutional infringement on "states' rights," according to Arizona's lawsuit.

There is legitimate reason to believe that Arizona will win its claim given the newest lawsuit comes just two years after the Supreme Court ruled that municipalities whose voting laws need to be “pre-cleared” under Section 5 of the Act would have the option to “bail out” of the law by demonstrating that they had stopped racially discriminating and would not do so again in the future.

U.S. Attorney General Eric Holder responded to the Arizona suit that the Voting Rights Act is vital to ensure that "every American has the right to vote and have that vote counted." Holder added, “The provisions challenged in this case, including the pre-clearance requirement, were reauthorized by Congress in 2006 with overwhelming and bipartisan support.” Holder said the DOJ “will continue to enforce the Voting Rights Act, including each of the provisions challenged..."

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