Tom Horne files a politically motivated challenge to the Voting Rights Act

Posted by AzBlueMeanie:

I warned you before the 2010 election; others warned you as well. Tom Horne would use the office of Attorney General not to enforce the laws of Arizona and to pursue justice, but to use it as a platform to pursue his political agenda in his quest to become Arizona's next governor (God help us). He has misused and abused the powers of his office to pursue one politcally motivated case after another.

Horne's latest abuse of power is a constitutional challenge to the Voting Rights Act. He asserts that Arizona no longer needs federal scrutiny for past acts of discrimination against minority voters. Arizona sues over Voting Rights Act:

Arizona Attorney General Tom Horne, who filed the lawsuit, said the original criteria for pre-approval are no longer relevant or constitutional, and Arizona no longer needs the federal government's scrutiny.

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The sections at issue require states that failed to meet certain criteria in 1972 to get federal approval for any state legislation or procedural change that could impact voting.

Nine states failed to meet that criteria, which included having low voter turnout and not offering election materials in other languages.

The nine states are Arizona, Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

Arizona in 1974 implemented bilingual voting, but Congress never removed Arizona – or other states that now comply – from the list. The criteria has never been updated. So for more than 30 years, Arizona and its municipalities have had to get approval from the U.S. Department of Justice for things such as legislative or school-district boundary changes, revisions to driver's licenses and laws requiring tax hikes to go before the voters.

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Horne filed the lawsuit Thursday in U.S. District Court in 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.

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"And nobody's out there trying to stop people with Hispanic surnames from voting," he said.

Horne must be living in a parallel universe. Prop. 200 in 2004 imposed a proof of citizenship requirement for voter registration (still being litigated on appeal in court) and a photo I.D. requirement to vote at the polls (approved by the U.S. Supreme Court in Crawford v. Marion County Election Board (2008)), both requirements based upon the entirely false premise without any proof that "illegal aliens" crossing the border from Mexico were voting in Arizona elections.

The voter I.D. requirement adopted by several other states is now being challenged in court on a disparate impact theory of discrimination, i.e., a consequence of the law is a discriminatory impact upon distinct classes of persons who are least likely to have driver's licenses or passports: the elderly, the poor, the disabled, college students and urban dwellers. I would argue that this is intentional discrimination — the GOP-favored voter I.D. laws disenfranchise classes of persons who tend to vote Democratic, which is exactly as the GOP intended. [UPDATE: See Rep. John Lewis, A Poll Tax by Another Name – NYTimes.com].

More broadly, Prop. 200 also imposed the same requirements for any person prior to receiving any state or locally funded benefits. Then of course there is SB 1070, Arizona's profiling law that can be abused by overzealous law enforcement to the extent that it is "illegal to breath while brown" in Arizona, sweeping up U.S. citizens of Hispanic descent equally with undocumented immigrants. These laws create a hostile environment towards Hispanics in Arizona, something of which the DOJ must take notice.

There was also Arizona's "English only" law in 1988 that was later overturned by the U.S. Supreme Court in 1998. Prop. 103 in 2006 only declared English to be the official language of Arizona. While Arizona has complied with the multiple language ballot requirements under federal and state law, I can foresee an opportunist like Tom Horne using this "English only" issue, if freed from Section 5 pre-clearance, to engage in more of these "states' rights" challenges to federal law under the Voting Rights Act.

Finally, Steve Muratore at The Arizona Eagletarian has a link to a copy of the letter dated May 20, 2002 from the U.S. Department of Justice Civil Rights Division to the attorneys for the last Independent Redistricting Commission in which DOJ objected to Arizona's redistricting plan:

[O]n behalf of the Attorney General, I must object to the 2001 legislative redistricting plan for the state of Arizona.

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[B]ased on the information provided, we have determined that the AIRC has not met its burden of establishing that minority voters will continue to be able to elect candidates of their choice in five districts (2, 13-16, 23-25, 27 and 29) in which minority voters will be able to eelct candidates of their choice. As a result, the proposed planm, which results in a net loss of three districts from the benchmark plan in which minority voters can eefectivly exercise their electoral franchise, is retrogressive. [A violation of the Voting Rights Act]

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In creating the proposed District [23], the AIRC made several adjustments. For example, the towns of San Manuel (46.2% Hispanic) and Oracle (38.3% Hispanic), both of which had been in existing District 7 were removed while the entire City of Casa Grande (39.1% Anglo) and  virtually all of Apache Junction (87.9% Anglo) were placed into proposed District 23… [T]he circumstances surrounding the removal of these two towns and the resulting drop in the Hispanic voting age population percentage, has raised concerns regarding the ability of the AIRC to establish that this action, which had a retrogressive effect, may also have been taken, at least in part, with a retrogressive intent. (emphasis added)

In other words, the DOJ found intentional discrimination by the last AIRC in redistricting state legislative districts ( a rare finding today), to which the DOJ objected. In fact, the last three redistricting plans for legislative districts in Arizona (1981, 1991 and 2001) were objected to by the DOJ. This is evidence of a continuing pattern and practice of discrimination, the very reason for Section 5 pre-clearance by the DOJ. Arizona has failed to demonstrate it is worthy of not being subjected to Section 5 pre-clearance by the DOJ.

U.S. Attorney General Eric Holder has responded to Tom Horne's frivolous and politically motivated case. Hat tip again to Steve Muratore at The Arizona Eagletarian. US Attorney General Eric Holder issued the following statement in response to Tom Horne's lawsuit:

Department of Justice

Office of Public Affairs

FOR IMMEDIATE RELEASE

Thursday, August 25, 2011

Statement of Attorney General Eric Holder on Lawsuit Challenging the Voting Rights Act of 1965

WASHINGTON – Attorney General Eric Holder released the following statement regarding a lawsuit filed today by the State of Arizona challenging the constitutionality of the Voting Rights Act of 1965:

“The Voting Rights Act plays a vital role in our society by ensuring that every American has the right to vote and to have that vote counted.  The Department of Justice will vigorously defend the constitutionality of the Voting Rights Act in this case, as it has done successfully in the past.  The provisions challenged in this case, including the preclearance requirement, were reauthorized by Congress in 2006 with overwhelming and bipartisan support.  The Justice Department will continue to enforce the Voting Rights Act, including each of the provisions challenged today.”