RECENT FLORIDA AND ARIZONA CHALLENGES TO LONG-STANDING VOTING RIGHTS ACT PROVIDE ADDITIONAL AREAS OF CONCERN FOR LATINO VOTE
The States of Florida and Arizona have filed challenges to the Voting Rights Act (VRA) in the United States District Court for the District of Columbia. Section 5 of the VRA, described by the Supreme Court as "remed(ying) aimed at areas where voting discrimination has been most flagrant," helps protect the right to vote in places where, historically, this right has been most threatened. The VRA provides for federal oversight of any changes to rules and procedures affecting voting, including redistricting maps, in specified jurisdictions.
The States of Florida and Arizona have challenged the constitutionality of Sections 4 and 5 of the VRA. The states argue that they should no longer be required to get federal approval for changes they propose to election-related rules, practices or procedures.
On January 27, MALDEF submitted intervention documents in the Arizona case on behalf of an organization and several individuals.
Below you will find a more detailed and technical update on the status of these challenges to the VRA and what they mean for our community. Stay up to date on future developments on these two challenges through MALDEFian updates.
Background on the Voting Rights Act
Congress enacted the VRA to enforce the Fifteenth Amendment to the United States Constitution, which provides that the right of U.S. citizens to vote not be denied or abridged on account of race, color, or previous condition of servitude. Section 5 of the VRA subjects changes in elections policies or practices to review before implementation or “preclearance.” Section 4 of the VRA outlines the factual test used to determine which voting districts or states are covered: All states and political subdivisions are covered by the VRA where (A) a test or device was used as a prerequisite for voting (which includes English-only voting procedures where more than 5% of citizens are a single language minority), and (B) less than 50% of voting age residents voted in the 1964 presidential election.
Preclearance is a process through which a voting district or state covered by Section 4 of the VRA (which includes all or parts of 16 states) seeks federal authorization and approval for any changes made to elections rules or procedures, including the redrawing of voting maps and plans. Section 5, the “preclearance” provision, requires states or districts covered by the provision to get federal approval before changing election rules or procedures, due to state or district past laws and practices that discriminated against and disenfranchised racial minorities.
Preclearance requires a state or voting district to submit its proposed changes to either the U.S. District Court for the District of Columbia for judicial review or to the Attorney General for administrative review. The federal district court or Attorney General then must determine that the changes have neither the purpose nor the effect of discriminating on account of race, color, or membership in a language minority group. Changes that affect voting are legally unenforceable until the covered state or political subdivision obtains the appropriate Section 5 preclearance.
The import of Florida’s and Arizona’s current challenges to the VRA as unconstitutional or not applying to them is that these political entities ignore or discount the impact of historic and current discriminatory practices. Without federal oversight, many states and political subdivisions may deny minority voters the ability to participate effectively in voting and elections. The VRA ensures representative government, the bedrock of our present democracy.
VRA Challenge by the State of Florida
The State of Florida filed its complaint at the beginning of August 2011, and then, an amended complaint at the beginning of October. Florida is asking the court to pre-clear recent changes to the state’s election laws, or alternatively, if it does not obtain preclearance, Florida is asking the court to declare the VRA’s preclearance requirement and underlying coverage formula unconstitutional.
Florida brought the lawsuit, Florida v. U.S., asking the court’s permission to implement H.B. 1355. Enacted by Florida legislators in early 2011, H.B. 1355 includes severe restrictions on community-based, volunteer voter registration drives. Also, it reduces the number of early voting days available (including the Sunday before an election – a day with the highest minority turnout) and eliminates the ability for registered voters who have recently moved between Florida counties to provide notice of their change of address on election day and still cast a regular ballot. Under the terms of the VRA, Florida must obtain preclearance from the federal government before implementing H.B. 1355, or any changes to election laws, in the five Florida counties covered by the VRA. Civil rights groups oppose H.B. 1355, citing the law’s new restrictions as discriminatory, and seek to defend the VRA from constitutional challenge.
The civil rights groups argue that Florida is not able to demonstrate that H.B. 1355 has neither the purpose, nor the effect, of harming minority voters. MALDEF’s intervention in this lawsuit may prove necessary to preserve and encourage the Latino vote, which is critical in order to elect candidates at all levels of government who reflect and adequately represent Florida’s significant Latino population.
VRA Challenge by the State of Arizona
Arizona filed its complaint at the end of August 2011, and then, an amended complaint at the end of September. The state is asking the court to declare Sections 4 and 5 of the VRA unconstitutional. Also, Arizona is asking the court to stop enforcement of these sections of the VRA. In the alternative, the state is seeking a bailout under Section 4 of the VRA with the result that the preclearance requirements of Section 5 would not apply to the state or its political subdivisions.
In Arizona v. Holder, Arizona became the first state to challenge Section 5 of the VRA since it was reauthorized in 2006. Arizona Attorney General Tom Horne’s move to bail out of the VRA while he is leading efforts to defend SB 1070 and another state law targeting Latinos underscores the present-day relevance and importance of the VRA: to ensure Latinos’ access to the polls in Arizona, a state with a long history of implementing procedures that have had a discriminatory impact on Latino voters and those with limited English proficiency.
Under the amended VRA, Arizona is a "covered jurisdiction," and must obtain preclearance because until 1975, the state provided election material only in English, despite a significant Latino population. Arizona contends that Section 5 is unconstitutional and not applicable to the state. However, without Section 5 procedural safeguards, Latino voters in Arizona remain vulnerable to being denied meaningful representation.
Founded in 1968, MALDEF is the nation's leading Latino legal civil rights organization. Often described as the "law firm of the Latino community," MALDEF promotes social change through advocacy, communications, community education and litigation in the areas of education, employment, immigrant rights and political access. For more information on MALDEF, please visit: www.maldef.org.
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