Voting Rights Case

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The United States Supreme Court today struck down a key part of the 1965 Voting Rights Act. The provision required some states to get preclearance for changes in voting laws. Arizona was among those states. Attorney General Tom Horne, who presented a Friend of the Court Brief in the case, will talk about today’s ruling. In a separate interview, Sam Wercinski, Executive Director of the Arizona Advocacy Network, will discuss the case as well. He is against today’s ruling.

Ted Simons: Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. The U.S. Supreme Court today struck down a key part of the 1964 voting rights act. The provision required nine states including Arizona to get pre-clearance from the Justice Department for changes in voting laws. We'll hear from opponents. But first we welcome Arizona Attorney General Tom Horne, who filed court documents in support of Alabama's successful challenge to the law. Good to see you. Why is this decision good for Arizona?

Tom Horne: It's good for Arizona because we're in a federal system where there's shared sovereignty between the federal and state government. State government should not have to say mother may I for every law it passes that might tangentially affect elections. We're talking about moving a precinct across the street, talking about changing the hours for the voter -- the motor vehicle department because when you pull up your license you can register to vote. We have had to submit 40 to 50 laws a year for approval to the Justice Department. For me it takes two lawyers and a paralegal during that part of the year to go through all their forms. It's dumb bureaucracy and really an imposition on the sovereignty of the state. We shouldn't have to ask the federal government for permission to pass laws.

Ted Simons: This provision has been in effect for Arizona since the early 70's. Why was it put into effect to begin with?

Tom Horne: In 1965, Arizona was not included. That's when the voting rights at was first passed. It included just southern states that had a history of over 100 years of serious discrimination against African-Americans in voting. The U.S. Supreme Court considered at that time whether it was imposition on state sovereignty. They said this is severe but we're going to approve it because it deals with a severe problem. Arizona was not part of that. In 1975, they added a provision for what they called language minorities and they said if you had 5% of your population or more that belonged to a language minority you had to institute bilingual voting by 1972 you would be subject to this regime. The law was passed in 1975. Why would they make it ' rather than 1974? Arizona instituted bilingual voting in 1974 and they wanted to get Arizona. They back dated it to 1972. Here it is 2013 and we're still being punished for having implemented bilingual voting in 1974 rather than 1972. As far as the 5% language minorities, less than 2% of Arizonans have this problem with language. The way they got us was by measuring in terms of if you had a Hispanic last name. More than 5% of our people have Hispanic last names. The overwhelming majority of people with Hispanic last names speak English just fine. There was no reason to subject us to this regime where we have go hat in hand to the federal government and say mother may I implement this law.

Ted Simons: Yet critics will say this provision blocked 18 Arizona voting laws and every single redistricting cycle at least one plan was blocked by this requirement to go through the Justice Department. Doesn't that suggest that this requirement was important and needed?

Tom Horne: No. It really doesn't. Let me tell you one important thing is we I consider this something of a personal victory because I filed the primary friend of court brief in favor of invalidating the law. The court did exactly what we asked it to do. But what we eliminated was sections 4 and 5 of the law which provides for pre-clearance. Under section 2 of the law if the state does anything discriminatory, they can be sued. If you sue some people say it takes years to go through a lawsuit but the court if it thinks there's a high probability of success can issue an injunction within 30 days stopping a practice that might be discriminatory. Anything passed that was discriminatory can be stopped under section 2. The fact that the Justice Department stopped things under sections 4 and 5 doesn't necessarily mean they were right. It may mean somebody in the Justice Department had an arbitrary view that really unjustly and arbitrarily stopped something the Arizona legislature thought was correct.

Ted Simons: There will be those who say the Justice Department, DOJ, Congress, makes the law to begin with, and can change the law from here on, can actually change what was done today, can get a law in there to affect the outcome. That from a distance they are better qualified to see if this discrimination occurs rather than Arizona officials who might have a dog on the hunt.

Tom Horne: That's an interesting, elitist view some bureaucrat in Washington knows better than people that live here.

Ted Simons: Objective distance they would say.

Tom Horne: I would say a mindless bureaucrat in Washington that doesn't know what's going on here. If there's discrimination a judge should deal with it. Section 2 remains. I support section 2. So somebody can bring a lawsuit if there's discrimination, but the idea that all the laws have to go through filling out these lengthy forms, 40 or 50 laws a year, ruled on by ivory tower mindless bureaucrats in Washington D.C. makes absolutely no sense and is an imposition on the idea that we're in a federal system with dual sovereignty. We're not subsidiary to them.

Ted Simons: If these are mindless decisions how come these 18 voting laws that were blocked over this period of time and all these redistricting plans that were blocked, why weren't they taken to court and challenged?

Tom Horne: Well, it may be that a decision was made that it was better to make an accommodation than to try to go through litigation.

Ted Simons: Right.

Tom Horne: I have only been Attorney General for two and a half years. The general point is if there's a charge of discrimination it should go to a judge. It can go to a judge and the judge should rule on it but you shouldn't have to make all the laws subject to a bureaucrat in the Justice Department deciding whether or not our laws are valid.

Ted Simons: For those who say this requirement is still needed to ensure open and fair access to voters, you say --

Tom Horne: I say under section 2 you assure open and access by voters with a fair system where you go to a judge and the judge decides whether or not something is discriminatory. You don't do it by making us fill out a lot of bureaucratic forms that nothing to do with being discriminatory. Changing the hours of motor vehicles department, we were ready if Alabama had lost to bring our own case and were prepared and were using an example a law passed where a school district with no schools, just transporting kids out of the district, we had to get pre-clearance for that. That's foolish, wheel-spinning bureaucratic nonsense. If you want to fight discrimination do it with section 2 where you go to a judge and the judge decides.

Ted Simons: Thanks for joining us.

Tom Horne: Great to be with you, Ted.

Ted Simons: Here to give an opposing view on today's Supreme Court ruling on the voting rights act is Sam Wercinski, executive director of the Arizona advocacy network. Thanks for joining us.

Sam Wercinski: Thank you, Ted.

Ted Simons: Why is this decision bad for Arizona?

Sam Wercinski: Arizona league of women voters say most clearly, Arizona voters lose protection. Sections 4 and 5 existed because there was a need for more than just section 2 to have citizens and groups challenge anti-voting laws that may be put in place and which we have seen take place historically in Arizona.
Ted Simons: And yet those who support the decision say you can still challenge those laws.

Sam Wercinski: You still can challenge those laws but again, protection has been reduced. When there's a crime spree taking place across a community laws are passed to stop that crime spree. When the crime spree is over, you don't remove those laws, you use them as a deterrent. What the five justices have done on the Supreme Court is they have removed a deterrent for discriminating against communities of color and reducing protection for all voters in Arizona.

Ted Simons: Attorney General's office says these are huge and expensive administrative burdens here and that some of these requirements are needed for everything from changing a poll place from one side of the street to the other.

Sam Wercinski: We see polling places today in the city where they no longer exist in neighborhoods and individuals who in the past may have walked to their neighborhood polling place now have to get on a bus and go five miles down the road. That makes voting harder. A democracy should all be about making voting easier, and that's what the voting rights act was all about. Protecting the right to vote. Also ensuring the communities of color would have the ability to elect somebody from their community who represented their goals and their aspirations.

Ted Simons: The idea of how this thing started with bilingual ballots back in the early 70's, kind of reverse engineer some would say back to include Arizona, that's a long time ago. Have things not changed for the better to the point where that deterrent is not needed?

Sam Wercinski: We have examples to show how Arizona politicians continue to attack voters and voting rights. In 2011, the legislature tried to pass a law that would prohibit a voter from taking a friend, family member or trusted individual into the site with them to help. That was really going to impact new voters and the elderly or those who may need assistance voting. Fortunately the Department of Justice struck that down as violating section 4 and 5. Today we have house bill 2305 which at tax voters. It attacks civic engagement organizations. It attacks smaller third parties. Arizona politicians have had and continue to have a history of making it harder to vote and when you make it harder to vote you empower these big money special interests so politicians can retain power.

Ted Simons: There are some who would say having to go through the Department of Justice, having to go through Washington to do everything from changing a polling place to much more major ideas and changes in voting laws, that it's not right, they are back in Washington, they don't know what's going on in Arizona. Some have described it as mindless bureaucrats. How do you respond to that? Why should though be able to tell Arizonans what they can and cannot do when it comes to voting?

Sam Wercinski: We send 11 representatives to represent us in Washington D.C. We have a voice in Washington. Quite honestly, Ted, Arizona advocacy network, League of Women Voters, coalitions like the Arizona Table, we have all been happy to have a safety net in Washington D.C. because of the history of disenfranchising in Arizona. We are charged up. We're energized. We have always fought these battles and barriers and we're going to move forward and continue to fight them.

Ted Simons: How so?

Sam Wercinski: It's all about organizing. It's all about making sure that voters know what their rights and responsibilities are. We know that our coalitions like the One Arizona Coalition has been very effective in bringing citizens who are eligible to vote into the system to make their voices heard on election day. And we'll continue to do that work, engage voters, make sure they know who has passed these regressive laws and how we can overcome them.

Ted Simons: When people say you could still file suit for discrimination and Congress can still act, Congress can still update the voting rights act to take care of some of the concerns that were struck down by the courts today because basically the courts are saying Congress can't -- the whole nine -- whatever. With those opportunities and possibilities still out there do you see that as a forum for change?

Sam Wercinski: That's why elections matter, Ted. That's why voters I believe are going to turn out in historic numbers for gubernatorial race next year. Because voters realize that our legislature, our politicians in Arizona, are trying to pass laws that prevent them from even having a friend of the family help them cast their ballots. They understand the attacks that are going on against voters in Arizona. All voters. And third parties. I think we'll see a shift here, a big shift in 2014.

Ted Simons: Last question before you go, for those who say this provision was unnecessary, it's a relic from the past, we should be able to move on, obviously Supreme Court agreed, you say --

Sam Wercinski: Look at the laws that were passed this session. House bill 2305 shows the war on voters is not over in Arizona. The politicians in power and the money that backs them are still intent on reducing voter turnout.

Ted Simons: Sam good to have you here. Thanks for joining us.

Sam Wercinski: Thanks for having me.

Tom Horne:Attorney General; Sam Wercinski:Executive Director of the Arizona Advocacy Network

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