Ted Simons: The United States Supreme Court is considering an Alabama case that could overturn a provision of the Voting Rights Act. It's a case that impacts Arizona, as well. ASU law professors Paul Bender is here to tell us more. Good to see you again.
Paul Bender: Good to see you.
Ted Simons: What is the Court looking at here?
Paul Bender: The Court is looking at the constitutionality of the Voting Rights Act, section of that. It requires covered states, whenever they do anything that affects voting, changing a precinct, redistricting, when elections are held, when you have to get your ballots in, anything like that, they cannot put those laws into effect immediately. They have to get preclearance from the Justice Department or from a District Court in Washington. The preclearance is designed to make sure that the change does not deny minority voting rights or lessen minority voting rights. The states picked for coverage were states that had a history of discriminating on the grounds of race or ethnicity.
Ted Simons: I think some folks listening had no idea Arizona had that kind of history. You can understand Alabama. What's the deal with Arizona?
Paul Bender: It's interesting. Alabama was not covered originally in 1965, it was covered in 1972 or 75’, I forget which. The year they covered it, the coverage formula is based on the state having used a test or device that makes it hard to vote, like a grandfather clause, or that's discriminatory. Or a poll tax or a literacy test. In or , they added any state that had I think -- that only had ballots in English and had a substantial non-English speaking population, they said that would be a test or device, also. That's how Arizona came in. We had years in which we had ballots that were only in English. Those are states that Congress was afraid would do things that would hurt minority voting rights. The reason for preclearance is that a lot of these things could be done just before the election. So like a week before the election, I'm going to move the polling place. That could be very discriminatory. Or one of the bills in the legislature now is a bill that says that only a member of your family can turn your ballot in. That could be very discriminatory against Native Americans who live in places where they need somebody else to do that. If that's done a week or a month or two before the election, there's no time to bring a lawsuit on the grounds that it's discriminatory. The law is to make sure voting changes are not made that have a discriminatory impact.
Ted Simons: So what's the challenge?
Paul Bender: The challenge is that's unconstitutional. It interferes with state sovereignty, it tells the state they can't put laws into effect until the federal government approves. The other is that the formula is outdated. Sort of an equal protection argument. Why are these states picked out and not the others. The original formula was -- made sense. But now the argument is, hey, the formula is the same as it was in. Shouldn't the formula be changed? Congress re-enacted the thing three or four times. And recently as they did not change the formula, they left the same formula. They found the formula still works. These are the states with the most likelihood of having changes in voting that would discriminate against minorities.
Ted Simons: In particular, Justice Scalia had a remark saying, this is basically a perpetuation of racial entitlement.
Paul Bender: That's what he said.
Ted Simons: Could that statement impact how the Court looks at this?
Paul Bender: It might, and it might go in the opposite direction of what Scalia intended. That is a really outrageous statement to say that anti-discrimination is anti-entitlement. So he says we, the supreme court, have got to get rid of this, because we can't trust Congress to take into account -- the main argument here is state sovereignty. When the bill was reauthorized in Congress, it was a close vote in Congress? Unanimous, nobody opposed it. Scalia said they would never get rid of it because they are afraid of what the push-back would be from something like that, so we have to get rid of it.
Ted Simons: With that in mind, seconds left here. What do you think the Court will do on this?
Paul Bender: They will probably strike it down. There are clearly four votes to strike it down or uphold it. As usual the question is, what is Justice Kennedy going to do. He pressed what seems to be a lot of things for the argument, that the formula was outdated. He is a big believer in states' rights and states' sovereignty. I think that would overcome his feelings about discrimination in this case.
Ted Simons: Even with the Scalia remark that's on the record?
Paul Bender: If people think that about that, I better vote to keep that in place, because that shows racial discrimination is still alive.
Ted Simons: Thanks so much.