Charging that Congress has exceeded its authority, state Attorney General Tom Horne asked a federal court Thursday to void a 36-year-old law governing how Arizona runs its elections.
The lawsuit claims there is no basis for requiring Arizona to "preclear" any changes in its election laws with the U.S. Department of Justice to ensure that they do not affect the voting rights of minorities. Horne said that any discrimination that may have existed in Arizona when Congress approved the law in 1965 is long gone.
But Horne is doing more than trying to exempt Arizona from the law. He claims Congress has no constitutional right to tell the state how it can run its elections.
And Horne said the law is written in a way that itself discriminates against Arizona, treating it different than other states.
There was no immediate response from the Justice Department.
The law traces its roots to efforts by Congress to wipe out what federal lawmakers said were practices designed to keep minorities from voting. While most of the affected states were in the South - and the issue dealt with blacks - Arizona also got pulled in.
Horne said that was based in part on the percentage of residents who spoke Spanish and how many people had Hispanic surnames. But he acknowledged it also was because Arizona did not have bilingual ballots until 1974.
Horne said that was before an amended version of the federal law was adopted in 1975. But he said Congress chose an "arbitrary" retroactive cutoff date of 1972 to determine compliance.
What the law says is the state has to run various changes in voting law by the Department of Justice. These range from who gets to vote and identification required to changes in legislative districts and where people can vote. If the federal agency does not object in 60 days, the changes in law can take effect.
Horne said that, at its very least, it is an inconvenience.
Last year, for example, Horne said it took the Department of Justice more than a month to give its OK for the state to have a special election in May for voters to decide whether to approve a temporary one-cent hike in state sales taxes.
More recently, however, the federal agency refused to preclear a new law which says anyone who turns in more than 10 early ballots for others at a polling place must provide photo identification. Sen. Don Shooter, R-Yuma, said he crafted the legislation to protect the integrity of elections.
But in a June 27 letter to the state, Christian Herren Jr., chief of the Department of Justice's voting rights section, said he first wants some questions answered, including what purposes the changes will serve, the legislative history of the bill, efforts to get public comments, and the "factual basis" for the state's conclusion that the changes will not affect the ability of minorities to vote by mail.
State Elections Director Amy Bjelland said that, based on the objections, her office is withdrawing the measure from consideration, meaning it will never take effect.
Horne told Capitol Media Services all that makes no sense.
"When we're talking about people bringing in 10 or more ballots, we're concerned about voter fraud," he said. "And it's not a legitimate federal interest to stop us from trying to be sure there's no voter fraud."
He said, though, there are larger questions at work.
"We're being punished for the fact that ... we implemented bilingual ballots in 1974 rather than 1972," Horne said.
The attorney general said there may have been discriminatory practices in the past.
Some of those gained national attention during the 1971 confirmation hearings of William Rehnquist to the U.S. Supreme Court. There was testimony that during the 1960s he intimidated black and Hispanic voters, using the state's then-existing literacy requirement.
Horne said all that is currently irrelevant.
"There's no one out there right now trying to prevent Latino people from voting," he said.
The bottom line, Horne said, is nothing in the U.S. Constitution gives Congress the power to require Arizona to go to the Department of Justice for approval for every change in election law. Using the example of last year's special election, he said that is the equivalent of having to ask federal approval to go to voters to hike taxes to avoid steeper cuts to public education.
He conceded, though, that there is at least some federal role in the process.
"There is a constitutional provision that says with federal elections the state has the initial power unless Congress acts to override it," Horne said. And he said that would appear to let federal legislators decide the state does need to jump through some procedural hoops in elections for the president and members of Congress.
But Horne said the Voting Rights Act is broader, affecting matters of only state or local concern.