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Goldwater Institute Files U.S. Supreme Court Brief Challenging Voting Rights Act

November 19, 2014

Phoenix–The Goldwater Institute filed an amicus brief yesterday with the U.S. Supreme Court on behalf of Northwest Austin Municipal Utility District Number One v. Holder. The brief challenges the Voting Rights Act “preclearance” requirement under the 14th Amendment’s guarantee of equal protection and the 10th Amendment’s guarantee of federalism.
Preclearance requires Arizona and a handful of other states to seek permission from the federal government for legislative redistricting. To guarantee federal approval, states have often resorted to gerrymandering–drawing oddly-shaped voting districts to pull minorities from some locations and pack them into others. Preclearance has thereby pervasively promoted race consciousness and minority political segregation as a means of enforcing equal voting rights–just as affirmative action enforces race-consciousness purportedly as a means of remedying racism.

“Now that active state-sponsored racial discrimination has obviously waned, preclearance only encases politics in the very racial and ethnic divisions it was designed to prevent,” said Nick Dranias, counsel of record and Director of the Goldwater Institute’s Center for Constitutional Government.

When the Voting Rights Act was enacted in 1965, preclearance may have been the only feasible means by which equal voting rights could be enforced. But the days of the literacy test are long over. Minority political progress is no longer “modest and spotty,” as asserted by the Court nearly 30 years ago in City of Rome v. U. S. Pretending otherwise is not the product of what the Supreme Court called “practical experience” when it first upheld preclearance nearly 50 years ago in South Carolina v. Katzenbach.

In Northwest Austin Municipal Utility District No. 1, a utility district in Texas sought relief from preclearance under the Voting Rights Act. The district, which was created in the late 1980s, had no history of–or ever even had a complaint about–voting discrimination. Yet it was required to submit any change in its laws regarding voting to the federal government for preapproval. In its lawsuit, the district argued, in part, that this preclearance requirement was unconstitutional because it directly injected the federal government into the traditional state and local function of regulating voting and legislative redistricting. The lower court hearing the challenge disagreed, finding that preclearance was constitutional.
Yesterday’s brief, filed by the Goldwater Institute Scharf-Norton Center for Constitutional Litigation, argues that preclearance has forced Arizona to abandon the ideal of color-blind government in favor of racialist redistricting. Most recently, in 2002, the Justice Department refused preclearance and required Arizona’s Independent Redistricting Commission to abandon a redistricting map that would have maximized competitiveness in favor of one that maximized the electoral chances of various incumbent minority candidates.

“Preclearance has and will continue to backfire. Hopefully the Supreme Court will seize the opportunity, and strike down preclearance as incompatible with equality under the law and federalism,” continued Mr. Dranias.

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