PHOENIX — Arizona no longer needs to get federal government sign-off for changes in its voting laws.
The U.S. Supreme Court on Tuesday overturned a section of the Voting Rights Act which created a formula to determine which states and counties have a history of discrimination and therefore must submit any alterations to the Department of Justice for "preclearance.'' That list of nine states has included Arizona.
Chief Justice John Roberts, writing for the majority, said he and his four colleagues are not saying there is no longer a problem.
"Voting discrimination still exists,'' he said. "No one doubts that.''
But Roberts said that half-century old formula can no longer be the basis for singling out states for special treatment.
Roberts was careful to say, though, that other sections of the 1965 Voting Rights Act and its amendments survive — and that Tuesday's ruling is not a license for states to enact new discriminatory laws. He said the high court remains ready to strike them down.
Potentially more significant, Roberts said the court was not blocking preclearance outright. He said Congress can try a different formula, based on current conditions and practices, to determine which states are discriminating against minorities and still need to have their laws reviewed by the federal government before they can take effect.
Gov. Jan Brewer said the ruling is overdue.
"I think we were being punished by the Voting Rights Act for indiscretions, bad things that took place decades ago,'' she said.
"Those haven't taken place any longer,'' the governor continued. "We have grown.''
But state Rep. Steve Gallardo, D-Phoenix, said a bill signed by Brewer last week proves discrimination remains in Arizona.
That legislation sets up procedures for county officials to stop mailing early ballots to people who have not been using them. It also limits who can take someone else's early ballot to the polls.
Until Tuesday, foes had planned to ask the Department of Justice to bar it from taken effect.
Gallardo acknowledged foes remain free to challenge the law in court. The difference is that, with Tuesday's ruling, the statute is presumed valid and can take effect unless and until it is struck down by the courts.
Attorney General Tom Horne, who filed a brief urging the justices to strike down preclearance, called the practice "irrational.''
He said it forces Arizona to jump through procedural hoops for dozens of laws each year that have some effect on voting. That includes changes in the application for a driver's license as state law allows someone to register at the same time he or she seeks driving privileges.
Horne conceded the Department of Justice has questioned — and rejected — some changes in law. But he insisted that did not make them discriminatory.
"It just means that somebody in the Justice Department didn't like it and we didn't think it was worth fighting about,'' he said. Anyway, Horne pointed out that the rest of the Voting Rights Act remains, allowing those who contend Arizona laws are discriminatory to seek to have them overturned.
Roberts, writing for the 5-4 majority, said his court remains willing to do just that.
In fact, the chief justice cited last week's ruling where the court ruled Arizona cannot demand proof of citizenship from those who use a federal voter registration form. The high court said a federal law requiring states to accept and use the form as is — without anything else — trumps the Arizona law.
Roberts said that is in accordance with the U.S. Constitution which makes federal laws supreme and that state laws may not undermine them.
"The federal government does not, however, have a general right to review and veto state enactments before they go into effect,'' he wrote. In fact, Robert said, the Constitutional Convention considered bit rejected such authority, instead saying state laws should be allowed to take effect "subject to later challenge under the Supremacy Clause.''
Roberts also said that states are not only sovereign but constitutionally equal to each other.
The problem here, Roberts said, is this provision of the Voting Rights Act applies to only some states. And that, he said, creates an inequity that cannot be justified by the current formulas
For most states, changes in voting laws are put into effect immediately. If there is a challenge, it is up to the party contesting them to make the case and prove the discrimination.
The Voting Rights Act turns that on its head, Robert said, forcing Arizona and other affected states to first prove that any change is not discriminatory.
Roberts acknowledged the high court upheld the law in 1966. But he said there were "exceptional circumstances'' at that time.
That included the fact that some states had enacted various requirements and tests "specifically designed'' to prevent African-Americans from voting. And Roberts said case-by-case challenges "proved inadequate'' because the states that were sued "merely switched to discriminatory devices now covered by the federal decree'' or simply defined and evaded court orders.
Now, half a century later, Roberts said things have changed.
"There is no doubt that these improvements are in large part because of the Voting Rights Act,'' Roberts acknowledged, calling the law "immensely successful at redressing racial discrimination and integrating the voting process.'' But he said the formulas used to determine which states and counties need their voting laws precleared is based on old problems of discrimination that may no longer be relevant.
Roberts said Congress still can address discrimination. And he said federal lawmakers even can decide that some states need special scrutiny.
"To serve that purpose Congress — if it is to divide the states — must identify those jurisdictions to be singled on a basis that makes sense in light of current conditions,'' he wrote. "It cannot rely simply on the past.''
Justice Ruth Bader Ginsburg, in her dissent, chided the majority for saying the preclearance provision of the 1965 law has worked to reduce discrimination — and then using that fact as an excuse to nullify it. While preclearance is now voided, at least for the time being, Attorney General Eric Holder said that does not mean his agency will not be watching.
"The Department of Justice will continue to carefully monitor jurisdictions around the country for voting changes that may hamper voting rights,'' he said in a prepared statement. And Holder said the agency will "not hesitate to take swift enforcement action'' against states and counties that try to take advantage of Tuesday's ruling.