Poor Elective Surgery

Jewish Light Editorial

No matter whom you support as a presidential candidate, if you care about voting rights, you should be deeply concerned about what happened in Maricopa County, Ariz. during the recent primary election.

Most Arizona counties had a polling place, on average, for about 2,500 eligible voters. In Maricopa, the county that includes Phoenix and is the most populous county in the state, the ratio was almost 10 times that — one location for every 21,000 voters, a huge portion of whom were Latino and Native American. Lines of up to five hours were reported on last Tuesday’s election day.

The county had decided to reduce its number of polling places from about 200 in the previous presidential primary to 60 this time. The county claimed that it was trying to save money, but this was rebutted by some officials, who pointed out that the state would have been obligated to reimburse the county for its expenditures, even at the previous level.

How can this kind of travesty occur? Well, it was far less likely to happen prior to 2013, when the U.S. Supreme Court in Shelby County v. Holder invalidated a portion of the federal Voting Rights Act. That portion had required nine states, including Arizona, along with many more localities around the country, to obtain pre-clearance before changing election procedures. The reason was because of the historical tendency of those places to exhibit discriminatory election practices.

The Court’s decision in 2013 was a 5-4 one, with a sharply divided set of opinions. The majority did not have an objection to the Justice Department requiring pre-clearance in concept. But they said that the actions of the particular states and localities named — many of them in the South — were in some cases decades old, and thus the government should have to apply a formula to determine which jurisdictions must be subject to pre-clearance in the future.


One small problem with that majority opinion? It said that Congress would have to weigh in on what the formula should be. And Congress has shown little inclination to do so, leaving the government with no pre-clearance enforcement anywhere.

Yet the mayor of Phoenix, Greg Stanton, was undeterred in his contention that voters, particularly those in his city — where he claimed there was only one polling place for every 108,000 residents – were treated extremely unfairly. The day after the election, he wrote a letter to U.S. Attorney General Loretta Lynch, asking her to investigate the apparent gross inequities in poll access, particularly for minority residents.

This episode takes place as a number of states have passed aggressive identification laws to increase the bar for voters at the polls. Missouri’s legislature is in the process of considering one that could substantially reduce the number of voters in future elections, and potentially have a disproportionate impact on lower-income voters.

These existing and proposed laws are anathema to open and expansive voting. As the Brennan Center for Justice points out:

“In 2016, 16 states will have new voting restrictions in place for the first time in a presidential election. The new laws range from strict photo ID requirements to early voting cutbacks to registration restrictions.” 

Not surprisingly, there is a significant overlap between the list of states and jurisdictions in which pre-clearance was required before 2013, and the states with new restrictions.

So now the Justice Department, if it believes the new restrictions violate the Voting Rights Act, must start every single investigation from scratch — as opposed to preventing changes via pre-clearance in the most historically inequitable jurisdictions. It will take a mammoth amount of federal prosecutors’ time, not to mention our tax dollars, to aggressively anticipate those practices which could have seriously discriminatory impact come November.

As Washington Post columnist E.J. Dionne says, “Imagine voting debacles like Arizona’s happening all across the country. Consider what the news reports would be like on the night of Nov. 8, 2016. Are we not divided enough already? Can we risk holding an election whose outcome would be rendered illegitimate in the eyes of a very large number of Americans who might be robbed of their franchise?”

So now we wait to see what the real-life consequences of the Court’s decision will be. We’re thinking they will be serious, and could throw the ugliest aspects of statehouse and local politics into the public maelstrom. For even if you believe that there are legitimate reasons for restrictive voter ID laws — something we have emphatically doubted in the past — the social upheaval if thousands or millions are prevented from legitimately exercising their right to vote will be far, far worse than the infinitesimal number of voter fraud violations and prosecutions that occur across our nation.