VOTING RIGHTS IN ARIZONA: 1982–2006 JAMES THOMAS TUCKER,* RODOLFO ESPINO,† TARA BRITE, SHANNON CONLEY, BEN HOROWITZ, ZAK WALTER AND SHON ZELMAN‡ I. INTRODUCTION TO THE VOTING RIGHTS ACT A. HISTORY OF DISCRIMINATION Before the passage of the Voting Rights Act of 1965 (VRA), Arizo- nans of Hispanic, American Indian, African-American and Asian heritage were the victims of discrimination in virtually every area of their social and political lives. The town of Winslow adopted a policy segregating public swimming pools that allowed only Anglos to use the pool on days it was cleaned, and Mexican Americans, American Indians and African-Americans on other days.1 Similarly, Arizona adopted an anti-miscegenation law banning mar- riages between persons of “Caucasian blood” and those of “Negro, Mongo- lian, Malay, or Hindu” blood.2 American Indians were included in an ear- lier version of the anti-miscegenation statute, but were removed as a result of a 1942 amendment.3 African-Americans were not removed from the * Adjunct Professor, Barrett Honors College, Arizona State University. † Assistant Professor, Political Science Department, Arizona State University. ‡ Student Researchers, Barrett Honors College, Arizona State University. 1 Complaint, Baca v. City of Winslow, No. Civ-394-Prct (D. Ariz. 1955). The policy ended as a result of a consent agreement between the parties. 2 ARIZ. REV. STAT. ANN. § 25-101(A) (1956). In 1959, an Arizona Superior Court judge de- clared the statute unconstitutional in Oyama v. O’Neill, No. 61269 (Ariz. Super. Ct. Dec. 23, 1959). TERRY GODDARD, ARIZ. ATTORNEY GEN., THE PROMISE OF BROWN V. BOARD OF EDUCATION: A MONOGRAPH 6–7 (Mar. 2005), available at http://www.azag.gov/publications.html (follow “The Prom- ise of Brown v. Board of Education” hyperlink). 3 Arizona’s anti-miscegenation statute was originally enacted by the territorial legislature in 1865. 283 284 REVIEW OF LAW AND SOCIAL JUSTICE [Vol. 17:2 statute until 1962, just five years before the landmark Supreme Court case of Loving v. Virginia.4 Segregated schooling was widespread after it was sanctioned by the Arizona Supreme Court5 and state legislature, which passed a statute per- mitting school districts to “make such segregation of pupils as they may deem advisable.”6 Spanish-speaking Latino students were specifically tar- geted for segregation on the basis of their language.7 It was not until the 1950s, after Brown v. Board of Education, that Latino students were inte- grated into Arizona’s public schools.8 American Indian students remained largely segregated from non-Indians because they attended Bureau of In- dian Affairs (BIA) schools on reservations. Even after the public schools were desegregated, Latinos continued to be subjected to Arizona’s sweeping limitations on bilingual education. Arizona has had a longstanding tradition of English-only education in pub- lic schools, with English-only courses—known as “1C classes”—mandated by Arizona law in 1919.9 In districts with large numbers of English as a Second Language (ESL) and English Language Learner (ELL) students, students received English lessons “in a low-level, simplified curriculum.”10 Many of the students in the 1C classes remained behind for several years “before dropping out of school, never receiving the opportunity to transi- tion to age-appropriate” material.11 Until 1965, when a limited number of bilingual programs were introduced, “1C courses remained the only option for ELL students.”12 As a result, “English-only programs flourished.”13 Limitations on bilingual education, when combined with Arizona’s English literacy test for potential voters, had the effect of denying Latinos access to voting once they were eligible. 4 388 U.S. 1 (1967). 5 See Dameron v. Bayless, 126 P. 273 (Ariz. 1912) (denying injunction to prevent enforcement of school segregation order under Plessy v. Ferguson, 163 U.S. 537 (1896)). 6 ARIZ. REV. STAT. ANN. § 11-2750 (1913). 7 Laura K. Muñoz, Separate But Equal? A Case Study of Romo v. Laird and Mexican American Education, ORG. AM. HISTORIANS MAG. OF HIST., Winter 2001, at 28. 8 See Ortiz v. Jack, No. Civ-1723 (D. Ariz. 1955) (agreeing to discontinue the segregation and discrimination of Mexican school children); Gonzales v. Sheely, 96 F. Supp. 1004, 1008–09 (D. Ariz. 1951) (enjoining the segregation of Mexican school children in public schools because “a paramount requisite in the American system of public education is social equality. It must be open to all children by unified school associations, regardless of lineage.”). 9 Kellie Rolstad et al., Weighing the Evidence: A Meta-Analysis of Bilingual Education in Ari- zona, 29 BILINGUAL RES. J. 43, 47 (2005). 10 Id. 11 Id. at 47–48. 12 Id. at 48. 13 Id. 2008] ARIZONA 285 Similarly, for much of Arizona’s history, American Indians were ex- cluded from voting because they were treated as “wards of the nation,” who were not full citizens.14 American Indians in Arizona remained officially disenfranchised until 1948.15 Even then, barriers to participation by American Indians persisted: Some Indian people were unsure about their newly won voting rights. Many did not see themselves as active participants in the federal and state political process—simply because they did not view it as their process. Some feared that involvement in this non-Indian process would lead to taxation, further loss of reservation lands, and the termination of their special relationship with the federal government. These fears stemmed in large part from statements generated by the non-Indian community.16 In addition to fears about changes in taxation and the loss of the spe- cial federal relationship, an estimated 80–90% of the Indian population was illiterate, according to a 1948 Arizona Republic article.17 Even as Arizona allowed more American Indians to vote, Indians were still subjected to second-class citizenship. Like African-Americans in the South during Reconstruction, American Indians had the legal right to vote, but were not guaranteed that they would be able to cast a meaningful bal- lot.18 Language barriers prevented many from being able to read the ballot. “Using poll taxes, literacy tests, English language tests, and refusing to place polling places in or near Indian communities, western states were successful in their efforts to prevent Indians from voting.”19 B. ARIZONA’S ENGLISH LITERACY TEST AND ITS SUSPENSION BY THE VRA Arizona enacted its first English literacy test in 1912, shortly after statehood. The statute, later amended, provided: Every resident of the state is qualified to become an elector and may reg- ister to vote at all elections authorized by law if he: 14 See Porter v. Hall, 271 P. 411, 417 (Ariz. 1928). 15 See Harrison v. Laveen, 196 P.2d 456, 463 (Ariz. 1948) (overruling Porter v. Hall, 271 P. 411 (Ariz. 1928)). 16 DVD: The History of Indian Voting In Arizona (Inter Tribal Council of Arizona, Inc. 2004). A transcript of this DVD is available online at http://www.itcaonline.com/event001/historyofindianvotinginaz.pdf. 17 Id. 18 Willard Hughes Rollings, Citizenship and Suffrage: The Native American Struggle for Civil Rights in the American West, 1830–1965, 5 NEV. L.J. 126, 135 (2004). 19 Id. 286 REVIEW OF LAW AND SOCIAL JUSTICE [Vol. 17:2 4. Is able to read the Constitution of the United States in the English lan- guage in such manner as to show he is neither prompted nor reciting from memory, unless prevented from doing so by physical disabil- ity. 5. Is able to write his name, unless prevented from so doing by physical disability.20 According to historian David Berman, the literacy test was enacted “to limit ‘the ignorant Mexican vote’ . As recently as the 1960s, registrars applied the test to reduce the ability of blacks, Indians and Hispanics to register to vote.”21 Berman explained, “Anglos sometimes challenged mi- norities at the polls and asked them to read and explain ‘literacy’ cards. In- timidators hoped to discourage minorities from standing in line to vote.”22 On August 7, 1965, Apache County was included in the original list of jurisdictions covered by Section 5 of the Voting Rights Act.23 On Novem- ber 19, 1965, Navajo and Coconino Counties also became covered by Sec- tion 5.24 As a result of this coverage, application of the literacy test was suspended in each of the three counties, where a majority of the voters were American Indian. In 1966, the U.S. District Court for the District of Columbia held that Arizona’s literacy test had not been discriminatorily applied against American Indians in the preceding five years and, as a re- sult, these three counties became the first jurisdictions to successfully bail out from coverage under Section 5.25 In 1970, Congress renewed the temporary provisions of the Voting Rights Act and introduced amendments, including a change in the formula for determining coverage under Section 5.26 As a result of this amendment, Apache, Coconino and Navajo Counties were again covered by Section 5, along with five additional Arizona counties. In addition, the amendments 20 ARIZ. REV. STAT. ANN. § 16-101(A)(4)–(5) (1956). 21 DAVID R. BERMAN, ARIZONA POLITICS AND GOVERNMENT: THE QUEST FOR AUTONOMY, DEMOCRACY, AND DEVELOPMENT 75 (1998). 22 Id. at 76. 23 See Determination of the Director of the Census Pursuant to Section 4(b)(2) of the Voting Rights Act of 1965, 30 Fed. Reg. 9897 (Aug. 7, 1965). 24 Determination of the Director of the Census Pursuant to Section 4(b)(2) of the Voting Rights Act of 1965, 30 Fed. Reg. 14,505 (Nov. 19, 1965). 25 See Apache County v. United States, 256 F. Supp. 903 (D.D.C. 1966). 26 See Pub.