Reports of Arizona voters waiting for as long as fives hours to cast their ballots is bringing intense scrutiny on local elections officials as well as renewed criticism of the 2013 Supreme Court decision that allowed them to make major changes to polling plans without the approval of the federal government.
Most of the coverage since Tuesday’s voting problems has focused on two things: First, Maricopa County, Arizona’s most populated region, reduced polling places from 200 to 60 in an effort to save money; and second, that’s the kind of change in the voting regimen that federal officials would have blocked until the Supreme Court gutted the Voting Rights Act in Shelby County v. Holder.
But the picture is more complicated, voting rights experts and former Justice Department officials tell TPM.
One key point that some early reports bashing Maricopa County failed to make was it did not simply reduce the number of polling places. Rather it was a transformation to a vote centers system, which if done correctly, brings some perks voting rights advocates generally favor.
Under the vote center system, instead of being assigned to vote at a single polling place, voters could vote at any of the 60 centers. While vote centers can save counties money, they bring their own set of benefits. The physical act of voting is no longer tied to where you live, which can make voting easier for people who work far from home. And since there are fewer sites to staff, those working at the vote centers tend to be the cream-of-the-crop, one expert told TPM.
Bipartisan Policy Center advisor Tammy Patrick, who used to submit Maricopa’s elections changes to the Justice Department for pre-clearance under the Voting Rights Act, acknowledged that 60 vote centers was a “light” number for the state’s first go-around trying the system. But, she argued, she thought “pre-clearing moving to vote centers would not have been an issue.”
“Herein lies the challenge for an election’s administrator. They had been pressured for years, because so many voters go to the wrong polling place,” Patrick said. “They were trying to look for ways to remedy that and a vote center does that.”
Voting rights activists now criticizing Maricopa County agreed that vote centers could be a good thing if rolled out responsibly.
“Vote centers don’t have to be a problem. They’re a problem when people can’t can get to them and when they don’t run right,” Myrna Perez, deputy director of the Brennan Center’s Democracy program, told TPM. “There are plenty of states that use vote centers and don’t have issues. That’s why it requires an on-the-ground inquiry and very specific planning, and someone being able to explain why this can be done in a non-discriminatory way. And with the Voting Rights Act not functioning, no one had to make that claim.”
Before Shelby County, Arizona was covered by Section 5 of Voting Rights Act, which required states like Arizona with a history of racial voting discrimination to submit any changes in voting regulations to the Department of Justice or to a federal judge to assess whether minority voters would be adversely affected. A conservative Supreme Court majority invalidated the formula in the law determining what localities were subject to the process — known as “preclearance” — and the 2016 election will be the first presidential election without Section 5’s protections.
In the most simplistic explanation of what went wrong in Arizona, a reduction of polling places by two-thirds would have brought on an obvious rejection by Department of Justice lawyers who, before 2013, would have been reviewing the change. However, that assumption misses some details in why Arizona changed its polling places and it glosses over the more delicate argument voting rights activists are now making about how the long lines could have been prevented.
“I certainly can’t comment on whether the DOJ would have ever objected to the change had Shelby not occurred, but I think there are factors that are a lot more nuanced,” David Becker, Pew’s director of election initiatives who worked in Voting Section of the Department of Justice’s Civil Rights Division under the Clinton and George W. Bush administrations, told TPM.
While it is likely the changes made in Arizona could have been implemented more effectively he and other experts said, they also reflect an effort to actually modernize voting in a way that has worked well in other states.
Without Justice Department review of the transition — a review that would have come before Tuesday’s election — it’s unclear whether officials distributed the vote centers in a way that had a disproportionately adverse impact on minority communities (there are reports Latino communities in Maricopa got one or no centers), or if there was adequate outreach informing voters of how the new system works.
The scenario in an alternate universe where the Voting Rights Act had not been gutted by Shelby County is not that the problems in Arizona would have been definitively prevented, but that at least before the election, they would have gone through the sort of independent analysis officials are now trying to do after the fact.
“Reduction in polling places is what oftentimes is scrutinized pretty heavily,” Gerry Hebert, a former Justice Department voting rights official who is now the executive director of the Campaign Legal Center, told TPM. “[Local elections officials] oftentimes don’t examine in advance the consequences on voters until they actually have to sit down and submit it to the Justice Department and explain what the impact is going to be, numerically, geographically, and racially.”
Those responsible for the issues in Arizona are scrambling to ameliorate the problem, while some are calling for a separate DOJ investigation. It remains to be seen, however, whether elections administrators in other parts of the country are taking the Maricopa mess as a sign that their polling plans need more consideration without the DOJ looking over their shoulder.
“What happened in Arizona, I believe, is a prelude to potential chaos in the fall election,” Hebert said.