Some reauthorization-hearing witnesses suggest that since it should only take a few years for someone to become proficient enough in English to vote, the bilingual requirements should sunset sooner, with certain safe harbors for more recent immigrants. Otherwise, bilingualism may become an engrained feature of voting, particularly with increasing levels of immigration on the horizon.
In addition, some witnesses have highlighted the dissonance between bilingual voting requirements and the requirement that almost all applicants for citizenship be able to read, write, speak, and comprehend English at the level of everyday usage. As I indicated in a previous article, it may make sense to target Section 203’s coverage to individuals exempt from the citizenship requirement pertaining to English proficiency.
Any change to section 203 will meet significant resistance. It’s not exactly unknown for common sense to yield when race or ethnicity are part of the equation, no matter how oblique. This is also the case for bilingual-ballot requirements, despite the fact that a recent Rasmussen poll shows that 85 percent of Americans favor making English the official language of the United States and only 11 percent oppose — presumably more than enough political cushion to do the right thing.
An amendment that might meet less resistance than others yet still provide substantial benefits would be an opt-out provision for jurisdictions whose “limited English proficient” (“LEP”) citizens make little or no use of bilingual election materials.
Opt-out provisions are consistent with the history and structure of the Voting Rights Act. Jurisdictions subject to Section 5’s preclearance provisions (requiring covered jurisdictions to get approval from the attorney general or the U.S. District Court for the District of Columbia before implementing any changes in voting practices or procedures) have a bailout option.
An opt-out provision would allow covered jurisdictions to means test whether bilingual election materials are truly needed in their area. Given that two GAO reports found that in most covered jurisdictions bilingual ballots are rarely used, it’s likely that a majority of states and political subdivisions covered by Section 203 would be eligible to opt-out.
The experience of Section 5’s opt-out provisions shows, however, that few jurisdictions choose to invoke the mechanism, despite the fact that, as noted by Gerald Herbert, former acting chief of the civil-rights division of the Department of Justice, up to 90 percent of covered jurisdictions are eligible to bail out . Professor Mike McDonald speculates that one reason few jurisdictions attempt to opt out is a lack of information and resources to prepare opt-out litigation. Another reason may be political — officials in a jurisdiction eligible for opt-out may decline to do so out of concern foe appearing racially/ethnically insensitive.
A Section 203 opt-out amendment could be crafted to avoid Section 5’s problems by placing the burden on the attorney general to certify, after a defined period of review, that section 203 (1) is effective in providing voting access to LEP voters and (2) remedies a demonstrated practice of depriving LEP citizens of the right to vote. If the Attorney General fails to make such a certification the opt-out provision would automatically trigger at the conclusion of the review period and the bilingual election requirement would lapse.
Bilingual ballot-requirements are costly, consuming up to 50 percent of all election funds in some jurisdictions. Jurisdictions shouldn’t be saddled with paying millions for materials that are barely used without a means to unburden themselves
—Peter Kirsanow is a member of the National Labor Relations Board. He is also a member of the U.S. Commission on Civil Rights. These comments do not necessarily reflect the positions of either organization.