Politics & Policy

203 Mistakes

A bilingual flaw in the Voting Rights Act.

One of the major issues that led to the House Republican leadership’s decision last week to postpone a vote on the reauthorization of the Voting Rights Act is the provision in it that requires many jurisdictions to print ballots and ballot materials in foreign languages. The House is right to rethink this provision — Section 203 — because it is a bad law, for four reasons.

#ad#First, the federal government should be encouraging assimilation, not discouraging it. Perhaps the most important social glue that bonds Americans together is a common language. We must be able to communicate with one another: Our civil, political, and economic health depends on it.

The government should not discourage people from mastering English, and should not send any signals that mastering English is unimportant. Doing so does recent immigrants no favor, since true participation in American democracy requires knowing English, as Jose Enrique Idler of the American Enterprise Institute recently discussed here.

Foreign-language ballots also devalue citizenship for those who have mastered English as part of the naturalization process. As Boston University president John Silber noted in 1996 congressional testimony, foreign-language ballots “impose an unacceptable cost by degrading the very concept of the citizen to that of someone lost in a country whose public discourse is incomprehensible to him.”

Second, the proliferation of foreign-language ballots facilitates voter fraud. In general, only citizens can vote and becoming a citizen requires English fluency. So there are very few citizens who need non-English ballots–but there are a great many noncitizens who can use such ballots, and the problem of noncitizens voting is a real one. For instance, the Justice department has brought numerous criminal prosecutions regarding noncitizen voting in Florida, as documented in a recent official report.

That leads into the third point: Because few citizens need foreign-language ballots, the requirement that, nonetheless, such materials be printed is a waste of taxpayers’ money. The documented cost of printing the materials for many local jurisdictions is high (and, if corners are cut, the likelihood of translation errors–a common problem–increases). Conversely, it is also well-documented that the use made of the foreign-language materials is low.

Foreign-language ballots are also a waste of money since individuals who need assistance in voting are already allowed to have the assistance of a friend or family member, for instance, and because local ethnic-oriented, foreign-language newspapers frequently discuss upcoming elections and ballots.

Finally, Section 203 is unconstitutional. The Supreme Court has made clear in recent years that only purposeful discrimination–actually treating people differently on the basis of race or ethnicity–violates the Fourteenth and Fifteenth Amendments. It seems very unlikely that the Court would accept an argument that printing ballots only in English is motivated by such discrimination. Rather, as discussed above, that practice has perfectly legitimate roots: to conserve scarce state and local resources, avoid facilitating fraud, and discourage balkanization.

The rather garbled text of Section 203 suggests that Congress also will seek to justify the statute as a means of fighting educational disparities faced by members of language-minority groups. But it is unlikely that foreign-language ballots have the “congruence and proportionality” that the Court requires of measures that purport to address discrimination by means that go beyond the direct prohibition of it.

For instance, Section 203 covers some but not all language minorities. So, are all the language minorities covered by Section 203 subjected to government discrimination in education–and, if not, then why are all of them covered? Are there language minorities that are subject to government discrimination that are not covered by Section 203–and, if so, then why aren’t they covered?

More fundamentally, how often does education discrimination result in an individual not becoming fluent enough in English to cast a ballot? Isn’t it much more likely that this lack of fluency has some other cause–like recent immigration, most obviously, or growing up in an environment where English is not spoken enough? (It is ironic, by the way, that those favoring foreign-language ballots typically include those who also favor bilingual education–a good way to stymie English fluency.)

Finally, is it a congruent and proportional response to education discrimination to force states to make ballots available in foreign languages? How likely is Section 203 to result in the elimination of education discrimination? Does this “remedy” justify Congress’s overruling of the legitimate reasons that states have for printing ballots in English and not in foreign languages?

Congress has not and cannot answer these questions satisfactorily.

But one suspects that nobody really believes that the reason for Section 203 has anything to do with remedying state discrimination in education. As Linda Chavez discussed in her 1991 book Out of the Barrio, while the Voting Rights Act of 1965 was motivated by a desire to stop discrimination, the later expansion of the Act at the behest of Latino special-interest groups was simply about identity politics. There was little factual record established to show that Hispanics were being systematically denied the right to vote. Such disenfranchisement would have been particularly difficult to demonstrate in light of the number of Hispanics who had previously been elected to office, which included governors, U.S. senators, members of the House of Representatives, as well as numerous state legislators and local officials, many of these officials serving in jurisdictions that would soon be subject to the special provisions of the Voting Rights Act.

There is no credible way to equate the discrimination that African Americans in the South suffered to the situation of Latinos, who had voted — and been elected to office — in great numbers for decades.  That was true when Section 203 was first enacted, and it is even truer now, which is what matters for purposes of reauthorization. The reason for the foreign-language ballot provision is not and never has been about discrimination–it is about identity politics. 

 – Roger Clegg is president of the Center for Equal Opportunity in Sterling, Va. He testified last month before the House against the extension of Section 203 of the Voting Rights Act.

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