Politics & Policy

The English Franchise

Amending bilingual voting.

The Senate is in the midst of hearings concerning reauthorization of the temporary provisions of the Voting Rights Act. The House version of the bill that would reauthorize such provisions for another 25 years is named the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Reauthorization and Amendments Act of 2006. It’s difficult for any politician to oppose, or even propose amending, a piece of legislation with a name like that, regardless of its merits, without being vulnerable to considerable demagoguery. This is especially the case in an election year.

Indeed, it looks as if Congress is moving rapidly toward reauthorization, although the Senate Judiciary Committee seems to be considering a few amendments that might strike most Americans as just common sense. Yet, because the amendments would be attached to a bill that’s at least tangentially related to race/ethnicity, passage is far from assured.

Take, for instance, Section 203, the minority language assistance provisions that require hundreds of jurisdictions in 30 states to provide election materials, including ballots, in at least one language other than English. Several witnesses during both the House and Senate hearings on the requirement testified in favor of wholesale reauthorization.

But some senators expressed puzzlement about the standards for triggering the requirement. In essence, a jurisdiction must provide ballots in a foreign language if (1) more than 5 percent of its voting age citizens are members of a language minority group who do not speak or understand English well enough to participate in the electoral process, and (2) the illiteracy rate of the persons in such a group is higher than the national illiteracy rate. “Illiteracy” for purposes of Section 203 means not having completed the 5th grade.

What troubled the senators was obvious: if certain citizens do not understand English well enough to participate in the electoral process, how did they become citizens in the first place? After all, in order to become citizens most applicants must take a test demonstrating that they can read, write, speak, and understand English. They must also comprehend basic civics well enough to correctly answer (in English) a series of questions concerning U.S. history and government. Anyone who can pass the test should easily qualify as being able to read at least at a 5th-grade level. Here’s a sample of the type of questions contained in the citizenship test:

‐Whose rights are guaranteed by the Bill of Rights?

It’s probable that a significant percentage of English-speaking citizens who’ve completed the 12th grade can’t answer most of the above questions correctly. It’s also likely that anyone who can read — let alone answer correctly — these questions in English can also negotiate the following ballot provision without need for translation into another language:

President of the United States (Vote for one) William Jefferson Clinton (D) Robert Dole (R)

Proponents of unedited reauthorization contend that some ballot propositions contain language much more complex than a simple choice between two candidates. But many who attended the Senate Judiciary Committee hearing noted that ballot propositions are confusing not because the language they are in, but because of the way in which they are written. Moreover, ballot initiatives and propositions are a function of state and local concern. It remains a matter of debate whether Congress has authority under Article I, Section 4, to mandate the provision of bilingual ballots for other than federal elections.

Since in order to become a citizen one must read well enough to cast a ballot, there’s a good argument that Section 203 should be narrowed to apply primarily to the small cohort of applicants who are exempt from the citizenship test-taking requirements noted above. The exempt cohort consists primarily of individuals who are lawfully admitted into the U.S. and either (a) are over 55 and have had permanent residence totaling 15 or more years, (b) are over 50 with permanent residence totaling 20 or more years, or (c) are suffering from a medically determinable mental or physical impairment that affects their ability to learn English.

The amendment needn’t take effect immediately. It could be phased-in to provide affected individuals sufficient notice and opportunity to become proficient enough in English to choose between candidates Smith and Jones. Moreover, bilingual requirements in other sections of the Voting Rights Act pertaining to or affecting, for example, American Indians, Native Alaskans, or residents of Guam, Puerto Rico, or the Virgin Islands would remain undisturbed.

The Senate recently voted overwhelmingly to recognize English as the common language of the United States. An amendment to the Voting Rights Act that calibrates bilingual ballot assistance to those naturalized citizens who aren’t required to read English would facilitate that commonality.

–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.

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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