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Should the feds require U.S. ballots to be printed in foreign languages?

Last week I participated in a Federalist Society discussion on voting issues, and pointed out there the policy and constitutional problems with Section 203 of the federal Voting Rights Act. That statute requires some jurisdictions to print ballots and offer election­-related materials in foreign languages. As a constitutional matter, this provision raises serious federalism concerns and equally serious concerns about Congress exceeding its authority to enforce the right to vote regardless of race. Its constitutionality aside, this provision is also objectionable on a variety of policy grounds.

I thought that I would use this week’s email to elaborate on all this. The discussion below follows testimony that the Center for Equal Opportunity has given to Congress, which in turn we used for an article in the Georgetown Journal of Law & Public Policy, and a chapter in the book The Most Fundamental Right.

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Introduction.  At a time when the nation is struggling to assimilate a substantial and concentrated number of Spanish­-speaking immigrants, Section 203 sets back their full participation in the American political community by discouraging English acquisition and requir­ing, in instances where there are substantial concentrations of foreign-language speakers, the provision of foreign-language ballots. On policy grounds, these judgments are lamentable. Rather than encourag­ing ethnic integration, they promote balkanization through foreign ­language ballots, as well as by perpetuating the racial gerrymandering and racial segregation that is now an inextricable by-product of the Section 5 preclearance process.

Section 203 requires certain jurisdictions to provide all election-related mate­rials, as well as the ballots themselves, in foreign languages. The jurisdictions are those where more than five percent of the voting-age citizens (or simply 10,000 of them) are members of a particular language minority, and where the illiteracy rate of such persons is higher than the national illiteracy rate. The language minority groups are limited to American Indians, Asian Americans, Alaskan Natives, and those “of Spanish heritage.” Where the language of the minority group is oral or unwritten, then oral voting assistance is required in that language.

Again, there are three policy problems with Section 203. First, it encourages balkanization. Second, it facilitates voter fraud. And, third, it wastes government resources. In addition, Section 203 is unconstitutional because, although Congress asserts it has enacted this law pursuant to its enforcement authority under the Fourteenth and Fifteenth Amend­ments, in fact this statute actually exceeds that authority.

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Balkanization. America is a multiethnic, multiracial nation. This in increasingly so, as dramatized by the fact that we now have a multiethnic, multiracial president. Our country always has been multiethnic and multiracial, of course, and this is a source of national pride and strength. But our motto has been E pluribus unum--outof many, one--and this means that, while we come from all over the globe, we are also united as Americans.

This unity means that we hold certain things in common. We celebrate the same democratic values, for instance, share the American dream of success through hard work, cherish our many freedoms, and champion political equality. Our common bonds must also include an ability to communicate with one another. Our political order and our economic health demand it.

Accordingly, the government should be encouraging our citizens to be fluent in English, which, as a practical matter, is our national language. And, in any event, the government certainly should not discourage people from mastering English, and should not send any signals that mastering English is unimportant. Indeed, doing so does recent immigrants no favor, since true participation in American democracy requires knowing English.

Inevitably, however, the federal government engages in just that kind of discouragement when it demands that ballots be printed in foreign languages. It also devalues citizenship for those who have mastered English as part of the naturalization process. As Boston University president John Silber noted in his 1996 congressional testimony, bilingual 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.”

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Voter fraud. Most Americans are baffled by the foreign-language ballot law. They know that, with few exceptions, only citizens can vote. And they know that, again with only few exceptions, only those who speak English can become citizens. So why is it necessary to have ballots printed in foreign languages?

It is a good question, and there really is no persuasive answer to it. As a practical matter, there are very few citizens who need non-English ballots.

There are, however, a great many noncitizens who can use non-English ballots. And there is an obvious interest--by federal, state, and local governments, and by legitimate voters themselves--in preventing fraudulent voting.

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Wasting taxpayers’ money. As just noted, there are few citizens who need ballots and other election materials printed for them in languages other than English. The requirement that, nonetheless, such materials must be printed is therefore wasteful.

On the one hand, the cost of printing the additional materials is high. It is a classic, and substantial, unfunded federal mandate. Fre­quently the cost of multilingual voter assistance is more than half of a jurisdic­tion’s total election costs. If corners are cut, the likelihood of translation errors increases. Indeed, the inevitability of some translation errors, no matter how much money is spent, is another argument for why all voters need to master English rather than rely on translated ballots and election materials.
Conversely, the use made of the additional materials is low. According to a 1986 General Accounting Office study, nearly half of the jurisdictions that provided estimates said no one--not a single person--used oral minority ­language assistance, and more than half likewise said no one used their written minority-language assistance. Covered jurisdictions said that generally lan­guage assistance “was not needed” by a 10-1 margin, and an even larger majority said that providing assistance was either “very costly or a waste of money.” The problem may be aggravated by the dubious way in which non-English-proficient voters are identified by the Census.
What’s more, to quote John J. Miller’s The Unmaking of Americans, getting rid of foreign-language ballots “does not mean that immigrant voters who still have difficulty communicating in English would not be without recourse. There is a long tradition in the United States of ethnic newspapers--often printed in languages other than English--providing political guidance to readers in the form of sample ballots and visual aids that explain how to vote. It would surely continue.” Mr. Miller concluded that “Congress should amend the Voting Rights Act to stop the Department of Justice from coercing local communities to print election materials in foreign languages.”
In sum, as a simple matter of dollars and cents, foreign-language ballots are just not worth it. The money would be much better spent on improving election equipment and combating voter fraud.
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Constitutional Issues.  Section 203 raises constitutional issues for two reasons, which indeed may create judicial concerns greater than their sum alone. First, there are federalism concerns insofar as it substitutes federal for state authority in areas traditionally--and, often, textually, by the language of the Constitution itself--committed to state discre­tion. These federalism concerns are heightened by the fact that some jurisdictions are covered and others are not, especially if there is no compelling factual justifica­tion for the distinction or for the requirement at all. Second, it is unlikely that Section 203 is a “congruent and proportional”--the relevant legal standard--means to enforcing the Fourteenth or Fifteenth Amendments.
The Supreme Court’s more recent decisions make clear that Section 203 is inconsistent with principles of federalism and limitations on Congress’s authority, particularly because it is not needed to stop disparate racial treatment--and, indeed, is contrary to the idea of E pluribus unum. Section 203 of the Voting Rights Act is not fashioned to do the best job it can to guarantee the right to vote regardless of ethnicity, and does so in a way that is inconsistent with principles of federalism--which, after all, is also a bulwark against government abridgment of our rights as citizens.  The Supreme Court’s federalism concerns in this area were the focus of much of the Court’s opinion in Shelby County v. Holder.
In sum: The Supreme Court has now made clear that only purposeful discrimination--actually treating people differently on the basis of race or ethnicity--violates the Fourteenth and Fifteenth Amendments. The Court has ruled even more recently that Congress can use its enforcement authority to ban actions that have merely a disparate impact only if those bans have a “congruence and proportionality” to the end of ensuring no disparate treatment. This limitation is likely to be even stricter when the federal statute in question involves areas usually considered a matter of state authority.
Now, it is very unlikely that the practice of printing ballots in English and not in foreign languages would be a violation of the Fourteenth or Fifteenth Amend­ments--that is, it is very unlikely that this practice is rooted in a desire to deny people the right to vote because of race or ethnicity. Rather, it is overwhelm­ingly likely to have perfectly legitimate roots: to avoid facilitating fraud, to discourage balkanization, and to conserve scarce state and local resources. Accordingly, Congress cannot plausibly assert that, in order to prevent discrimination in voting, it has authority to tell state and local officials that they must print ballots in foreign languages.
The rather garbled text of Section 203, however, apparently says that Con­gress was concerned not with discrimination in voting per se, but with educa­tional disparities. That is, the “unequal educational opportunities” that, say, Latinos receive is what makes foreign-language ballots necessary.
Today, however, it is unlikely that most educational disparities are rooted in discrimination. And, if these disparities are not rooted in discrimination, then there is a problem with Congress asserting its power under Section 5 of the Fourteenth Amendment or Section 2 of the Fifteenth Amendment to require foreign-language ballots. In this regard, it is worth noting that the language of Section 203 uses words like “effectively” and “resulting”--words used when disparate treatment is lacking.
And finally, can it really be plausibly argued that the real reason for Section 203 has anything to do with remedying state discrimination in education? With all respect, the answer must be no. As discussed in Linda Chavez’s Out of the Barrio, the Voting Rights Act of 1965 was motivated by a desire to stop racial discrimination; but the later expansion of the Voting Rights Act at the behest of Latino special interest groups was simply about identity politics. There was little factual record established even to show that Hispanics were being systematically denied the right to vote. This 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, and members of the House of Representatives, as well as numerous state legislators and local officials, with many of these officials serving in jurisdictions that would be subject to the special provisions of the Voting Rights Act. There is really 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. The reason for the bilingual ballot provision is not and never has been about discrimination--it is about identity politics.