AMERICA VOTES! CHALLENGES FACING MODERN ELECTION LAW AND VOTING RIGHTS

Transcription

1 AMERICA VOTES! CHALLENGES FACING MODERN ELECTION LAW AND VOTING RIGHTS Presented by the American Bar Association Division for Public Services, Section of State and Local Government Law and Center for Professional Development

2 American Bar Association Center for Professional Development 321 North Clark Street, Suite 1900 Chicago, IL Submit a Question Visit to submit a question on the content of this course to program faculty. We ll route your question to a faculty member or qualified commentator in 2 business days. The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of the American Bar Association Division for Public Services, Section of State and Local Government Law or Center for Professional Development unless adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only American Bar Association. All rights reserved. This publication accompanies the audio program entitled America Votes! Challenges Facing Modern Election Law and Voting Rights broadcast on October 17, 2016 (event code: CE1610FSS).

3 TABLE OF CONTENTS 1. Presentation Slides 2. Language Assistance to Voters * Terry Ao Minnis 3. Immigration, Voting Rights, and Electoral Access * Nancy G. Abudu 4. The Impact of Voter Suppression Tactics on Participation and Mobilization of Marginalized Voters * Tova Wang 5. The Role of Race & Partisanship in Redistricting Benjamin E. Griffith *Book chapter excerpts from America Votes! Challenges to Modern Election Law and Voting Rights, Third Edition. Copyright 2016 by the American Bar Association. Reprinted with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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5 Welcome America Votes! Challenges Facing Modern Election Law and Voting Rights Terry Ao Minnis, Director of Census and Voting Programs, Asian Americans Advancing Justice Nancy G. Abudu, Legal Director, American Civil Liberties Union of Florida Tova Andrea Wang, Senior Democracy Fellow, Demos Benjamin E. Griffith, Partner, Griffith Law Firm Register for more FREE CLE Language Assistance to Voters 1

6 Language Minority Community Speaks a language other than English at home Growing Segment of Population 158% increase over last two decades Today, one in five speaks a language other than English at home 42% are limited English proficient (LEP) Impact on Changing Electorate 2

7 Rates of Other Language Spoken and English Ability by Race and Ethnicity Racial or Ethnic Group Speak a language other than English at home Limited English proficient Speaks another language and is limited English proficient White (Non-Hispanic) 5.7% 1.6% 28.5% African-American 8.4% 2.9% 34.4% Asian 76.4% 35.2% 46.1% American Indian Alaska Native 27.5% 7.9% 28.7% Native Hawaiian & Pacific Islanders 43.1% 13.4% 31.0% Latino 74.7% 34.0% 45.5% Barriers for Language Minority Voters Barriers: Voter Materials Too Complex Voting Process Complicated Denied Need Assistance at Polls Experience Discrimination Because of Language Minority Status Outcome: Depressed Voter Participation For Language Minority Voters 3

8 Federal Protections in the Voting Rights Act for Language Minority Voters Section 203 Section 208 Section Enacted in 1975 Section 203 Applies to four language groups: Latinos, Asian Americans, American Indians, and Alaskan Natives Determinations made every five years Most recent determinations were made in Oct Census Bureau and DOJ have stated that the next set of determinations will come out December 2016 Director of Census Bureau makes the determinations, which are final and not subject to review in any court 4

9 Section 203 formula A jurisdiction becomes covered when the following two criteria are met: Limited English proficient voting age citizens in a single language group Are more than 5 percent; Are more than 10,000; or Exceeds 5 percent of American Indian and Alaskan Native CVAP of a single language group on an Indian reservation Illiteracy rate of language minority is higher than national illiteracy rate Section 203 Requirements Written Assistance All information provided in English must also be provided in the covered languages Oral Assistance Bilingual poll workers Publicity Prior to Election Day, publicize availability of language assistance to covered communities Effectively informed and Participate effectively 5

10 Section 203 Enforcement Actions Alameda County, CA (2011) Failure to provide bilingual poll workers Failure to translate and disseminate all written materials Alaska (2013) Failure to provide language assistance in Yup ik Queens County, NY (2013) Failure to provide language assistance in Bengali Enacted in 1982 Nationwide Section 208 Provides voters requiring assistance to vote by reason of blindness, disability, or inability to read or write the right to have someone assist them in the voting process Exception voter s employer or union representative No language limitation 6

11 Section 208 Problems Poor Implementation at Polling Sites Due to Problematic Poll Workers Lack of Knowledge Suspicion Case: Berks County, PA (2003) Latino voters Miami-Dade County (2002) Haitian American voters Nationwide Section 2 Prohibits any voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group Application to language minority voters City of Boston, MA (2005) Borough of Penns Grove, NJ (2008) City of Hamtramck, MI (2000) 7

12 State and Local Opportunities Voluntary Language Assistance Section 208-related state laws State laws and election codes re: Language Assistance Transparency Voluntary Language Assistance Jurisdictions can be proactive and provide language assistance voluntarily Languages that just missed Section 203 coverage in last determinations Potentially, an additional 2,000 American Indian, 24,000 Asian American and 1.15 million Latino voters with increased access Languages outside of the four covered language groups Growth in other language minority groups Ex: FL and Haitian population 8

13 Section 208-related state laws Variation across states re: assistance of choice Most states adopted language without modification Some states were unclear and vague re: LEP voters Some states adopted language that is more inclusive Some states have imposed more restrictions Ex time limits, limits placed on assistor, exercise of discretion by poll workers Proactive Steps: Public Notice Voter Education on Election Day (and Early Voting) Secretary of State Guidance Comprehensive Poll Worker Training State Laws and Election Codes re: Language Assistance Build upon federal protections California Election code explicitly states in several provisions: It is the intent of the Legislature that non-english-speaking citizens, like all other citizens, should be encouraged to vote. Therefore, appropriate efforts should be made on a statewide basis to minimize obstacles to voting by citizens who lack sufficient skill in English to vote without assistance. Supplements Section 203 Expansion of pool of potential bilingual poll worker 9

14 Transparency Issue reports documenting compliance plan for upcoming elections: Translated ballots Poll worker training re: LEP voters Recruitment plans for bilingual poll workers Bilingual Poll workers on Election Day Additional suggestion to reporting mechanism: Engagement with local leaders, CBOs, and ethnic media Translation process Staffing plans Election Day process for problems Conclusion Providing language assistance = increased political participation by language minority voters Ex Voter registration increase Asian Americans saw an almost 60% increase ( ) American Indians saw increases between 50% and 150% in certain places (post-enactment) Latinos nearly doubled their rate (post-enactment) As our country gets more and more diverse, and our language minority community continues to grow, we must develop modern and proactive efforts to engage language minority voters

15 America Votes! Challenges Facing Modern Election Law & Voting Rights Benjamin E. Griffith* 11

16 Introduction 12

17 Racial Gerrymandering Claims The law governing racial gerrymanders has become more clearly established since the Supreme Court s landmark 1993 decision in Shaw v. Reno. Moreover, the federal courts have been vigilant in their efforts to ensure that the districting process remains free from constitutionally prohibited racial discrimination. 13

18 Alabama Legislative Black Caucus In 2015, the Supreme Court concluded that the Alabama legislature had engaged in racial gerrymandering by packing minority voters into safe majority-minority districts. Minority plaintiffs asserted a justiciable racial gerrymandering claim under the Equal Protection Clause since race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district." The Virginia Litigation: Page and Bethune-Hill After Alabama Legislative Black Caucus, the Commonwealth of Virginia s Congressional District 3 was successfully challenged at impermissibly racebased, even though the district had its origin as a Shaw v. Reno remedy. 14

19 Confusion over Alabama Legislative Black Caucus Following the June 2015 decision in Page invalidating Virginia's Third Congressional District on grounds of a Shaw violation, a differently constituted three-judge court in Virginia issued another decision in Bethune-Hill v. Virginia State Board of Elections, 2015 WL (E.D. Va. 2015). Dickson v. Rucho and Harris v. McCrory: North Carolina's Experience In neighboring North Carolina, that state s General Assembly adopted the 2011 Congressional Redistricting Plan, after which two groups of plaintiffs filed suits in state court for unconstitutional racial gerrymandering, and another group of plaintiffs filed suit in federal court. 15

20 4-4 Division on Pending Cases A 4-4 decision in any of these cases would mean affirmance of the lower court s decision that upheld the challenged districting scheme. In light of Justice Scalia s untimely death in the midst of these and related appeals, some Court observers have predicted that the Court is likely to remain evenly divided for the foreseeable future. 16

21 Political Gerrymandering Claims Political gerrymandering is a different animal altogether. It has been defined as "[t]he practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition's voting strength," Black's Law Dictionary 802, 1346 (10th ed. 2014). Shift to First Amendment Framework While the Supreme Court has not been able to agree on a standard for adjudicating political gerrymandering claims brought under the Equal Protection Clause, the lower courts have begun cobbling together the separate opinions, concurrences and dissents from Bandemer, Vieth and LULAC to provide a framework for an Article III court to adjudicate a claim that the State's abuse of political considerations in districting has violated any other constitutional provision. 17

22 CONCLUSION We may be moving toward a resolution of this impasse after November 8, Thank you for joining us Register now for the upcoming program in the series! Representing Service Members and Veterans Jason T. Vail American Bar Association Monday, November 21, :00 PM 2:30 PM ET 18

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24 Chapter 3 Language Assistance to Voters Terry Ao Minnis Our nation s population of individuals speaking a language other than English at home ( language minority community ) is a significant, and growing, segment of our population, with a 158 percent increase in the language minority community population over the past two decades. In 1980, there were 23 million language minority persons in the United States. By 2010, that figure jumped to 59.5 million compared with the overall national population growth of 38 percent. 1 Currently, one person in five of the population speaks a language other than English at home. 2 Of this population, almost half (42 percent) report being limited English proficient (LEP) (i.e., having some difficulty with the English language). 3 As Table 3.1 shows, Asian-Americans and Latinos experience the highest rates of both those who speak a language other than English at home (76 percent and 75 percent, respectively) and those who have the most difficulty with the English language (35 percent and 34 percent, respectively). It is likely that the language barriers Table 3.1 Rates of Other Language Spoken and English Ability by Race and Ethnicity Racial or ethnic group Percentage of population 5 and older that speaks a language other than English at home Percentage of population 5 and older that is limited English proficient Percentage of population 5 and older that speaks another language and is limited English proficient White (Non-Hispanic) 5.7% 1.6% 28.5% African-American 8.4% 2.9% 34.4% Asian 76.4% 35.2% 46.1% American Indian Alaska Native 27.5% 7.9% 28.7% Native Hawaiian & Pacific Islanders 43.1% 13.4% 31.0% Latino 74.7% 34.0% 45.5% Source: American Community Survey 5-Year Estimate gri54229_03_ch03_ indd 21 4/5/16 10:44 AM

25 22 Terry Ao Minnis these communities face impact their ability to participate equally in the election process. While eligible electorate and voting populations for Asian- Americans and Latinos increased between 1996 and 2012, there continues to be a significant gap between non-hispanic White voters and Asian-American and Latino voters in participation rates. 4 For example, in both the 2012 and 2014 elections, Asian-Americans and Latino voters lagged behind non-hispanic White voters in both voter registration and turnout by percent. 5 The American Indian Alaska Native as well as the Native Hawaiian and Pacific Islander communities also have significant portions of their community who speak a language other than English at home (28 percent and 43 percent, respectively). And for those who speak a language other than English at home, almost a third of both communities have difficulty with the English language (29 percent and 31 percent, respectively) and also exhibit depressed political participation. For example, almost 40 percent of eligible American Indian Alaska Natives and 43 percent of eligible Native Hawaiian and Pacific Islanders were not registered to vote during the 2008 elections, compared with 27 percent of non- Hispanic Whites. 6 Voter turnout rates for these communities in the 2008 elections followed suit, with a percent discrepancy as compared with non-hispanic White voter turnout. 7 While language minority voters face barriers to voting similar to other marginalized groups such as socioeconomic disparities like poverty and lack of education, logistical barriers such as lack of transportation, inconvenient polling place locations, and restrictive voter suppression laws the inability to speak or read English very well is one of the major hurdles they must overcome in exercising their right to vote. An analysis of voter materials, including voter registration and ballot measures, from all 50 states reveals that they are consistently written at high grade levels and use complex English; for example, they contain longer sentences and words as well as complicated vocabulary and grammar. 8 Compounded with the fact that some language minorities come from countries with no democratic systems and need to learn the daunting, complex election process in America, voting can become a very overwhelming experience for them. They are also often denied needed assistance at the polls, and language minorities who are also racial minorities may additionally experience discrimination through hostile and unwelcoming environments, as well as the blatant denial of their right to vote. These barriers can turn language minorities away from participating in the political process, even when they understand how important voting is to their ability to influence the government on policies and issues that impact their daily lives. Language minority voters are afforded some protection under the Voting Rights Act (VRA). Section 203 requires certain jurisdictions to provide language assistance in the covered languages to Latino, Asian-American, American Indian, and Alaska Native voters. Much broader in scope, section 208 applies nationwide and allows voters to have someone of their choice assist them in the voting process so long as the assistor is not the voter s employer or union representative. If discrimination has occurred due to a voter s membership in a language minority group, section 2 can gri54229_03_ch03_ indd 22 4/5/16 10:44 AM

26 3. Language Assistance to Voters 23 be used to require the provision of language assistance to the injured community. While these federal statutes have been utilized to protect the rights of language minority voters and increase access, more can and should be done by states and local jurisdictions to increase access for language minority voters. Efforts to provide voluntary language assistance for sizeable populations with language assistance needs, improve section 208 compliance, codify language assistance provisions at the state level, and institute transparency requirements around language assistance can go a long way to opening up equal access to the ballot for language minority voters. I. Enforcement of Federal Laws Protecting Language Minority Voters A. Section 203 Section 203 of the VRA applies to four covered language groups Latinos, Asian- Americans, American Indians, and Alaska Natives and requires the provision of language assistance during elections for these groups in certain jurisdictions that meet population and literacy requirements. 9 Section 203 was enacted in 1975 to remedy racial discrimination in the voting process that results in the disenfranchisement of language minorities from the four covered language groups. A jurisdiction becomes covered under section 203 when it meets the following requirements: a. i. More than 5 percent of the voting-age citizens in a jurisdiction belong to a single language minority community and are LEP; ii. More than 10,000 voting-age citizens in a jurisdiction belong to a single language minority community and are LEP; and or iii. Exceeds 5 percent of all reservation residents on an Indian reservation; b. The illiteracy rate of the citizens in the language minority is higher than the national illiteracy rate. 10 The director of the Census Bureau makes these determinations, which are effective upon publication in the Federal Register, and language assistance must be provided in the covered group s language. The director s determinations are final and not subject to review in any court. 11 Section 203 requires that the covered jurisdiction must ensure that all information provided in English must also be provided in the covered languages, including any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots. 12 Additionally, covered jurisdictions must provide oral assistance at polling sites and publicity prior to Election Day about the availability of language assistance at polling sites. 13 Section 203 compliance requires that materials and assistance be provided in a way designed to allow members of applicable language minority groups to be effectively gri54229_03_ch03_ indd 23 4/5/16 10:44 AM

27 24 Terry Ao Minnis informed of and participate effectively in voting-connected activities throughout all stages of the electoral process. 14 Both the Department of Justice (DOJ) and private parties have litigated violations of section 203. For example, in 2011, DOJ filed a section 203 complaint against Alameda County, California, for failing to provide effective language assistance to Spanish- and Chinese-speaking citizens. While Alameda County has been continuously covered under section 203 for Spanish and Chinese languages since 1992, DOJ found that the county failed to implement an effective language-assistance program for Spanish- and Chinese-speaking voters. Specifically, DOJ found that the county failed to hire, train, and place qualified bilingual poll workers in polling places with significant LEP Spanish- and Chinese-speaking voters and failed to translate and disseminate all written election material and information into Spanish and Chinese, including information published on its website. 15 The resulting consent decree required the County to translate and disseminate election-related materials and information in Spanish and Chinese; to provide bilingual language assistance at the polls; to incorporate language assistance into its election official training; to develop a process to address complaints about poll officials; to designate Spanishand Chinese-language program coordinators; and to establish an advisory group to assist and inform the Spanish- and Chinese-language election program. The parties also agreed that federal observers may monitor Election Day activities in polling places in Alameda County. Additionally, the consent decree ordered the county to provide bilingual assistance, materials and information to any newly covered languages as determined by the Census Bureau in the future. 16 In 2013, the Native American Rights Fund and law firm Wilson Elser filed Toyukak v. Treadwell on behalf of two tribal councils and two Alaska Native voters. They alleged ongoing violations under section 203 and the Fourteenth and Fifteenth Amendments of the U.S. Constitution against Alaska state election officials for failure to provide language assistance in the covered Yup ik language. 17 After the trial in 2014, the court found that the state violated section 203 by failing to provide LEP Alaska Native voters with voting information substantially equivalent to what voters received in English. For example, English speakers in Alaska received a 100- page Official Election Pamphlet before every election, while Yup ik-speaking voters only received information about the date and time of the election and a notice that language assistance would be available at the polls. The court found that the state failed to translate voting information into dialects of Yup ik spoken in the impacted areas, focusing on only one single translation in the Central Yup ik dialect that is not widely spoken. These violations were compounded by the limited state efforts to publicize the availability of language assistance to voters. 18 Expanding on its Interim Order dated September 22, 2014, the court permanently enjoined the state from violating Section 203 and ordered the State to enact a series of improvements to be in place until December 31, These improvements include: pre-election dissemination of information in the Official Election Pamphlet to Alaska Native voters in their language and dialect; translation of gri54229_03_ch03_ indd 24 4/5/16 10:44 AM

28 3. Language Assistance to Voters 25 election information into Gwich in and several Yup ik dialects in addition to the translations already made in the Central Yup ik dialect; increased collaboration with tribal councils to meet the needs of Alaska Native voters who need to receive election information in their native languages and dialects; a full-time employee responsible for administrating and coordinating all of the Division s language assistance activities; providing sample ballots in Gwich in and Yup ik that voters can bring into the voting booth with them; making Gwich in and Yup ik dialects available on touch-screen voting machines when it is technologically feasible; increased pre-election outreach by bilingual election workers; preparation of glossaries of election terms and phrases in Gwich in and several Yup ik dialects to guide bilingual poll workers providing language assistance; mandatory bilingual poll worker training on how to provide language assistance to voters; providing Gwich in and Yup ikspeaking voters with a toll-free number through which they can make inquiries in their native languages and dialects; relying on Yup ik and Gwich in language experts to translate election materials, including information on ballot measures, candidates, absentee and special-needs voting and voter registration; and pre- election publicity in Gwich in and Yup ik through radio ads, public service announcements and announcements over VHF radios in villages that do not receive local radio stations. 20 Queens County in New York became covered for Asian Indian language assistance as a result of the 2011 section 203 determinations. Despite the selection of Bengali by the NYC Board of Elections as the Asian Indian language for which it would provide written assistance, four elections passed in which the board failed to provide said assistance and failed to fully comply with section In July 2013, the Asian American Legal Defense and Education Fund sued the NYC Board of Elections for violating section In March 2014, the case settled with the board agreeing to provide language assistance to Asian Indian voters in Queens. 23 Specifically, the board agreed to provide written materials in Bengali; translate relevant sections of its website; employ two staff members as Bengali translators; recruit bilingual poll workers for Bengali, Hindi, and Punjabi; operate a toll-free information hotline with Bengali- and Hindi-speaking operators; conduct annual training regarding language assistance for poll workers and other Election Day workers; and establish a coordinator of the language assistance program position on its full-time staff, among other activities. 24 B. Section 208 Section 208 applies nationwide and provides voters requiring assistance to vote by reason of blindness, disability, or inability to read or write the right to have someone assist them in the voting process so long as the assistor is not one s employer or union representative. 25 Section 208 is particularly important to language minority voters across the country because it provides them the opportunity to choose who they take with them into the voting booth to help them understand the ballot regardless of whether their jurisdiction is required to provide language assistance gri54229_03_ch03_ indd 25 4/5/16 10:44 AM

29 26 Terry Ao Minnis under section 203 or if they are from a language group not covered by section 203 (e.g., Haitians or Russians). Congress added section 208 to the VRA in 1982 to ensure that blind, disabled, or illiterate voters could receive assistance in a polling booth from a person of their own choosing. 26 Finding that citizens with language barriers were more susceptible to having their votes unduly influenced or manipulated, and thus more likely to face discrimination, Congress stressed the importance of the voter s freedom to choose his or her assistor rather than having a stranger appointed by elections officials to assist. 27 Congress determined that the right to an assistor of choice is the only way to ensure that voters can exercise their right to vote without intimidation or manipulation. 28 Unfortunately, while section 208 is simple in concept, in practice section 208 is often implemented poorly, if at all, in large part because poll workers are unaware of voters rights under the statute. Poll workers often refuse to allow language minority voters to take an assistor of choice into the voting booth. They also express suspicion toward the voter for making the request. It is a violation of the VRA if election officials obstruct or deny a voter s right to use an assistor of choice, and DOJ has filed numerous lawsuits to enforce section In 2003, DOJ alleged that poll workers in Berks County, Pennsylvania, denied Spanish-speaking voters the right to bring assistors of their choice into the voting booth in violation of section For example, when Luis Pazmino attempted to translate for some of his residents after taking them to the polls during the November 2005 election, the election judge physically pushed him and told him he wasn t supposed to be there. 31 The court found that poll workers behavior violated section 208 and contributed to hostile and unequal treatment of Hispanic and Spanishspeaking voters. 32 The court emphasized that when jurisdictions deny voters the right to bring their assistor of choice into the voting booth, voters feel uncomfortable with the process, do not understand the ballot, do not know how to operate the voting machine, and thus cannot cast a meaningful vote. 33 The court ordered Berks County to allow voters their assistors of choice to help them in all aspects of the voting process, including inside the voting booth and for the county to train poll workers on proper implementation of section In 2002, DOJ brought a section 208 lawsuit against Miami-Dade County on behalf of LEP Haitian American voters. 35 DOJ found that at several precincts Haitian American voters were denied assistance from persons of their choice. Where only poll workers were permitted to assist voters, the poll workers available to provide assistance did not speak Creole and limited their assistance to voter demonstrations outside the voting booths. When voters were permitted to bring an assistor of their choice, the poll workers limited the scope of the assistance they could provide, such as reviewing sample ballots with the voters and standing next to them during poll worker demonstrations. The county failed to train poll workers on their duty to allow for voter assistance under section 208, and some poll workers believed voters were not entitled to assistance from assistors of their choice and denied voters accordingly. 36 The case resulted in an agreement between gri54229_03_ch03_ indd 26 4/5/16 10:44 AM

30 3. Language Assistance to Voters 27 DOJ and Miami-Dade County in which the county agreed to comply with section 208 and prevent violations in the future. 37 The county also agreed to provide new poll-worker training and hire bilingual poll workers for the Haitian American community. 38 C. Section 2 Section 2 applies nationwide and mandates that all jurisdictions avoid implementing any voting standard, practice, or procedure that results in the denial or abridgement of the right of any citizen to vote on account of race, color, or membership in a language minority group. 39 While section 203 has been instrumental in breaking down language barriers for Asian-American, Latino, American Indian, and Alaska Native voters in certain jurisdictions, there are many more language minority voters that still face language barriers at the polls. Voters of other, uncovered language groups and LEP voters of the covered language groups in jurisdictions that do not meet the threshold for section 203 coverage all have unmet needs. Section 2 has been used to protect the voting rights of all language minorities. Section 2 has been used to require language assistance for communities whose population has not yet become large enough to meet the section 203 thresholds. For example, in 2005 Chinese- and Vietnamese-speaking voters in Boston benefited from a section 2 lawsuit brought by DOJ. 40 The Chinese and Vietnamese populations did not meet the section 203 threshold in Boston, while the Latino population did. DOJ s investigation found that Boston discriminated against Latino, Chinese, and Vietnamese voters, denying them the equal opportunity to participate in the political process. DOJ found that poll workers failed to make multilingual personnel available to provide effective assistance and information needed by language minority voters; treated Latino and Asian-American LEP voters disrespectfully; improperly influenced, coerced, or ignored the ballot choices of Latino and Asian-American LEP voters; refused to permit Latino and Asian-American LEP voters to be assisted by an assistor of their choice; and refused or failed to provide provisional ballots to Latino and Asian-American LEP voters. 41 In order to remedy the section 2 violations against Chinese and Vietnamese LEP voters, the City of Boston agreed to provide additional language assistance in Chinese and Vietnamese. 42 DOJ also filed a section 2 complaint on behalf of Latino LEP voters against the Borough of Penns Grove, New Jersey, in 2008, alleging that the borough lacked Spanish-language materials, denied voters the right to choose their assistor of choice, and engaged in disparate treatment, resulting in less opportunity for Latino voters to participate in the political process and to elect representatives of their choice. In particular, DOJ found that poll workers directed hostile or discriminatory remarks at, or otherwise acted in a hostile manner toward, Latino voters; failed to communicate effectively with Latino voters regarding necessary information about their eligibility to vote; required more identification from them than non-hispanic White voters; and failed to protect Latino voters from unfounded or discriminatory challenges. 43 The settlement agreement entered into required the borough to ensure gri54229_03_ch03_ indd 27 4/5/16 10:44 AM

31 28 Terry Ao Minnis that elections are equally open to Latino voters, that Spanish language assistance and materials are made available at the polls, and that Spanish-speaking voters be allowed to select the assistor of their choice. 44 Section 2 has also been used on behalf of language minority voters whose language is not covered under section 203. For example, DOJ brought a section 2 case in Hamtramck, Michigan, on behalf of Arab-American voters in An organization called Citizens for Better Hamtramck challenged only voters who they alleged looked Arab, had Arab- or Muslim-sounding names, or had dark skin. In addition, organization members pulled voters from voting lines and forced them to show passports or citizenship papers before they could vote. Some voters were forced to take an oath of allegiance even though they had appropriate citizenship documentation. As a result of DOJ s engagement, the city agreed to appoint at least two Arab- American or one Arab-American and one Bengali-American election inspectors to provide language assistance for each of the 19 polling places where the voter challenges occurred. 46 II. State and Local Opportunities The VRA has been instrumental in increasing access for language minority voters in jurisdictions where it applies and when it has been properly implemented. Section 203 has successfully increased voter participation by Latino, Asian-American, American Indian, and Alaska Native citizens. 47 In particular, enforcement of section 203 by DOJ has resulted in jumps in voter registration and turnout. In San Diego County, California, as a result of DOJ enforcement actions, voter registration among Latinos and Filipinos rose by over 20 percent and Vietnamese registrations increased by 40 percent after the county agreed to voluntarily provide additional language assistance in Vietnamese. 48 Navajo voter turnout increased by 26 percent between 2000 and 2004 after Apache County, Arizona, entered into a consent decree with DOJ to resolve the lack of language assistance in voting activities. 49 However, despite the success of the VRA in increasing access for language minority voters, there are many more language minority voters that are not numerous enough to meet the section 203 threshold or who do not qualify for section 203 coverage due to not being a member of the four covered groups. While these voters may rely on section 208 and section 2, these provisions of the VRA place the onus on the voter to take affirmative steps to protect their right to vote. Rather than placing all the onus on each individual language minority voter, states and local jurisdictions should take proactive steps to ensure that their language minority communities are able to equally and freely access the voting process. States and local jurisdictions should consider enacting one or more of the following approaches to engage their language minority communities. A. Voluntary language Assistance Jurisdictions can decide to proactively, and voluntarily, provide language assistance to any size group of language minority voters that they believe has a need for gri54229_03_ch03_ indd 28 4/5/16 10:44 AM

32 3. Language Assistance to Voters 29 such assistance. 50 For example, in the 1990s, local Asian-American leaders advocated for Korean language assistance for Los Angeles County. Following the 1992 section 203 determinations, Los Angeles was required to provide language assistance in Chinese, Japanese, Spanish, Tagalog, and Vietnamese. Korean-Americans, although exceeding the numerical threshold requirement with 21,611 voting age citizens with limited English proficiency, did not meet the section 203 formula due to their high literacy rate, which is defined by education attainment. 51 However, many Korean-Americans received their education in Korea before immigrating to the United States and were functionally illiterate with respect to the English language. 52 Local Asian-American leaders testified to the need for language assistance in the community, citing both exit poll and other surveys that found that many thought voter participation in the community would increase if Korean language assistance was provided and poll monitoring efforts that found Korean-American voters, particularly elderly voters, struggled with the ballots. 53 After several years of advocacy, the county board of supervisors finally voted in September 1998 to provide voting materials in Korean. 54 Another example is from the 2004 section 203 enforcement action by DOJ against San Diego County on behalf of Filipino and Latino voters in which the County agreed to provide voluntary language assistance to Vietnamese voters because they were 85 persons away from meeting the numerical threshold during the most recent determination. 55 More recently, in 2009, local advocates worked with Harris County, Texas, to provide voluntary assistance to Chinese-American voters. Local advocates engaged with the county clerk to get three key materials translated in Chinese. The county clerk ultimately agreed to provide the English materials to the local leaders, who then translated them into Chinese and raised funds to disseminate them. These efforts helped pave the way to a smoother rollout of the Chinese-language plan once it became covered under section 203 in Jurisdictions should review the section 203 October 13, 2011, public use data 57 to determine if they came close to coverage for specific language minority groups and consider offering language assistance to that population starting with the next election. 58 While the 2011 section 203 determinations covered almost 15 million Latino, over 4 million Asian American, and almost 385,000 American Indian Alaska Native citizens of voting age, there were almost 21 million Latino, over 8.5 million Asian American, and over 3.25 million American Indian Alaska Native citizens of voting age in the entire country. 59 This means that around 6 million Latino, 4.5 million Asian American, and 3 million American Indian Alaska Native citizens of voting age could potentially use language assistance but are not currently receiving any. 60 As Table 3.2 indicates, there are many jurisdictions that are a few individuals short of mandating section 203 coverage, and are likely to be covered during the next determination (to be made in 2016). These jurisdictions could implement proactive efforts now to provide some level of language assistance. If each jurisdiction provided some level of language assistance for those just-missed languages, that would be almost 2,000 American Indian, 24,000 Asian American, and 1.15 million Latino additional voters who have increased access to the political process. gri54229_03_ch03_ indd 29 4/5/16 10:44 AM

33 30 Terry Ao Minnis Table 3.2 Jurisdictions and Languages That Just Missed Coverage in 2011 Section 203 Determinations (i.e., 7,000 9,999 LEP or percent LEP) Language Group Political Subdivision Percent LEP Number of lep CVAP No. of Covered Language Current 203 Coverage AIAN languages American Indian (Pueblo) Torrance County, New Mexico ,995 Asian languages Asian Indian Sutter County, California ,280 Asian Indian Middlesex County, New Jersey 9,135 38,630 Spanish Bangladeshi Queens County, New York 7,690 14,910 Asian Indian coverage (covering this community) Cambodian Los Angeles County, California 9,920 18,800 Asian Not Specified (covering this community) Cambodian Lowell city, Massachusetts ,120 Spanish Chinese Contra Costa County, California 9,235 30,450 Spanish Chinese Montgomery County, Maryland 8,590 21,770 Spanish Chinese Malden city, Massachusetts ,750 Chinese Philadelphia County, Pennsylvania 8,315 15,265 Spanish Filipino Orange County, California 7,750 50,165 Spanish, Chinese, Korean, and Vietnamese Filipino San Francisco County, California 7,310 29,835 Spanish and Chinese Filipino San Mateo County, California 8,960 47,845 Spanish and Chinese gri54229_03_ch03_ indd 30 4/5/16 10:44 AM

34 3. Language Assistance to Voters 31 Language Group Political Subdivision Percent LEP Number of lep CVAP No. of Covered Language Current 203 Coverage Filipino Cook County, Illinois 8,225 42,915 Spanish, Chinese, and Asian Indian Korean Honolulu County, Hawaii 7,175 25,105 Chinese, Filipino, and Japanese Korean Cook County, Illinois 9,795 23,020 Spanish, Chinese, and Asian Indian Korean Fairfax County, Virginia 8,760 20,105 Spanish Thai Los Angeles County, California 7,230 16,615 Asian Not Specified (covering this community) Vietnamese Sacramento County, California 7,885 16,090 Spanish and Chinese Vietnamese Dallas County, Texas 8,145 14,440 Spanish Vietnamese Tarrant County, Texas 7,945 15,230 Spanish Vietnamese Fairfax County, Virginia 9,750 18,545 Spanish Spanish Cochise County, Arizona ,815 Greenlee County, Arizona ,330 Santa Cruz County, California ,385 31,710 Solano County, California 7,680 40,250 Sonoma County, California 8,470 38,985 Sutter County, California ,515 Yolo County, California ,090 Adams County, Colorado 8,740 66,535 Alamosa County, Colorado ,500 (continued) gri54229_03_ch03_ indd 31 4/5/16 10:44 AM

35 32 Terry Ao Minnis Table 3.2 (continued) Language Group Political Subdivision Percent LEP Number of lep CVAP No. of Covered Language Current 203 Coverage Conejos County, Colorado ,165 Danbury town, Connecticut ,720 Norwalk town, Connecticut ,830 Stamford town, Connecticut ,615 Collier County, Florida 7,835 24,330 Duval County, Florida 7,115 33,065 Pinellas County, Florida 8,075 36,100 Seminole County, Florida 9,100 40,250 Volusia County, Florida 7,460 31,185 Gwinnett County, Georgia 9,315 31,175 Cassia County, Idaho ,955 Minidoka County, Idaho ,335 Will County, Illinois 8,785 38,645 Lake County, Indiana 8,665 43,520 Jefferson Parish, Louisiana 7,230 25,030 Prince George s County, Maryland 8,215 29,540 Chicopee city, Massachusetts ,710 Methuen city, Massachusetts ,875 gri54229_03_ch03_ indd 32 4/5/16 10:44 AM

36 3. Language Assistance to Voters 33 Language Group Political Subdivision Percent LEP Number of lep CVAP No. of Covered Language Current 203 Coverage New Bedford city, Massachusetts ,020 Nobles County, Minnesota ,470 Washoe County, Nevada 7,535 32,715 Morris County, New Jersey 7,055 23,810 Otero County, New Mexico ,815 Santa Fe County, New Mexico ,645 American Indian (Pueblo) Monroe County, New York 7,625 31,215 Richmond County, New York 7,770 42,025 Cuyahoga County, Ohio 9,460 35,030 Texas County, Oklahoma ,935 Lancaster County, Pennsylvania 7,830 24,165 Brazoria County, Texas 7,070 40,575 Dallam County, Texas Fisher County, Texas Goliad County, Texas ,555 Hays County, Texas ,265 Howard County, Texas ,850 Lipscomb County, Texas Lubbock County, Texas ,185 52,720 (continued) gri54229_03_ch03_ indd 33 4/5/16 10:44 AM

37 34 Terry Ao Minnis Table 3.2 (continued) Language Group Political Subdivision Percent LEP Number of lep CVAP No. of Covered Language Current 203 Coverage McCulloch County, Texas ,410 Potter County, Texas ,475 Tom Green County, Texas ,095 Victoria County, Texas ,295 Wharton County, Texas ,660 Wilbarger County, Texas ,970 Grant County, Washington ,390 King County, Washington 9,685 59,890 Chinese and Vietnamese Source: U.S. Census Bureau, October 13, 2011, Public Use Data gri54229_03_ch03_ indd 34 4/5/16 10:44 AM

38 3. Language Assistance to Voters 35 Not only can jurisdictions decide to provide language assistance to those who are not near the section 203 threshold, they can also decide to provide them to language minority groups outside of the four covered section 203 language groups. This is important as the language minority population continues to grow across different communities. For example, the number of African-language speakers more than doubled over the last decade. Those speaking Russian at home increased by almost 400 percent between 1980 and 2010, while Armenian speakers increased by almost 140 percent and Persian speakers by almost 260 percent during that same time. 61 Where there is a sizeable population of language minority speakers who have need for language assistance, jurisdictions can and should take steps to ensure these populations can effectively vote. For example, in 2005, the City of Beverly Hills, California, began translating absentee and sample ballots into Farsi, the language commonly spoken and read by individuals of Iranian descent, and began mailing multilingual ballots (including Farsi) to all registered Beverly Hills residents in When the city clerk received complaints from some residents about having Farsi on their materials, the clerk defended the policy, stating, We don t want to disenfranchise any section of our community from voting. We re trying not to exclude. If writing the information in their language helps them to vote without anyone assisting them, we re going to do it. 63 The policy was developed because the city council realized that the Farsi-speaking community had become a significant portion of the city s population, growing to over a quarter of the 35,000 population, and understood that providing language assistance would encourage more and better informed political participation. 64 In another example, the Haitian population in Florida has been growing over the decades, but because they do not fall under one of the four language groups for section 203 coverage, they have not been able to avail themselves of that protection. In 1999, Miami-Dade Board of County Commissioners unanimously passed an ordinance requiring the provision of language assistance in Creole. Specifically, the ordinance required Creole translations to be posted in voting booths, publicity to occur in appropriate ethnic media, and, as appropriate, ballots be translated into Creole. DOJ s section 208 enforcement action resulted in the 2002 consent decree that added to these language assistance efforts by requiring the local officials best efforts to assign bilingual poll workers to assist Haitian voters in targeted precincts and to make multilingual ballots available at every polling place in the County. In the following years, nearby Palm Beach County (2002) and Broward County (2008) followed suit and began providing language assistance in Creole. 65 Finally, jurisdictions can take these voluntary steps without incurring significant expenses. Studies have shown that the cost of providing language assistance is low and accounts for only a small percentage of the jurisdiction s overall cost to administer its elections. For example, the most recent study of 411 responding Section 203-covered jurisdictions in 31 states in 2005 found that a majority of jurisdictions incurred no additional costs for either oral or written language assistance. 66 For the remaining jurisdictions, the additional expenses represented less than 1.5% gri54229_03_ch03_ indd 35 4/5/16 10:44 AM

39 36 Terry Ao Minnis of the overall cost for oral language assistance and less than 3% for written assistance. 67 The results from the 2005 study are in line with the findings from the two earlier GAO studies looking at the cost of Section 203 compliance. 68 Thus, the fear of cost should not dissuade any jurisdiction from providing voluntary assistance where there is a need. B. Section 208 Variances in state laws regarding assistance of choice at the polls can interfere with proper interpretation and implementation of section 208. While most states have adopted the language of section 208 into their election codes without modification, others are less clear about whether LEP voters would qualify for assistance. There are also other states that provide more inclusive language. For example, Idaho has assistor language that is unclear about whether voters who cannot read or write English are included in its provision, leaving open the possibility for poll worker discretion to determine whether being LEP permits voters to have someone assist them. Colorado, on the other hand, explicitly states that if any elector requests assistance in voting, by reason of difficulties with the English language... the elector shall be entitled... to receive the assistance of... any person... provided that the person rendering assistance can provide assistance in both the language in which the elector is fluent and in English. 69 At the same time, simple adherence to section 208 language does not ensure that confusion will not arise with respect to LEP voters. For example, in Louisiana, a poll worker at the Mary Queen of Vietnam Church polling location in New Orleans erroneously thought that only LEP voters of languages currently covered by section 203 of the VRA were entitled to assistance in voting during the 2012 general election. Because Vietnamese is not a covered section 203 language in the county or state, the poll worker did not allow LEP Vietnamese voters the assistance of their choice when voting. 70 Additionally, some states have imposed more stringent restrictions on the right to assistance, such as time limits, limits placed on the person providing assistance, and the exercise of discretion by election officials to determine voters eligibility for assistance that are inconsistent with federal law. 71 States can take proactive steps to clear up confusion about a voter s right to assistance of their choice at the polls. 72 First, states can require election officials to provide public notice of the right to request assistance, including through their voter websites, and in-language in order to best reach those in need. This will help ensure that LEP voters will be prepared when they come to the polls and confident in voting knowing that someone they trust and who speaks their language will be with them through the voting process. Second, states can require election officials to inform voters of their right to assistance at the polls themselves on Election Day (and during early voting), such as through the posting of a voter s bill of rights at the polls that makes clear voters, including LEP voters, have the right to assistance of their choice. Third, secretaries of state can provide guidance to local election officials regarding how to implement section 208 requirements, including information gri54229_03_ch03_ indd 36 4/5/16 10:44 AM