In mid-October, the Obama administration, through the U.S. Census Bureau, put three states and 248 counties in 25 states on notice that the election materials they provide must be printed not only in English, but also in 68 additional languages. The mandate is not new - its announcement is required upon completion of the decennial census. However, what is new is the speed with which it was issued after the 2010 Census. The Bush administration published its Federal Register notice regarding the 2000 Census in 2002.
Cynics may suggest that the announcement has something to do with the 2012 elections, but the focus should be on the remarkable requirement that, in a country where English language fluency is necessary for citizenship, ballots must appear in a variety of foreign languages. Such a requirement is an insult to the Constitution and a public policy failing that imposes a costly unfunded federal mandate in the middle of a recession, balkanizes the body politic and contributes to voting fraud. Little wonder that with the Census Bureau’s announcement, many are asking, “Why are we doing this?”
In 1975, Congress amended the Voting Rights Act of 1965 to require that ballots be prepared in languages other than English in jurisdictions where more than 5 percent of the voting-age citizens are members of a particular language minority, if their illiteracy rate is higher than the national illiteracy rate. The reason: “unequal educational opportunities which language minorities have suffered at the hands of state and local officials.” Although the Congressional Record references “evidence,” it cites only statements by three representatives who supported the amendment. Enacted as “temporary,” Section 203 was extended - in 1982 for 10 years, in 1992 for 15 years and in 2006 for 25 years.
Even if Section 203’s “evidence” were factual in 1975, which is doubtful, Congress may not interfere constitutionally with the right of state and local officials to conduct elections by imposing a prophylactic remedy - non-English ballots - unless it has evidence of discrimination and enacts a remedy that is “congruent and proportional,” in the words of the U.S. Supreme Court, to the offense. Because “unequal educational opportunities” are not evidence of “discrimination,” let alone the intentional discrimination by state and local officials that allows for action by Congress, Section 203 is unconstitutional. If it wasn’t in 1975, then it certainly is in 2011, given Congress’ rote reauthorization of the provision over the decades.
Experts such as Center for Equal Opportunity Chairman Linda Chavez argue that even in 1975, lack of English language fluency was likely not the result of discrimination but factors such as growing up in a home where English is not spoken enough. Furthermore, how likely is it that English language deficiencies Congress “found” in 1975 exist four decades later? If not likely, why are hundreds of jurisdictions still covered? It is because the Census Bureau labels those who say they speak English “well” (as opposed to “very well”), and those who answer “not well” or “not at all” as all having “Limited English Proficiency” (LEP) and are covered by Section 203.
That citizens do not need non-English ballots was demonstrated by a 1986 General Accounting Office (GAO) study, which found that more than half of reporting jurisdictions said no one used the bilingual materials. In 1996, a Yuba County, Calif., official reported that in 16 years, only one person had requested bilingual materials, yet the county spent $30,000 a year preparing them. Last May, Cuyahoga County, Ohio, spent $100,000 for bilingual ballots in a “light” primary season.
Bilingual ballots create another concern for election officials: their susceptibility to fraud. As Ms. Chavez puts it, the only people who need bilingual ballots are noncitizens who want to vote.
Sadly, this costly, useless federal mandate, which undermines national unity, facilitates voting fraud and violates the Constitution, is likely to be with us forever - that is, unless a courageous election official asks the Supreme Court to strike it down.
William Perry Pendley is president of Mountain States Legal Foundation.