As local and national 2020 campaigns heat up, what protections exist for LEPs heading to the polls?
Across the country, language access at the polls is being brought into the spotlight. This push is exemplified by New York City Mayor Bill de Blasio: “The language you speak and understand should not be a barrier to civic participation. Voting should be an easy task.” Why is language access at the polls getting so much attention at the moment? Let’s begin by looking at a historically significant piece of the legislation—the Voting Rights Act.
The Voting Rights Act of 1965 has two provisions requiring certain jurisdictions to provide election materials in certain languages – Section 4(f)(4) and Section 203 (C). Section 4(f)(4) requires that any jurisdiction where more than 5% of the citizens of voting age are members of a single language minority group.
In 2013, the Supreme Court case Shelby County v Holder found that Section 4b was unconstitutional because the coverage formula was based on data from over 40 years ago, making it no longer responsive to current needs. The effect of this ruling invalidated large portions of Section 4 of the Voting Rights Act and States have had to respond accordingly, whether in the judiciary or the legislature.
“The language you speak and understand should not be a barrier to civic participation. Voting should be an easy task.”
New York City won a lawsuit over the Poll Site Interpreter program by the Board of Elections. In the court’s decision, New York State Supreme Court Justice Edgar G. Walker stated, “Despite arguing that interpretation services are crucial to the casting of votes, the Board failed to explain how eliminating the Program would not disenfranchise voters. The Program is consistent with the Election Law’s policy of encouraging the broadest possible voter participation...” This meant interpreters for an additional five languages were added and video voter guides were available in American Sign Language (ASL).
In California, three justices of the First Appellate District sided with the ACLU and a coalition of civil rights groups in finding that California Secretary of State Alex Padilla’s 2017 language decree improperly adopted a restrictive federal Voting Rights Act standard for providing translation assistance to non-English speakers.
Asian Americans Advancing Justice and the Northern California chapter of the ACLU sued Padilla in 2018 claiming his directive to county election officials would deprive some 80,000 Californians of language assistance. They argued 34 language groups were excluded from Padilla’s language coverage list as well.
William S Freeman, senior counsel with the ACLU of Northern California stated, “The decision will make it possible for about 30,000 Californians to participate more fully in our democratic process because the state will be required to offer them facsimile ballots when they cast their votes.”
Despite California and New York being the most recent stories, other states like Illinois and Georgia have joined the movement of adding more language access at the polls for language minorities. While we wait for the wheels of the legislative system to turn, states are implementing their own solutions. Cook County, Illinois has passed the Voting Opportunity and Translation Equity ordinance to offer fully translated ballots in more languages over the next two years. In 2018, Georgia struck down a law that only permitted voters in state elections to use interpreters who are close family members, caretakers or voters registered in the same precinct.
Additionally, the Voting Rights Advancement Act of 2019 (S 561) was introduced in February this year by Senator Patrick Leahy (D-VT) The goal of the bill is to amend which subdivisions are subject to section 4 of the Voting Rights Act of 1965. It will make discrimination in voting on the basis of race, color, or membership in a language minority group a violation of the Voting Rights Act, as well.
Senator Tom Udall (D-NM) has also introduced the Native American Voting Rights Act (S739) to further protect and engage Native Americans in the voting process. And while it remains to be seen how well these bills progress, there does appear to be some cause for hope about the future of a more robust system of interpreters at the polls.