Language Minority Citizens and Section 203 of the Voting Rights Act

By:  Noah Gabrielsen

Five years after Congress amended the Voting Rights Act to protect illiterate English speakers from literacy tests, it amended the law again, this time to protect language minority citizens with limited English proficiency (LEP).[1] Explicitly recognizing that “citizens of language minorities have been effectively excluded from participation in the electoral process,” section 203 of the Voting Rights Act now mandates that a given jurisdiction provide bilingual election materials when the language demographics of the jurisdiction meet certain conditions.[2] Despite the law’s aims, however, its narrow construal of “language minority groups” fails to extend its protections to all citizens who might benefit.

Section 203 of the Voting Rights Act requires bilingual election materials when either 10,000 voting age citizens or 5 percent of all voting age citizens in a given jurisdiction speak the same minority language, have limited English proficiency, and have a higher illiteracy rate than the national average.[3] While some have argued that section 203’s population density and illiteracy requirements are underinclusive and counterintuitive to begin with,[4] the law creates a broader issue by granting protections only to specific groups. It limits its definition of language minority groups to “persons who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage.”[5] As a result, sizable language minority groups are excluded from the law’s guarantee of equal access to election materials. For example, in data collected from 2013 to 2017, the United States Census Bureau estimated there were over 1.1 million Arabic speakers, 1.1 million speakers of various African languages, and 824,000 Haitian speakers in the United States.[6] These groups included over 420,000, 382,000, and 335,000 LEP individuals respectively.[7]

The exclusion of these groups from section 203 is significant, as the law seeks to address disparate educational outcomes and illiteracy rates that lower voter participation among LEP citizens.[8] Many of the same factors that led to the protection of those groups enumerated by section 203 also pertain to other groups, such as Arab Americans and Haitian Americans.[9] Furthermore, language minority groups covered by section 203 have so far seen progress where it mandates access to bilingual election materials.[10] For example, American Indian, Hispanic, and Asian American voter registration and turnout have all increased as a result of coverage under section 203.[11] Correcting the law’s narrow definition of language minority groups could therefore extend such increased enfranchisement to other citizens not presently included.

It is worth noting that there are methods to expand voting rights for language minority groups outside of amending section 203. At the state level, for instance, California provides for non-English election materials under a less stringent formula than section 203, and does not restrict itself to specific languages as the federal law does.[12] In 2018, for example, California used this law to designate six additional languages, including Arabic, as necessitating equal access to election materials in certain counties.[13] In other instances, courts have granted protections to language minority groups under other provisions of the Voting Rights Act.[14] In Miami-Dade County, for example, the Department of Justice was able secure some language assistance for Haitian Americans by suing under section 208 of the Voting Rights Act.[15] While such solutions undoubtedly benefit groups excluded from section 203, they represent a piecemeal approach that potentially leaves millions of voters unprotected.

Rather than state-by-state or county-by-county measures, extending section 203 to all language minority groups would be both nationwide and proactive in nature. Despite arguments that section 203 does not adequately cover its enumerated groups,[16] and that adding additional groups without altering its formula would be insufficient,[17] expanding the law to protect all language minority groups represents a positive step in addressing the current disparity in language minority voting rights. Particularly as the 2020 Census approaches, new data could point to additional measures that might further enfranchise citizens who may be dissuaded from voting under the current system.

 

[1] James Thomas Tucker, Enfranchising Language Minority Citizens: The Bilingual Election Provisions of the Voting Rights Act, 10 N.Y.U. J. Legis. & Pub. Pol’y 195, 204–05 (2006).

[2] 52 U.S.C. § 10503 (2018).

[3] Id.

[4] See, e.g., Jocelyn Friedrichs Benson, ¡Su Voto Es Su Voz! Incorporating Voters of Limited English Proficiency into American Democracy, 48 B.C. L. Rev. 251, 291–93 (2007); Brenda Fathy Abdelall, Not Enough of a Minority?: Arab Americans and the Language Assistance Provisions (Section 203) of the Voting Rights Act, 38 U. Mich. J.L. Reform 911, 933–34 (2005).

[5] 52 U.S.C. § 10503.

[6] U.S. Census Bureau, American FactFinder, 2013–2017 American Community Survey 5-Year Estimates: Languages Spoken at Home by Ability to Speak English for the Population 5 Years and Over, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_17_5YR_B16001&prodType=table.

[7] Id.

[8] Tucker, supra note 1, at 235–36.

[9] See Abdelall, supra note 4, at 927–31 (comparing challenges Arab Americans face, including discrimination and a higher LEP rate than the national average, with groups listed in section 203); JoNel Newman, Unfinished Business: The Case for Continuing Special Voting Rights Act Coverage in Florida, 61 U. Miami L. Rev. 1, 33 (2006) (noting that Haitian immigrants’ “literacy rate and ability to speak English is significantly below that of native-born Americans and is even below that of other immigrant groups”).

[10] Tucker, supra note 1, at 233–34.

[11] Id.

[12] Cal. Elec. Code § 14201 (West 2018).

[13] Press Release, California Secretary of State, Six New Languages Added to 2018 Election Language Assistance Requirements (Jan. 2, 2018), https://www.sos.ca.gov/administration/news-releases-and-advisories/2018-news-releases-and-advisories/six-new-languages-added-2018-election-language-assistance-requirements/

[14] See, e.g., Newman, supra note 9, at 33–35.

[15] Id.

[16] See, e.g., Benson, supra note 4, at 291–93.

[17] See, e.g., Abdelall, supra note 4, at 935–36.

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