The greatest attention the federal Voting Rights Act (VRA) in the United States has received from scholars, pundits and politicos has focused on the protections it provides to African-Americans in the South. Implementation of the Act, initially adopted in 1965, has more or less eliminated the electoral disfranchisement of that group, and in many settings prohibited the use of election arrangements that did or would dilute the impact of their collective vote. This has resulted in a large increase in the number of African-American elected officials in that region. Despite provisions of the Act that focus on other minority groups, provisions that are increasing in importance, attention still remains mainly on African-Americans in the South.Footnote 1
The other minorities protected by the Act are ‘language minorities’, specifically Latinos, Native Americans, Alaska Natives and Asian-Americans. Many members of these groups are American citizens but have no or limited English proficiency (LEP). Almost all elections in the United States are conducted only in English, and function therefore as a de facto literacy test for many members of these groups. The VRA was amended in 1975 to address this problem.Footnote 2 These language provisions are, however, as James Thomas Tucker writes in The Battle Over Bilingual Ballots, ‘probably the least known and most widely misunderstood provisions of the VRA’ (p. xiii).
When attention is focused on these groups, it is quickly apparent that substantial disfranchisement remains. Tucker shines a very bright light on the need to protect these groups from this form of disfranchisement. His analysis reveals that the implementation of the language minority provisions, primarily a state and local government responsibility, is in many instances pathetic. This analysis is thoroughly documented, with evidence drawn from numerous congressional hearings and floor debates, congressional committee reports, extensive testimony in federal and state court cases, and many secondary sources. Particularly enlightening are a survey of local election administrators concerning the implementation of the provisions and a two-chapter case-study on the failure to provide adequate language assistance to Yup'ik Natives in the Bethel Census Area of Alaska.
The book's title understates its content, as it is concerned with far more than just bilingual ballots. The VRA's language provisions cover all stages in the voting process. The Department of Justice regulations indicate that these range from:
‘voter registration through activities related to conducting elections, including, for example, the issuance, at any time during the year, of notifications, announcements, or other informational materials concerning the opportunity to register, the deadline for voter registration, the time, places, and subject matters of elections, and the absentee voting process.’ (quoted at p. 90)
They also cover the provision of information about ballot propositions, an increasingly frequent feature of elections in the USA in which voters are asked to decide directly on often complicated matters of public policy written in legalese. Tucker, like the Act, is attentive to the entire process, not just ballots. His coverage is close to encyclopaedic, and his attention to detail is exhaustive. This review will not dwell on the latter; readers are assured they will find this in the text, footnotes and appendices of this well indexed book.
The main language provisions in the Act are Sections 203 and 4(f)(4).Footnote 3 Both provisions cover specific state and local governments that are identified by formulae reflecting a need for them in those areas, and both are time limited.Footnote 4 Coverage determinations under Section 203 are revisited periodically to release some jurisdictions and capture new ones based on changes in their demographics. And jurisdictions that satisfy the coverage criteria but claim to be free of disfranchisement problems are allowed to seek ‘bailout’ from Sections 203 and 4(f)(4) coverage at anytime. The latest reauthorisation of these provisions, in 2006, extended the life of Section 203 to 2032, and Section 4(f)(4) to 2031. The provision that reaches the most jurisdictions is Section 203.
Tucker provides a lengthy chapter on the reauthorisation of the time-limited provisions of the VRA in Reference Tucker and Espino2006, which included the language provisions. He reports that despite overwhelming support for the renewal of this iconic piece of legislation (see Engstrom, Reference Engstrom2009), with votes on final passage of 390 to 33 in the House and 98 to 0 in the Senate, there were ‘treacherous waters’ that had to be navigated (p. 172). The language provisions were included in objections to renewal expressed by a number of Republicans in the House of Representatives. Indeed, the most divided vote on the path to reauthorisation was over an amendment that would effectively have eliminated the bilingual requirements of the Act. It was offered on the House floor by Representative Steve King, a Republican from Iowa. He summarised his opposition to these provisions as follows:
‘Multilingual ballots divide our country, increase the risk of voter error and fraud, and burden local taxpayers. The multilingual ballot mandate encourages the linguistic division of our nation and contradicts the ”Melting Pot” ideal that has made us the most successful multi-ethnic nation on earth.’ (quoted at p. 205)
Tucker, unsurprisingly given his research, describes these as ‘unfounded allegations’ (p. 178). They cannot have been persuasive to most members of the House: the amendment was defeated by a party-line vote of 185 to 238, with 181 Republicans and four Democrats voting in favour, and 193 Democrats and 44 Republicans voting against, along with one Independent.
He also warns, however, again influenced by his research, that ‘the reauthorization Act does little good if it is not vigorously enforced’ (p. 202). He has good reason to raise this warning. Along with Rodolfo Espino, he conducted a survey in 2005, one year prior to reauthorisation, of the chief elections officers in jurisdictions covered or formerly covered by the language provisions.Footnote 5 The survey contained numerous questions about how the provisions were being implemented. The results were disturbing to say the least. Two factors Tucker stresses as important to effective implementation are community outreach programmes and bilingual assistance, especially at the polls. Yet the survey revealed the ‘failure of nearly two-thirds of covered jurisdictions to engage in any community outreach’ (p. 155), and more startlingly that a ‘majority of jurisdictions did not inform voters about the availability of assistance in the covered languages prior to elections’ (p. 154). When it came to oral assistance:
‘Only 40.9 percent indicated assistance was available for voter registration. Similarly, only 46.4 percent provided oral language assistance on polling place locations and changes, 45.2 percent for checking in at the polling place, and 32.2 percent for voting machine instructions.’ (p. 141)
This may explain why 59.1 per cent of the jurisdictions reported incurring no extra costs due to oral language assistance, and 54.2 per cent reported the same for written assistance (p. 155).
Tucker offers recommendations for improving the implementation of the provisions, all of which address aspects that appear fundamental to any proper administration of them. Indeed, it is surprising that Tucker finds a need to state these recommendations almost thirty-five years after the provisions were adopted. His recommendations include, for example:
• ‘language assistance for telephone inquiries should be available in all covered languages’
• ‘poll-worker recruitment should be done in the covered languages’
• ‘[e]lection officials must confirm the language abilities of employees and volunteers who provide language assistance’
• ‘election worker training must include information about language assistance and the needs of LEP voters.’ (p. 160)
Clearly much needs to be done to bring the administration of these provisions to a higher standard.
Bilingual Ballots is an exceptional book. As the author intended, it fills a major void in the literature on the minority language provisions of the VRA. It is the first book in Ashgate's series on Election Law, Politics, and Theory. If the others are this good, the series will be a very useful collection.
