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Volume 8 no. 5-6 HOUSE PASSES BILL REPEALING LANGUAGE ASSISTANCE PROVISIONS OF VOTING RIGHTS ACT AND ESTABLISHING ENGLISH AS THE OFFICIAL LANGUAGE OF THE UNITED STATES GOVERNMENT
Introduction
As reported in the last MONITOR, several bills requiring the federal government to conduct its "official" business only in English have been introduced in the 104th Congress. A bill originally sponsored by the late Rep. Bill Emerson (R-MO), H.R. 123, "The Language of Government Act," was marked-up by the House Economic and Educational Opportunities Committee in late July. At the markup, Rep. Randy "Duke" Cunningham (R-CA) offered an amendment in the nature of a substitute that made minor technical changes to the underlying bill as well as added provisions that would repeal the language assistance provisions of the Voting Rights Act. These minority language provisions previously were a part of freestanding legislation, H.R. 351, "The Bilingual Voting Requirements Repeal Act," introduced by Rep. John Porter (R-IL). The House of Representatives passed H.R. 123 on August 1 despite a White House letter to Speaker of the House Newt Gingrich (R-GA) expressing President Clinton's opposition to the bill. Meanwhile, S. 356, The Language of Government Act, is pending before the Senate Government Affairs Committee; however, it does not contain provisions repealing the bilingual language assistance provisions of the Voting Rights Act. Whether the Senate will consider the House version or S. 356 remains unclear.
Background on Language Assistance Provisions of Voting Rights Act
(See the last MONITOR for a discussion on the various "English-Only" initiatives before the 104th Congress).
The Voting Rights Act of 1965 originally was enacted to address Southern resistance to voter registration and participation by African Americans. In 1975, Congress expanded the Voting Rights Act by adding sections 203 and 4(f) to include language minorit ies after finding that the denial of the right to vote among limited English-proficient citizens was "directly related to the unequal educational opportunities afforded them, resulting in high illiteracy and low voting participation" 42 USC 1973aa-1a (a). Sections 203 and 4(f) of the Voting Rights Act provide remedies for systematic discrimination against language-minority citizens. Congress has reauthorized the language assistance provisions twice, in 1982 and most recently in 1992, both times in overwhelming bipartisan fashion with Presidents Ronald Reagan and George Bush signing the extensions into law.
Rep. John Porter (R-IL) introduced, H.R. 351, "The Bilingual Voting Requirements Repeal Act," which would repeal Sections 203 and 4(f) and other anti-discrimination provisions of the Voting Rights Act for language minorities.
Bilingual Voting Rights Provisions
(The sections borrows heavily from testimony given by Karen Narasaki, Executive Director of the National Asian Pacific American Legal Consortium, before the House Judiciary Committee's Subcommittee on the Constitution, April 18, 1996).
Section 4(f)
Section 4(f) is linked to the Act's provisions that target jurisdictions with histories of preventing African Americans and other minorities from voting through the use of exclusionary "tests or devices" such as literary tests. Under the provisions of this section, an English-only election constitutes an exclusionary "test or device" for which the special remedy of language assistance is required.
A State or political subdivision is covered by Section 4(f) if:
(i) over 5% of the voting-age citizens were, on November 1, 1972, members of a single language minority group;
(ii) registration and election materials were provided only in English on November 1, 1972; and
(iii) less than 50% of citizens of voting age were registered to vote or voted in the November 1972 Presidential election. Section 4(b), 42 U.S.C. 1973b(b) (1975).
This section is subject to many of the general provisions of the Act, including the requirement that any changes in voting procedures in a covered jurisdiction be precleared by the U.S. Department of Justice before they are implemented. Jurisdictions subject to Section 4(f) include the States of Alaska, Arizona, and Texas, as well as counties in California,Florida, Michigan, New York, North Carolina, and South Dakota. 28 C.F.R. 55, Appen dix to Part 55 - Jurisdictions Covered under Sections 4(f)(4) and 203(c) of the Voting Rights Act of 1965, as amended, 58 Fed. Reg. 36516 (July 7, 1993).
Section 203
Section 203 is expressly predicated upon rights guaranteed by the Fourteenth and Fifteenth amendments (i.e., equal protection and the right to vote without regard to race, color, or previous conditions of servitude, respectively). To satisfy its purpose, Section 203 prohibits discriminatory practices and procedures that effectively exclude language minorities from participating in the electoral process and provides for appropriate remedies.
Section 203 defines "language minorities" or "language minority group" as persons who are American Indian (Native American), Asian American, Alaskan Natives, or of Spanish heritage. Section 203(e), 42 U.S.C. 1973aa-1a(e) (1982). The discriminatory practi ces include, among other things, unequal educational opportunities resulting in high illiteracy rates and low voter participation. Section 203(a), 42 U.S.C. 1973aa-1a(a) (1975).
Unlike Section 4(f), Section 203 coverage is not based upon a one-time finding of discriminatory voting practices in a particular election year. Rather, after each decennial census count, States and political subdivisions move into and out of Section 203 coverage depending upon the demographic changes in the voting population of the jurisdiction. The formulas used to determine coverage strike a balance so that jurisdictions are not required to provide bilingual voting assistance unless there is a signif icant population of covered language minorities.
Less than four years ago, Congress passed the Voting Rights Language Assistance Act of 1992 (the "1992 Amendments") with overwhelming bipartisan support, 236 votes in the House of Representatives and 75 in the Senate. In doing so, Congress reauthorized S ection 203 for fifteen years and expanded its scope by adopting additional coverage formulas. Prior to 1992, Section 203 prohibited English-only elections and required language assistance only in those jurisdictions, as determined by the Director of the Census, that:
(i) more than 5% of the voting age citizens are [a] members of a single language minority and [b] do not speak or understand English adequately enough to participate in the electoral process; and
(ii) the illiteracy rate of this group is higher than the national illiteracy rate. Section 203(b)(2)(I)(I), 42 U.S.C. 1973aa-1a(b)(2)(I)(I), as amended by the Voting Rights Language Assistance Act of 1992.
With the 1992 Amendments, Section 203 coverage now also exists where the illiteracy rate of the group in question is higher than the national illiteracy rate and:
(II) more than 10,000 of the citizens of voting age of such political subdivisions are members of a single language minority and are limited English proficient; or (III) in the case of a political subdivision that contains all or any part of an Indian res ervation, more than 5 percent of the American Indian or Alaska native citizens of voting age within the Indian reservation are members of a single language minority and are limited-English proficient. Section 203(b)(2)(A)(I)(II), 42 U.S.C. 1973aa-1a(b)(2 )(A)(I)(II), as amended by the Voting Rights Language Assistance Act of 1992.
The additional method of calculating coverage by a population benchmark number addressed the inequities created by applying the 5 percent formula to counties of vastly different sizes. It ensured that more jurisdictions with numerically large limited-Eng lish proficient populations and high illiteracy rates would be covered by Section 203. The coverage formula for Native Americans ensured that all parts of a reservation were covered even if parts of the reservation fell into different counties.
General Anti-Discrimination Provisions Repealed by H.R. 351
H.R. 351 goes further than repealing sections 203 and 4(f), and also repeals the provision of the Voting Rights Act that bars states from discriminating against language minorities at the ballot box. The provision H.R. 351 would repeal reads:
"No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote because he is a member of a language minority group."
In addition, H.R. 351 would delete from the Voting Rights Act enforcement of access to tools that have benefited language minority citizens victimized by such discrimination since 1975. It would delete reference to language minority citizens from the prov isions of the Voting Rights Act which: (i) authorize the appointment of federal examiners to enforce voting guarantees, (ii) authorize the courts to order suspension of tests and devices that abridge the right to vote, and (iii) require preclearance of changes in voting qualifications and procedures by covered jurisdictions to ensure that the changes are not discriminatory.
Congressional Action
A single hearing on H.R. 351 was held before the House Subcommittee on the Constitution on April 18, 1996. Testifying at the hearing were several Representatives, the Assistant Attorney General for Civil Rights, and non-governmental advocates and opponents of the legislation. Supporters of H.R. 351, several of them children of immigrants or immigrants themselves, testified that bilingual assistance is expensive, not utilized when offered and discourages immigrants from learning the English language. Frandes Fairey, Registrar of Voters in Yuba County, California noted, "I find no fault with the feeling of compassion, but I have been Registrar for sixteen years and only once ha[s] my office handed Spanish literature to anyone.
Jim Boulet Jr., Executive Director of English First, said in a statement, "The record shows that bilingual ballots are both ineffective and expensive. The state of Hawaii spent $40,000 to produce a facsimile ballot in a single language. The ballot was u sed four times -- a cost of $10,000 per ballot. A personal interpreter and a chauffer-driven limousine ride to the polls would have been cheaper for Hawaii taxpayers." John Silber, President of Boston University, testified that when his father came to t his country from Germany in the early 1900's, he embraced his new country and culture. Silber said:
"Like all immigrants seeking naturalization, he was of course required to demonstrate his proficiency in English. It would never have occurred to him or to any of the millions of other immigrants speaking many different languages to seek accommodations s uch as ballots in their native tongue. He, like them, had freely chosen to live in a country where the language was English. He had freely chosen to become an American -- not a German-American but simply an American."
Opponents of H.R. 123 cited various studies seemingly disproving many of the claims advanced by supporters of the bill. Karen Narasaki, Executive Director of the National Asian Pacific American Legal Consortium (NAPALC), testified that providing language assistance is not difficult or costly and has increased voter participation among language minorities. She referred to a Government Accounting Office (GAO) study which found that the average cost for language assistance for the 1984 general elections was 7.6% of the overall election costs. Ms. Narasaki also cited the rise in requests for bilingual voting materials as evidence that voters need and demand this assistance and that providing these materials was increasing the number of Asian Pacific American citizens exercising their right to vote. Whereas in November 1993, Los Angeles County Registrar received 6,227 requests for bilingual voting materials in Chinese, Japanese, Tagalog, and Vietnamese, that number increased to 9,803 for the March 1996 primary election.
Deval Patrick, Assistant Attorney General, Department of Justice, underscored the bipartisan tradition of support for the language assistance provisions when he testified:
"I come before you today to reiterate the [Justice] Department's longstanding support for the minority language provisions of the Voting Rights Act, and to oppose H.R. 351 in the strongest terms. The initial enactment of the minority language provisions with the support of the Ford Administration and the subsequent extensions of those provisions with the support of the Reagan and Bush Administrations enjoyed strong bipartisan support in Congress. The Clinton Administration proudly joins this bipartisan tradition. The interest in a vital democracy -- through access to the ballot box -- knows no party."
While supporters of the bill were quick to point out that Los Angeles had to provide election materials in five different languages, they neglected to that mention the City Council of Los Angeles has taken a position in opposition to H.R. 351. James Seele y, Chief Legislative Representative for the City of Los Angeles, sent a letter to the members of the House Judiciary Committee expressing the City Council's opposition to H.R. 351. Attached to the letter was a copy of the motion adopted by the City Council opposing the bill. It states in part:
"NOW, THEREFORE, BE IT RESOLVED, that the City of Los Angeles hereby opposes HR 351, and any similar legislation which would repeal Section 203 of the Voting Rights Act (VRA) which provides bilingual election assistance."
H.R. 351 was reported out of the House Constitution Subcommittee on May 23 by a 5-2 party-line vote. The House Judiciary Committee reported the bill 17-12 on July 16 with Rep. Steve Schiff (R-NM) the lone Republican voting against the bill.
On July 24th, the House Economic and Educational Opportunities Committee marked-up H.R. 123, The Language of Government Act. At the markup, Rep. Randy "Duke" Cunningham (R-CA) offered an amendment in the nature of a substitute that made minor technical c hanges to the underlying bill as well as adding provisions that would repeal the language assistance provisions of the Voting Rights Act (essentially H.R. 351). The version of H.R. 123 reported out of the House Economic and Educational Opportunities Comm ittee therefore, combined the "English-Only" legislation and the legislation repealing the bilingual language assistance provisions of the Voting Rights Act.
Floor Action
The House of Representatives voted on H.R. 123 on August 1. Prior to final passage, Rep. Jose Serrano (D-NY) offered an "English-Plus" amendment to express the sense of the Congress that the U.S. Government should pursue policies that: promote English as the common language of the United States; encourage all U.S. residents to become fully proficient in English by expanding educational opportunities and information resources; encourage U.S. residents to learn or maintain skills in a language other than English; continue to provide services in languages other than English; and oppose restrictions on languages other than English. The amendment failed and after a similar motion to recommit the bill to the Economic and Educational Opportunities Committee failed, the combined version of H.R. 123 was passed by the House of Representatives by a 259 to 169 vote. Eight Republicans voted against final passage: Reps. Bonilla (TX), Bunn (OR), Diaz-Balart (FL), Morella (MD), Ensign (NV), Ros-Lehitnen (FL), Schiff (NM), Skeen (NM)
  
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