SPEAKERS CONTENTS INSERTS
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24–503 PDF
2006
VOTING RIGHTS ACT: SECTION 203—BILINGUAL ELECTION REQUIREMENTS
(PART I)
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
NOVEMBER 8, 2005
Serial No. 109–83
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov
VOTING RIGHTS ACT: SECTION 203—BILINGUAL ELECTION REQUIREMENTS
(PART I)
24–503 PDF
2006
VOTING RIGHTS ACT: SECTION 203—BILINGUAL ELECTION REQUIREMENTS
(PART I)
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
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NOVEMBER 8, 2005
Serial No. 109–83
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
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RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
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CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
STEVE KING, Iowa
TOM FEENEY, Florida
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
CHRIS VAN HOLLEN, Maryland
PAUL B. TAYLOR, Chief Counsel
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E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
KIMBERLY BETZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
NOVEMBER 8, 2005
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Member, Subcommittee on the Constitution
The Honorable Melvin L. Watt, a Representative in Congress from the State of North Carolina, and Member, Subcommittee on the Constitution
The Honorable Michael M. Honda, a Representative in Congress from the State of California
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WITNESSES
Mr. Bradley J. Schlozman, acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice
Oral Testimony
Prepared Statement
Ms. Margaret Fung, Executive Director, Asian American Legal Defense and Education Fund
Oral Testimony
Prepared Statement
Ms. Linda Chavez, President, One Nation Indivisible
Oral Testimony
Prepared Statement
The Honorable Rebecca Vigil-Giron, Secretary of State, State of New Mexico
Oral Testimony
Prepared Statement
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve King, a Representative in Congress from the State of Iowa, and Member, Subcommittee on the Constitution
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Prepared Statement of the Honorable Linda T. Sánchez, a Representative in Congress from the State of California, and Member, Committee on the Judiciary
Appendix to the Statement of Bradley J. Schlozman: Copies of Complaints, Consent Decrees, and Orders in Enforcement Actions filed by the United States under the Language Minority Provisions of the Voting Rights Act (Sections 4(e), 4(f)(4), and 203)
Appendix to the Statement of Bradley J. Schlozman: Counties and States Covered by Section 203
Appendix to the Statement of Bradley J. Schlozman: Jurisdictions Covered Under Section 4(f)(4) of the Voting Rights Act of 1965, as Amended
Appendix to the Statement of Margaret Fung: Lowering the Numerical Trigger to Improve the Effectiveness of Section 203 of the Voting Rights Act
Appendix to the Statement of Margaret Fung: Language Access to the Vote for Asian Americans: Renew and Expand Section 203 of the Voting Rights Act
Appendix to the Statement of Margaret Fung: The Asian American Vote—A Report on the AALDEF Multilingual Exit Poll in the 2004 Presidential Election
Appendix to the Statement of Margaret Fung: Statement of Margaret Fung, Executive Director, Asian American Legal Defense and Education Fund, before the National Commission on the Voting Rights Act, June 14, 2005
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Submitted for the Record by Mr. Chabot on November 17, 2005:
Prepared Statement of Jim Boulet, Jr., Executive Director, English First
Prepared Statement of the Honorable Judy Chu, California Legislature Assembly Member
Prepared Statement of the Asian Pacific American Legal Center of Southern California: Submission of Materials for Oversight Hearings
Prepared Statement of Angela M. Arboleda, Civil Rights Policy Analyst, National Council of La Raza
Prepared Statement of the Asian American Justice Center: Submissions of Materials for Oversight Hearings
National Congress of American Indians, Resolution #TUL-05-090: Support Reauthorization of Provisions Set to Expire in the Voting Rights Act
Prepared Statement of Rogene Gee Calvert before the National Commission on the Voting Rights Act, April 7, 2005
Prepared Statement of John Lewis, Executive Director, Inter Tribal Council of Arizona, before the National Commission on the Voting Rights Act, April 7, 2005
Prepared Statement of Nadine Cohen, Lawyer's Committee for Civil Rights Under Law of the Boston Bar Association, before the National Commission on the Voting Rights Act, June 14, 2005
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Prepared Statement of Martin Perez, President, Latino Leadership Alliance of New Jersey, before the National Commission on the Voting Rights Act, June 14, 2005
Prepared Statement of Colombina Santiago, Member, New Jersey ACORN, before the National Commission on the Voting Rights Act, June 14, 2005
Prepared Statement of EunSook Lee, Executive Director, National Korean American Service and Educational Consortium, before the National Commission on the Voting Rights Act, September 27, 2005
Prepared Statement of Conny McCormack, Registrar-Recorder/County Clerk, Los Angeles County, before the National Commission on the Voting Rights Act, September 27, 2005
Prepared Statement of Eugene Lee, Staff Attorney, Asian Pacific American Legal Center, before the National Commission on the Voting Rights Act, September 27, 2005
VOTING RIGHTS ACT: SECTION 203—
BILINGUAL ELECTION REQUIREMENTS
(Part I)
TUESDAY, NOVEMBER 8, 2005
House of Representatives,
Subcommittee on the Constitution,
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Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:04 p.m., in Room 2141, Rayburn House Office Building, the Honorable Steve Chabot (Chair of the Subcommittee) presiding.
Mr. CHABOT. The Committee will come to order.
This is the Subcommittee on the Constitution of the Judiciary Committee. I would like to welcome everyone for being here today. This is the sixth in a series of hearings that the Committee is holding examining the impact and effectiveness of the Voting Rights Act over the past 40 years.
Today and again tomorrow, this Committee will focus on section 203, the provision authorizing bilingual language assistance to American citizens who are members of covered language minority groups and who have limited English proficiency.
Section 203 has not been revisited by Congress since 1992 and, like the sections that we have discussed in previous hearings, is set to expire in 2007, unless reauthorized.
I'd like to take a moment again to thank my colleagues for the time that they've devoted to this issue. I also would like to thank our witnesses for being here today. We have another expert panel. We've been very fortunate thus far in these hearings that we have had such experts, and we appreciate you all being here today.
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The Voting Rights Act was enacted in 1965 in response to a history of racial discrimination against some of our Nation's citizens. In 1975, Congress expanded the Voting Rights Act to include section 203 and its companion, section 4(f).
Section 203 requires certain jurisdictions to provide bilingual election assistance—including notices, instructions, information, and ballots—to citizens who are members of a designated language minority group and who have limited English proficiency.
As cited in the 1975 House Report, section 203 was added in response to ''an extensive evidentiary record demonstrating the prevalence of voting discrimination and high illiteracy rates among language minorities.'' This record revealed that similar discrimination patterns and practices that had been used to prevent African-Americans from voting were being administered against Asian-Americans, American Indians, Native Alaskans, and citizens of Hispanic origin. These citizens are more than likely to live in environments in which the dominant language is other than English.
Section 203 breaks down these barriers by providing citizens in a language minority group with the assistance necessary to participate in the political process.
Section 203 has enabled an increased number of minority citizens to register and cast ballots, as revealed in the last Census and latest election records. Section 203 has also been instrumental in increasing the number of Federal, State, and local elected officials who are of Asian-American, Hispanic, Native American, or Native Alaskan descent.
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Today's hearing will focus on the impact that section 203 has had on all citizens and on the electoral process, as well as examining the continued need for section 203 in the future. We look forward to hearing from our witnesses on this topic this afternoon. And I now yield to the gentleman from New York, Mr. Nadler, the Ranking Member, for the purpose of making an opening statement.
Mr. NADLER. Thank you, Mr. Chairman. Mr. Chairman, let me begin by welcoming our witnesses today, especially my constituent and neighbor, Margaret Fung, of the Asian American Legal Defense and Education Fund, who has really been in the forefront of ensuring that all Americans are able to exercise the franchise.
Language barriers have long hindered the ability of American citizens who are duly qualified to vote to exercise their franchise. I hope we are beyond the point where anyone would seriously suggest that any American citizen who is legally entitled to vote should be denied that fundamental right.
There was a time when literacy tests were touted as a necessary prerequisite for voting. No one today would try to defend that disgraceful practice.
I believe that in the future, language barriers that serve only to exclude eligible voters from meaningful participation in our democracy will be viewed retroactively in the same way as disgraceful memories.
We are a nation of immigrants. Every group in its time was abused and excluded because of different customs, because they spoke different languages. And today, as in the past, those intent on discrimination would explain that past generations of immigrants are somehow different and better than today's immigrant generation. That hasn't changed.
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Part of becoming an American is getting involved in our democratic system. It is the common values of freedom and democracy that bind this nation together; not facility with the English language. I defy anyone to tell me that my Russian constituents, or my Chinese constituents, or my Latin American constituents aren't just as American as those of us whose families arrived here in earlier generations and as our grandparents were.
These new Americans, if anything, may value the right to vote more than some of those who were born here and could be tempted to take this right for granted. We are strengthened as a nation by doing all we can to help them participate fully in the life of our nation.
There are also native-born Americans who need protection under section 203. Native Americans have a perhaps greater claim to being American than anyone else in this country; yet their rights at the polls have historically been abused.
The Puerto Rican voters in my city are native-born Americans, but the common language of the Commonwealth is Spanish. The Puerto Ricans, members of our society, serve in our military and our Government and in business. They are no less American than anyone else in this room.
Section 203 is an enforcement mechanism. I hope that our panel will help enlighten us as to how the needs have changed over the years, and how we can do more to ensure that all Americans can exercise their vote in a meaningful manner.
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I thank you, and I look forward to the testimony of the witnesses. And I thank you, Mr. Chairman, and yield back.
Mr. CHABOT. Thank you very much. Would the gentleman from Alabama, Mr. Bachus, like to make an opening statement?
Mr. BACHUS. I have no statement. I will just say that the right to vote is actually the right to participate in our democracy. If you take away the right to vote—and really, not only the vote, but to have your vote counted—and you basically take away the ability to participate in electing your Government and in policy decisions and whatever. So I can't think of anything more fundamental to a democracy than the right to vote is.
Mr. CHABOT. Thank you very much. The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT OF VIRGINIA. Thank you, Mr. Chairman. Mr. Chairman, in the 40 years since its passage, the Voting Rights Act has guaranteed millions of minority voters the chance to have their voices heard and their votes counted. The number of Black elected officials has increased from just 300 nationwide in 1964 to over 9,100 today. Poll taxes, literacy tests, and other discriminatory barriers that once closed the ballot box to Blacks and other minorities have been dismantled.
The process also opened the political process for nearly 6,000 Latinos who now hold public office, including more than 250 who serve at the State or Federal level.
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Section 203 was added to the Voting Rights Act in 1975, and requires certain jurisdictions to make language assistance available at polling locations for citizens with limited English proficiency. These provisions apply to four language groups. The community with one of those language groups will qualify for language assistance if more than 5 percent of the voting-age citizens in a jurisdiction belong to a single language minority community and have limited English proficiency, or LEP, or more than 10,000 voting-age citizens in a jurisdiction belong to a single language minority community and are LEP, and the illiteracy rate of the citizens in the language minority is higher than the national illiteracy rate.
Registration and voting materials in all jurisdictions in all elections must be provided in the minority language, as well as in English. All translation during all phases of the voting process, from voter registration to voting, is also required. Jurisdictions are permitted to target their language assistance to specific voting precincts or areas.
It is crucial that everyone in our democracy have the right to vote. Yet having the right legally is meaningless if certain groups of people are unable to accurately cast their ballots at the poll.
Voters may be well informed about the issues and candidates, but to make sure their vote is accurately counted, language assistance is necessary in certain jurisdictions with concentrated populations of limited English-proficient voters.
Even though new citizens are required to speak English, they still may not be sufficiently fluent to participate fully in the voting process without this much needed assistance. Before the language assistance provisions were added to the Voting Rights Act in 1975, many Spanish-speaking American citizens did not register to vote because they could not read the election materials or could not communicate with poll workers. Language assistance has encouraged these and other citizens of different language minority groups to register and vote and participate more fully in the election process.
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Language assistance is not costly. According to two separate GAO studies, as well as independent research conducted by academic scholars, when implemented properly, language assistance accounts for only a small fraction of total election costs. The most recent studies show that compliance with section 203 accounts for approximately 5 percent of total election costs.
Section 203 and other expiring provisions are essential to ensure fairness in our election processes and equal opportunity for minorities in American politics. It's important that we work together to strengthen this provision.
And I look forward to the testimony that will create the record that we need to extend this provision. I yield back.
Mr. CHABOT. I thank the gentleman very much. And the gentleman from Wisconsin, Mr. Green, is recognized, if he'd like to.
Mr. GREEN. I have no opening statement.
Mr. CHABOT. Okay. Mr. Jenkins, are you interested in making an opening statement?
Mr. JENKINS. Not at this time.
Mr. CHABOT. Okay. The gentleman from North Carolina, Mr. Watt, is recognized for 5 minutes.
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Mr. WATT. Thank you, Mr. Chairman. I'll try not to take 5 minutes. I do want to thank the Chairman again for the series of hearings, and thank the Chairman of the full Committee again for his commitment to creating a record for reauthorization of the Voting Rights Act provisions that are expiring.
One of those provisions is section 203, which imposes an obligation on certain States and political subdivisions to provide voting materials and assistance in languages other than English. This requirement applies to jurisdictions with significant language minority populations who are of limited English proficiency, or where the illiteracy rate of that language minority is higher than the national literacy average rate.
I know that our witnesses today will address the origin, operation, and costs of complying with section 203, as well as present evidentiary materials to substantiate or refute the need for its continued use. However, I think it's important to emphasize where section 203 fits into the Voting Rights Act and into our scheme of democracy.
This is America. We are the most open country in the world, the most diverse country in the world. Our population is multicultural, consisting of people of various races, ethnicity, and national origin. And while I can understand concerns raised by some that this provision might lead to ''Balkanization'' of America, I do not share that view.
To the contrary, I believe that providing meaningful access to the ballot for limited English proficient citizens can only enhance political participation and incentivize hundreds of thousands of Americans to engage more actively into the mainstream of society, while retaining their cultural identities.
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Without that access, scores of American citizens will continue to feel alienated in the country they call home. It would be ironic if during this time where we are pushing cultural tolerance and inclusion that we didn't—if we didn't extend this provision of the Voting Rights Act. Citizens of all language minority communities are required to pay taxes, abide by the law, cooperate with law enforcement; and many volunteer to serve in the military, notwithstanding their ability to speak English, or speak English well.
Section 203 fosters civic responsibility by making the opportunity to be heard by Government officials at all levels available to all Americans, including those Americans who are distinguished only by their inability to speak fluent English; not by their contributions to, and sacrifices on behalf of, this country.
Section 203 completes the purpose of the Voting Rights Act to ensure full participation in the electoral process by any American, without regard to race, ethnicity, or membership in a language minority group. It's vital to our democracy that all our citizens who shoulder the burdens of citizenship also share in the benefits of citizenship on a non-discriminatory basis, and I believe that section 203 makes this possible.
I would just add, outside the framework of my prepared comments, Mr. Chairman, that one of the wonderful things that I still have posted in my home is the ballot that was used in the first elections in South Africa. It wasn't in different languages, but the ballot had pictures of the people who were running for office and the party symbols, for people who couldn't read at all. It was to give them the ability to be able to participate fully, as well as people who could read.
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And it just seems to me that this section 203 provision is of that same kind of philosophy, to encourage participation, enhance participation, allow people who may not have all of the conveniences or skills of speaking English to participate fully. They are American citizens, they are United States citizens, and they should be allowed to vote just like anybody else is.
So I encourage—appreciate the witnesses being here, and thank the Chairman for this hearing, and yield back the balance of my time.
Mr. CHABOT. The gentleman yields back. Mr. Feeney, I understand you do not need to make an opening statement; is that correct?
Mr. FEENEY. Yes.
Mr. CHABOT. Okay. Thank you. I would note the presence on the panel here of three other distinguished Members of the House, although the three are not Members of this particular Committee: Mr. Honda from California, Ms. Sánchez from California, and Mr. Scott from Georgia.
We've extended the privilege of giving each of these Members 5 minutes, which they can use for making an opening statement or asking questions. It's my understanding that Mr. Honda would make an opening statement, and Ms. Sánchez and Mr. Scott would use that time for questions. Is that correct?
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Ms. SÁNCHEZ. [Nods affirmatively.]
Mr. SCOTT OF GEORGIA. Yes.
Mr. CHABOT. Okay. So Mr. Honda, you are recognized for the purpose of making an opening statement. Better make it a good one. [Laughter.]
Mr. HONDA. Thank you, Mr. Chairman, and I appreciate this opportunity. Chairman, Ranking Member Nadler, and Members of the Subcommittee, thank you for allowing me to make this opening statement at this important hearing on the Voting Rights Act.
Earlier this year, I had the honor of being with our distinguished colleague, Congressman John Lewis, and others in Alabama, to commemorate the 40th anniversary of ''Bloody Sunday.'' On that day in March 1965, on a bridge outside of Selma, Alabama, the civil rights movement continued its unwavering steps forward.
Civil rights activists, led by Dr. King, took to the streets in a peaceful protest for voting rights for African-Americans. They were met with clubs and violence. The terrible event helped the Nation, however, to understand what was at stake.
What were these non-violent activists seeking? We all know that the cornerstone of our Government is based on the right to vote. Voting is the most basic and vital tool Americans have to shape our Government's policies.
I'm here to underscore the point that the right to vote is keenly felt by the Asian- and Pacific-American community. Chinese-Americans could not vote until the Chinese Exclusion Acts of 1882 and 1892 were repealed in 1943. First-generation Japanese-Americans could not vote until 1952, because of the racial restrictions contained in a 1790 naturalization law.
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We are here today reviewing section 203 of the Act, which has been vital to the APIA community's ability to participate in the electoral process. Language-minority citizens were often denied needed assistance at the polls. In the 1975 amendments to the Voting Rights Act, such an assistance became required in certain situations.
I'm looking forward to hearing from our distinguished panel today. I am especially looking forward to the important testimony from Margaret Fung, Executive Director of the Asian American Legal Defense and Education Fund. The work of Ms. Fung and AALDEF has been instrumental in increasing civic participation among APIAs. The record of evidence established by AALDEF will clearly show the importance of section 203 and related provisions.
And Mr. Chairman, since I don't think I took 5 minutes yet, very quickly, as Chairman of the Board of Supervisors of Santa Clara County, we had the critical number of folks needed to have a Chinese ballot. And the young people used to complain that they had to explain things to their parents for them to be able to vote with some comprehension.
After we passed the bilingual ballot for Chinese in our county, the participation of Chinese went up 11 percent. And the complaints of the young people went up, also; because they said that their parents didn't need them any more for translation. And this just depicts the importance of what I call inclusion; an inclusion that allows all people with different language backgrounds who want to participate as citizens in this country to perform—to have a more perfect union; participate.
And so comprehension and knowledge are essential for an informed decision. Whether you speak English fluently or not, if you're citizens, you should not be denied the ability to cast your ballot with comprehension, with knowledge. I thank you, Mr. Chairman.
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Mr. CHABOT. Thank you very much. The gentleman's time has expired.
I'd like to introduce the panel at this time. Before I do that, I would make note that, without objection, all Members will have 5 legislative days to submit additional materials for the record.
As I say, we have a very distinguished panel this afternoon. Our first witness will be the Honorable Bradley J. Schlozman, the Acting Attorney General for Civil Rights at the United States Department of Justice. As the Acting Attorney General, Mr. Schlozman is responsible for enforcing all Federal civil rights statutes, including those that prohibit discrimination on the basis of race, sex, disability, religion, and nation of origin, in education, housing, credit, public accommodation, voting, and certain federally funded and conducted programs.
Prior to assuming his duties as Acting Attorney General, Mr. Schlozman served as Deputy Assistant Attorney General, directing supervising the Criminal, Voting, Employment, and Special Litigation Sections of the Civil Rights Division.
Mr. Schlozman is a former law clerk to Judge G. Thomas Van Bebber, Chief U.S. District Judge for the District of Kansas; and U.S. Circuit Judge Mary Beck Briscoe, of the U.S. Court of Appeals for the Tenth Circuit.
We welcome you back this afternoon, Mr. Schlozman.
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Our second witness will be Ms. Margaret Fung. Ms. Fung currently serves as the Executive Director of the Asian American Legal Defense and Education Fund, AALDEF. In her work with AALDEF, Ms. Fung has successfully defended the civil rights of members of the Asian-American community nationwide in areas such as housing, voting, and economic justice for workers.
In 1986, in Chinese Staff and Workers Association v. City of New York, Ms. Fung successfully argued that the impact of new development on low-income tenants and small businesses must be considered under State environmental laws.
In 1988, Ms. Fung organized AALDEF's first exit poll of Asian-American voters in New York City; and in 1992, testified before the full House Judiciary Committee on the need to continue section 203.
Ms. Fung also testified before the New York State Legislative Taskforce for Demographic Research and Reapportionment in 2001, presenting information on the dilutive impact that previous redistricting plans had on language-minority voters.
Ms. Fung serves on the board of directors of the National Asian Pacific American Legal Consortium, the National Association of Public Interest Law, the National Committee on Responsive Philanthropy, and as an advisor in the rebuilding of the World Trade Center. I welcome back Ms. Fung.
And our third witness will be Ms. Linda Chavez, President of One Nation Indivisible. In addition to her work with One Nation Indivisible, Ms. Chavez serves as President of the Center for Equal Opportunity, is a Fox News political analyst, and hosts a nationally-syndicated daily radio show on Liberty Broadcasting.
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Ms. Chavez previously held a number of political appointments, including Chairwoman of the National Commission on Migrant Education, from 1988 to '92; White House Director of Public Liaison, in 1985; staff director for the United States Commission on Civil Rights, from 1983 to 1985; and was a member of the Administrative Conference of the United States, from 1984 to 1986.
Ms. Chavez is the author of a number of award-winning publications, including ''Out of the Barrio: Toward a New Politics of Hispanic Assimilation,'' and her memoir ''An Unlikely Conservative: The Transformation of an Ex-Liberal.'' We welcome you here, Ms. Chavez.
Our fourth and final witness will be Ms. Rebecca Vigil-Giron. Ms. Vigil-Giron currently serves as the Secretary of State for the State of New Mexico, the State's Chief Election Officer; and is an ex officio member of the New Mexico Public Employees Retirement Board. As Secretary of State and chief elections officer, she is the highest-ranking elected Hispanic woman State official to currently serve in the United States.
In addition, Ms. Vigil-Giron serves as President of the National Association of Secretaries of State, where she has been a leader in election reform.
Ms. Vigil-Giron played an instrumental role in the development and enactment of the Help America Vote Act, HAVA; and is a member of the U.S. Election Assistance Commission Standards Board, and Board of Advisors, and EAC's Working Group for Statewide Data-Based Voter Registration Systems.
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Ms. Vigil-Giron is the recipient of many honors and awards for her work in Government. We welcome you here this afternoon, Ms. Vigil-Giron.
And for those who may not have testified before the Committee, we have what's called the 5-minute rule. Each of you will have 5 minutes to testify. We have a lighting system: the green light will be on for 4 minutes; the yellow light comes on, lets you know you have 1 minute to wrap up; the red light comes on, and we'd appreciate it if you'd wrap up your testimony about that time, if at all possible. I won't gavel you down immediately. We'll give you a little leeway, but we hope you'll stay within the 5 minutes as much as possible.
It's also the practice of this Committee to swear in all witnesses appearing before it. So if you would, please rise and raise your right hand.
[Witnesses sworn.]
Mr. CHABOT. All witnesses have indicated in the affirmative.
And we again welcome you here this afternoon. Mr. Schlozman, we'll begin with you. You're recognized for 5 minutes.
TESTIMONY OF BRADLEY J. SCHLOZMAN, ACTING ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
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Mr. SCHLOZMAN. Chairman Chabot, Ranking Member Nadler, distinguished Members of the Subcommittee, thank you again for the opportunity to appear before you today.
Let me say at the beginning that, as I underscored in my testimony a couple of weeks ago, the President has directed the full power and might of the Justice Department to enforcing the Voting Rights Act and to preserving the integrity of our voting process. The Administration continues to look forward to working with Congress on the reauthorization of this important legislation.
It's my privilege this morning to provide you with an overview of the Justice Department's enforcement of the language minority provisions of the Voting Rights Act. The language minority provisions of the Voting Rights Act, which have been in effect since 1975, are found in sections 203 and 4(f)(4) of the Act.
These provisions mandate that covered jurisdictions which provide any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, must provide such information and materials in the language of the applicable minority group, as well as in the English language.
Now, the determination of which States or political subdivisions are subject to the dictates of the Voting Rights Act minority language requirements is based on a formula that the Census Bureau data invokes regarding ethnicity figures, English proficiency rates, and literacy rates.
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The only language minority groups that are covered under these provisions are American Indians, Asian-Americans, Alaskan Natives, and citizens of Spanish heritage. Currently, there are a total of 496 jurisdictions that are subject to the requirements of either section 203 or section 4(f)(4).
And I've put together some charts here on the placards, and I believe each of the Members was given a copy. And if you haven't been, then we can make that available to you, as well.
Under the Bush Administration, the Justice Department's Civil Rights Division has undertaken the most extensive section 203 and 4(f)(4) enforcement activity in history. The initiative began immediately following the Census Bureau's July 2002 determinations as to which jurisdictions were covered under section 203.
The Civil Rights Division not only mailed formal notice and detailed information on section 203 compliance to each of the 296 covered jurisdictions across the country, but it also initiated face-to-face meetings with State and local election officials and minority community members in the 80 newly covered jurisdictions, to explain the law, answer questions, and work to foster the implementation of effective legal compliance programs.
I've undergone many of these outreach activities myself, and traveled a good distance to encourage individuals and communities to comply vigorously with the law.
In addition, the division's Voting Section has been systematically requesting voter registration lists and bilingual poll official assignment data from all covered jurisdictions, beginning with the largest in terms of population. The lists are then reviewed to identify polling places with a large number of minority-language voters, and to ascertain whether the polling places are served by a sufficient number of bilingual poll officials who can provide the assistance to new voters.
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Not surprisingly, the extraordinary efforts of our division have borne substantial fruit. Since 2001, this Administration has filed more minority language cases under sections 4 and 203 than in the previous 26 years in which these provisions have been applicable. Each and every case has been successfully resolved, with comprehensive relief for affected voters.
And the pace is accelerating, with more cases filed in 2005 than in any previous year. We've already broken the previous record that was set in 2004. The lawsuits filed in 2004 alone provided comprehensive minority language programs to more citizens than all previous section 203 and 4(f)(4) suits combined.
We've had suits in Florida, California, Massachusetts, New York, Pennsylvania, Texas, and Washington. And among these cases were the first suits ever filed under section 203 to protect Filipino and Vietnamese voters.
The lawsuits discussed have significantly narrowed gaps in electoral participation. In Yakima County, Washington, for example, Hispanic voter registration is up over 24 percent since the division's section 203 lawsuit. In San Diego County, Spanish and Filipino registrations are up over 21 percent, and Vietnamese registration is up over 37 percent since the division's enforcement action.
These language enforcement efforts have made a tremendous difference in enhancing minority representation in politically elected ranks. The Civil Rights Division is extraordinarily proud of its accomplishments, and we look forward to continuous vigorous enforcement of these provisions. Thank you.
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[The prepared statement of Mr. Schlozman follows:]
PREPARED STATEMENT OF BRADLEY J. SCHLOZMAN
Chairman Chabot, Ranking Member Nadler, distinguished members of the Subcommittee:
I am Brad Schlozman, the Acting Assistant Attorney General of the Civil Rights Division at the Department of Justice. Thank you for the opportunity to appear before you again today. As I underscored in my prior testimony two weeks ago, the President has directed the full power and might of the Justice Department to enforce the Voting Rights Act and to preserve the integrity of our voting process. This Administration looks forward to working with Congress on the reauthorization of this important legislation.
It is my privilege this morning to provide you with an overview of the Justice Department's enforcement of the language minority sections of the Voting Rights Act. As you know, these provisions, like Section 5, are due to expire in August 2007.
The minority language provisions of the Voting Rights Act, which have been in effect since 1975, are found in Sections 203 and 4(f)(4) of the Act. These provisions mandate that any covered jurisdiction which ''provides any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots'' must provide such materials and information ''in the language of the applicable minority group as well as in the English language.''(see footnote 1)
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The determination of which States or political subdivisions are subject to the dictates of the Voting Rights Act's minority language requirements is based on a formula that utilizes Census Bureau data regarding ethnicity figures, English proficiency rates, and literacy rates. Section 203, for example, is triggered if, in a particular jurisdiction: (i) more than 5% of the citizen voting age population, or 10,000 citizens of voting age, are members of a single language minority, and (ii) the illiteracy rate of the citizens in the language minority group is higher than the national illiteracy rate.(see footnote 2) With respect to Section 4(f)(4), a jurisdiction is subject to the translation obligations if: (i) less than 50% of the citizen voting age population was either registered to vote, or actually voted, in the November 1972 presidential election, (ii) the jurisdiction provided certain specified election materials exclusively in English in November 1972, and (iii) more than 5% of the citizen voting age population in November 1972, as determined by the then-latest available Census Bureau figures, were members of a single language minority.(see footnote 3) The only language minority groups covered under Sections 4(f)(4) and 203 are American Indians, Asian Americans, Alaskan Natives, and citizens of Spanish heritage.(see footnote 4) Currently, there are a total of 496 jurisdictions that are subject to the requirements of either Section 203 or Section 4(f)(4).(see footnote 5)
Under the Bush Administration, the Justice Department's Civil Rights Division has undertaken the most extensive Section 203 and Section 4(f)(4) enforcement activity in its history. The initiative began immediately following the Census Bureau's July 2002 determinations (using 2000 Census data) as to which jurisdictions were covered under Section 203. The Civil Rights Division not only mailed formal notice and detailed information on Section 203 compliance to each of the 296 covered jurisdictions across the United States, but it also initiated face-to-face meetings with State and local election officials and minority community members in the 80 newly covered jurisdictions to explain the law, answer questions, and work to foster the implementation of effective legal compliance programs.
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In addition, the Division's Voting Section has been systematically requesting voter registration lists and bilingual poll official assignment data from all covered jurisdictions, beginning with the largest in terms of population. These lists are then reviewed in order to identify polling places with a large number of minority language voters, and to ascertain whether the polling places are served by a sufficient number of bilingual poll officials who can provide assistance to voters.
The Division also is systematically looking at the full range of information provided by covered jurisdictions to voters in English—not just the ballot and election pamphlets themselves, but also newspaper notices required by State law, web site information, and other election materials—and determining whether: (i) the same information is being made available to each minority language community, and (ii) the translated materials are actually provided in polling places.
In August 2004, the Assistant Attorney General mailed letters to the 496 jurisdictions covered by Sections 203 and/or 4(f)(4) reminding them of their obligations to provide minority language assistance in the November 2004 general election, and offering them guidance on how to achieve compliance. Ironically, the 2004 mailing to the Section 4(f)(4) counties was the first blanket mailing to these political subdivisions since shortly after their original designations as covered jurisdictions in 1975.
Not surprisingly, the extraordinary efforts undertaken by the Civil Rights Division in this area have borne abundant fruit. Indeed, since 2001, this Administration has filed more minority language cases under Sections 4 and 203 than in the entire previous 26 years in which these provisions have been applicable.(see footnote 6) Each and every case has been successfully resolved with comprehensive relief for affected voters. And the pace is accelerating, with more cases filed and resolved in 2005 than in any previous year, breaking the previous record set in 2004. The lawsuits filed in 2004 alone provided comprehensive minority language programs to more citizens than all previous Section 203 and 4(f)(4) suits combined.
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The enforcement actions include cases in Florida, California, Massachusetts, New York, Pennsylvania, Texas, and Washington. Among these cases were the first suits ever filed under Section 203 to protect Filipino and Vietnamese voters.
The Civil Rights Division recognizes of course that States and municipalities do not have unlimited budgets, and we have thus designed our enforcement strategy to minimize unnecessary costs for local election officials. For example, the Division urges covered jurisdictions to avoid costly and unhelpful expenditures such as publishing Spanish language notices in English language newspapers that are not read by those who rely on the Spanish language. Election officials are instead encouraged to identify the most effective and efficient channels of communication that are used by private enterprise, service providers, tribal governments, and the like to get information effectively to the language minority community at low cost. In a similar vein, the Division encourages the use of fax and e-mail ''information trees,'' whereby bilingual election notices are sent at no cost to a wide array of businesses, unions, social and fraternal organizations, service providers, churches and other organizations with a request that these entities make announcements or otherwise disseminate the information to their membership's language minority voters. And the Division has incorporated ''best practices'' from around the country to help jurisdictions recruit sufficient numbers of bilingual poll workers.
I might add at this point that the Civil Rights Division's protection of minority language voters has not been limited to those individuals residing in jurisdictions covered under Sections 203 and 4(f)(4). The Division has also used Sections 2 and 208 of the Voting Rights Act to protect the rights of Hispanic, Chinese, Vietnamese, and Haitian voters from disparate treatment, and we have aggressively monitored and obtained additional relief to protect Arab American and Native American voters. In fact, from the time the Bush Administration began in 2001, the Civil Rights Division has filed three of the only four Section 208 cases brought in the history of the Voting Act, and the Division initiated first-ever Section 2 case to protect Vietnamese voters in Boston, Massachusetts.
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The lawsuits discussed above have significantly narrowed gaps in electoral participation. In Yakima County, Washington, for example, Hispanic voter registration is up over 24% since the Division's Section 203 lawsuit. In San Diego County, California, Spanish and Filipino registration are up over 21%, and Vietnamese registration is up over 37% since the Division's enforcement action.
The Division's minority language enforcement efforts likewise have made a tremendous difference in enhancing minority representation in the politically elected ranks. A Section 203 lawsuit in Passaic, New Jersey, was so successful for Hispanic voters that a Section 2 challenge to the at-large election system was subsequently withdrawn. A Memorandum of Agreement in Harris County, Texas, helped double Vietnamese voter turnout, and the first Vietnamese candidate in history was elected to the Texas legislature—defeating the incumbent chair of the appropriations Committee by 16 votes out of over 40,000 cast.
I would be remiss if I did not state for the record that none of these accomplishments would have been possible without both the tremendous emphasis placed on this issue by President Bush, and the extraordinary enforcement program developed by the chief of the Civil Rights Division's Voting Section, John Tanner. Mr. Tanner has logged hundreds of thousands of miles and spent countless hours away from his family developing, implementing, and refining our Section 203 program. We all owe him a debt of gratitude for his work.
Let me say in conclusion that the Civil Rights Division made the vigorous enforcement of the Voting Rights Act's language minority requirements one of its primary missions. I think everyone would agree that we have been enormously successful in this task. Naturally, the real beneficiaries of our work have been the millions of American citizens who desire to be full participants in our electoral process despite their lack of English proficiency.
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At this point, I would be happy to answer any additional questions from the Committee.
Mr. CHABOT. Thank you very much.
Ms. Fung, you are recognized for 5 minutes.
TESTIMONY OF MARGARET FUNG, EXECUTIVE DIRECTOR, ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND
Ms. FUNG. Good afternoon, Mr. Chairman and Members of the Subcommittee. My name is Margaret Fung, and I am Executive Director of the Asian-American Legal Defense and Education Fund. AALDEF is a 31-year-old organization based in New York City that promotes the civil rights of Asian-Americans through litigation, advocacy, and community education.
For over a decade, we've monitored elections on a regular basis for compliance with section 203 of the Federal Voting Rights, and we've seen that section 203 is a success story. Our most recent election monitoring efforts, in 2004, were conducted in eight States, in which we polled 11,000 Asian-American voters and found that they were using bilingual ballots and assistance.
I'm glad to speak today about the significance of section 203 because 13 years ago, when I came before the Subcommittee on Civil and Constitutional Rights, there was no numerical trigger of 10,000 or more language minority citizens. I argued for the establishment of this alternative numerical trigger because large concentrations of Asian-Americans in urban areas, such as New York City and Los Angeles, would otherwise not have been covered under the existing 5 percent threshold.
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And at that time, in New York, no Asian-American had ever been elected to Congress, to the New York State Legislature, or to the New York City Council—after 100 years of residing in New York City.
We found in our exit polls that four out of five voters in Asian-American neighborhoods—in New York City, Manhattan, and in Flushing, Queens—that four out of five did not speak or read much English; and that they would vote more often if bilingual assistance were provided.
Well, there was wide bipartisan support in Congress in 1992 to expand section 203 to include an alternative numerical benchmark of 10,000. And as a result, over 200,000 Asian-Americans nationwide, in ten counties in California, Hawaii, and New York became eligible to receive language assistance under section 203.
After the Census 2000, expanding language assistance now reaches over 672,000 Asian-Americans, residing in 16 counties, in seven States, with some jurisdictions providing more than one Asian language.
The Asian population remains one of the fastest-growing communities of color in the United States. Asian citizens of voting age numbered 3.9 million in 1996; they are now 6.7 million in 2004. Asian-American voter turnout has also been steadily increasing, from 1.7 million in 1996, to nearly 3 million in 2004.
In New York City, we've also seen some important gains in Asian-American electoral representation. New York City now has its first Asian-American City Council member, John Liu, and it has its first Asian-American member of the New York State Assembly, who was elected only in 2004. They were both elected in Queens County, one of the three covered jurisdictions in New York City covered under section 203.
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In California, the State with the largest Asian-American population, there were no Asian-Americans serving on the State legislature in 1990; now there are nine. In Houston, Texas, the first Vietnamese-American, Hubert Vo, was elected to the State legislature in 2004, within years after Vietnamese was required under section 203 for Harris County, Texas.
Unfortunately, voter discrimination still does exist against Asian-Americans. We monitored poll sites, and in one Queens neighborhood in Jackson Heights, New York, in 2004, we heard one poll inspector say, ''You Oriental guys are taking too long to vote.'' He told one of our monitors, ''Why don't you tell your people to hurry up?''
At that poll site, there was also a Chinese-American voter who asked for language assistance, and he was directed to a Korean interpreter, who obviously couldn't help.
In Annandale, Virginia, Poe Middle School, a poll worker told a Laotian-American voter, ''Your name is the longest I've ever seen.'' That voter felt so uncomfortable, he reported it to one of our monitors.
And in Edison, New Jersey, where the Justice Department has today sent observers and attorneys, we complained about the treatment of Asian-American voters. There was a Korean-American candidate who was running for mayor of Edison. He was the subject of a lot of anti-Asian remarks by talk radio hosts. And the Justice Department observers found that some Gujarati- and Hindi-speaking voters appeared, and they were told by poll workers, ''Go to the nearest gas station.''
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So there's still much more to be done. One way in which section 203 could be improved would be to lower the trigger, the numerical trigger, to at least 7,500. That would pick up a large sector of the Asian-American population that is currently excluded, the Southeast Asian community, which includes Americans from Vietnam, Cambodia, and Laos. This is the group that continues to have high levels of limited English proficiency and low levels of educational attainment; which are the very characteristics that the citizens of Congress—characteristics of citizens that Congress intended to protect under section 203.
The Voting Rights Act has been called one of the most effective pieces of civil rights legislation in American history. For Asian-Americans, section 203 is the provision that most directly removes barriers to voting.
It enables the Asian-American community to participate effectively in the electoral process. And at a time when the Voting Rights Act is beginning to have real significance for our community, we hope that section 203 will be reauthorized, and also expanded. Thank you very much.
[The prepared statement of Ms. Fung follows:]
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Mr. CHABOT. Thank you very much.
Ms. Chavez, you're recognized for 5 minutes.
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TESTIMONY OF LINDA CHAVEZ, PRESIDENT, ONE NATION INDIVISIBLE
Ms. CHAVEZ. Thank you, Mr. Chairman, Mr. Nadler, and distinguished Members of the Subcommittee. I am Linda Chavez. I am President of One Nation Indivisible, and President of the Center for Equal Opportunity.
First of all, let me just apologize in advance, that I will have to leave this meeting at 3:15. So I'm hoping to be here for your questions. If not, my General Counsel is here to address some of the issues I'm going to talk about.
I'd also like to say that in that very long and generous introduction, Chairman Chabot, that you gave, only one item was missing. And I will mention it here because it is relevant to some of what I'm going to discuss. And that is that, from 1972 to 1974, I was a member of the Judiciary Committee staff, working on the House Constitutional and Civil Rights Subcommittee.
And it is relevant because that was, in fact, the period in which section 203 was, in fact, being drafted and discussed. And so I will talk about that in just one moment.
First of all, let me just say at the outset that the Voting Rights Act is the most important and the most successful civil rights law enacted in the United States. It has done an enormous world of good to enfranchise literally millions of Americans who had been disenfranchised for decades; indeed, with respect to African-Americans, from the passage of the 15th amendment forward.
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Nonetheless, I am going to sound a discordant note at the hearing today, and tell you that I am opposed to extension of section 203. I have submitted written testimony which I hope will be included in the record in full. And in that testimony, I give four basic reasons why I believe section 203 should not be reauthorized.
The first is that I believe it helps move the Nation toward ''Balkanization'' into separate ethnic groups. The second reason is that I believe it is both wasteful and expensive—wasteful in the sense that it is not widely used, even where it is available. Third, that it facilitates fraud. And fourth, and I believe most importantly, unconstitutional; and that is where I'm going to devote my remarks now.
And this is why I bring up my history on this civil rights subcommission. At the beginning, Chairman Chabot, you mentioned that there had been an extensive evidentiary record for the establishment of the necessity for bilingual election requirements under the law. In fact, that is not the case. And a clear reading of the House Judiciary Committee proceedings in 1975 I think will demonstrate that.
I have written about this extensively in my book, ''Out of the Barrio''; as has Abigail Thernstrom, the Vice Chairman of the U.S. Commission on Civil Rights, in her book, ''Whose Votes Count?: Affirmative Action and Minority Voting Rights.''
Now, I say that there was not an extensive evidentiary hearing on this issue because, in fact, MALDEF, which was the leading promoter of the bilingual ballot requirements, in fact, came and met with the Judiciary Committee and Judiciary Committee staff, as did the Leadership Conference on Civil Rights and other groups. And I can tell you that while I was present and a member of this staff, the position of the Leadership Conference on Civil Rights, the Assistant Attorney General for the Civil Rights Division, the Chairman of the U.S. Commission on Civil Rights, was all opposed to inclusion of a bilingual voting mechanism in the extension of the Voting Rights Act of 1975. And that is clear in the evidentiary record.
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They were opposed to it because, in fact, discrimination against Hispanics, who were the primary beneficiaries of this legislation when passed—while there was scattered and sporadic discrimination, it was nothing comparable to the discrimination that Blacks faced in the Deep South in those covered jurisdictions that became part of the Act in 1965 in the temporary provisions.
In fact, at the time that the provision was enacted, there were two sitting U.S. governors who are Hispanic: Governor Raul Castro of Arizona, and Jerry Apidacca of New Mexico. In addition, five Members of the Congress, whose districts became included under this provision under the assumption that there was a denial of the right to vote, were also elected at that time.
There was also an opposition to this measure by the State legislature of the State of New Mexico, which noted that representation and voting in predominantly Hispanic districts in New Mexico was in fact the most extensive in the State.
I believe that under the 14th and 15th amendments of the Constitution, one must show either a denial of equal opportunity, denial of due process, or one must show discriminatory practices; and that in the case of language minorities in 1975, that evidentiary record simply is lacking. Therefore, I believe that there is neither a legal basis nor an evidentiary record that would support extension of this Act.
That is not to say that States could not, of their own accord, decide to provide language minorities ballots in their own languages; nor is it to say that those persons who are eligible to vote, who are citizens, and who lack proficiency in English, should not be provided assistance.
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The question is what form that assistance should take, and whose responsibility it is to provide that assistance; whether it should be congressionally mandated, or whether this should be a voluntary act; whether it should be the printing of ballots and other materials in other languages, or whether it should be through other methods, including oral assistance. Thank you.
[The prepared statement of Ms. Chavez follows:]
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Mr. CHABOT. Thank you.
Ms. Vigil-Giron.
TESTIMONY OF THE HONORABLE REBECCA VIGIL-GIRON, SECRETARY OF STATE, STATE OF NEW MEXICO
Ms. VIGIL-GIRON. Good afternoon. Mr. Chairman, distinguished Members of the Committee, thank you for your invitation to address you today.
My name is Rebecca Vigil-Giron. I currently serve as Secretary of State for New Mexico, and Chief Elections Official, as well. I am Past President—just turned over the reins to the new President—of the National Association of Secretaries of State. And I'm also a proud member of the National Association of Latino Elected and Appointed Officials, better known as NALEAO.
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I am here to express my strong support for the reauthorization of section 203 of the Voting Rights Act. New Mexico's experience with section 203 is an enduring validation of the Act's importance to voter participation. New Mexico has the distinction of being the only State in the Union to adopt two official languages in its State constitution: English and Spanish.
New Mexico is home to half of the Navajo Nation, the largest Indian tribe and reservation in the United States. It is the dwelling place of the Jicarilla and Mescalero Apache Nations, and 19 Pueblo Indian tribes.
On a per capita basis, New Mexico still has the largest Hispanic population in the United States, 42 percent. The Native-American population in New Mexico is 10 percent.
The 19 Pueblo Indian nations in New Mexico speak five distinctly different languages. They are Tiwa, Tewa, Towa, Zuni, and Keres.
Section 203 of the Voting Rights Act is the legal foundation of our ability to protect the voting rights of Native-Americans and Hispanic-Americans who speak another language besides English.
In 1987, I established the first Native-American election information program in the secretary of State's office. This division of my office is responsible for assisting all the Indian tribes in New Mexico with every aspect of our elections. Television and radio spots inform the public, in English, Spanish, and Navajo languages, on issues ranging from voter registration, rules, and deadlines, to early voting, absentee, and provisional voting.
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Total voter turnout in the 2004 presidential election increased by over 26 percent over the election of 2000. About 70 percent of all registered New Mexicans voted in the presidential election. San Ildefonso Pueblo voted 75 percent; Jemez Pueblo voted 78 percent; Sandia Pueblo voted 83 percent. This rate of success would not have been possible without the language provisions of the Voting Rights Act.
Are we better off than we were 40 years ago? I know that the answer is ''Yes.'' However, it would be a serious mistake to underestimate the tenacious grip of racism that is always working against minorities in our country.
On August the 6th, 1965, when the Voting Rights Act was signed into law by President Johnson, a new era of civil rights began in our country. I hope that our Congress today will continue that tradition. It is a worthy goal for all of us, and one that we can be proud to fight for.
At the end of this hearing, I will be more than happy to answer any of your questions. And this is not a complete testimony. I will be submitting more testimony for you all in the future, to be submitted within the 5-day period.
Again, I want to thank you for your invitation to participate in this hearing, and thank you for your service to our country.
[The prepared statement of Ms. Vigil-Giron follows:]
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PREPARED STATEMENT OF THE HONORABLE REBECCA VIGIL-GIRON
Good afternoon.
Mr. Chairman; distinguished members of the committee; thank you for your invitation to address you today.
My name is Rebecca Vigil-Giron.
I currently serve as Secretary of State for New Mexico and I am Past President of the National Association of Secretaries of State.
I am here to express my strong support for the re-authorization of Section 203 of the Voting Rights Act.
New Mexico's experience with Section 203 is an enduring validation of the act's importance to voter participation.
New Mexico has the distinction of being the only state in the union to adopt two official languages in it's state constitution, English and Spanish.
New Mexico is home to half of the Navajo Nation, the largest Indian tribe and reservation in the United States.
It is the dwelling place of the Jicarilla and Mescalero Apache Nations and 19 Pueblo Indian tribes.
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On a per capita basis, New Mexico still has the largest Hispanic population in the United States; 42 percent.
The Native American population in New Mexico is 10 percent.
The 19 Pueblo Indian Nations in New Mexico speak 5 distinctly different languages. They are Tiwa, Tewa, Towa, Zuni and Keres.
Section 203 of the Voting Rights Act is the legal foundation of our ability to protect the voting rights of Native Americans and Hispanic Americans who speak another language besides English.
In 1987, I established the first Native American Election Information Program in the Secretary of States Office.
This Division of my office is responsible for assisting all the Indian tribes in New Mexico with every aspect of our elections.
Television and radio spots informed the public in English, Spanish and Navajo languages on issues ranging from voter registration rules and deadlines, to early voting, absentee and provisional voting.
Total voter turnout in the 2004 presidential election increased by over 26 percent over the election of 2000.
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About 70 percent of all registered New Mexicans voted in the presidential election.
San Ildefonso Pueblo voted 75 percent. Jemez Pueblo voted 78 percent.
Sandia Pueblo voted 83 percent.
This rate of success would not have been possible without the language provisions of the Voting Rights Act.
Are we better off than we were 40 years ago?
I think the answer is yes.
However, it would be a serious mistake to underestimate the tenacious grip of racism that is always working against minorities in our country.
On August 6, 1965 when the Voting Rights Act was signed into law by President Johnson, a new era of civil rights began in our country.
I hope that our Congress today will continue that tradition.
It is a worthy goal for all of us and one that we can be proud to fight for.
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Again, thank you for your invitation to participate in this hearing, and thank you for your service to our country.
Mr. CHABOT. Thank you very much for your testimony. Thank you, all of the witnesses. I now recognize myself for 5 minutes.
And Mr. Schlozman, I'll start with you, if I can. How does the Justice Department monitor and enforce section 203? And why has the enforcement picked up so much over the last 3 years?
Mr. SCHLOZMAN. Thank you for the question. We have placed tremendous emphasis on this area of the Voting Rights Act. In terms of how we enforce it, as I mentioned in my opening remarks, we contact jurisdictions, not only to work with them on ensuring their own compliance, but we also are constantly trying to gather information to make sure that our own records are up to date, to understand whether any particular jurisdiction has crossed the threshold into coming under the purview of section 203.
We do a massive amount of outreach. Both the Section Chief of our Voting Section, John Tanner, who has really been instrumental in bringing this program forward, and myself, we have traveled throughout the United States, advising jurisdictions.
A lot of the problems that we see are really more attributable to a lack of familiarity with these requirements than they are any refusal to comply. We have that on occasion, of course, where there's recalcitrant jurisdictions; but most of them simply don't understand what the legal obligations are, and we work actively to educate them on those things.
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Mr. CHABOT. And to what do you attribute the increase over the last 3 years?
Mr. SCHLOZMAN. This has been a major priority of Attorney General Ashcroft, of the President. We've put extra resources on this issue. And I think that both the increased emphasis and the real leadership that the Attorney General and the White House have shown on this issue have borne some real dividends, and we're tremendously proud of those accomplishments.
Mr. CHABOT. Okay. Thank you. Ms. Fung, let me turn to you next, if I can. You had mentioned the 10,000 threshold and the proposal or idea by some that it be decreased to 7,500. What would be the impact of this change on citizens and the electoral process, if that threshold was brought down to 7,500?
Ms. FUNG. Well, it would open up the process and remove barriers for a large number of limited-English-proficient citizens. We have done some analysis of the figures, and we'll be submitting additional information. But we believe that if the numerical trigger is lowered to 7,500, it would enable at least another 78,000 Asian-Americans who would be able to get access to language assistance.
And it would include an increase of nine jurisdictions that would affect counties in California, Illinois, New York, and Washington. But all of these counties, with the exception of one, are already providing language assistance in at least one Asian language.
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Mr. CHABOT. Okay. Thank you very much. Ms Chavez, let me turn to you next. You had indicated clearly from the outset that you're opposed to the reauthorization of section 203. If there was one point that you wanted to emphasize over and above all the other points, what would be your strongest argument against it?
Ms. CHAVEZ. Well, my strongest argument is I think that Congress lacks the authority to, in fact, require States to print material in languages other than English, because it does not satisfy the requirements under either the 14th or the 15th amendment that gives Congress the authority to intervene into what would otherwise be State matters.
I think you would have had to have established an evidentiary record that showed that an English-language ballot was in fact discriminatory and did not provide due process to voters. And that evidentiary record was not established in 1975. It has never been seriously established since.
And I say that having, as I said, been a part of the process and very familiar with the negotiations that went on to include this provision, which, frankly, had very little to do with whether or not there were a large number of Latinos who were being denied the right to vote because they could not understand an English-language ballot.
And I think that record not having been established in 1975 does not let this Committee off the hook to establish it today. And I'd love to see hearings that try to establish the necessary requirements to satisfy the constitutional intrusion into the right of States to determine their own election laws.
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Mr. CHABOT. Okay. Thank you very much. And before I run out of time, Ms. Vigil-Giron, let me turn to you. Could you discuss briefly the costs associated in your State, for example, New Mexico, with implementing section 203?
Ms. VIGIL-GIRON. Thank you, Mr. Chairman and Members of the Committee. Actually, the costs are really minimal. The printing of ballots, the hiring of translators to translate the issues—the bond issues, the constitutional amendment issues, the various offices that people are running for—in Spanish, for example—it's a minimal cost to the State of New Mexico.
We have done it since statehood, actually, since 1912. We have never had—that's never been the issue, costs that would be associated with it.
We have over 30—well, 37 States that the Justice Department identified, or the Census Bureau identified as having high language-minority populations. And so we've known this since the year 2000.
The Justice Department did contact all of our States, and said, ''You must print, you must do all of these in the various languages in your States.'' And most of those States—over 30 of them—asked for an extension period to not do that until 2007; knowing that the reauthorization was going to be taking place in 2007. So they have denied, they have refused—States have refused to go that extra step based on the high population of language-minority population within their State, to print in other languages.
Mr. CHABOT. Thank you very much. Thank you, all of the panel.
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The gentleman from New York, Mr. Nadler, is recognized for 5 minutes.
Mr. NADLER. Thank you, Mr. Chairman. Ms. Sánchez particularly would like to question Ms. Chavez. And since she's going to have to leave in 15 minutes, would it be okay to have her go first, and I'll come after that?
Mr. CHABOT. Yes. Without objection, we'll do that. At this time, Ms. Sánchez, you're recognized for 5 minutes.
Ms. SÁNCHEZ. Thank you. I want to thank all the panelists, first of all, for providing testimony. And I've had a chance to review some of the written testimony in addition to hearing the oral testimony today.
And for the record, I just want to set one thing straight that I found in written testimony that was submitted by Ms. Chavez about the 1996 Dornan-Loretta Sánchez congressional race. In that written testimony, she states that there were 300 ineligible voters that participated in that race. And in fact, that list of supposedly bad voters was never released; so there was never an ability to verify that there were in fact 300 voters who were ineligible that voted. And that is a myth that, quite frankly, is perpetuated, unfortunately, and pops up from time to time, and is not supported by fact. So I just want to make that clear for the record.
Secondly, the premise to me that people who prefer election materials in a language other than English are somehow not citizens, or not eligible to vote, or even not worthy of voting, I find highly insulting. And I'm going to give a perfect example here.
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Both of my parents are citizens of this country, but both acquired English fluency later in life. My mother, who is an elementary school teacher to this day, and who has raised seven college graduates, is more comfortable oftentimes having her voting materials in Spanish, because she values the right to vote so highly that she doesn't want to inadvertently make a mistake. So she prefers to have both English and Spanish ballot materials.
And for some of us who grew up speaking English and English is our first—or for some people, English is their only language—oftentimes, election materials can be confusing using double negatives. So why we would want to prevent people from getting election materials that will help them be informed voters is a mystery to me.
Now, Ms. Chavez, you allege that non-English voting materials somehow facilitate or induce voter fraud. And you also insist that it can lead to all kinds of mischief in terms of people participating in elections when they are in fact not eligible to participate in elections. And you cited some articles and, of course, the 1996 congressional race.
In that race, it is true that there were some voters—a small handful of voters—who believed, in fact, that they were eligible to vote because they were in the process of becoming citizens. They had received a letter from the INS stating, ''Congratulations, you have passed your citizenship test,'' so they honestly believed that they were eligible to vote. They didn't realize that had they not been sworn—that they were ineligible to vote. And it was an honest mistake.
So my question to you—I have two, but the first is, given that you're advocating this position of providing the materials in English only, it would seem to me that that would increase the risk of ineligible voters voting; because if they don't understand the election laws and don't understand the eligibility requirements, they could in fact be in the position where they think that they are eligible to vote.
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So I'm wondering, you know, is it your testimony today that providing information in Spanish to voters who prefer Spanish-language materials in voting, that that will increase voter fraud?
Ms. CHAVEZ. Well, first of all, let me clarify a couple of things. There are numerous instances cited of non-eligible persons voting and using Spanish-language materials. I also cite others, including a 1982 case in San Francisco, in my book. But let's put that side for a moment.
The question you ask is whether or not I—it sounds like you are implying that I oppose providing materials to non-English-speaking persons who are eligible to vote in languages other than English. I do not oppose——
Ms. SÁNCHEZ. Pardon me——
Ms. CHAVEZ. I do not oppose——
Ms. SÁNCHEZ. The question was, do you believe that providing materials in languages other than English increases voter fraud? That was the question.
Ms. CHAVEZ. Okay. Having material provided in languages other than English, in my view, is permissible, so long as the person is eligible to vote; and might even be desirable. The question is whether or not Congress has the authority to mandate the provision of those materials under the Constitution, and therefore is section 203 in fact constitutional.
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It has not been challenged. I suggest that it may in the future be challenged, and that, based on my reading, it will be declared unconstitutional.
I would also say, though, that nothing I have said suggests that there is anything wrong with providing materials to voters in languages other than English. I happen to head up a political action committee. We print up material in Spanish and do Spanish-language communication with potential voters.
That is using private money for political purposes, and is quite different than the State mandating the printing of those election materials in languages other than English and Congress requiring the States to do that.
Mr. CHABOT. The gentlelady's time has expired.
Ms. SÁNCHEZ. Mr. Chairman, if I could ask for unanimous consent for just one additional minute——
Mr. CHABOT. Without objection.
Ms. SÁNCHEZ. —I have one other quick question that I'd like to ask Ms. Chavez.
Native-Americans have lived in this country long before English was ever spoken on this continent. And for Native-Americans, language identity is very much a part of their cultural preservation and their survival. And sadly, this country has a history of killing off substantial numbers of Native-American populations, taking away their land, and decreasing their opportunities.
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So I just want clarification. Is it your testimony that Native-American populations should not be given language assistance in voting, or oral assistance in voting?
Ms. CHAVEZ. Again, I am not opposing giving language assistance to eligible voters who speak a language other than English. What I am objecting to is Congress mandating that materials be printed in languages other than English, because I think it is not within the purview of the Congress to require States to do that.
Ms. SÁNCHEZ. Well, if section 3 [sic] is not reauthorized, then how would they get those materials in the languages?
Ms. CHAVEZ. Well, number one, States could on their own decide to provide those materials. Organizations such as Asian Legal Defense Fund, Mexican American Legal Defense Fund, or all of the various Native-American groups, could provide that——
Ms. SÁNCHEZ. You don't believe that it's an important Federal interest to have those materials provided to voters who want to be informed voters, who vote in national elections?
Ms. CHAVEZ. As I said, I do not believe that section 203 satisfies the requirement under the Constitution to show discrimination on the basis of an English-language ballot, or lack of due process.
Mr. CHABOT. The gentlelady's time has expired.
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Ms. SÁNCHEZ. Thank you, Mr. Chairman.
Mr. CHABOT. You're welcome. The gentleman from Iowa is recognized for 5 minutes. Mr. King?
Mr. KING. Thank you, Mr. Chairman. And I want to thank you for holding this hearing. And I want to thank all the witnesses for your testimony. It is a subject of great interest, I think, to everyone up here on this panel.
And as I sit here and listen to this testimony, I'll say the thing I have the most difficulty with: it's hard for me to get down into the minutiae of this testimony, when I'm sitting back here realizing that there's an English-language proficiency required with naturalization. And so therefore, if you're proficient enough with English to be naturalized as a citizen, then it would be rational to think that the only way you could justify being an American citizen and not being proficient in English in order to vote would be if you were raised in an ethnic enclave where you weren't exposed to the English, didn't learn English, therefore would have that difficulty of getting informed and going to understand a ballot.
But it seems to me like I'm hearing the voices of people who have been naturalized citizens, people who have plenty of access to English and have not, apparently, chosen to use it.
So I'll just tell you that fundamentally I think it's wrong for us as the Federal Government to require English language proficiency for naturalization, but not have the same standard for voting.
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It also would seem to me that if you're not proficient enough in English to pick up the information, then it's hard to be qualified, hard to be educated, and we're taking away that incentive. And how can you understand the American culture and American body politic, without understanding the English language?
I think we're going absolutely the wrong way with section 203. And that's my little monologue, and it doesn't really necessarily have a question with it.
But I would pose my question then to the gentlelady from New Mexico. And I saw your returns here, up to 78 percent and 83 percent, I think, in the one area. And does New Mexico—do you have same-day registration there?
Ms. VIGIL-GIRON. Mr. Chairman, Member King, no, we do not.
Mr. KING. Okay. Do you have a voter identification, a picture identification requirement?
Ms. VIGIL-GIRON. Mr. Chairman, Member King, no, we do not.
Mr. KING. If you're an election poll worker there and someone comes through and seeks to vote for an individual, can you challenge them and ask for their identification if you happen to believe they are not the person that they presented themselves to be?
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Ms. VIGIL-GIRON. Mr. Chairman, Member King, no, we do not. They are not challenged. They are basically presenting themselves. Now in New Mexico, we passed election laws where they must state their name, their address, the last four digits of their Social Security number, and their date of birth, in order to vote.
Mr. KING. And if they get that number wrong, can they vote?
Ms. VIGIL-GIRON. If they get that number wrong, then they will be asked to provide some type of identification, whether it's a Government document or a driver's license; not necessarily a picture ID, but something that matches with the address on the roster.
Mr. KING. But even you, as Secretary of State, or a poll worker, if you knew that person to not be the person they represented them to be, could you challenge them?
Ms. VIGIL-GIRON. Mr. Chairman, Member King, you can ask them for that type of identification that I've just mentioned.
Mr. KING. The verbal identification.
Ms. VIGIL-GIRON. The verbal——
Mr. KING. And if they memorize the last four digits of a Social Security number, and they get that data correct, then you can't challenge them?
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Ms. VIGIL-GIRON. That's correct.
Mr. KING. Okay. So they, in fact, can legally be an imposter and present themselves with that information and legally vote, and it's prohibited to challenge them?
Ms. VIGIL-GIRON. Mr. Chairman, Member King, that is—that's being discussed everywhere throughout the United States. And there have never been any cases or incidences in New Mexico that have come before me or the attorney general or the local district attorneys.
Mr. KING. Yes, thank you. I wanted to get that clarified.
And then, as I listened to Ms. Fung's testimony, I had just—you saw me probably smile a little up here. And you have a nice presentation; you do the same. And that ''Asians are taking too long to vote,'' you know; and we have some of those remarks get made where I come from. We say that to different ethnic groups, and it's done in a humorous way; and the same with the length of the names. And I don't know if that's what you'd call empirical data that would indicate that we ought to be investing Federal dollars in facilitating more language instruction to vote.
But I'll say another thing I bring to mind is, are you familiar with Proposition 209 that California passed in 1995?
Ms. FUNG. Can you remind me what is in Proposition 209?
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Mr. KING. I can try: the State of California shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, creed, sex, religion, ethnicity, or national origin.
Ms. FUNG. Yes.
Mr. KING. And would you happen to—I will just tell you this. The Asian study body population in the University of California, Berkeley, under their ''goals system,'' was 12 percent in 1995. Five years later, it was 46 percent, because it was merit rather than, I'll say, de facto quota.
And I think that's an astonishing accomplishment for the Asians, and I think it's a tremendous thing. And I think it would be a very good thing if those kind of positives were emphasized here. But I'd ask you, can you further justify and answer for me the question of——
Mr. CHABOT. The gentleman's time has expired, but I'll give him unanimous consent for an additional minute, since we did it on this side; do it over here.
Mr. KING. Thank you, Mr. Chairman.
The justification for other than English-language ballots, when naturalized citizens have an English proficiency requirement, and American-born citizens have an access to free English education?
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Ms. FUNG. Yes. First of all, bilingual assistance is needed because, in order to exercise the right to vote effectively to certain limited-English-proficient citizens, it removes the barriers to voting. For naturalized citizens, I just want to remind you that, especially for senior citizens, there is an exemption, an English-language exemption for people over 55 who've resided here for 20 years or more.
Not everyone who is a naturalized citizen is fluent enough in English to cast an effective ballot, and that is the reason why language assistance is needed.
Mr. KING. Thank you. Thank you, Mr. Chairman.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from New York, Mr. Nadler, is recognized for 5 minutes.
Mr. NADLER. Thank you. First, before I begin questioning, I'd remind Mr. King that there is a large number of people in this country who are citizens of the United States, who come from the Commonwealth of Puerto Rico, where the language is Spanish. So you cannot say that they've taken an exam to become naturalized, and if they pass that exam in English, etcetera—what you said before. Because the original language of the Commonwealth of Puerto Rico is Spanish, and people who come from Puerto Rico and reside in New York or California—or Iowa, even—are entitled to vote without any showing of proficiency in English.
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Let me ask any member of the panel quickly, does any member of the panel believe that literacy tests that used to be required helped people become literate?
Ms. FUNG. No.
Mr. NADLER. Nobody. I thought so. Thank you. [Laughter.]
Mr. Schlozman, in your experience, does language assistance promote voter fraud, or impose excessive costs, as Ms. Chavez stated in her testimony? And what is the view of the Administration on this issue?
Mr. SCHLOZMAN. We've been enforcing this statute very vigorously, as I discussed. I would have no idea if any of these translation requirements have had any impact on fraud, though. Certainly, we have not——
Mr. NADLER. You have not, in your very vigorous enforcement of this provision, you haven't observed that it promoted voter fraud?
Mr. SCHLOZMAN. That is correct.
Mr. NADLER. Or imposed excessive costs? Has this been one of the more expensive Federal Government programs?
Mr. SCHLOZMAN. Well, it is an unfunded mandate, to be sure. But on the other hand, we have been working with jurisdiction across the country to make this requirement as easy as possible to implement.
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Mr. NADLER. Would you call this one of our larger unfunded mandates?
Mr. SCHLOZMAN. Congressman, I'm just not in a position to be able to comment on that. I wouldn't have that——
Mr. NADLER. Okay. Thank you. Ms. Fung, could you expand on your thoughts about updating the triggers? You mentioned from 10,000 to 7,500. Do you have any research that you might be able to share with the Committee that would provide greater insight into the current needs, and how those needs may have changed in the last—what is it?—13 years?
Ms. FUNG. Yes. We can provide some charts which would show the impact of lowering the trigger to 7,500 and why it's important because it would help to pick up several Southeast Asian populations. In fact, if you lowered the numerical trigger to 5,000, you would also pick up certain South Asian populations that are in need of language assistance, as well. And while it would increase the number of jurisdictions required to provide Spanish, that number is still relatively small. So we will be glad to provide you that information.
Mr. NADLER. Thank you. Ms. Fung, Ms. Chavez said in her testimony that, ''nearly half of the jurisdictions that provided estimates said no one, not a single person, used oral minority language assistance, and more than half likewise said no one used their written minority language assistance.''
I know that's certainly not our experience in New York. Are you aware of other jurisdictions where that is the experience?
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Ms. FUNG. I'm not aware of any jurisdictions where no one is using the language—the translated materials provided. Obviously, jurisdictions have the option to target. They are not required to translate every piece of voting information, if they can demonstrate that it's not needed.
There are certain—for example, in Queens County in New York, there are large Asian-American populations, Latino populations. There are also many neighborhoods where there are not that many language minority citizens. The New York City Board of Elections has been able to target and decide where language assistance is needed, and that flexibility is actually what makes it a workable program.
Mr. NADLER. Thank you. One more question for Ms. Fung, and then I have a question for Ms. Chavez. Ms. Fung, you mentioned in your testimony that the Board of Elections of New York had argued that information in Chinese would not fit onto our old, clunky, mechanical voting machines in New York. Were they ultimately able to find a way to deal with that problem?
Ms. FUNG. Yes, indeed. When pressed with respect to that matter—actually, New York City is one of the—three of the counties in New York City are also covered under section 5. And I just want to point out that it was very important that section 5 was available after the 1992 amendments came into place.
When there was a Chinese language program, we thought that the board ought to be translating the ballots in the machines. These are the old, 40-year-old, mechanical voting machines. They said it wasn't possible. But we approached the Justice Department and said, ''You should not preclear this program, because it's clear that the language——''
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Mr. NADLER. So in other words, they found it possible, when they had to.
Ms. FUNG. Absolutely.
Mr. NADLER. I have often observed that, when dealing with the transit agencies in New York, that when the politics changes, so does the physics. And apparently, that's true of the Board of Elections, too.
Ms. Chavez, you've argued in testimony that I quoted a moment ago that very few people use this in certain instances—I won't quote the testimony again—and it's also very expensive. So even though it's not used, it's very expensive; which seems to be a slight contradiction.
But in light of this—in light of this—you have your reasoning here as to why you think it's unconstitutional. But it's been in effect since 1975. That's 30 years. No one has, I think you said—I was going to ask you if anyone had challenged this. You said no one had challenged this, had brought a constitutional challenge to the courts in 30 years.
Doesn't that argue that, if no one has brought a constitutional challenge, that in fact nobody is finding it so terribly burdensome as to look for legal recourse?
Mr. CHABOT. The gentleman's time has expired, but you can answer the question.
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Ms. CHAVEZ. If I can quickly answer, first of all, the testimony which you cited was not my testimony. This was taken directly from the General Accounting Office study of the implementation of the Voting Rights Act. The General Accounting Office, last time I checked, was an arm of Congress; so this was a congressionally mandated and funded study that provided that information. And there is also substantial information of the two GAO studies done of the bilingual balance that show the costs.
Those costs are expensive. In 1992, I believe—I'm sorry, 2002, Los Angeles County alone spent more than $3 million. When you say it's inconsistent to say it is both costly and not used, in fact, that is why it is wasteful. Because the printing up of the materials and the providing of the materials in multiple languages is expensive, and then in some jurisdictions these materials are not used.
And this, again, is not my word. This is the word of the General Accounting Office.
Mr. NADLER. But the question I asked you was if it's so—why has nobody challenged this, if it's so burdensome and expensive? No one has challenged this for 30 years.
Ms. CHAVEZ. Well, Mr. Nadler, maybe it's because I've been busy for the last 20 years.
Mr. NADLER. So you're the only one who finds it burdensome?
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Ms. CHAVEZ. No, it may be that there simply has not been someone who has been aggressively interested in challenging it. And I would suggest that it will, in fact, probably be challenged if it is reauthorized.
Mr. CHABOT. The gentleman's time has expired. I know Ms. Chavez indicated she has to leave. I'd ask unanimous consent that Roger Clegg, who is the General Counsel for the Center for Equal Opportunity, be able to take her place at the dais. He was already sworn in, and was one of our witnesses at a previous Voting Rights Act hearing.
So thank you very much for your testimony, Ms. Chavez. If there's no objection, Mr. Clegg, you're welcome to come forward. I don't know if there will be any questions, but it's probably helpful to have a similar viewpoint espoused at the table, in case members want to ask questions.
[Mr. Roger Clegg, being previously sworn, took a seat at the witness table.]
Mr. CHABOT. The gentleman from Florida, Mr. Feeney, is recognized for 5 minutes.
Mr. FEENEY. Well, thank you. And actually, I wanted to ask a question. I'm glad Mr. Clegg stepped in, because I didn't feel like I got a complete, direct answer last time. So, same question. [Laughter.]
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Fortuitous timing. Ms. Chavez did a great case, making a number of arguments. And she thought her most important argument was the constitutionality case.
And I asked last time with respect to the power of Congress to legislate in a different part of the Voting Rights Act, whether or not at least with respect to congressional elections, article I, section 4, which says that the times, place, and manners are subject to legislation from the State legislatures, but that Congress may at any time, by law, make or alter such regulations.
Presuming that a State could, if it wanted to, decide to print ballots in two languages, for example—and I don't think you would quarrel that a State could, if it wanted to—well, at least with respect to congressional elections, under article I, section 4, couldn't Congress regulate, aside from the equal protection language, wouldn't we have potentially the power under article I, section 4, to regulate the language in ballots with respect to congressional elections?
Mr. CLEGG. Potentially. But let me elaborate on that. First of all, I think you're acknowledging quite correctly that this would give Congress power only to apply something like section 203 to congressional elections. And of course, the vast majority of elections——
Mr. NADLER. Would the gentleman yield on that specific point for half a second?
Mr. FEENEY. I will.
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Mr. NADLER. Yes. There were a number of cases in the early '70's after Congress legislated the 18-year-old vote, before the 18-year-old vote amendment, in which the courts held that that provision means congressional elections or cases affecting congressional elections; which implicates a lot of other things. Like members of the Democratic or Republican county committee could have a role in who the nominee may be. So I'm just bringing that to your attention.
Mr. CLEGG. Most elections that State and local governments hold are not Federal elections; and therefore, would not be covered by article I, section 4.
I think that even with respect to congressional elections, there would be an issue—and I'm not an expert on this particular issue, and I don't know if you've got—I anticipated your question, Mr. Feeney, because I know that, as you say, this was something that you asked about last time I was up.
When I read article I, section 4, this morning, it seemed to me that it's not crystal clear that legislation as broad as section 203 would be within article I, section 4.
Mr. FEENEY. There's not a lot of law on this section.
Mr. CLEGG. Right.
Mr. FEENEY. I would grant you that. But the language to me seems pretty clear.
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I wanted to ask—by the way, I'm guarding congressional prerogatives here; which is different from saying we ought to exercise those prerogatives. But I do believe we have some powers under article I, section 4, that may not have been used regularly. That doesn't mean we don't still have those powers.
You know, Ms. Fung, on the issue of assimilation, is it your experience—number one, I want to suggest that you said that California has a lot more Asian-American representatives at the State legislative and State senatorial level than they did pre—you know, pre-section 203 enactment. But you did have a pretty famous Senator. Senator Hiyakawa was an Asian-American; was he not? He was elected Statewide long before 203. And by the way, he was an English professor, and pretty darn fluent in at least two languages, maybe a lot more.
Assimilation is something that I'm very interested in. What does 203 do? Does it adversely or positively affect assimilation? I mean, we watched, you know, in Ottawa just a half decade ago, literally, a peaceful civil war, virtually, break out. By 1 percent, they could have changed their language. We're watching the French Muslim ghettos.
And one of the things that we've been proud of is that, whether you came from Eastern Europe or Italy or Germany, that one of the ways we assimilated you was not just through the public education system, but through participating in voting.
And having four or 104—in Dade County, we have 150 different primary languages spoken in our K-12 schools. And if you're going to argue that if there are 10,000 voters in a district that have a primary language other than English, they're being denied the right to effectively cast their vote, it does seem to me—you know, we give individual rights in America—at least, I believe—not group rights. It seems to me like everybody whose primary language is something other than English in the country—including 150 different languages in Miami—may have an argument.
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What do you believe is happening to the goal of assimilating people as a consequence of section 203, I guess is my question.
Ms. FUNG. Well, I think section 203 actually helps to promote inclusion. If anything, you want people who are limited-English-proficient to be able to participate in the political process. And they can, through the assistance of language assistance at the polls.
I think that's—the reason that it's important is that, as a group, Asian-Americans, Latinos, have faced a history of discrimination, and some of it has stemmed from the fact that they are not proficient in English. And so I think that's what makes it slightly different; there is a documented history of discrimination, especially for Asian-Americans. We were not even able to vote until 1943.
So to your question, I think it actually promotes inclusion when you have more people participating in the political process and feeling welcome to do so.
I mean, I think we've had so much experience going to various polling places. And what we've seen is, if you're not fully proficient in English, you don't necessarily know where to go if you're at the wrong polling site. You don't know exactly how to use the machine. And think about HAVA, which now requires new voting machines that will meet certain standards. How are people who are not fully proficient in English going to be using—changing over from a mechanical voting machine to an electronic voting machine?
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I think all of—language assistance is supplemental to what, hopefully, will happen; which is that everyone will learn English. And I think that is certainly our experience, is that people want to learn English. Hopefully, there will be more funding for English programs.
But until the time that people are fully proficient in English, and as long as there are citizens who are limited-English-proficient, but want to vote, section 203 fills that need very well.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT OF VIRGINIA. Thank you. Madame Secretary, there are two theories of voter registration, from an official capacity. Some just sit back and wait for people to show up, and others do outreach. Is it anything wrong with outreach, in terms of voter registration?
Ms. VIGIL-GIRON. Mr. Chairman, Member Scott, of course not. We have so many third-party registration groups out there that pounced on all of our States during this last presidential election, and we saw large numbers of voter registrations within our States. And they brought in a lot of good voter registrations.
The fact that we were funded with the Help America Vote Act—I think $3.9 billion distributed throughout the States to assist in voter education—was also a major factor in bringing up those numbers and teaching people how to register and vote.
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Mr. SCOTT OF VIRGINIA. What if the outreach could mean using material printed in different languages?
Ms. VIGIL-GIRON. Mr. Chairman, yes, Member Scott, that is true. And that's what we do in New Mexico.
Mr. SCOTT OF VIRGINIA. Okay. Mr. Clegg, if they can do this voluntarily, would a requirement to do that be subject to strict scrutiny under the Constitution?
Mr. CLEGG. It would not be subject to strict scrutiny.
Mr. SCOTT OF VIRGINIA. It would not be subject to strict scrutiny?
Mr. CLEGG. It would not be, but I——
Mr. SCOTT OF VIRGINIA. If you've got a constitutional argument, what standard would you be using, if it's not strict scrutiny? Rational basis?
Mr. CLEGG. Well, no, I think that we're not dealing with a suspect classification here. I think the framework that the Supreme Court has set out is whether that congressional law is congruent and proportional to preventing a violation of the 14th or 15th amendment, if I'm understanding your question correctly.
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Mr. SCOTT OF VIRGINIA. So congruent and proportional would be the test?
Mr. CLEGG. That's correct. That's from the City of Boerne case.
Mr. SCOTT OF VIRGINIA. Why are not ballots in different languages congruent and proportional to the problem that people can't understand English?
Mr. CLEGG. They are congruent and proportional to that problem. But the point is, that problem is not a violation of the 14th or 15th amendment. What the Supreme Court has——
Mr. SCOTT OF VIRGINIA. So? So what?
Mr. CLEGG. The Supreme Court has said that in order for Congress to have authority to legislate under the enforcement clauses of the 14th and the 15th amendments——
Mr. SCOTT OF VIRGINIA. How about the provision you all just were reading, article I, section 4?
Mr. CLEGG. That would apply only—you know, arguably, would give Congress authority only to pass something like section 203 for congressional elections. It would not apply to State elections.
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Mr. SCOTT OF VIRGINIA. Well, wouldn't it apply to—well——
Mr. CLEGG. It would not apply to State elections, because article I, section 4, has to do only with congressional——
Mr. SCOTT OF VIRGINIA. So we could do it for congressional elections? There's no question that we could do it for congressional elections?
Mr. CLEGG. No, no, no, I think there is a question. That was the other point that Mr. Feeney and I were discussing, whether the—and as Mr. Feeney says, and I think he's right, there's not a lot of case law on this—whether a law like section 203 is within article I, section 4.
Because what article I, section 4 is, that Congress can regulate—I think it's the time, place, and manner, something like that, of elections, doesn't really say whether—your argument would have to be that the manner of elections includes things like printing ballots in languages other than English. And I don't know whether a court would uphold that assertion of congressional authority or not.
Mr. SCOTT OF VIRGINIA. Mr. Schlozman, do you see any constitutional problem with requiring ballots to be printed in different languages?
Mr. SCHLOZMAN. Congressman, I wouldn't want to opine on the constitutional issues. I'm not qualified to do that. As a law enforcement agency, we would enforce any law that Congress passes. And as long as the Supreme Court says that it's constitutional, we'll continue to enforce it.
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Mr. SCOTT OF VIRGINIA. Well, has anybody brought any fraud—people have alleged—we had a suggestion that there's all this fraud going on. Have you investigated any of these fraud allegations and come up with any convictions?
Mr. SCHLOZMAN. Well, the fraud issues are dealt with at the Department of Justice by the Criminal Division, not by the Civil Rights Division. There have been a significant number of fraud convictions over the last few years, and I think the Department actually even issued a press release. But that's outside of our bailiwick. That belongs to the Criminal Division.
Mr. CLEGG. Mr. Scott, if I may, that report that Mr. Schlozman refers to is cited in Ms. Chavez's testimony on page 4.
Mr. SCOTT OF VIRGINIA. Thank you. And before my time ends, Ms. Fung, could you talk about the expense in complying with the bilingual sections of the Voting Rights Act?
Ms. FUNG. Actually, I don't have that information. I'm only aware of the GAO report. But I know that other reports—other surveys have been taken of various registrars. I don't have information about that.
Mr. SCOTT OF VIRGINIA. Ms. Secretary, could you answer the question?
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Mr. CHABOT. The gentleman's time has expired, but you go ahead and answer the question, if you can.
Ms. VIGIL-GIRON. Thank you, Mr. Chairman. Member Scott, the reason why we don't know are States that are not doing it right now translating election materials into those various languages is because they asked for extension periods through 2007. They didn't even want to attempt to put a pencil to paper to figure out how much they are going to have to spend for translators and for the printed materials themselves.
And now that we have HAVA, that will require the one for polling place voting machines to translate into those languages, as well, so that they can hear the audio version of their ballot as they're voting.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Alabama, Mr. Bachus, is recognized for 5 minutes.
Mr. BACHUS. Thank you, Mr. Chairman. My question is this. I understand the basis for section 203 was unequal educational opportunities for certain citizens. Since its passage, have those opportunities grown? Is there still a disparity?
Ms. VIGIL-GIRON. Mr. Chairman, Member Bachus, as I mentioned, since 2000 election and the Census, other States besides me—California, Florida, I believe, also, prints their election materials in other languages. New Mexico has always done this.
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But the other States that have been identified as having high minority language populated States, we don't know—we don't know what kind of an impact; other than those minority populations are not voting. They're not registering to vote, and they're not going out to vote, because they don't want to vote on something that they don't understand. I mean, Native-Americans, who have always been here—this is not just an immigrant population to be naturalized.
Mr. BACHUS. Yes. I guess my question is, when it was first passed, we said that a lot of our citizens are simply not afforded the opportunity to learn English, I would suppose, because it was unequal educational opportunities. And are we addressing that?
And I think what I'm talking about, are we teaching people English, or the predominant language? Or do you see it as that's not a goal? Do you understand what I'm saying?
Ms. VIGIL-GIRON. Of course.
Mr. BACHUS. Like for instance, let's say a population that's been in our country for 25 years. Are they making progress toward learning English? You know, it was seen, I would think, when it was passed as, at least for some groups, until folks are assimilated.
Ms. VIGIL-GIRON. Mr. Chairman, Member Bachus, I think that as elections officials we're not there to teach people English. We're there to give every citizen who is a citizen of the United States the right to vote. And giving them that information in the language of their choice is what we're trying to achieve here.
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Mr. BACHUS. Okay.
Ms. FUNG. And if I could just add, I'm, of course, very proud of the fact that many Asian-Americans succeed in the educational process and are graduate students and are achieving all kind of success. But that, unfortunately, is not true for all Asian-American groups; and specifically, for Southeast Asians. There's very low educational attainment.
For example, 26 percent of Cambodians have never had any formal schooling. There are many such statistics which show the disparities. And so even though we have made progress over the last 25 years, we still do not have educational equality. And that's why there's still a need for bilingual assistance.
Mr. BACHUS. Okay.
Mr. CLEGG. Mr Bachus, I think you've put your finger on what Ms. Chavez points out in her testimony is the fundamental problem with the constitutionality of section 203. Section 203 does not even talk about voter intimidation or anything like that. It hinges entirely on a claim that educational disparities have created these hurdles to voting.
And I think that that means that what Congress apparently is asserting—and has to remake the record for, since it's reauthorizing this statute—is that State discrimination, official State discrimination is, A, the cause of disparities in voter turnout and things like that, and that, B, this law is a congruent and proportional response to the educational discrimination that still exists.
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I think that you're right. I think anybody would have to agree that there is much less State-sponsored discrimination in 2005 than there was in 1965. And I think that that's one of the things that this Subcommittee has to come to grips with, if it's thinking about reauthorizing section 203.
Mr. BACHUS. Would anyone else like to comment?
[No response.]
Mr. BACHUS. When this was first passed, there was not an opportunity, say, for a certain group of our citizens who spoke a different language to—if programs for them to learn English weren't available, then obviously there may have been a need for this. But if those programs are available—I mean, Ms. Vigil-Giron and—if those programs are available in a community, and are readily accessible, does that satisfy section 203?
Ms. VIGIL-GIRON. Mr. Chairman——
Mr. CHABOT. The gentleman's time has expired, but go ahead and answer the question.
Ms. VIGIL-GIRON. —Member Bachus, thank you. You've got a very, very large population of people. And of course, you know, the Latino population is the fastest growing minority right now in the country. And what you're having is a lot of older citizens who only want to speak in their native language, who only want to read in their native language, who only want to watch television in their native languages.
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What is wrong with extending that extra effort within our States? Because our States are not taking responsibility to translate into those various languages. We're not volunteering. As I mentioned, New Mexico has always had that in place. We didn't cross the border; the border crossed us in New Mexico. And so we've got a lot of older American citizens, Hispanic-Americans, who would much rather vote in their Spanish language than in English language, and understand it much better if it's explained.
So this is just an opportunity for us to keep going in that direction, as the United States of America, to provide more information—and education—in whatever language we need to provide it in. But we have to do it.
Mr. CLEGG. See, this is the problem. If the reason that these individuals do not speak English has nothing to do with discrimination, then I don't see—I mean, that's not what section 203 says. And I don't know where Congress' enforcement authority under the 14th amendment and the 15th amendment comes from, then.
Mr. BACHUS. Yes, you know, 203 says they hadn't had the opportunity to learn English, so we're going to supply them a ballot in their native tongue. It doesn't say that because they don't want to learn English, we're going to supply them a ballot in their own—as I understand it.
I'm not saying that we don't decide that the basis is going to be something else. But I'm just saying that the law as it now exists, 203, the basis is that they don't have an opportunity to learn English. Am I wrong about that?
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Mr. CHABOT. The gentleman's time has expired. Does anybody think he's wrong in that?
Ms. FUNG. I do believe you're wrong.
Mr. BACHUS. Okay.
Mr. CHABOT. Does anybody think he's right in that?
Mr. CLEGG. I think he's right. I mean, just read section 203. It says, among other factors, the denial of the right to vote of such minority citizens is ordinarily directly related to the unequal educational opportunities afforded them.
Mr. BACHUS. That's what it says, the basis is unequal educational opportunities.
Mr. CLEGG. And I think it's even clearer in section 4(f).
Mr. CHABOT. The gentleman's time has expired.
Mr. NADLER. Mr. Chairman? Mr. Chairman?
Mr. CHABOT. Yes.
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Mr. NADLER. Can I ask unanimous consent that Ms. Fung have a minute to finish answering that question?
Mr. CHABOT. Yes, without objection. I want to get to Mr. Watt down there, though. I don't want to be unfair to him and drag this out too long. So Ms. Fung, if you'd like to respond there?
Ms. FUNG. I just think you need to look at the Census data, which shows that there is a very large proportion of limited-English-proficient individuals. There is a high degree of linguistic isolation.
Mr. BACHUS. Oh, no, I understand all that. I understand there are a lot of people that can't speak English, that would have difficulty voting, if not that. But what I'm saying is, when you look at the law itself, it just says that the reason we're supplying these ballots in their tongue is because they have not had an opportunity to learn English. But maybe we'd even disagree over what the law says.
Ms. FUNG. I think we would disagree that everyone has equal opportunity to learn English. But beyond that, I think that the purpose of section 203 is to enable citizens who may not speak English very well to be able to effectively cast a ballot.
And I think there's no question that, first of all, people use language assistance—bilingual materials and oral assistance; and in fact, more people are voting. I think that's a laudable goal that Congress should be promoting.
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Mr. CHABOT. The gentleman's time has expired.
The gentleman from North Carolina, Mr. Watt, is recognized for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman. Let me just say on this issue I think we may be focusing on the past, rather than looking at what we're trying to do here.
And for that purpose, I want to try to focus this in a different direction; not that I accept that we have to create a legislative record of prior discrimination and intimidation, but let's suppose for the moment that we do, as a basis for section 203 or as a basis for renewing section 203. We don't have to do it to justify section 203 in the past, because nobody has contested it in the courts. And unless somebody contests it between now and 2007, it will become a moot point.
But let's pick up right here. And I'm sorry Mr. King left because—and I don't want to leave the impression that I'm picking on him, but I think we need to clean up the record on the one thing that he said that was offensive to some of us; probably not offensive to him, not even intended to be offensive on his part.
But I don't want the record to go unchallenged there. The fact that some people engage in joking references, ethnic references, racial references, may be funny to some people; but for this purpose, Ms. Fung, I want to be clear about you and the Secretary's impression about whether that also creates a discriminatory and intimidating environment that discourages people from voting.
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Has it historically, does it now, will it, in your estimation, in the future? And if you can give me an example or two. I thought you gave some good examples in your testimony, Ms. Fung.
This not about slamming Mr. King and his jocular references. It's about building the record about what impact that funny thing to him has on racial and ethnic minorities. Ms. Fung, and then the Secretary.
Ms. FUNG. Thank you. Well, actually, I do regret that he's not here, as well, because ''Oriental''—the use of the term ''Oriental'' is considered a racist term. And the fact that people feel unwelcome at the polling place means that they're less likely to vote. And that, to me, constitutes discrimination.
And this happens very frequently. This is not a matter of long ago. I only cited a few examples because they were from the 2004 election, but there are many other such examples that could be cited. And I will provide that information to you. It creates an unwelcome atmosphere, where people don't feel that they should go back to vote.
Mr. WATT. I would appreciate your providing those [sic] additional information, because we need to build the record on that. If this is about proving the impact of discrimination, or what impact it has on voting patterns, then we need to document that. Then let's document it.
Madame Secretary?
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Ms. VIGIL-GIRON. Mr. Chairman and Member Watt, you know, even in New Mexico, where we have a large minority population—we're more than 52 percent minority population—you know, to have poll workers—and I think that's at the very, very root, where we have poll workers mistreating individuals who come and present themselves to vote.
Mr. WATT. And I presume that's State action; is it not?
Ms. VIGIL-GIRON. That's correct. That's correct.
Mr. WATT. Okay. Go ahead.
Mr. WATT. And so, poll worker training etiquette is extremely, extremely important for all of our States to take advantage of. You all gave us the money to do it. And so, when you reauthorize section 203, that will give States—you're empowering the States to move in that direction, to be more sensitive to minority populations.
Even in the 2004 election—I'm not talking about 2000 or the election before that. But at every Federal election, it's crucial that we get people out to vote and we're inclusive of all people.
Mr. WATT. Now, let me take this one—if I might, Mr. Chairman. I'm out of time.
Mr. CHABOT. The gentleman's time has expired, but would he like an additional minute?
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Mr. WATT. Yes, let me have an additional minute.
Mr. CHABOT. Without objection.
Mr. WATT. Because I think we're onto something here: the point that the Secretary made about the Government crossing New Mexico—the United States came to New Mexico; the point that we made, that was made in the testimony earlier, about Native-Americans being there first.
Now, the whole notion that we have taken over this thing—New Mexico and Native-Americans—and then requiring them to cast ballots in English, is that in and of itself an intimidating factor that suggests to those people an element of discrimination and intent to exclude them from voting?
Ms. VIGIL-GIRON. Mr. Chairman, Member Watt, as a matter of fact, you know, before New Mexico became part of the United States in 1911, when they were discussing it behind closed doors, they were saying things like, ''Well, they don't look like us, they don't talk like us, they speak other languages in that State.'' And then, on the floor of Congress, they were saying to us, to our face, ''You don't have the population to become part of the United States.''
And we adopted our motto, ''E pluribus unum: We will grow as it goes.'' And we have. We have a population of over 1.9 million people, bigger than the State of Vermont, bigger than the States of North Dakota, South Dakota, in population.
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And so, in terms of crossing the border, they thought that we were all coming from Mexico. They think that we are Mexicans. I would be proud to call myself Mexican, but I'm not. I'm a New Mexican. And I've been a New Mexican, and my family, for over 300 years in New Mexico.
Mr. WATT. Would it be fair to say the bottom line on this is that the discrimination, if we had to build a record, against Native-Americans, limited-English-proficient people, would probably—would be; not probably—would be just as dramatic as the historical discrimination against African-Americans?
Mr. CHABOT. The gentleman's time has expired, but you can answer the question.
Ms. VIGIL-GIRON. Thank you very much. Member Watt, as a matter of fact, yes, I have to answer ''Yes.'' Because our Native-American population out there—we have a lot of elderly Navajos. They can't—they will not have a photo ID taken of them. So they can't even present a photo ID, should we impose that photo ID requirement in the State of New Mexico.
It is—we have to reauthorize section 203 because—I welcome the Justice Department, by the way, coming into my State, setting up observers, watching those poll workers, making sure that there are translators at those various polling places. And it's every year, every Federal election, every 2 years, or whatever it is—that they come and they make sure that our Native-American citizens do and are treated in the right manner.
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Mr. CHABOT. The gentleman's time has expired.
The gentleman from Georgia, who we want to again welcome to this Committee and thank him for his studiousness in attendance. And he's been, even though not a Member of this Committee, a very welcome addition to it. So he's recognized for 5 minutes.
Mr. SCOTT OF GEORGIA. Well, thank you very much, Mr. Chairman. I want to thank you for your kindness, and this Committee for being so generous. And I also want to say, Mr. Chairman, how much I enjoyed traveling with you to Detroit to attend Ms. Rosa Parks' funeral, enjoyed being there with you.
And it's within that spirit that I want to direct a question, because I really think, again, the issue here is: what is constitutional, and what is not constitutional? And I think to get at that, I believe we need to revisit what this intent was, and is, in this effort.
And that is, it clearly states in the 15th and 14th amendment a very essential passage. The words are ''to ensure,'' ''to ensure that the right to vote is not denied or abridged by the United States or by any State.'' That in and of itself, the words ''to ensure,'' means to make sure; means to, in effect, give Congress that authority.
Now, in the effort to do that, clearly, this section 203 states, ''Documenting a systematic pattern of voting discrimination and exclusion against minority group citizens who are from environments in which the dominant language is other than English, and based on the extensive evidentiary record demonstrating the prevalence of voting discrimination and high illiteracy rates among language minorities, Congress acted to broaden its special coverage of new geographic areas, in order to ensure protection of the voting rights of language minority citizens.'' I think that's important.
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Because I think that that gets off the table this issue: is it constitutional, is it not constitutional? Because the operative words here are action, ''to ensure.'' That is why this has been done.
And I just call, for historical reference, that back in the turn of the century, there was a case that evolved from an effort on the part of two groups in New York City the Tammany Hall had put together to increase the vote. At that time at the turn of the century, there was huge migration—immigration in this country, between two distinct groups. One was Jewish, from Eastern Europe, that were coming into this country in great numbers. And the other were Italians.
And there was one group, called ''The Five Pointers,'' down in Lower Manhattan that Tammany Hall used, as well as another group by a fellow by the name of ''Monk Eastman.'' And in order to communicate and get that vote out for Tammany Hall, they had to print those instructions and those ballots in the respective languages of those people. And when the case was brought again, it was used in the Constitution, section 14, 15, of ''to ensure.''
And so, Mr. Clegg, I come to you and to the others on the panel to state, particularly in view of the fact if it was good then, and if it was good 30 years ago in 1975, my God, now we have increased our immigration and the flow of people from other countries into this country over 2,000 percent.
So it builds a case not only that it's constitutional, but that there is even a greater need to make sure that we ensure that the right for these individuals to vote is not abridged on the point of race, color, or minority language status.
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Don't you agree with that now, Mr. Clegg?
Mr. CLEGG. No.
Mr. SCOTT OF GEORGIA. Did we not take that off the table?
Mr. CLEGG. No, no, I do not agree. You've just amended the 15th amendment. You have added the term ''language minority'' to the words of the 15th amendment. The 15th amendment doesn't say anything about language minorities.
Mr. SCOTT OF GEORGIA. No, I did not——
Mr. CLEGG. Yes, you did.
Mr. SCOTT OF GEORGIA. The words I'd add to the amendment were ''to ensure,'' and the fact of the matter is——
Mr. CLEGG. Race, color, and then you added ''language minority,'' which is not in the 15th amendment.
Mr. SCOTT OF GEORGIA. But it was put into it as a result of the amendment for 203.
Mr. CLEGG. That's my point. Congress does not have authority to change the meaning of the 15th amendment through a statute. You have to——
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Mr. SCOTT OF GEORGIA. But it does have the authority to ensure.
Mr. CLEGG. Right, but my point is that what you all need to do, if you want to reenact section 203, and if you don't want it to be struck down as unconstitutional, is connect the dots between the denial or abridgement of voting rights on the basis of race or color, and having ballots printed in languages other than English. I don't think that you can connect those dots.
Mr. CHABOT. The gentleman's time has expired. Does he seek an additional minute? It looks like he hasn't got a finish there. If you'd like?
Mr. SCOTT OF GEORGIA. Yes. I wanted to make sure that the other witnesses at the table have given ample evidence of how this has worked in a discriminatory manner. And I'd like to give just a final minute to see if any of them would like to counter and put forward those examples at this time to Mr. Clegg's point.
Ms. VIGIL-GIRON. Mr. Chairman, Member Scott, it's kind of hard to convince someone that—extending the opportunity for other language minority populations the right to vote in their own languages. So it's almost—it's beating a dead horse with them; so, you know, to try to convince them of it being constitutional or not.
We're citizens of the United States. Those of us that are citizens take great pride in being citizens of the United States. And if we want to do that in another language other than English, exercising our right to vote, then we should.
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Mr. NADLER. Mr. Chairman?
Mr. CHABOT. The gentleman's time has expired.
The gentleman from New York?
Mr. NADLER. Can I have unanimous consent to ask Mr. Clegg a question?
Mr. CHABOT. Yes, without objection. And then the gentleman from Alabama.
Mr. NADLER. Thank you. I just want to comment and question on your last comment about joining the dots between language minority and race, color—or previous condition of servitude, or race, or color. Make two points. Number one, with respect certainly to Asians, the connection is direct, because you're talking about a different—about people who, if you discriminated against them on the basis of language, you would be discriminating against an identifiable racial group. So that would seem to me direct.
And I would also observe and ask you to comment on both that and the following. That certainly in the 19th century, when the 15th amendment was written, the word ''race'' had a slightly different meaning that it does today. And people spoke all the time—and you can look at the newspapers of the time—about the ''American race,'' the ''German race,'' the ''French race;'' which we wouldn't do today. Today we talk about Blacks and Hispanics, you know, and different racial groups. We don't talk about nationalities as races, but they did in the 19th century.
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And so that the language discrimination, if there is language discrimination, would simply be—would certainly be racial in the sense of the common understanding of the time—in the common understanding of this time, with respect, let's say, to Asians; or the common understanding at the time the amendment was written, with respect to any language group. Why am I wrong on that?
Mr. CHABOT. The gentleman's time has expired, but go ahead and answer.
Mr. CLEGG. Well, I agree with the first point you make, that the term ''race'' in the 1860's certainly had a broader meaning than it does now. And in fact, there's Supreme Court cases on that; that, for instance, Jews were considered a race; and that therefore, in terms of the coverage of some of the Reconstruction era amendments that prohibit discrimination on the basis of race, that anti-Semitic violence is something that's within the language of the Reconstruction Acts.
But I think that, Mr. Nadler, you're making a leap from Germans and Asians and so forth perhaps being considered a race, and it being racial discrimination to print ballots in English and not to print ballots in languages other than English.
I think then maybe the problem that you're running into is you're making kind of a disparate impact type argument, that, you know, the failure to print—or the decision to print a ballot only in the English language has a disparate impact on certain racial groups; and therefore, that makes it racial discrimination. The Supreme Court has rejected that kind of disparate impact approach.
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Also, if I can add, I mean, you're assuming that all Asians, for instance—and I know this may be not fair, but you're assuming that all Asians have problems with being discriminated——
Mr. NADLER. No, obviously not.
Mr. CLEGG. Obviously, you're not suggesting that. But one point I wanted to make——
Mr. NADLER. Let me just clarify the question, the thing you were just saying, when you said the Supreme Court has rejected the disparate impact, that disparate impact approach.
Mr. CLEGG. Right.
Mr. NADLER. The Supreme Court rejected disparate impact approach as a constitutional argument requiring something, or as giving power to Congress to enact something?
Mr. CLEGG. Both. The Washington v. Davis and the Arlington Heights case, and a number of other cases, have confirmed that the 14th amendment bans only disparate treatment; it does not ban disparate impact. And a plurality of the Court said the same thing with respect to the 15th amendment, in the City of Mobile case. And then, the City of Boerne case struck down a statute of Congress that——
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Mr. NADLER. Which I helped write. I'm very well aware of that.
Mr. CLEGG. Well, I'm sorry to bring up painful memories, but you recall that basically what Congress was doing there, the Supreme Court had said in the Oregon v. Smith case that the free exercise clause covered disparate treatment, but not disparate impact. And you all tried to change that through statute, and the Supreme Court said, ''No, you can't do that.''
Mr. CHABOT. The gentleman's time has expired.
I'd ask unanimous consent that the gentleman from Alabama be given a minute. And in fact, since this ended up being 3 minutes, we'll make it 2 minutes. But let's keep it within that, if we can. The gentleman is recognized.
Mr. BACHUS. Actually, Mr. Nadler's series of questions was what I was——
Mr. CHABOT. It was already brought up?
Mr. BACHUS. I would basically ask the same question. I'd just say this. Mr. Scott read the 15th amendment, and then I read over it again. And it does seem to say on account of race you can't abridge someone's voting right. And I never thought of it in that regard, but you could—I guess ''race,'' ''ethnicity,'' are those pretty interchangeable, or are they not?
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Mr. CLEGG. I think that was Mr. Nadler's point just now, that race in the 1860's had a broader meaning than it does now.
Mr. BACHUS. Sort of like ''ethnicity''?
Mr. CLEGG. Yes. So I think ''ethnicity'' generally probably would be—although I mean that's——
Mr. BACHUS. And if you take, you know, your ethnic background, obviously, certain ethnic backgrounds wouldn't have English proficiency, or might not have the same level of English proficiency. So if you did offer a ballot just in English to Hispanic citizens, say, or newly arrived Asian citizens or something, couldn't that fall under the 15th amendment?
Mr. CLEGG. Well, I think that, you know, let's suppose that, you know, the State of New Mexico——
Mr. BACHUS. I mean, obviously it is because of their ethnicity, their ethic background, that they don't speak English, I mean, they speak another language and they're not proficient in English. So by offering a ballot just in English, it would appear that you're denying them a right to vote, or you're certainly limiting their ability.
Mr. CLEGG. I think that whether it's disparate treatment or disparate impact in that case is going to hinge on intent.
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And in the case of New Mexico, for instance, suppose that for years and years New Mexico had made ballots available in Spanish; and you could show in the record that the State legislature got together, part of the State legislature, and said, ''You know, we need to keep Mexican-Americans from voting; and the way we're going to do that is we are no longer going to provide ballots in Spanish any more.'' That might be a violation of the 15th amendment.
But the decision, without regard to race or ethnicity, to print ballots in English and not in foreign languages, if there was no such showing of intent, would not be a violation of the 14th or 15th amendment.
Mr. BACHUS. Yes, let me come at it a different way.
Mr. CHABOT. The gentleman's time has expired.
Mr. BACHUS. Could I have an additional 1 minute?
Mr. CHABOT. If you'll stay within the 1 minute, I won't object.
Mr. BACHUS. We've been arguing about constitutional basis for saying you've got to provide ballots in Spanish or in Vietnamese. Wouldn't this be a basis, the fact that Congress—I mean, the right of citizens to vote shall not be denied or abridged on account of the ethic background.
Mr. CLEGG. Well, I don't think that it——
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Mr. BACHUS. Couldn't you say because of that, the 15th amendment because of that statement, that it would naturally flow that you would provide ballots in other——
Mr. CLEGG. I don't think so.
Mr. BACHUS. You don't?
Mr. CLEGG. I don't think so.
Mr. BACHUS. Okay.
Mr. CHABOT. Ms. Vigil-Giron?
Ms. VIGIL-GIRON. Mr. Chairman, Member Bachus, I think you're going to the right place, okay? That definitely, if you do not take that extra step—and Congress is the only one, by the way, who will do it. The States are not going to do it.
State legislators are moving in another direction, and they don't want to move in this direction here. Because we might go out and vote, and we might vote them out of office, or whatever the case might be.
But we will go out and vote if it's provided to us in other than English languages out there, and advertised in other than English that there's an election going on, and proclamations in other languages. We may just go out and vote.
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That's what we're trying to do. We're trying to be represented. We're trying to exercise our right to vote in other than English languages. So we have to have you all and your power to reauthorize section 203.
Mr. CHABOT. The gentleman's time has expired. All time has expired. And I want to thank the panel for their very helpful testimony here this afternoon.
We're not finished yet. We're finished for today, but we have two more hearings tomorrow—I believe, at 2 and 4. So anybody who is here today is welcome back; and anybody who is not here is welcome back, as well.
But if there's no further business to come before the Committee, we're adjourned. Thank you.
[Whereupon, at 4:05 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
[Note: Image(s) not available in this format. See PDF version of this file.]
(Footnote 1 return)
Section 203(c), 42 U.S.C. 1973aa–1a(c).
(Footnote 2 return)
Section 203(b)(2), 42 U.S.C. 1973aa–1a(b)(2)(A).
(Footnote 3 return)
Section 4(f)(3–4), 42 U.S.C. 1973c(3–4). Essentially, Section 4(f)(4) applies the 1972 Section 5 coverage trigger to language translation obligations.
(Footnote 4 return)
Section 203(e), 42 U.S.C. 1973aa–1a(e).
(Footnote 5 return)
There are 296 jurisdictions throughout the United States covered by Section 203. There are approximately 298 jurisdictions covered by Section 4(f)(4). Some coverage overlaps, which explains the 496 figure in the text above.
(Footnote 6 return)
Fourteen of the 27 minority language cases filed by the Department of Justice since the adoption of Sections 203 and 4(f)(4) have been commenced since 2001.