Tokaji: What About Section 203?

Most of the scholarly debate over the expiring provisions of the Voting Rights Act has focused on Section 5’s preclearance requirement. But in terms of promoting equality of participation, the language assistance provisions of the VRA are at least as important. The language assistance provisions, Sections 203 and 4(f)(4), will also expire in 2007, unless renewed. While perhaps less controversial among legal scholars than preclearance, the language assistance provisions have generated somewhat greater opposition in Congress. This post explores some of the policy and constitutional issues surrounding language assistance. These issues are particularly germane at the moment, because they are part of the reason for Senate Republicans trying to slow down the consideration of VRA reauthorization, according to this report.
The most important language assistance requirement is Section 203. That provision requires language assistance for non-English proficient citizens, in places with a significant number or percentage of them and above-average illiteracy rates. States or political subdivisions (typically counties) are covered, if 1) more than 10,000 citizens or more than 5% of the population are members of a single language minority group, and 2) the illiteracy rate of language minorities is above the national illiteracy rate. A list of covered jurisdictions may be found here.
The other significant language assistance provision is Section 4(f)(4), which covers jurisdictions where a language minority group was over 5% of the voting-age population, materials were provided only in English, and less than half of the population was registered to vote in 1972. Jurisdictions covered by section 4(f)(4) must also meet the preclearance requirement of Section 5. The issues surrounding this requirement mirror those in the larger debate over preclearance on which this exchange has focused, so I’ll mainly address Section 203 here.
Covered jurisdictions must “provide[] registration or voting notices, forms,instructions, assistance, or other materials of information relating to the electoral process, including ballots, … in the language of the applicable minority group as well as in the English language.” Both written materials and oral assistance should be provided to covered groups, which include Asian American, Hispanic American, Native American, and Alaskan Native citizens. Almost 300 jurisdictions are covered by Section 203’s language assistance requirements.
Perhaps the reason that language assistance has gotten less attention than preclearance, at least from legal scholars, because the case for its renewal is relatively straightforward. Assistance to citizens who are not yet fluent in English, the argument goes, is essential to ensure equal access to the vote. These provisions are thus vital to ensuring equality of participation. By contrast, most of the issues surrounding Section 5 preclearance in recent years don’t have to do with participation (i.e., the ability to vote and have one’s votes counted), but rather with issues of representation — most notably, with how voting districts are drawn, and what’s necessary to ensure that minority groups’ collective interests are adequately represented in legislative bodies.
While there is considerable disagreement over what’s necessary to ensure equality of representation, and over what role the Justice Department should play in policing that norm, it’s harder to disagree with the principle of equal and informed participation. In fact, Congress recently reaffirmed this principle when it enacted the Help America Vote Act of 2002 (HAVA). Section 301 of HAVA mandates that voting systems provide alternative language accessibility, specifically referencing Section 203’s language assistance requirements.
The arguments for renewing Section 203 are, to my mind, compelling. These requirements are very important to language minority communities. To take one example, a 2004 exit poll of approximately 11,000 Asian American voters found that almost one-third of them needed some assistance. The percentage needing assistance was even higher for new voters. There are, to be sure, costs on covered jurisdictions to comply with Section 203, but those costs are well worth bearing in order to ensure that citizens who aren’t yet proficient in English are able to participate and make informed choices. There’s a reasonable argument that the federal government should at least partly subsidize local jurisdictions’ costs, but the basic idea of providing help to non-English proficient citizens is hard to argue with. That’s particularly true, given the complex initiatives and referenda that regularly appear on the ballots of many states. It’s difficult enough to understand most of these ballot measures when they’re written in one’s native language, let alone in a second language.
A bit more difficult, at least to my mind, is determining the constitutional theory under which Congress has the power to require state and local government to provide language assistance. It’s true that, in Katzenbach v. Morgan (1966), the Court upheld a VRA provision suspending literacy tests for those educated in American schools where their classroom language wasn’t English. But as Rick Hasen and others have observed, the Court’s new federalism cases have sharply limited Congress’ authority to enforce civil rights, requiring that federal laws be “congruent and proportional” to the constitutional violations they purport to redress.
The conventional justification for the VRA’s key provisions is that they’re designed to redress intentional discrimination against minority voters. This justification makes sense when it comes to Section 2 and Section 5 of the VRA. Even though these provisions both incorporate effects-based tests that go beyond what the Constitution requires, those tests can be defended on the ground that they’re needed as a prophylactic against intentional discrimination. I think the prophylaxis argument is bit more difficult with respect to Section 203. There undoubtedly has been — and continues to be –a great deal of intentional discrimination against language minorities. But is it a congruent and proportional remedy to require all jurisdictions with substantial non-English proficient citizen populations and low literacy to provide affirmative language assistance?
An alternative justification is that Section 203 is needed to remedy intentional discrimination outside the voting process. Disparities in the educational opportunities offered to language minority groups, this argument goes, makes it necessary to accommodate citizens who aren’t proficient in English at the polls. The evidence of unequal educational opportunities is undoubtedly strong. The problem is showing that these inequalities stem from intentional discrimination against language minorities. If they don’t, then there’s no constitutional violation, and it’s therefore hard to argue that Section 203 is congruent and proportional under the new federalism cases.
To be clear, I think that both of these “intentional discrimination” arguments for Section 203 are quite plausible, and it’s certainly possible that the Court will accept one or both. The arguments are strengthened by the Court’s decision in Tennessee v. Lane (2004) which suggests that Congress has broader latitude under the congruence and proportionality test, when it comes to fundamental rights like voting. But it’s not crystal clear that requiring language assistance can be justified under Congress’ authority to remedy intentional discrimination.
This leads me to sketch out a third possible ground for upholding Section 203: that Congress need not demonstrate intentional discrimination based on race or ethnicity, when acting to promote rights of participation or access, as opposed to representation. The Court has sometimes found constitutional violations based on a denial of equal access, even where no intentional discrimination is proven. One example is Harper v. Virginia (1966) striking down Virginia’s poll tax, a case where race discrimination was surely in the background but wasn’t the basis for the Court’s decision. Another is Bush v. Gore (2000), in which the Court found disparate standards for vote-counting unconstitutional, even without evidence of intentional discrimination (much less intentional race discrimination). On the other hand, intentional race discrimination is required to prevail on a qualitative vote dilution claim, under Mobile v. Bolden (1980).
My point is not to argue that there’s a constitutional right to language assistance at the polls. It is, instead, that rights of participation ought to be treated differently from rights of representation — or, put another way, that vote denial is different from vote dilution. (I flesh out this claim in my forthcoming piece, The New Vote Denial.) The Court hasn’t precisely defined the limits of equal protection when it comes to claims of participation/vote denial. In fact, in Bush v. Gore, the Court took great pains to emphasize that the boundaries of equal protection are fuzzy in this area: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Where the Court hasn’t yet defined the contours of constitutional rights, as is the general case with respect to access claims, it would be more than a little unreasonable to apply the congruence and proportionality test with the stringency that the Court has adopted in other areas. This suggests a third basis for upholding Section 203: that Congress should have more room to operate when it seeks to promote equality of participation.
Maybe all this is a lot of worrying over very little. As Nate Persily has suggested, it’s likely that Justice Kennedy will be the swing vote on the renewed VRA’s constitutionality, and he may already know what he’s going to do. Moreover, the federalism burdens imposed by Section 203 are less severe than those imposed by Section 5. On the other hand, Section 203’s connection to intentional race discrimination seems somewhat more attenuated than Section 5’s. Thus, when Congress reauthorizes Section 203 — as I hope and expect it will — it should make sure to consider alternative theories for upholding it in the court challenge that can be expected to follow.
–Dan Tokaji

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