Bilingual Voting Materials and the Expansion of the Voting Rights Act Beyond the African American Community

James Thomas Tucker, The Battle Over Bilingual Ballots: Language Minorities and Political Access Under the Voting Rights Act. Burlington, VT: Ashgate, 2009, 413 pp., $99.95 (hardcover).

The passage of the Voting Rights Act (VRA) in 1965 arguably reflected the legislative high point of civil rights organizing in the United States. The VRA established, at least for African Americans who resided in covered states and counties in the South, the principle that the federal government had the authority and will to enforce the voting protection provisions of the 15th Amendment, ratified nearly a century before. Voting rights advocates seized the opportunities presented in the Act to rapidly expand the pool of eligible black voters in the covered jurisdictions and, more slowly, to ensure that these newly enfranchised voters were able to elect candidates of their choice to local and national office. The U.S. Justice Department and the federal courts became central players in the oversight and regulation of voting in the United States in a manner that they never had been in the past.

The narrowly constructed foundation of coverage laid in 1965 began to steadily expand with the Act's reauthorizations in 1970 and 1975. Included in the 1975 renewal and extension was a considerable expansion of the protections against language-based electoral discrimination and a congressional determination of the “language minorities” explicitly covered by these provisions: American Indians, Alaskan Natives, Asian Americans, and people of “Spanish heritage” (what we would today identify as Latinos or Hispanics). The 1975 extension provided that in areas where these covered language minorities were concentrated, they should be provided with election materials in English and in their native languages. The 1975 Act also provided that the covered language minorities would receive the same protections against electoral discrimination and manipulation extended to African Americans in 1965 as well as to the VRA's requirement that covered jurisdictions pre-clear changes in voting qualifications and practices with the U.S. Justice Department or the federal courts.

Often lost in popular and scholarly accounts of the struggle that led to the initial passage of the VRA in 1965 and its first decade of implementation is the recognition that the law was designed from its first days to remedy pervasive electoral discrimination based on language and literacy as well as on race. In The Battle Over Bilingual Ballots: Language Minorities and Political Access Under the Voting Rights Act, John Thomas Tucker analyzes the use of literacy tests in the pre-VRA period as a tool to limit or deny participation to linguistic minorities, the forms of language assistance made available in the 1965 Act and the 1970 renewal, the debates in 1975 about expanding VRA coverage to language minorities, and the implementation of VRA language protections in the years since 1975. Tucker also offers an extensive case study of language discrimination faced by Alaskan Natives and the effectiveness of VRA protections in overcoming the electoral consequences of this discrimination. The volume is attentive to the interaction of congressional debates and legislation, court cases and rulings, and state and local initiatives to shape the meaning of the VRA's language-based protections.

The Battle Over Bilingual Ballots offers a richly detailed and nuanced analysis of language-based discrimination, congressional and judicial remedies, and language-minority empowerment. This is a particularly remarkable accomplishment with the material that Tucker has to work with, often judicial rulings or legislative debates that focus on narrow questions of law. Tucker succeeds at speaking to scholars and others interested in voting and community organizing without extensive legal training. The volume would benefit from a chronology of the evolution of key aspects of judicial thinking about federal protections of language minority voting rights and state/local provision of non-English election materials. But, this is a minor quibble in what is otherwise a richly detailed, comprehensive study of the intersection of language-based discrimination, federal protections of language minorities, and electoral participation.

The contributions of The Battle Over Bilingual Ballots are several and it is not possible (or wise, perhaps) to discuss each in detail in a review. Instead, I will focus on what I see as the core of the volume's contribution, specifically the analysis of the steady evolution of language-based voting rights protections prior to the congressional extension of coverage to language minorities in 1975 and the ways in which they influenced subsequent legislation and judicial interpretation. Section 4 of the 1965 Voting Rights Act prohibited the use of literacy tests as a prerequisite to voting. Within § 4, Congress provided for specific protections against English language literacy tests for Puerto Rican votes in subsection (e). In Congress's view, Puerto Ricans had a special claim on language protections. Since 1917, they had been U.S. citizens, but the language of instruction and the language of governance in Puerto Rico is Spanish. Although not the focus of congressional attention in 1965, Puerto Ricans residing in the United States frequently received little formal education and, to the extent that Puerto Rican migrants were able to attend schools on the mainland, many schools discriminated against the Puerto Rican students and failed to provide adequate training in English. The implementation of § 4(e), particularly the litigation challenging jurisdictional failures to implement it, lay the foundation for post-1975 requirements to provide bilingual voting materials, language assistance at the polls, and enhanced outreach to language minority communities. Although the initial beneficiaries of § 4(e) were the approximately 1 million Spanish-dominant Puerto Ricans in New York and other cities in the late 1960s and early 1970s, Tucker convincingly argues that its lessons shaped the protections for all covered language minority voters after 1975.

Although § 4(e) was the primary provision of the VRA establishing the foundation for coverage of language minorities prior to 1975, Tucker briefly examines two other components of the 1965 legislation establishing the principle that electoral exclusion based on language merited federal protections. First, § 2 of the VRA prohibited electoral discrimination based on race or color. Second, the courts held that illiterate voters had a right to receive language assistance at the polls. Tucker also analyzes state efforts in the pre-1975 era to provide language assistance to non-English speakers. Several states, including Massachusetts, New Jersey, New Mexico, New York, Pennsylvania, California, Colorado, and the District of Columbia, provided bilingual sample ballots and instructions. Perhaps surprisingly to the modern ear, Arizona offered bilingual ballot information and Idaho provided a bilingual voting guide and registration information. The bilingual voting guide offered translations of state ballot propositions.

Despite the prevalence of these state and federal resources for non-English-speaking voters in the period before 1975, the extension of VRA protections to language minority populations was and continues to be controversial. The Battle Over Bilingual Ballots carefully analyzes the legislative debates in 1975 and 2006 as well as court challenges to the VRA extension beyond African Americans and, to a lesser degree, Puerto Ricans. Tucker's analysis extends into post-2000 debates about the need for language-based voting protections, the beneficiaries of this coverage (a population that became increasingly made up of naturalized U.S. citizens), and the costs of providing bilingual election materials, potentially in several languages other than English. Tucker also assesses state efforts to provide language assistance beyond that required by the VRA.

The final section of the book provides a venue for practitioners and specialists in the field to provide more focused insights on issues related to language assistance and the VRA. Although styled as commentaries, these short essays are better understood as in-depth analyses on topics that were addressed in passing in the volume. For example there is a focus on Asian Americans (in commentaries by Terry Ao and Glenn Magpantay) to match Tucker's rich analysis of the consequences and remedies of electoral discrimination against Alaskan Natives. The volume also offers summaries of the data used to make the determinations about coverage under § 203 of the Voting Rights Act in 2002 as well as a complete listing of languages other than English mandated for coverage at the county level since 1975.

Aside from the thoughtful analysis of the ongoing importance of the language rights in the development and evolution of the Voting Rights Act, The Battle Over Bilingual Ballots deserves praise for its graphics. Tucker has carefully collected an excellent collection of images, particularly related to language discrimination and voting. These include such items as the paperwork for a 1964 North Carolina literacy test, the front page of a 1900 San Francisco newspaper reflecting fears of a large vote by newly naturalized Chinese Americans, a 1924 advertisement with the headline “Keep Alaska and Its Schools Free From Indian Control” supporting a literacy test for voting in the state, and a pamphlet printed in Navajo on Arizona's voter identification requirements. The graphics amplify points made in the text as they should but also offer a rich foundation for class discussions even when the volume is not assigned as a text. In an era where publishers are looking to cut back on graphics, Tucker and the publisher, Ashgate, deserve praise for their inclusion. They are evocative and very well chosen.

In sum, The Battle Over Bilingual Ballots: Language Minorities and Political Access Under the Voting Rights Act offers a thoughtful and detailed analysis of the roots of language protections in the VRA, of the legislative and judicial evolution of language protections in the law, and of the continuing challenge to equal electoral participation by U.S. citizens for whom electoral materials in English are insufficient. The volume offers a comprehensive history of voter exclusion based on language and the Voting Rights Act through the post-2000 redistricting and the 2006 congressional debate on VRA reauthorization. Finally, with its case study of electoral discrimination against Alaskan Natives and the effectiveness of VRA remedies to address this electoral manipulation and exclusion, The Battle Over Bilingual Ballots offers a rich study of a population often neglected in discussion of the VRA, except to note their coverage in 1975. In sum, The Battle Over Bilingual Ballots: Language Minorities and Political Access Under the Voting Rights Act should be on the shelf of scholars of minority voting and the VRA and regularly consulted as a resource to better understand the process of the group-based exclusion and the legal tools available to challenge this exclusion.