<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:30760.wais]
S. Hrg.109-669
CONTINUING NEED FOR SECTION 203'S PROVISIONS FOR LIMITED ENGLISH
PROFICIENT
VOTERS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 13, 2006
__________
Serial No. J-109-84
__________
Printed for the use of the Committee on the Judiciary
_____
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE,Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 1
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 287
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 22
WITNESSES
Chavez, Linda, Chairman Center for Equal Opportunity, Washington,
D.C............................................................ 15
Fung, Margaret, Executive Director, Asian American Legal Defense
and Education Fund, New York, New York......................... 9
Kirsanow, Peter N., Member, National Labor Relations Board
Commissioner, Commission on Civil Rights, Cleveland, Ohio...... 11
Mujica, Mauro E., Chairman of the Board, Chief Executive Officer,
U.S. English, Inc., Washington, D.C............................ 7
Trasvina, John, Interim President and General Counsel, Mexican
American Legal Defense and Educational Fund, Los Angeles,
California..................................................... 6
Wright, Deborah, Acting Assistant Registrar-Recorder, Department
of Registrar-Recorder, Los Angeles, California................. 13
QUESTIONS AND ANSWERS
Responses of Linda Chavez to questions submitted by Senators
Specter and Coburn............................................. 34
Responses of Margaret Fung to questions submitted by Senators
Specter, Coburn, Leahy and Kennedy............................. 36
Responses of Peter N. Kirsanow to a question submitted by Senator
Coburn......................................................... 51
Responses of John Trasvina to questions submitted by Senators
Leahy, Kennedy, Coburn, and Specter............................ 53
Responses of Deborah Wright to questions submitted by Senators
Specter, Coburn, Kennedy and Leahy............................. 94
SUBMISSIONS FOR THE RECORD
American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO), William Samuel, Director, Department
of Legislation, Washington, D.C., letter....................... 103
American Jewish Committee, Richard T. Foltin, Legislative
Director and Counsel, Washington, D.C., letter................. 105
Asian American Justice Center, Karen K. Narasaki, President and
Executive Director, Stewart Kwoh, President and Executive
Director, Asian Pacific American Legal Center, Tuyet Le,
Executive Director, Asian American Institute and Gen Fujioka,
Interim Executive Director, Asian Law Caucus, Washington, D.C.,
letter and statement........................................... 106
Associated Press:
September 25, 2002, article.................................. 134
Houston, January 16, 2005, article........................... 136
Salt Lake City, August 8, 2005, article...................... 138
Milwaukee, April 26, 2006, article........................... 140
Atlanta Journal-Constitution:
October 28, 2004, article.................................... 143
May 29, 2006, article........................................ 146
Bullock, Charles S., III, and Ronald Keith Gaddie, prepared for
American Enterprise Institute, Washington, D.C., statement..... 147
CBS Broadcasting Inc., Steve Pickett, report..................... 158
Chavez, Linda, Chairman Center for Equal Opportunity, Washington,
D.C., prepared statement....................................... 159
Clegg, Roger, President and General Counsel, Center for Equal
Opportunity, Sterling, Virginia, article....................... 170
Cuban American National Council, Guarione M. Diaz, President and
CEO, Miami, Florida, letter and statement...................... 173
Department of Justice, Washington, D.C.:
article, May 15, 2006........................................ 177
Election Fraud Prosecutions & Convictions, list.............. 178
Desert Morning News, Salt Lake City, Utah, February 10, 2005,
article........................................................ 187
English First Foundation, Springfield, Virginia, articles........ 190
Epstein, David, Professor of Political Science, Columbia
University, New York, New York, letter......................... 208
Fraga, Luis Ricardo, and Maria Lizet Ocampo, Department of
Political Science, School of Education, Stanford University,
statement...................................................... 210
Friends Committee on National Legislation, Ruth Flower, Senior
Legislative Secretary, Washington, D.C., letter................ 227
Fung, Margaret, Executive Director, Asian American Legal Defense
and Education Fund, New York, New York, prepared statement and
attachment..................................................... 229
Greenbaum, Jon, Director of the Voting Rights Project, Lawyers'
Committee for Civil Rights Under Law, statement................ 234
Harris, C. Fredrick, Associate Professor of Political Science,
Director, Center for the Study of African-American Politics,
University of Rochester, Rochester, New York, letter........... 253
Hasen, Richard L., William H. Hannon Distinguished Professor of
Law, Loyola Law School, Los Angeles, California, article....... 255
Honolulu Advertiser:
Scott Ishikawa, September 9, 2000, article................... 259
Scott Ishikawa and Kevin Dayton, article..................... 260
Horowitz, Donald L., James B. Duke Professor of Law and Political
Science, Durham, North Caroline, letter........................ 262
Houston Chronicle, January 16, 2005, article..................... 265
Human Events, Online:
July 03, 2006, article....................................... 268
May 8, 2006, article......................................... 270
Ivory, Rev. Elenora Giddings, Director, Washington Office
Presbyterian Church, Washington, D.C., letter.................. 271
Keyssar, Alexander, Matthew W. Stirling, Jr. Professor of History
and Social Policy, Chair, Democratic Institutions and Politics,
Kennedy School of Government, Harvard University, Cambridge,
Massachusetts, statement....................................... 273
Kirsanow, Peter N., Member, National Labor Relations Board
Commissioner, Commission on Civil Rights, Cleveland, Ohio,
prepared statement and attachments............................. 281
Leadership Conference on Civil Rights, Wade, Henderson, Executive
Director and Nancy Zirkin, Deputy Director, Washington, D.C.,
letter......................................................... 291
League of Women Voters of the United States, Kay J. Maxwell,
President, Greenwich, Connecticut, letter...................... 293
Legal Affairs, Edward Blum, and Roger Clegg, article............. 294
Los Angeles Times, March 25, 2006, article....................... 298
Miller, John J., Vice President, Center for Equal Opportunity,
Bradley Fellow at the Heritage Foundation, statement........... 300
Mujica, Mauro E., Chairman of the Board, Chief Executive Officer,
U.S. English, Inc., Washington, D.C., prepared statement....... 303
National Association of Latino Elected and Appointed Officials
Educational Fund, Arturo Vargas, Executive Director,
Washington, D.C., letter....................................... 307
National Congress of American Indians, Joe Garcia, President,
Washington, D.C., letter and resolution........................ 309
National Council of Asian Pacific Americans, Washington, D.C.,
letter......................................................... 314
National Council of La Raza, Janet Murguia, President and Chief
Executive Officer, Washington, D.C., letter.................... 316
National Journal Group, Inc., May 13, 2006, article.............. 318
National Review, July 6, and 17, 2006, articles.................. 321
New York Times, New York, New York:
June 13, 2006, article....................................... 325
June 25, 2006, article....................................... 327
Norby, Chris, Supervisor, Fourth District County Board of
Superviors, Santa Ann, California, letter...................... 331
Oliver, Dana M., General Registrar, Salem, Virginia, letter...... 334
Organizations opposed to the reauthorization of the multilingual
election requirements, joint letter............................ 337
Pamintuan, Rudy, Chair, President's Advisory Commission on Asian
Americans and Pacific Islanders, Washington, D.C., letter...... 340
Scott, Mark C., Commissioner of Borks County, Reading,
Pennsylvania................................................... 341
Seattle Times, October 8, 2002, article.......................... 343
Seidenberg, Ivan, Chairman and Chief Executive Officer, Verizon,
New York, New York, letter..................................... 345
Trasvina, John, Interim President and General Counsel, Mexican
American Legal Defense and Educational Fund, Los Angeles,
California, prepared statement and attachment.................. 346
Tyler, Jan, Investment Advisor Representative, Securities Service
Network, Inc., Denver, Colorado, letter........................ 356
UAW, Alan Reuther, Legislative Director, Washington, D.C., letter 361
United States Commission on Civil Rights, Sock-Foon Macdougall,
Washington, D.C., statement.................................... 363
Urban Institute, Immigration Studies Program, Washington, D.C.,
brief.......................................................... 364
Wall Street Journal:
October 23, 2000, article.................................... 366
June 12, 2006, article....................................... 368
June 20, 2006, article....................................... 370
Wal-Mart Stores, Inc., H. Lee Scott, President and Chief
Executive Officer, Bentonville, Arkansas, June 20, 2006, letter 372
Washington Post, July 6, 2006, article........................... 373
Washington Times, November 29, 2000, article..................... 376
Watts, J.C., Jr., former Representative in Congress from the
State of Oklahoma, Washington, D.C., June 21, 2006, letter..... 379
Women demanding passage of the Voting Rights Act Amendment, join
statement...................................................... 380
Wright, Deborah, Acting Assistant Registrar-Recorder, Department
of Registrar-Recorder, Los Angeles, California, prepared
statement...................................................... 384
----------
July 10, 2006
ADDITIONAL TESTIMONY AND QUESTIONS AND ANSWERS ONLY
QUESTIONS AND ANSWERS
Responses of Constance Slaughter-Harvey to questions submitted by
Senator Leahy.................................................. 389
Responses of James Thomas Tucker to questions submitted by
Senator Leahy.................................................. 402
Responses of Alfred Yazzie to questions submitted by Senator
Leahy.......................................................... 414
SUBMISSIONS FOR THE RECORD
Hearne, Mark F., (Thor), II, Attorney, St. Louis, Missouri,
statement...................................................... 417
James, Kay Coles, Richmond, Virginia, statement.................. 434
Slaughter-Harvey, Constance, Attorney, Mississippi, statement.... 440
Tucker, James Thomas, Voting Rights Consultant, National
Association of Latino Elected and Appointed Officials,
statement...................................................... 463
Yazzie, Alfred, Tempe, Arizona, statement........................ 491
CONTINUING NEED FOR SECTION 203'S PROVISIONS FOR LIMITED ENGLISH
PROFICIENT VOTERS
----------
TUESDAY, JUNE 13, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The hearing was convened, pursuant to notice, at 9:31 a.m.,
in room SD-226, Dirksen Senate Office Building,
Hon. Arlen Specter, Chairman of the Committee, presiding.
Present: Senators Cornyn, Coburn, Leahy, Kennedy,
Feinstein, and Feingold.
OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE
STATE OF TEXAS
Senator Cornyn. The Committee will come to order.
Senator Specter, by the way, is going to be delayed
slightly, so I offered to open up for him so we could get
started, and then he will be joining us as soon as he can.
Today we are holding the sixth in a series of hearings
focusing on the proposed reauthorization of the expiring
provisions of the Voting Rights Act.
Chairman Specter called a number of hearings prior to our
last recess, but unfortunately that was during a time when we
were addressing another important issue, and that is
immigration reform, on the floor of the Senate and many of us
were unable to attend the last two hearings on Section 5.
I am encouraged to hear that the Chairman is holding this
hearing and plans to hold several additional hearings on the
Voting Rights Act generally, as well as with problems such as
voter fraud in elections.
It is imperative that we vet this issue fully in order to
increase the likelihood that this legislation will pass Supreme
Court muster, which no doubt will ultimately come, and to
ensure that the Voting Rights Act continues to operate as
Congress intended.
Before us today, of course, is the issue of reauthorization
of Section 203, the provision that requires ballots and voting
materials to be provided in a language other than English under
certain circumstances.
Section 203 applies to States and localities where more
than 10,000, or 5 percent, of the voting-aged citizens are
Alaskan Native, American Indian, Americans of Spanish heritage,
or Asian Americans who are limited- English proficient. These
citizens have a higher rate of illiteracy, as defined by
failure to complete the fifth grade, than the national average.
I have previously stated my concerns about this particular
provision. It seems to me that if we rightfully require
proficiency in English to become a naturalized citizen in this
country, that for the same reasons it is not only reasonable,
but in fact entirely appropriate, for jurisdictions to offer
ballots and voting materials in English.
Just a few weeks ago, the U.S. Senate overwhelmingly passed
a provision declaring English our National language, as well as
a second provision that overwhelmingly recognized English as a
common and unifying language for our Nation.
Section 203 does not appear to unify us, and even more, it
is not clear to me that Section 203, as currently drafted, is
an effective method of protecting voting rights.
I know each of you have your own opinion about this
important subject, and we are glad to have you here today, each
of the witnesses, to help us learn more and to continue to
build a record that will help us ensure the continued success
of the Voting Rights Act.
Our witnesses today include Mr. John Trasvina, a graduate
of the Harvard and Stanford Law Schools, and president and
general counsel to the Mexican American Legal Defense and
Education Fund. Mr. Trasvina once worked for this Committee as
general counsel for the Senate Subcommittee on the
Constitution, and we welcome you back.
Margaret Fung is a graduate of Barnard College and NYU Law
School, and is executive director of the Asian American Legal
Defense and Education Fund. Ms. Fung has testified before the
House Judiciary Committee on issues related to voting rights
and the need for bilingual voting materials.
Mauro E. Mujica. And forgive me if I have mispronounced
your last name. Is that close?
Mr. Mujica. Yes.
Senator Cornyn. I am sensitive. With a name like Cornyn, it
gets butchered often and I am a little sensitive. So, I
apologize if I missed at all.
Mr. Mujica is a graduate of Colombia University and is
Chairman of the Board and CEO of U.S. English, a citizens'
action group working to make English the official language of
the United States. He testified before the 104th Congress
during its consideration of official English legislation.
Deborah Wright is a graduate of the University of Missouri
and Acting Assistant Registrar-Recorder and County Clerk of
Election Services in Los Angeles County, the largest electoral
jurisdiction in the United States.
Peter Kirsanow is a graduate of Cornell and Cleveland State
Universities, and he currently serves as a Commissioner on the
U.S. Commission on Civil Rights, and is a member of the
National Labor Relations Board.
In addition, he is Chairman of the Board of Directors of
the Center for New Black Leadership. Mr. Kirsanow frequently
testifies before members of the U.S. Congress on matters
affecting civil rights and labor-related issues, appearing most
recently before the Senate Judiciary Committee to support the
nominations of Chief Justice John G. Roberts and Justice Samuel
Alito to the U.S. Supreme Court.
Linda Chavez is a graduate of the University of Colorado
and Chairman of the Center for Equal Opportunity, a nonprofit
public policy research organization in Sterling, Virginia.
She also writes a weekly syndicated column that appears in
newspapers across the country, and is a political analyst for
Fox News Channel. She has held a number of appointed positions,
and is an author and has testified on a variety of subjects on
Capitol Hill.
We welcome each of you here today and look forward to your
testimony.
Senator Kennedy, I might yield to you for any opening
statement you would care to make.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. I thank you, Mr. Chairman. I thank the
Chairman of our committee, Senator Specter, for convening these
hearings and for continued commitment to keeping us on track
for the reauthorization of the Voting Rights Act during this
Congress.
We all understand that English is the common and unifying
language of the United States, and becoming proficient in
English is important to becoming part of American society and
pursuing the American dream. There is no disagreement on that.
We all understand that voting is a fundamental right, the right
from which all others derive. Again, there is no disagreement
on this point.
But we must also understand that not all citizens of the
United States know English well enough to participate in
English-only elections, and without bilingual ballots and
assistance at the polls, there are millions of our fellow
citizens who would be unable to vote effectively. These include
many native-born Americans who, because of poverty and unequal
educational opportunities, have high rates of illiteracy and
limited English proficiency.
They also include many Puerto Ricans, who are U.S. citizens
by birth and have given so much to this country: 65,000 Puerto
Ricans served in World War II, 48,000 in Vietnam, and as of
November, 2003, 3,500 Puerto Ricans were serving in Iraq or
Afghanistan, and as of last February, 48 of them had died
fighting in Iraq and Afghanistan. Since World War II, Puerto
Rico has suffered more military casualties per capita than any
other jurisdiction.
Puerto Ricans educated in classrooms where instruction was
in Spanish should not be denied a ballot they can understand
and voting instructions that they can understand, yet some
States try to do that.
In the Voting Rights Act of 1965, Congress prohibited
States from conditioning the right of Puerto Ricans to vote on
their ability to read and write English, and the Supreme Court,
in Katzenbag v. Morgan, upheld the constitutionality of that
provision.
The same principle applies to Native Americans and Alaskan
natives. On many Indian reservations and Alaskan villages,
translators are necessary to translate ballots into unwritten
languages for Native Americans and Alaskans who cannot read
their ballots and could not vote effectively without
assistance. We owe it to these Americans to provide them the
help they need to cast their votes.
The same principles should apply to naturalized U.S.
citizens. They were attracted to our country by opportunity and
the promise of democracy, and they are no less worthy to
exercise their right to vote.
It is wrong to equate knowing enough English to become a
naturalized citizen with knowing enough English to participate
responsibly in an election. According to current Federal law on
naturalizations, persons must be able to read or write simple
words and phrases in English to become naturalized citizens.
Naturalization law also exempts some Americans over 50 from
having to satisfy an English-language requirement to become a
citizen.
Even under the more demanding English-language requirements
of the recent Senate immigration bill, applicants for
naturalization will need to demonstrate a sufficient
understanding of the English language for usage in everyday
life.
But many elections require more than an understanding of
everyday usage to participate effectively. Often ballots
contain complex referenda and initiatives. Here is one example.
It is an initiative that appeared on the ballot in Denver,
Colorado in 2004. The county is required to providing voting
materials in Spanish under Section 203.
Here is the text of the initiative, which will appear on
the poster board: ``Shall regional transportation district
taxes be increased first full year, dollar increases annually
and by whatever additional amounts are raised annually
thereafter, increasing the rate of sales tax levied by the
district by four-tenths of 1 percent from the current six-
tenths of 1 percent to one percent, commencing January 1 the
first calendar year, that commences after the election of which
the ballot question is submitted, and in connection therewith,
shall regional transportation district debt be increased,
principal amount, with a repayment cost...with all the proceeds
going to debt and taxes,'' et cetera, et cetera. That is just
one sentence.
[Laughter.]
Even those who think we can speak English probably could
use Cliff Notes for that version of the ballot.
Our limited-English proficient fellow citizens know the
importance of learning English. We have now a two- year wait in
my own city of Boston, 24,000 individuals who are working hard,
paying their taxes, trying to learn English, and they have to
wait, now, 2 years in order to see that.
We cannot get an increase in the appropriations by the
Majority, who have professed such commitment in terms of
learning English, which is certainly disappointing, at best.
Our limited-English proficient fellow citizens know the
importance of learning English. Access to the franchise in
their native language is not a disincentive to learn English.
Their lives and struggles are a daily reminder of how important
learning English is to succeed in this country. It should upset
all of us here today that we are not meeting our obligation to
help them learn English. They want to learn English.
I mentioned, in Boston, the waiting list to learn English
now is 17,000 students, and the waiting period is as long as 3
years. Three years. In New York, it is estimated that one
million residents need English language instruction, yet there
are only 41,000 slots.
The problem is national. In Albuquerque, Catholic Charities
reports 1,000 people on their waiting list and a waiting time
of 12 months for services. In Phoenix, the waiting list in Rio
Saledo Community College is over 1,000, and the waiting time is
18 months.
Let us not punish American citizens who want to learn
English by conditioning the fundamental right to vote on the
ability to read and write in English. If we are sincere about
including naturalized citizens in the American way of life and
promoting American values and traditions, there is no better
way than through the ballot box, and we need to continue
Section 203 to make it possible.
Thank you, Mr. Chairman.
Senator Cornyn. We will go to the opening statements of the
witnesses.
Senator Kennedy. Mr. Chairman?
Senator Cornyn. Yes?
Senator Kennedy. Could I ask, at the termination of the
hearing today, there are a couple of excellent reports, one
from Luis Fraga and Maria Ocampo entitled ``More Information
Requests'' and ``The Different Effect of Section 5 and the
Voting Rights Act'' be included in the record? There is an
extensive report, and I do not think this should be included.
It ought to be in the file of the committee. This is Jane
Tucker's report.
I would ask the staff to reduce this to a manageable area
and the whole report be included in the record and referenced
in our record that this report is there. If I could ask for
that inclusion.
Senator Cornyn. Certainly. Without objection.
Thank you for reminding me. I had three documents that,
without objection, will also be made a part of the record at
the end of the hearing transcript.
The first, is correspondence from Chris Norby, supervisor,
Fourth District, Orange County Board of Supervisors, to Senator
Specter regarding Orange County's administration of Section 203
of the Voting Rights Act.
The second, is a study by Anna Henderson and Chris Edley,
Jr. of the Warren Institute entitled, ``Voting Rights Act
Reauthorization: Researched-Based Recommendations to Improve
Voting Access.''
The third, is from Jan Tyler, who served as Election
Commissioner for the City and County of Denver for eight years,
to Senator Specter and Senator Leahy. Those will also be made a
part of the record.
Mr. Trasvina, if we could to you, please, for your opening
statement.
We would like for you to please confine each of your
opening statements to 5 minutes, then we will proceed with a
round of questioning where we will be able to get further into
the subject matter.
STATEMENT OF JOHN TRASVINA, INTERIM PRESIDENT AND GENERAL
COUNSEL, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
(MALDEF), LOS ANGELES, CALIFORNIA
Mr. Trasvina. Thank you, Mr. Chairman and members of the
committee.
On behalf of MALDEF, I want to thank the Committee for its
leadership regarding the continuing need for Section 203 of the
Voting Rights Act, and the opportunity to testify today. I am
very pleased to be back before this Committee to testify about
the critical importance of language assistance in elections.
One of my proudest moments during my service here for
Senator Simon on the Constitution Subcommittee was working with
Senator Hatch and many members of the Committee and your staffs
on the 1992 Voting Rights Act language amendments.
When this Committee displays bipartisanship on language
assistance as it did in 1992, you make a powerful statement to
the American people, and the world, about the sanctity with
which we hold the right to vote in the United States.
Protections against language discrimination in voting were
included in the original Voting Rights Act of 1965, which
prohibited the enforcement of English language literacy tests
for voters.
Congress enacted these protections to protect the rights of
Puerto Rican U.S. citizens who were educated in American-flag
schools in Puerto Rico where instruction took place in Spanish.
Section 203 was included during the 1975 reauthorization
because Spanish-speaking Latino citizens in the Southwest and
elsewhere, as well as other language minorities, were still
being subjected to laws and practices that effectively denied
them the right to vote, much as similar laws and practices
denied the right to vote to African-Americans living in the
South.
After hearing testimony about the denial of equal
educational opportunities by State and local governments that
had left many Latinos, Asian-Americans, and American Indians
functionally illiterate in English, Congress found it necessary
to eliminate such discrimination by prohibiting English-only
elections and by prescribing other remedial devices.
Section 203, providing language assistance in the election
process, was the remedy Congress devised to counter the effects
of language-based discrimination on U.S. citizens' right to
vote.
Unconstitutional discrimination in elections and education
has created persistent, discriminatory conditions which
continue to require the Congressional remedy of Section 203.
Many of the U.S. citizens subject to intentional
discrimination in public education systems, which lasted well
into the 1970's in Texas and other States, continue to require
language assistance in order to cast a meaningful, informed
vote.
In the State of Texas alone, the Census found, in 2002,
that there were over 818,000 Latino voting-age citizens, nearly
1 of 4 Latino voting-age citizens in the State, not yet fully
proficient in English.
Section 203 is a proper exercise of Congress's authority to
enforce the 14th and 15th amendments, which grant Congress the
power to enforce equal protection of the laws and non-
discrimination in voting through appropriate remedial
legislation.
The Supreme Court has repeatedly found that Congress may
adopt strong remedial and preventative measures to respond to
the widespread and persisting deprivation of constitutional
rights resulting from a history of racial discrimination.
Because language assistance required under Section 203 is,
as required under City of Boerne v. Flores, congruent and
proportional to the discrimination that it addresses and it is
no broader than necessary to redress this discrimination, it is
a proper exercise of Congress' constitutional authority under
the 14th and 15th amendments.
Many Section 203 opponents argue that, because immigrants
must speak English to become naturalized citizens, language
assistance in voting is not needed. Complicated ballot
provisions, however, demand a higher level of English language
proficiency than do the naturalization requirements.
Even native speakers of English often find legalistic
language--such as that stated by Senator Kennedy--of many
ballot provisions difficult to interpret. Further, English-
language naturalization requirements do not apply to native-
born citizens, many of whom, as I have noted, suffer from
limited-English proficiency as a result of discriminatory
education systems.
Section 203 is not costly to implement. As Mayor Feinstein
knew way back in the 1980's when she appointed me to the
Citizens' Advisory Committee on Elections, bilingual ballots--
and in San Francisco we have three languages--are able to be
implemented on a cost-effective basis: less than 3 percent of
all election costs, 16/10,000ths of 1 percent of the city
budget.
A recent Arizona State University study found that Section
203 represents no additional costs to most jurisdictions and
costs very little in those jurisdictions which do incur
additional costs.
The Voting Rights Act removes barriers between the
electoral process and U.S. citizens. It is easier and more cost
effective than ever to provide language assistance for
registration, and at the polls. The necessity to read and write
English to get ahead every day is not diminished by getting a
bilingual ballot on election day.
As a matter of sound public policy and as a constitutional
remedy to discrimination in voting, we should facilitate these
citizens' participation in American political systems and we
should continue to provide language assistance in voting to
those who are unable to participate fully without it.
Thank you.
Senator Cornyn. Thank you very much.
[The prepared statement of Mr. Trasvina appears as a
submission for the record.]
Mr. Mujica, we would be glad to hear from you.
STATEMENT OF MAURO E. MUJICA, CHAIRMAN OF THE BOARD AND CEO,
U.S. ENGLISH, INC., WASHINGTON, DC
Mr. Mujica. Thank you, Mr. Chairman and members of the
committee, for giving me the opportunity to testify today
regarding Section 203 of the Voting Rights Act.
My name is Mauro E. Mujica. I am the Chairman of the Board
of U.S. English, Inc., a nonprofit organization based in
Washington, D.C.
U.S. English was founded in 1983 by one of your former
colleagues, Senator S.I. Hayakawa, and we have now grown to
over 1.8 million members. Our organization focuses on public
policy issues that involve language and national identity.
Mr. Chairman, I am a naturalized citizen. I speak Spanish
regularly with my family and friends, and I am proud to speak
four languages fluently. Our concerns about Section 203 do not
reflect an opposition to other languages or the people who
speak them.
I recognize that any section of any law that has been in
effect for a generation has a presumption in favor of
reauthorization. I also know that it will take political
courage to revisit anything that is part of the admirable
voting rights.
Still, we believe that if this Committee brings independent
judgment to bear, it will see that the considerable costs of
Section 203 outweigh its now-questionable benefits.
First, the law is at odds with an important legal
tradition. In 1906, President Theodore Roosevelt signed a
measure requiring candidates for naturalization to demonstrate
their ability to speak English. Just last month, this body
reaffirmed that policy when it voted overwhelmingly for the
similar language in Senator Inhofe's amendment.
If English is a necessary condition for citizenship, and
citizenship is a necessary condition for legal voting, then the
purpose of foreign-language ballots must be questioned.
If we are naturalizing individuals who cannot speak
English, we must address that issue. If we are failing to teach
English to individuals born in this country, we must address
that issue. Multilingual ballots should not be used as a way of
covering up the fact that we are not adequately addressing
other challenges.
Second, to the degree that law has a teaching effect,
Section 203 sends exactly the wrong message. According to the
Census, there are 54 different languages spoken in American
homes by more than 50,000 people.
But in most places where Section 203 is triggered,
government-translated voting materials send a message to
Spanish speakers, and only Spanish speakers, that English is
optional.
When a person steps into a voting booth, he or she is
exercising the highest civic duty. Yet, at that very moment the
government sends a signal that English is not really necessary
to join our National political conversation.
Ironically, this message will not be sent to the Spanish
speaker in Burlington, Vermont or the Chinese speaker in
Wichita, Kansas. It will be sent only to those who live in high
enough language concentrations to trigger Section 203's
requirements. In short, it will be sent to the very immigrants
who are likely to live in linguistic enclaves where an English-
optional lifestyle is a real possibility.
Finally, Section 203 raises troubling questions about where
we draw the lines in civil rights laws. Section 203's
provisions were originally limited as a remedy for people of
Hispanic, Asian, Native American, and Native Alaskan heritage,
but the Congressional findings that caused the lines to be
drawn at those groups could well be anachronistic.
Let me respectfully ask this question: is there any
evidence on the record that, in 2006, a Chinese speaker is more
likely than an Arabic speaker to face such language-based
discrimination? The Chinese speaker qualifies for a special
ballot; the Arabic speaker does not.
The original Voting Rights Act is rooted in our belief as a
Nation that all men are created equal. Regardless of one's
race, the law protects a person from discrimination. But
Section 203's message is that we will give you a government
service, but only if there are enough of you to qualify.
Since this is at odds with our civil rights traditions, it
seems that the real purposes of bilingual ballots is to satisfy
political constituencies who are large enough to demand them.
Though Section 203 may have originated with the best of
intentions, we should make the decision that binds us for the
next generation on the conditions of today, not the conditions
of 30 years ago. Today, Section 203 provides selected and
questionable benefits at the cost of a Balkanizing message.
U.S. English opposes the reauthorization of Section 203's
language in its current form. We respectfully urge this
Committee to craft a policy that more closely reflects legal
and economic sense and one which promotes what voting and being
an American is all about.
Senator Cornyn. Thank you, Mr. Mujica.
Ms. Fung, we would be glad to hear from you.
STATEMENT OF MARGARET FUNG, EXECUTIVE DIRECTOR, ASIAN AMERICAN
LEGAL DEFENSE AND EDUCATION FUND, NEW YORK, NEW YORK
Ms. Fung. Good morning, Mr. Chairman and members of the
committee.
My name is Margaret Fung and I am executive director of the
Asian American Legal Defense and Education Fund, which is a 32-
year-old New York-based national organization that does
litigation, legal advocacy, and community education.
Since 1988, we have monitored elections and conducted
multilingual exit polls to document barriers to voting faced by
Asian-Americans. In November of 2004, we conducted the Nation's
largest multilingual exit poll of 11,000 Asian-American voters
in eight States to assess the needs of Asian-American voters
with limited English proficiency and to document voting
problems.
We have also litigated cases to defend the voting rights of
Asian-Americans, most recently a lawsuit on behalf of groups
and individual voters in a suit against the New York City Board
of Elections for violating the language assistance provisions
of the Voting Rights Act.
We have prepared a new report. It is called ``Asian
Americans and the Voting Rights Act: The Case for
Reauthorization.''
I have attached a copy of our 47-page report to this
statement, and I am hoping that you will accept for the
official record the report, as well as the appendices which are
here, which includes a lot of original documentation and
letters to registrars in eight States where we describe exactly
where the voting problems have occurred, how many voters have
been affected, and our experience with these issues.
As you know, Asians in America were barred for over 150
years from becoming naturalized citizens and, thus, were not
eligible to vote. Those citizenship restrictions were finally
rescinded in 1943 for Chinese Americans, and for other Asian
immigrant groups in 1952.
But as a result, this legacy of discrimination effectively
blocked Asian-Americans from participating in the political
process until the Civil Rights era of the 1960s. That is
exactly why the Voting Rights Act has such significance for our
community.
When the language assistance provisions of the Voting
Rights Act were enacted in 1975, and then expanded in 1992,
Section 203 helped to remove other obstacles for Asian-American
voters not yet fluent in English. It has opened up the
political process for Asian-Americans, especially first-time
voters and new citizens.
At the most fundamental level, translated ballots in voting
machines have enabled Asian-Americans to exercise their right
to vote privately and independently. Almost one-third of the
respondents in our 2004 exit poll of 11,000 Asian-American
voters needed some form of language assistance in order to
vote, and the greatest beneficiaries of this assistance, 46
percent, were first-time voters.
The Asian-American population, according to the Census, is
now 14 million. Over half have acquired citizenship through
naturalization, and 40 percent of our community is limited-
English proficient.
We are now a growing part of the electorate, and this can
be attributed in large part to Section 203, which covers
672,000 Asian-Americans in 16 jurisdictions in 7 States.
Behind the statistics, of course, are the real voters. One
of our clients, Shiny Liu, is a Chinese-American voter from
Queens County. This is what she said about the use of
translated ballots: ``The first time I voted was in 2003. I
used an interpreter and a ballot that was translated into
Chinese. Now I know how to vote, so I vote alone without any
assistance. I have voted on ballots in English before, but I am
not comfortable doing so because I am not confident that I
properly understand the English. I would rather vote on ballots
translated into Chinese because I can be sure of who, and what,
I am voting for.''
We also represented a Korean-American truck driver, Byung
Soo Park, someone who was recently naturalized. He became a
citizen in 2001. He registered to vote at a community
organization, with bilingual assistance.
This is what he had to say: ``Ever since I first registered
to vote, I have never missed an election. Every time I vote, I
need to use the assistance of an interpreter. I want to learn
English, but I have no time because I am a truck driver and I
work long hours on the road. Korean-Americans should be treated
as U.S. citizens because that is what we are. I want us all to
be treated equally.'' For Mr. Park and countless other new
citizens, economic barriers have hindered their ability to
learn English.
I just want to mention that voting discrimination against
Asian-Americans still continues today. We have seen it at the
polls on a repeated basis in the very explicit form of racist
poll workers, harassment, improper identification checks, and
the outright refusal to provide language assistance, which is
currently required by Federal law.
A basic tenet of our democracy is that all citizens should
be able to elect candidates of choice and have a voice in
governmental decisionmaking.
Section 203 has enabled the Asian-American community to
participate in democracy and it has helped to promote
meaningful civic participation. We hope that you will
reauthorize Section 203, as well as the other temporary
provisions of the Voting Rights Act.
Thank you.
Senator Cornyn. Thank you, Ms. Fung.
[The prepared statement of Ms. Fung appears as a submission
for the record.]
Senator Cornyn. Mr. Kirsanow?
STATEMENT OF PETER N. KIRSANOW, MEMBER, NATIONAL LABOR
RELATIONS BOARD, COMMISSIONER, U.S. COMMISSION ON CIVIL RIGHTS,
CLEVELAND, OHIO
Mr. Kirsanow. Thank you, Mr. Chairman and members of the
committee.
I am Peter Kirsanow, member of the U.S. Commission on Civil
Rights, and also a member of the National Labor Relations
Board. I am here in my personal capacity.
The U.S. Commission on Civil Rights was established
pursuant to the Civil Rights Act of 1957 to, among other
things, act as a national clearing house for matters pertaining
to denials of voting rights and equal protection.
In furtherance of the clearing house function, the
commission recently held a hearing on the reauthorization of
the temporary provisions of the Act. The report that issued
therefrom does not make any recommendations as to whether any
or all the provisions should be reauthorized, nonetheless, I
will respectfully submit to the Senate that, in its
deliberations concerning the temporary provisions, it focus on
at least four issues: 1) cost and waste; 2) fraud and error; 3)
use of racial and ethnic profiling and stereotyping in
administration of the Act; 4) constitutional compliance.
First, cost as a function of efficacy. The evidence shows
that the cost to cover jurisdictions of Section 203 compliance
is disproportionate to its utility. There have been a number of
GAO reports--at least two--that have cited that the majority of
covered jurisdictions barely use bilingual ballots at all.
In addition, a 1986 GAO report showed that in most covered
jurisdictions not one voter used any form of language
assistance whatsoever, and, moreover, 90 percent of
jurisdictions report that no language assistance whatsoever is
needed.
Now, the sparse usage is in stark contrast to the fairly
substantial costs of compliance. The average covered
jurisdiction spends an estimated 13 percent of all election
costs on Section 203 compliance.
This is actually just the tip of the iceberg, because some
jurisdictions spend as much as 50 percent on compliance, and
that number is rising rapidly, by as much as 40 percent over
just one election cycle for some jurisdiction.
The cited costs are monetary only. They do not include the
effects of fraud and error. The use of bilingual and
multilingual election materials necessarily increases the risk
of both.
Non-English election materials can confound those who are
the gatekeepers of voting integrity. There have been scores of
report, and reports abound about the false and misleading
information that may be conveyed by ballots.
For example, in one jurisdiction a bilingual ballot
transposed the party labels of the candidates so that a
Democrat became a Republican, and vice versa; in another, the
``yes'' and ``no'' on a ballot proposition were reversed.
Proofreaders simply missed these errors.
In addition, bilingual language requirements can facilitate
voting by those ineligible to vote. There have been numerous
instances, particularly in Florida and California, in which
substantial numbers of non-citizens have voted, and it is
unclear whether, or if, there has been an effect on the
outcome.
A third issue that merits consideration is the use of
racial profiling and stereotyping in administration and
enforcement of the Act. It would be unlawful for local election
officials to disenfranchise voters with ethnic surnames on the
basis of suspect citizenship status, yet the review of surnames
for enforcement of 203 purposes is done by the Federal
Government itself.
Voter registration rolls are reviewed for surnames common
to language minority groups to determine whether polling places
in areas with presumed substantial numbers of language minority
groups are adequately complying with Section 203's bilingual
requirements.
Now, the purpose may be benign, but it is racial and ethnic
stereotyping, nonetheless. Ethnic surnames are not proxies for
limited English proficiency. This racial profiling and
stereotyping implicates constitutional issues of Section 203's
proportionality and congruence.
The rational and factual bases for eliminating
discriminatory access to the polls by providing bilingual
language assistance are, to say the least, underdeveloped.
One of the chief justifications cited for Section 203, and
that is unequal educational opportunities provided to language
minorities, could just as easily be applied to blacks and other
groups that are not usually viewed as being of limited English
proficiency.
Moreover, the coverage triggers related to literacy could
also be applied to some black communities--even some white
ones--yet they are not, and this raises a host of equal
protection, as well as congruency and proportionality,
concerns.
Mr. Chairman, it is respectfully submitted that prior to
reauthorization of Section 203, Congress consider some of the
recommendations that I think you cited in the letter from Mr.
Edley, one of my former colleagues who is now dean at Boalt Law
School.
With respect to Section 5, he suggested that Congress
appoint a commission to study and report back on some of the
concerns I just mentioned. I would respectfully submit that
Congress consider doing the same for Section 203.
Thank you, Mr. Chairman.
Senator Cornyn. Thank you, Mr. Kirsanow.
[The prepared statement of Mr. Kirsanow appears as a
submission for the record.]
Senator Cornyn. Ms. Wright, we would be glad to hear from
you.
STATEMENT OF DEBORAH WRIGHT, ACTING ASSISTANT REGISTRAR-
RECORDER, DEPARTMENT OF REGISTRAR-RECORDER, LOS ANGELES,
CALIFORNIA
Ms. Wright. Thank you, Mr. Chairman and members of the
committee. Thank you for the invitation to appear before the
Committee to offer testimony and to submit materials with
regard to Los Angeles County's program that provides assistance
to limited-English proficient voters.
My point of view is probably a little different than the
other panelists. We do not really have a point of view and we
do not have a recommendation about renewal, we just wanted to
report on the actual experience of our jurisdiction.
Los Angeles County is the largest and most diverse local
election jurisdiction in the United States. In compliance with
Section 203, we provide assistance to voters in six languages
in addition to English: Chinese, Japanese, Korean, Spanish,
Tagalog, which is Filipino language, and Vietnamese. We provide
both translated written election materials and oral assistance
on election day.
The costs to Los Angeles County for the multilingual
program, we believe, are reasonable in light of the challenges
the county faces and are proportional to the numbers of people
the Census reveals to be limited-English proficient.
Only eight States have more registered voters than our
nearly 4 million voters. The 2000 Census reported that L.A.
County has approximately 5 million voting-age citizens, 12.9
percent of whom are limited-English proficient in one of the
six covered languages. Our cost for translation tends to run at
or below about 10 percent of the cost of each election.
My own role with the county's program is to provide direct
management and oversight of the multilingual assistance program
and to coordinate community-based organization input and
interface with the Department of Justice on these issues, so I
am reporting to you from, sort of, on the ground.
As Senator Kennedy mentioned, often a high level of English
proficiency is needed even by native speakers of English to
understand some of the complex ballot initiatives, especially
in California, and to cast an informed ballot. Appropriate
targeted language assistance makes it much more likely than
informed voter intent is realized.
There are three key facets to our multilingual program in
Los Angeles County: 1) we provide translated written materials;
2) we provide oral assistance at voting locations; 3) we have
an extensive program of collaboration with community-based
organizations.
Our translation of written materials include: sample ballot
booklets that are mailed to each voter; the State ballot
pamphlet, which is also provided in all the languages; voter
registration forms; absentee ballot application forms;
instructions on how to use the voting system; provisional
ballot instructions, and a wide variety of voter education
materials.
We have realized considerable cost savings in Los Angeles
County by restricting our printing to the exact precincts
within the county where written materials are needed.
Our oral assistance program far exceeds legal requirements
of targeting that would be based solely on U.S. Census data. We
believe it is important for voters entering the polling place
to see that election workers reflect the neighborhood,
including the languages spoken in that community.
We target oral assistance based on several criteria: the
Census data that is required by law; we consider the number of
requests that are on our voter file from voters who have
specifically asked for materials in another language; we take
into consideration input from community-based organizations
that tell us a neighborhood perhaps has been changing in its
demographic since the last Census and that we need to look at
providing assistance; and also information gathered directly
from poll workers denoting how many requests they received for
multilingual assistance on election day.
Our collaboration with community-based organizations is the
third component in our outreach to multilingual voters. The
groups we work with include NALEO, MALDEF, APALC, and many
others, and they collaborate with the county in identifying
neighborhoods and specific voting precincts that are in need of
assistance in specific languages.
We do our best to get the word out to voters to make sure
that they learn about the availability of these materials.
Every registered voter in Los Angeles County gets a voter
information pamphlet prior to every election day, and we make
sure that every booklet contains a full page of information so
that people can understand how to request services.
We make it easy. On the voter registration form, voters can
request that their names be included in our list of voters who
have a request on file to receive translations. We do public
service announcements on cable TV and radio at no cost to the
county, and we work back and forth with our community-based
organizations to get the word out.
We believe that a comprehensive program is only as good as
the results it achieves, and we believe that the program is
successful based on a number of indices: first, the large
number of precincts that are targeted for recruitment of poll
workers who speak the identified languages. In most elections,
we achieve better than 90 percent of our goal.
The number of voters that have called our office to request
translated written materials, and in conversations back and
forth with the Department of Justice, we have consistently been
described as having a very good and comprehensive program.
In conclusion, Los Angeles County is proud of our
proactive, multi-faceted, multilingual program that reaches
beyond the minimum standards of legal compliance and focuses on
a commitment to excellence in serving all the voters in our
diverse community.
Thank you.
Senator Cornyn. Thank you, Ms. Wright.
[The prepared statement of Ms. Wright appears as a
submission for the record.]
Senator Cornyn. Ms. Chavez, we would be glad to hear from
you.
STATEMENT OF LINDA CHAVEZ, CHAIRMAN, CENTER FOR EQUAL
OPPORTUNITY, WASHINGTON, DC
Ms. Chavez. Thank you very much, Mr. Chairman. Thank you
also to members of the committee.
In that very nice introduction of my bio, Senator Cornyn,
there was one job that I had that was missing in that list, and
that was that I was a staff member of the House Judiciary
Committee from 1972 to 1974, working, as Senator Kennedy will
remember, for the then-Majority, the Democrats, and it was
actually at that time that consideration of amending the Voting
Rights Act of 1965 and adding the bilingual provision was under
consideration. I would be happy, in the question and answer
period, to go into that more.
I am not going to read my testimony. I would like it to be
submitted for the record in full.
Senator Cornyn. Without objection.
[The prepared statement of Ms. Chavez appears as a
submission for the record.]
Ms. Chavez. And I obviously will summarize some of what I
said. There were four points made in that written testimony,
some of which seemed to neatly parallel Peter Kirsanow's
testimony. I did deal with the subject of whether or not
Section 203 is necessary; whether or not there are sufficient
numbers of persons unable to speak English to require a change
of this sort in the law; whether or not the expense of
providing these ballots did not constitute an unfunded mandate;
and whether or not some of the translations available, as Mr.
Kirsanow testified, were not confusing.
I also dealt with the issue of voter fraud and the way in
which bilingual ballots can facilitate voter fraud, and I dealt
with the issue of whether or not Section 203 is, in fact,
constitutional.
This goes back to my history at the Judiciary Committee
because, in order to be constitutional, one would have to
interpret ``an English ballot'' as proof of, evidence of,
deliberate and intentional discrimination, and I do not think
that providing ballots only in English does constitute
deliberate discrimination.
But I would like to spend the few minutes I have with you
here to talk about the fourth part of my testimony, and that
dealt with the subject of Balkanization and whether or not the
provision of multilingual ballots does not, in fact, further
the Balkanization of this country.
I speak about this in the context of the current debate on
immigration. Much to the chagrin of some of my fellow
Republicans, I find myself more aligned in my views on
immigration with Senator Kennedy than some of the members of my
own party; as you know, I have been an outspoken commentator on
the current immigration debate.
It has, frankly, puzzled me why we are, I believe, in the
midst of a kind of national hysteria on immigration, given the
fact that our immigration levels are not at an all-time high,
given the fact that even illegal immigration was higher in 2000
than it was in 2004, the last date for which we have official
figures of apprehensions at the border.
But one of the things that I believe has led the country to
focus so much on immigration, is a fear that many of the Latino
immigrants who are coming into the United States are not going
to do what generations of immigrants have done before them:
learn the language, assimilate into the mainstream, and become
fully participating members of our civil society.
I have, as you know, written on this issue for more than 20
years, including a book called Out of the Barrio, which, in
fact detailed--and this book was published 15 years ago--the
assimilation of Hispanics into the American mainstream.
Hispanics are learning English, and they are doing so not
just as rapidly as the Italians, Greeks, Poles, Jews and others
before them, but I believe more quickly than those groups have.
Senator Kennedy is correct, that there is a long waiting list
for people to learn the language.
Eighty-six percent of second-generation Hispanics in the
United States, for example, graduate from high school, so the
notion that Hispanics have a much higher illiteracy rate and
that they are unable to speak English, I think, is simply
fallacious.
According to the Pugh Hispanic Center, which has some of
the best statistics on this available, 78 percent of third-
generation Hispanics in the United States speak only one
language, and that language is English.
That is not to say that there are not pockets in parts of
the country of newly naturalized citizens, or even in my home
State of New Mexico, of some born in the United States who are
not entirely proficient in the English language.
But I would contest that the way in which the Census Bureau
currently measures that proficiency for the purposes of this
section of the Act, namely constituting people who do not speak
English at least ``very well,'' according to Census records, is
not a good way of going about determining how many people it is
that need such assistance.
I believe, moreover, that even if you believe that there
are people who need such assistance, that it is possible to
provide that assistance through other means other than having
bilingual ballots required by the Federal Government in all
jurisdictions that meet the provisions of Section 203.
Thank you very much.
Senator Cornyn. Thank you, Ms. Chavez.
We will now proceed to a round of questions of five minutes
each.
I know each of you, during the immigration debate that we
had here in the Senate a couple of weeks ago, are aware of
this, but I just want to make this a part of the record.
There were two different amendments that were accepted by
the U.S. Senate, one sponsored principally by Senator Ken
Salazar, which declared English as ``the common and unifying
language of the United States, and to preserve and enhance the
role of the English language,'' and the second, which actually
received 62 votes to 35 against, was principally sponsored by
Senator Jim Inhofe, which was to amend Title IV of the U.S.
Code to ``declare English as the national language of the
United States and to promote the patriotic integration of
prospective U.S. citizens.''
I can tell you that, from watching the news and listening
to discussions afterwards, a lot of people were confused about
what differences, if any there were, between those two
amendments.
But I will just say that in both, under the ``Findings,''
there was this statement: ``Unless otherwise authorized or
provided for by law, no person has a legal entitlement to
services authorized or provided for by the Federal Government
in any language other than English.''
So, some of you have addressed this issue of, if in fact to
become a naturalized citizen you must show English language
proficiency, and in order to vote you must be a United States
citizen, then why is there the need for multilingual ballots?
Senator Kennedy offered an example of some incomprehensible
ballot language in English, which leads me to the conclusion
that maybe what some people need is not a translator, but a
lawyer when they go vote, because of the language.
Even for someone who speaks English only with some little
smattering of Spanish, I think I am not alone in finding
language like that, even in English, for native English
speakers, to be incomprehensible. But that, to me, speaks to
another issue about whether we insist that ballot language
actually be comprehensible in English.
But it seems to me an indictment of our educational system,
and perhaps even of the requirements of our naturalization
laws, if we say that we are going to give up on this goal that
the U.S. Senate--at least in these two amendments--
overwhelmingly supports, and that is that English be the common
and unifying language, or be the national language, or however
you would want to say it.
For our educational system, for individuals who are
educated in our public schools and our compulsory school system
that graduate illiterate and are incapable of speaking the
English language, that is a serious, serious problem, larger in
some ways than the immediate issue before us here.
Certainly being able to engage in the political life of our
Nation is absolutely important; there is no denying that, no
dissension there. But if somehow we are graduating students
from our public schools that cannot read the English language,
and we are allowing people, as part of the naturalization
process, to become American citizens without truly meeting some
sort of basic English-language proficiency, then that is
something we ought to look at as well.
Mr. Trasvina, let me ask you, you mentioned the remedial
nature of these provisions, in other words, suggesting this was
a remedy required by historical discrimination and voting
practices prejudicial to the rights of some non-English
speaking minorities. I would just ask you if it is in fact
designed to be remedial, is there any end to it? In other
words, if it is remedial, should we say that this should be
permanently part of the Voting Rights Act or should we do
something else to try to make sure that the remedy is no longer
required by addressing the underlying problem?
Mr. Trasvina. It is the latter, Senator. The way we get
beyond these provisions is, as we do and as many members of the
Senate and House do on a daily basis, by addressing the
educational inequities. We have litigation in our San Antonio
office, in U.S. v. Texas, that has been around for many years,
and we continue to see the disparities that Latino students
face.
To address your larger question about a national language,
the U.S. Supreme Court addressed this back in 1923. This is not
a new issue about promoting a common language. The U.S. Supreme
Court, in Meyer v. Nebraska, addressed this and said that,
``The protection of the Constitution extends to all, to those
who speak other languages as well as to those born with English
on the tongue.''
And perhaps it would be highly advantageous if everybody
spoke the common language, but you do not reach that result--
that desirable result--by limiting people's constitutional
rights.
In that case, it was the right of German-speaking parents
to have a say in their children's education. That is the case
that the Congress relied on in 1975, and again in 1982 and
1992.
So education is the key to resolving many of these issues,
but we continue to have the persistent effects of educational
discrimination in your State and in other States as well.
Senator Cornyn. Well, certainly we need to make sure that
people get the benefits of a compulsory education system so
they are completely equipped not only to participate in our
political life, but in the opportunities that our Nation
provides.
I see my time has expired, so I will turn to Senator
Kennedy.
Senator Kennedy. Thank you. Thank you very much.
I do note that the support by the Congress, in terms of
what they call the provision's English language provisions,
``Educational'' has declined from 2004, 2005, and then from
2005 to 2006 as the desire and the demand has gone up.
So it seems, in order to try and deal with the challenges,
I think we have seen in my own State, which has a remarkable
and long history in terms of immigration, is the desire of
individuals to learn the language.
Certainly the indicators, as I had mentioned in my opening
statement, show that is just as true today, with a recognition
by those that are limited English speaking that they want to be
able to learn English and understand it. That is really the key
to their own success.
But there are some realities. The Puerto Rican reality is a
prime example. We have more than 2.2 million Puerto Ricans in
the United States over the age of 18 eligible to vote, educated
in Puerto Rican schools where, primarily, Spanish is the
language, and we have, obviously, the Native Americans and
others on this.
I want to get to issues on the constitutionality, because
ultimately the Supreme Court is going to be reviewing the Act
and this aspect of the constitutionality.
John, you had commented briefly on this issue and it has
been raised by other members of the panel. Perhaps you could
just review a little bit about the strength of the
constitutionality, because this, I think, is a key aspect of
it. If there are others that differ with it, maybe we will get
a chance to hear from them a well.
But what do you say is the strongest case in terms of
justifying the constitutional provisions of Section 203?
Mr. Trasvina. Thank you, Senator. The governing case is
City of Boerne v. Flores, and that sets forth a three-part test
to determine congruence and proportionality.
Congress must identify unconstitutional discrimination,
develop a record that justifies a Congressional remedy, and
implement only those remedies that are proportional to the
constitutional injuries. Section 203 meets that test.
It remedies identified language-based discrimination in
voting. Congress currently has before it, and has had before it
in previous Congresses, a substantial record that documents
significant present discrimination against language minority
citizens living in Section 203 jurisdictions.
Finally, the record clearly demonstrates that
discrimination in elections is longstanding, pervasive and
continuing, while the remedy of language assistance in
elections does not unduly burden State and local election
officials. So, Section 203, in this regard, addresses and meets
the governing Supreme Court standard.
Ms. Chavez. Could I respond, Senator?
Senator Kennedy. Yes.
Ms. Chavez. Because I have a very different view of that,
obviously. I do not believe that Section 203 does satisfy the
constitutional requirement, and I so testified.
I can tell you, as someone who worked on this legislation,
as I said earlier, in the House Judiciary Committee, there was
no concern at that time that the provision of an English
language ballot did constitute intentional discrimination.
There was an interest on the part of MALDEF, and some other
organizations representing Mexican-Americans primarily, to have
Hispanics included under other sections of the law, namely the
sections that allow for pre-clearance and some of the other
measures, special provisions.
The designation of an English ballot as a literacy test
was, in fact, the key to being able to bring Hispanics in under
the other provisions, and that was the reason. There was almost
no testimony--in fact, considerable testimony to the contrary--
that there was widespread intentional discrimination against
Latinos.
At the time that the provision was enacted in 1975, the
State of Arizona and the State of New Mexico both had Mexican-
American Governors; Dennis Chavez, who as the Chairman of the
commission that built this building, had served in the U.S.
Senate from New Mexico for many, many years, one of the
longest-standing members.
So there really was, I believe, absolutely no record of
being able to demonstrate that there was intentional
discrimination against Latinos, either because of their
ethnicity or because of their inability to speak English.
Senator Kennedy. My time is short. Could I ask Mr. Trasvina
if he would comment on that? Then my time will be expired.
Mr. Trasvina. The 1975 hearings that MALDEF did participate
in and did demonstrate the record in the State of Texas and
other parts of the Southwest of electoral discrimination.
Senator Chavez and Senator Montoya were aberrations--
historical--there were very, very few Hispanic Senators until
today, where there are now three Latino U.S. Senators.
Throughout the successes of the Voting Rights Act in the
Southwest, we see the first Latinos ever elected to city
councils or as mayors in cities where the vast majority of the
population were Latino, it was because they were not allowed to
vote prior to the 1975 Act because of the English-only ballot.
Senator Kennedy. My time is up.
Thank you very much, Mr. Chairman.
Senator Cornyn. Senator Coburn?
Senator Coburn. Thank you.
Mr. Trasvina, you used the words ``fully proficient.'' What
does that mean? In your testimony you used the words ``fully
proficient in English.'' What does that mean?
Mr. Trasvina. Fully proficient in English, for purposes of
voting, is being able to understand the terminology on the
ballot. There is a test called the Flesch-Kincaid test that
evaluates, based upon the length of sentences, the word usage
and the like. A lot of the State ballots are written at a
tenth, eleventh, twelfth grade level of English or even higher;
you can be fully proficient for naturalization at a fifth grade
level of English.
You are determined literate or illiterate at a fifth grade
level of English. So in terms of being fully proficient, fully
proficient means a much higher level of English than for
naturalization.
Senator Coburn. Well, I would pretend that most State
questions on the ballots in Oklahoma, nobody is fully
proficient unless they are a lawyer. Unless we are going to
address that issue in the Voting Rights Act reauthorization or
in the reauthorization of this bill, we are addressing the
wrong problem.
Mr. Trasvina. Senator, you are correct in one respect, and
that is that, based on my experience in San Francisco, the
Voting Rights Act implementation has promoted ballot
simplification in English.
The same thing is true for court interpreters. The move for
getting court interpreters to make things translatable has led
to a movement of making things more understandable for English
speakers in court or on the ballot. So, this is a good
government tool as well.
Senator Coburn. Maybe we could just get lawyers to speak
English instead of lawyerese.
Ms. Chavez. Mr. Coburn, could I also just add something to
that? The way in which the law is written, it is the Census
Bureau that determines how many people qualify under the
provision.
Senator Coburn. That is actually my next question, and it
was coming to you.
Ms. Chavez. All right.
Senator Coburn. What does ``very well'' mean in the Census
questionnaire, and what are the instructions with the question
that is asked to define what ``very well'' means?
Ms. Chavez. Well, what the Census Bureau has decided to do,
is to count people who self-identify--because that is what the
Census data is, you determine how well you speak the language
and you check a box on the long form of the Census--and to
throw out all of the people who determined that they speak
English ``well'' and they count them as limited-English
proficient.
Senator Coburn. Which would include most Senators.
Ms. Chavez. Right. Well, there are cultural factors here,
too. I do not know how many people, particularly if it was not
their first language, would say they speak a language ``very
well.''
I am not sure that I would say I speak the language ``very
well,'' even though I make my living writing in English. So, I
do think that this is a very, very slippery standard and not
one sufficient to justify bilingual ballots.
Senator Coburn. All right.
Ms. Fung, I had a question for you. You gave the example in
your testimony of this truck driver. I believe your words were,
he did not have time to learn English because he was driving a
truck. But the fact is, he had to at least know English at the
fifth grade level to become a U.S. citizen to qualify for a
vote.
So I have a real problem with this rub where we require,
under 8 USC 1423, ``Aliens and Nationality, Immigration
Nationality'': ``No person, except as otherwise provided in
this subchapter, shall hereinafter be naturalized as a citizen
of the United States, upon his own application, who cannot
demonstrate an understanding of the English language, including
the ability to read, write and speak words in ordinary usage in
the English language,'' and then there is a provision relating
to ``the ability to read and write shall be met if the
applicant can read and write simple words and phrases and that
a reasonable test of his literacy shall be made.''
The point being, if by the very testimony that you give he
is not proficient to a fifth grade level in English and
therefore requires a ballot, a bilingual ballot or a
translation of a ballot, yet he is a citizen, we need to
redefine where the problem is.
Either we are not enforcing USC 1423, and if we are not we
need to fix that problem rather than to fix the other one. If
we really require people to have a fifth grade level of English
proficiency to become a U.S. citizen, then it would seem to me
that that would obviate some of the other needs.
Would you comment on that, please?
Ms. Fung. I think there are important values in having
English as the language that is in usage. I think it is clear
that most people, most immigrants, most new citizens want to
learn English and would like to be more proficient in English.
But let me, first, deal with the point about the Census
questionnaire.
Many times people also do not want to admit that they do
not speak English very well, so they will state that they know
English, but the reality is, they cannot function as well as
they might like to. That is just a fact.
Senator Coburn. Sure.
Ms. Fung. So in terms of the level of proficiency needed
for a naturalized citizen, there is a big gap between that and
what is needed in order to cast a ballot. It is not just the
casting of the ballot, it is the instructions for using the
voting machine, it is dealing not only with voting for a
particular candidate, but whether or not you can read the 100-
word referendum that was given as an example, or any other
number of referenda.
Senator Coburn. So that would follow my question. Your
testimony is, the requirement to become a U.S. citizen in terms
of English proficiency is not enough, not proficient enough, to
be able to be a voter. That is your testimony?
Ms. Fung. The reality is that many items on a ballot are
not understandable.
Senator Coburn. No. I am going to ask you for a ``yes'' or
``no'' answer. Is it your testimony that the requirement for
becoming a U.S. citizen, in terms of language, does not give
you the skills to be able to vote as a U.S. citizen?
Ms. Fung. Yes. I think there are different levels of usage.
Voting occurs on one day or two days in the year. It involves
the exercise of a fundamental right. Any kind of assistance
that is needed in order for citizens who have that right--they
ought to be able to have access to language assistance.
Senator Coburn. Mr. Chairman, I would just suggest that we
are fixing the wrong problem.
I have one other question--I need to leave--if I could just
offer it.
Would you all comment, and you can do it in writing, about
the possibility for opt-out provisions for areas where they
have demonstrated they have prepared tremendous amounts for
bilingual voting, and yet it has not been utilized?
Would you please respond to the Committee on your thoughts
on giving areas which by Census data require it, but by
practical nature show that there is no need, an opt-out
provision to Section 203? If you would respond to that in
writing, I would appreciate that very much.
Thank you, Mr. Chairman.
Senator Cornyn. We have been joined by the Chairman,
Senator Specter. Senator Specter, Senator Feinstein is next in
order, and I will turn that over to you.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Chairman Specter. Thank you very much, Senator Cornyn, for
presiding in my absence. I regret my late arrival, but I was
occupied on the issue of cancer research and cancer funding.
In addition to chairing this committee, I chair the
Subcommittee on Labor, Health, Human Services and Education. If
my parents had been a little more perspicacious, they would
have made me twins so I could have been in both places. But I
know you have been in good hands.
This is a very, very important subject, renewal of the
Voting Rights Act. I know we have a very distinguished panel
here today. I know a number of you personally and admire the
work you have done. I will be reviewing the transcript. We are
going to move ahead as expeditiously as we can to complete this
important assignment.
Now let me yield to the distinguished Senator from
California, Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
John, it is very good to see you again. The years have been
good to you, I must say that.
Mr. Trasvina. I had a good start, Senator. Thank you.
Senator Feinstein. I was thinking, when you mentioned that
appointment, how many years ago it was. It is just great to see
you again, so welcome.
I was listening to Senator Coburn's questions and I was
thinking back in my own life. My mother was an immigrant from
Russia. She came here very young, I would say 4 years old.
She had just a primary education; the family was very poor.
She was a naturalized citizen. She studied English. She passed
the test. I helped her with her ballot. She could never really
fully understand propositions, which even then were complicated
and filled with legalese.
I think the issue really is whether 203 enables the full
comprehension of a ballot, which I think is very important.
California's ballots can be arm long, and despite ballot
simplification they can be extraordinarily complicated.
I, myself, often read a proposition two and three times
before I can understand it, and even then sometimes I do not
fully understand it. I look to other things to clarify it.
So it seems to me, that because we are in a day where
initiatives and propositions really become integral parts of
ballots, that it is much more important to add that bilingual
help to an individual.
My response to Senator Coburn would be, you might be able
to understand the difference between the candidates through the
English courses provided in naturalization, but I very much
doubt whether you can understand the complexity, fully, of
propositions which often line our ballots.
I would like to hear from anyone on that precise point,
either pro or con. Yes, Mr. Mujica?
Mr. Mujica. Yes. I am an immigrant. I live in Maryland. I
have the same problem. I see it all the time, every time I have
to vote. I have two degrees from Colombia University and one
from Cambridge in England, and I cannot read those
propositions.
Frankly, I read them three and four times and I end up not
voting for half of them because I do not understand what they
say. I do not think that any amount of translation is going to
help.
Senator Feinstein. But do you not think it is a good aid to
have?
Mr. Mujica. If I had it in Spanish, I would be laughing out
of the booth because the Spanish of Chile is very different
from the Spanish of Puerto Rico or Mexico. There is no way that
someone could translate what Senator Kennedy showed into
Spanish that would be understood by a Spanish speaker from any
country in Latin America. So, I do not think it is a solution.
I think the solution is to prohibit that kind of language in
the propositions.
Senator Feinstein. So, in other words, you have to kind of
``dumb down'' the ballot to be able to achieve a level of
comprehension.
Mr. Mujica. Unfortunately, yes. Even Americans who have a
low education could not understand that huge proposition.
Senator Feinstein. I just profoundly disagree with that. I
think it is important to enable everybody that votes to have
the largest comprehension possible. If language is one aid,
that is fine. If simplification is another aid, that is fine.
But a democracy, in my view, depends on an enlightened
electorate, and that means being able to understand what you
are voting on.
So it seems to me, the language help that the government
might provide to an individual, in a democracy, is most
important when it comes to a ballot.
Mr. Mujica. Well, I agree with that. But maybe some sort of
seminar held the day before the election would help, someone
who could come and explain in as man languages you want what
exactly is in the propositions. Maybe that would help.
Ms. Chavez. Senator, could I just briefly address that?
Senator Feinstein. Yes, Ms. Chavez.
Ms. Chavez. Because I think you provided the answer in your
description of you helping your mother. I do not think it would
be fair. There are a lot of instances where somebody is totally
illiterate but has the right to vote, or someone who is blind
but has the right to vote, or you were allowed to take someone
into the polling booth with you to provide assistance.
In terms of language difficulties, the ethnic press serves
a very useful function. Anybody who saw all of those people out
in the streets demonstrating for immigration reform knows that
the ethnic Spanish-speaking press is alive and well and very
active politically, so they can provide that kind of
assistance.
And, by the way, even if this 203 were not included in the
Voting Rights Act, it would not prohibit States from deciding
on their own to provide bilingual ballots if they thought it
was necessary.
Mr. Trasvina. Senator, if I could add on that point, it is
the exact wrong move to go to privatization of this issue. The
reason we have a Voter Information Handbook for English-
speaking citizens is so that each voter will get information on
both sides of the proposition. We do not want to have someone
go in with an interpreter if that person is their spouse, or
their union leader, or their boss.
The newspapers. I respect the ethnic press, but there is no
guarantee that they are going to have both sides of an issue in
any newspaper. The important thing is having the Voter
Information Handbook for all the voters--not just those that
speak English, but for all the voters.
Senator Feinstein. Thank you.
My time is up. Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Feinstein.
Mr. Chris Norby, an election official from Orange County,
California, wrote to Senator Leahy and me, reporting:
``Department of Justice agents have given our registrar a list
of Spanish, Vietnamese, Korean, and Chinese surnames. Based on
surnames alone, we are to assume that 25 percent of voters with
these surnames are limited in English speaking.''
Ms. Jan Tyler, an election official from Denver, says about
the same thing: ``The Department of Justice uses a form of
ethnic profiling called a Surname Analysis to identify
locations for bilingual polling districts in covered
jurisdictions.
The Justice Department also compels covered jurisdictions
to conduct voter outreach efforts--that is, mass mailings--
targeting limited-English proficient voters based on analysis
of the surnames of voters in covered jurisdictions.''
I would be interested to know if you ladies and gentlemen
have any knowledge or jurisdiction using surname analysis, or
being encouraged to use surname analysis. Would you think it
worthwhile to amend Section 203 to prohibit such racial
profiling by DOJ? Ms. Chavez, what do you think about that?
Ms. Chavez. Well, I can only assume that there has been
surname analysis because I routinely get material sent to me in
Spanish. As anyone who knows me knows, English is my one and
only language; I am not proficient in Spanish. I know in the
District of Columbia I received such material, and I believe I
have received such material in Virginia as well.
Chairman Specter. Ms. Wright, does that smack of racial
profiling to you?
Ms. Wright. Mr. Chairman, my perspective is a little
different. I would not want to state an opinion on whether it
is racial profiling, but I would submit that, in our
experience, it is not the most efficient way to determine who
in your jurisdiction actually needs assistance.
It can be very misleading in both directions, actually. We
have had some evidence that you can end up under-serving a
population if you do not pay attention to voters who actually
request materials.
I think that is an extremely objective, reliable indicator.
If a person checks off on their voter registration form that
they would like to receive materials in Chinese, I think you
can presume that they do want those. When you accumulate a
number of those within a voting precinct, then you know that
oral assistance would be a good idea in that area.
Chairman Specter. Mr. Kirsanow, do you think it would be a
good idea to amend Section 203 to prohibit those approaches to
identification?
Mr. Kirsanow. Absolutely, Mr. Chairman. It absolutely
qualifies as racial profiling. Just conduct the thought
experiment of reversing the proposition so that it is used for
malevolent purposes. We would have a flurry of lawsuits
sounding under a number of different sections of the Code,
1982, you name it, and we would be knee deep in such
litigation.
It is imperative to amend, for reasons that have to do with
constitutional implications, because we have here over-
inclusiveness and under-inclusiveness in terms of the
definitional predicates to the Act, and also from the
standpoint of policy issues.
Normally, Americans are offended by anything that smacks of
racial profiling that is not tethered to matters of national
security. Here, as Ms. Chavez had testified before, the House,
at least, did not adduce a factual predicate for substantiating
the need, at least in terms of a constitutional basis, for
Section 203. So, I think it is very important that we do away
with anything that smacks of this offensive type of
stereotyping.
Chairman Specter. My red light is going to go on before you
finish your answer, Ms. Fung. So I would like to have your
comments, and I would like to observe the rule of Senators not
asking questions after the red light goes on.
So you have the question, Ms. Fung, and if you would
follow, Mr. Mujica and Mr. Trasvina, on the basic point of
whether you consider it racial profiling, and whether you think
it would be wise to bar that kind of an approach under Section
203.
Ms. Fung. Yes. I could not disagree more with respect to a
ban on the use of surnames. Obviously it is not a precise tool,
but many of the panelists, as well as members, have expressed
concerns about the costs of Section 203.
Section 203 does permit, and there are regulations that
deal with, targeting so that local registrars can determine
which areas need to have materials sent or which precincts need
to have interpreters on election day.
I think surname analysis should be one of the tools that is
used, but not the only tool, and there should be much greater
reliance placed on outreach to community groups that can help
to identify where limited-English proficient voters are
located.
Mr. Mujica. Actually, you touched one of my biggest
problems in this country. I have been here 40 years and I am
still profiled as an Hispanic. It really bothers me. I get mail
all the time, as Linda said, offers in Spanish, the PEPCO bill,
bills in Spanish, you name it.
The funny thing is, my last name is not even Spanish, it is
Basque. I always write back and say, why do you not send me a
letter in Basque? I am a part-time genealogist, and I will tell
you, segregating people using last names is a very bad way of
segregating people.
Half of the time they do it wrong. For instance, I have
friends with names like Tom Evans in Chile. He probably gets
everything in English, and he does not speak a word of English.
The last name does not mean anything.
I am sure your mother received things in Russian when she
got mail. It is a shame. I think we are all Americans and we
should get things in the common language of this country.
If we have a problem, then we can write back and say, look,
I cannot understand what you are offering me, would you mind
sending me something in Spanish, or in Russian, or in Polish,
or whatever. But every single day of my life I feel profiled.
Chairman Specter. Mr. Trasvina?
Mr. Trasvina. Mr. Chairman, I do not think this surname
analysis is a particularly effective device for targeting. I
would be surprised even if the Assistant Attorney General for
Civil Rights had approved it. I do not think you need to
clutter up the statute with a provision prohibiting it.
Most of the registrars do targeting and they work with the
community organizations. The effective ones do that, and there
is a lot of cooperation so they will know to send the materials
to the right neighborhoods.
But there have been interpretive guidelines on the Voting
Rights Act since 1976 that the Ford administration put out, and
there are a wide variety of vehicles and tests that the
registrars can use. This is one of many. It may be something
that other administrations would not want to use. I do not
think it really needs to be put into the statute to prohibit
it.
Chairman Specter. Thank you.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman.
Chairman Specter read a little bit from a letter that has
been made a part of the record already by Chris Norby,
supervisor from the Fourth District Orange County Board of
Supervisors, and he notes, as Senator Specter did, that the
current interpretation of the Voting Rights Act requires his
county to provide translations in Spanish, Vietnamese, Chinese,
and Korean.
He goes on to note that if the standards of the Voting
Rights Act are unchanged, after the 2010 Census his county
could be required to print ballots in Tagalog, Hindi, Punjabi,
Urdu, and Farsi, depending on immigration patterns.
My question really goes to, again, the remedial nature of
this provision. If this is supposed to be a permanent part of
our legal requirements, whether it really is consistent with
what Justice O'Connor said in the Michigan affirmative action
cases where she said, ``We expect that race-based remedies for
past racial and ethnic discrimination would not be necessary
after 25 years in the future.'' And that was, I believe, in
2003.
Mr. Kirsanow, do you have any thoughts about that? I
understood your testimony to criticize the current standard.
But if the Congress were to embrace the current standard,
whether there would be some sunset provision or something that
would lead us in that direction toward a unified country.
Mr. Kirsanow. Yes, Senator. In order to incorporate
immigrants into the national fabric, I think it is important to
establish a certain baseline. The presumption is, apparently,
that English speaking is an immutable characteristic, that is,
there is no evolution toward speaking English once you have
arrived in the United States.
I know, for example, my father was an immigrant. It took
him a few years to get proficient in speaking English. But I
think everybody does after a certain point. It is one of the
easiest languages to understand, if you get away from
transitive verbs, and everything like that that we learn in
class. But at least in terms of fundamentals, it is something
that you can comprehend sufficient to cast a ballot.
Some of these opaque ballot provisions at the State level--
as you have indicated, I think John Roberts might have a
difficult time understanding. But it is important to have a
terminal point so that we have decided that, finally, everybody
has been incorporated.
There may be a standard by which you could say, for recent
arrivals, we are going to give them a prescribed period of time
in which to learn English, but it should not go on into
perpetuity, especially considering that Congress is
contemplating expanding immigration.
If that is the case, as with the Los Angeles example, it is
going to continue on and expand to the point where it becomes,
not the United States, but the United Nations, at least in
terms of ballot language requirements.
Senator Cornyn. Ms. Wright--and we will come to you, Mr.
Mujica, after that--you administer this election system in Los
Angeles. How much does that cost for you to comply with the
provisions of 203?
Ms. Wright. Roughly somewhere, plus or minus, about 10
percent of our election costs, which is fairly proportional to
the numbers of people that we serve.
Senator Cornyn. And what is your total cost?
Ms. Wright. About $30 million per election.
Senator Cornyn. So you figure it would cost you about $3
million to comply with the multiple language requirements?
Ms. Wright. Yes.
Senator Cornyn. Mr. Mujica, you had a comment?
Mr. Mujica. Yes. I have a comment about what was said
before. Israel has a fantastic system called ULPAN. When
immigrants arrive in the country, they are given enough money
to survive five or 6 months so they do not have to work.
They go to an ULPAN, which is a school that will help them
assimilate into their new country, will teach them Hebrew, will
teach them what it is to be an Israeli, will help them survive
in the new country.
That is what we need here, some sort of safety net for new
immigrants that will be taken in. They do not have to have
three jobs to survive. They can get enough money at the very
beginning so they can survive, they can go to a school where
they will learn English, they will learn how to apply for a
job, they will learn how to open a bank account, how to cash
checks, et cetera, without being exploited by those people who
are very happy to take in people who do not speak a word of
English.
Senator Cornyn. Thank you.
Ms. Fung, my time is almost up. But let me ask you, in your
written comments you cite some language discrimination against
Asian-Americans in Queens County, New York.
I note that Queens County is covered obviously by Section
203, but it is not covered by Section 4(f) the pre-clearance
requirements that were adopted in 1975 for those jurisdictions
with a history of disenfranchising language minorities. Would
you support expanding 4(f) to include counties like Queens?
Ms. Fung. Well, as a practical matter, because New York
City has three other covered counties under Section 5, when a
language assistance plan is being reviewed--which includes
language assistance in New York and in Kings County--then the
rest of the plan is also considered.
Senator Cornyn. So are you saying that it is required to be
pre-cleared?
Ms. Fung. So I think there is no need to expand Section
4(f) further. The fact that Section 203 covers Queens County
means that language assistance can be provided. If there are
problems with the implementation of a language assistance
program city-wide, then that would be submitted to the Justice
Department under Section 5, currently.
Senator Cornyn. Do you believe it should be compulsory pre-
clearance?
Ms. Fung. I believe that Section 5 has played an important
role in helping to secure effective implementation of language
assistance. Our experience has been that, if you are going to
have a program which is carefully tailored to meet the problems
that voters are facing, that citizens are facing, then it is
important to have a comprehensive program.
Senator Cornyn. I am still not sure what the answer is, but
I will give up.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Cornyn.
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman. I am pleased
that the Committee is finally moving forward on this, and I
appreciate the witnesses joining us today to testify regarding
the important provisions of the Voting Rights Act.
Let me start with Ms. Fung and Mr. Trasvina. We have heard
testimony today from some who think that Section 203 somehow
discourages language minorities from learning English. What do
you make of this argument based on your experience working with
language minorities?
Do you agree that enabling language minority citizens to
fully participate in the electoral process actually facilitates
further integration into American society and culture? I will
start with Ms. Fung.
Ms. Fung. Well, voting occurs a few days in every year.
Language assistance clearly does encourage political
participation. It is good not only for the voters, but also for
the decisionmaking processes themselves. Elected officials,
government officials, do not pay attention to communities if
they are not voting. It actually improves and expands the
process for consideration of various public policies.
In fact, even though language assistance is used for
voting, it does not limit the desire for individuals who are
not fully proficient in English to learn English and to be more
comfortable in English.
Another question that was raised earlier with respect to
how many languages keep coming under coverage for Section 203,
as people do not need to have language assistance, then that is
fine, they will not be using the bilingual ballots. But there
may still be others who do need the language assistance. There
is a constantly changing population.
I am glad that, in the bill, there is going to be more
periodic review of Section 203 coverage based on updated Census
data. That is a very important addition to the bill.
Senator Feingold. Thank you.
Mr. Trasvina.
Mr. Trasvina. I would concur with Ms. Fung, and that is
that community colleges, districts, school boards of education
are much more responsive when they know their language minority
citizens are voting in their elections, and they provide more
opportunities and more resources for English classes rather
than fewer.
Beyond that, the long waiting list for adult English
classes, those waiting lists went up after 1975, they did not
decrease. Just because you get a bilingual ballot on election
day certainly does not discourage English the rest of the time.
In fact, even U.S. English has cited data that shows that
Latinos in Miami more often have a greater percentage of
individuals saying it is essential for people to read and write
English perfectly than non-Latinos, so I think the love of
English is certainly there within the Latino community and
other language minority communities. Bilingual ballots
certainly do not discourage that.
Senator Feingold. Ms. Wright, how has the Justice
Department helped your county comply with Section 203 in a
cost-effective manner?
Ms. Wright. We meet, and we have met for many years, on a
regular basis with representatives from the Justice Department.
They review our data. I think they learn from us, as we learn
from them. We have a very complex jurisdiction.
I am not sure that I would say that they have been of
assistance to us. We have a very comprehensive program, very
professionally administered. They review it and they have sort
of put their seal of approval on that over the years, that it
is a good and comprehensive program.
Senator Feingold. All right. Thank you.
Let me go back to Ms. Fung and Mr. Trasvina. The argument
has been made that we do not need Section 203 because knowledge
of English is a prerequisite to naturalized citizenship.
But among other difficulties, this appears to completely
ignore an entire population of Americans who qualify for
language assistance under Section 203 and whose ancestors were
in this country long before those of most Americans.
During a previous hearing on the Voting Rights Act, we
heard very powerful testimony from Natalie Landreth, an
attorney with the Native American Rights Fund, who spoke about
the plight of certain Native American populations in terms of
participating in elections.
I raise this because I think it underscores the point that
this is not an immigration issue, this is about the fundamental
right of American citizens, naturalized and native-born, to
participate in the electoral process.
So Mr. Trasvina and Ms. Fung, would you like to respond to
the argument that Section 203 is unnecessary because of the
English requirements for naturalization? Mr. Trasvina?
Mr. Trasvina. Yes, Senator. The language requirement for
naturalization is less than it is for understanding the ballot
and understanding it effectively.
Beyond that, as you note, there are many native-born
citizens who are not fully proficient, that is, reading and
writing English. We are not talking about speaking English for
this purpose, we are talking about reading and writing English
in order to understand the ballot and be able to fill out the
forms. So, there is no discrepancy between the naturalization
level of English and the voting level of English.
It seems that the tenor is, well, the naturalization levels
should be same as the level for voting. We decided, in 1965,
that we would not have a literacy test for voting.
If you suddenly decided the only people who could vote are
those that can understand the ballot measures, we would wipe
out hundreds and thousands of voters, hundreds of thousands of
citizens, and we do not want to do that in this Nation.
Senator Feingold. Thank you.
Ms. Chavez. Could I just add one thing to that, Senator
Feingold? Because I think you have touched on a very
interesting point. I would direct the Committee to note that
the Native American languages that are covered by the Voting
Rights Act, some of them were not, in fact, written languages.
One of, I think, the true ironies of the Voting Rights Act
is that the Justice Department essentially had to oversee the
creation of written forms of some Native American languages in
order to provide ballots in those languages.
The kind of assistance that could have been provided orally
or through other means, frankly, would have been more
appropriate in those cases than having to actually try to
create written forms of a language that historically had no
written form.
Chairman Specter. Thank you, Senator Feingold. Referring
again to the letter from Ms. Jan Tyler, who is an election
official in Denver, she raises a question that the Census
Bureau interprets ``limited English proficiency'' to include
persons who self-identify themselves as speaking English ``not
at all,'' ``not well,'' or even ``well,'' or to see how someone
who identifies themselves as speaking English ``well'' would be
included, but that is at least her assertion.
She then goes on to say that she doubts that the truly
limited English-proficient population of Denver County meets
the 5 percent threshold that would require triggering under the
law.
But since the Census Bureau's threshold includes broad
interpretation of limited English proficiency and there is no
judicial review, should there be judicial review to correct
such errors by the Census Bureau? What do you think, Mr.
Mujica?
Mr. Mujica. Well, I do not see how they arrived at the 5
percent. On the other hand, why do you not just print
everything in 322 languages, all the languages that are spoken
in this country? I mean, how do we draw the line? Why does a
Russian not get help, or a Pole, or an Italian?
Chairman Specter. How would you draw the line?
Mr. Mujica. I would have it in English and I would spend
money teaching English to the immigrants. That is the only
thing that can help. That is the way it used to be here before
this political correctness sickness came to the county.
Chairman Specter. Mr. Trasvina, do you think there ought to
be judicial review of this issue?
Mr. Trasvina. The mechanism to cover Section 203 is
appropriate, with the Census Bureau determining both the number
as well as the language proficiency. There is not a need for
judicial review because it is a mathematical compilation of the
data.
Chairman Specter. It is mathematical if they apply the
standards correctly.
Mr. Trasvina. I do not think there is a question about the
standards being applied correctly. The Census Bureau looked at
this during the last reauthorization in 1992 and determined
that that was the appropriate line to draw, at ``very well''
versus ``well,'' because people tended to over-emphasize or
overstate their ability to speak English.
I would say also, in 1982 when Congress reauthorized the
Act, it raised the standards and cut out a lot of
jurisdictions. For those individuals who say, the jurisdictions
are just going to do it anyway, that was not the case. A lot of
jurisdictions dropped bilingual election services when they
were no longer required to by the Federal Government. We also
lost a lot of Federal enforcement of the Act.
Chairman Specter. Does anybody on the panel think there
ought to be judicial review? Mr. Chavez, you are nodding in the
affirmative. We will give you the last word.
Ms. Chavez. I can almost assure you that if Congress does
reenact Section 203, that there will be a judicial challenge.
There will be litigation on this issue.
Chairman Specter. Whether or not we allow for judicial
review?
Ms. Chavez. Well, I believe that Section 203, as written,
is unconstitutional and I can almost assure you, it will be
challenged.
Chairman Specter. All right. We do not have to provide for
judicial review if it is unconstitutional. That will take care
of itself.
Well, thank you very much, ladies and gentlemen, for coming
in today.
Just a couple of closing comments. We have had many
hearings on the reauthorization of the Voting Rights Act. We
face the potential for a court challenge. We have seen the
Supreme Court, in recent years, find it very difficult to
satisfy on an adequate record.
In U.S. v. Morrison, the legislation involving protecting
women against violence, the Chief Justice wrote a 5 to 4
opinion declaring part of the Act unconstitutional because of
the Congressional ``method of reasoning.'' Until I read his
opinion, I did not know that there was a deficient
Congressional ``method of reasoning.''
Maybe I should have, but I had not noticed that. At least
let me say, with a speech and debate clause and the right to
say whatever I want to here in this Committee room, I had not
noticed any difference between the method of reasoning of the
Supreme Court and Congress. It seemed to be a little, candidly,
high-handed to say our method of reasoning was deficient, but
since they have the last word, we have to be pretty careful.
Then they came up with the test of whether the statute was
proportionate and congruent. I had an occasion recently to talk
to the author of that standard, which was plucked out of thin
air. The air is very thin over at the Supreme Court; I do not
know if you have noticed it. [Laughter.]
But that standard was plucked out of thin air. I do not
know what ``proportionate and congruent'' means. We had two
cases under the Americans With Disabilities Act; in one case
they decided it was constitutional on access to a courtroom,
the other case, on discrimination, they decided it was
unconstitutional, 5 to 4. So we have to be pretty careful.
Now, there are strong views about concluding a mark-up
before the 4th of July. We will do our very best. It is sort of
like scheduling the Supreme Court hearings. We are going to do
it right, as opposed to doing it fast. There are others who
want to be sure that we have a very expansive record, so it is
a balancing act.
But I wanted to make those comments because I have had some
discussions with people about this and I thought I ought to put
it on the record and let everybody know what the thinking is as
to how we are proceeding.
But there is no doubt about the importance of the Voting
Rights Act. It is highly desirable to reauthorize it at an
early date, although it does not expire until next year, but we
are very mindful of that responsibility.
At the same time, we are now in conference on the
immigration bill. We are considering legislation on the
constitutionality of the NSA program on electronic
surveillance. We are trying to determine what is going on with
telephone companies providing records. We have an important
shield law for journalists before us. We are looking to bring
asbestos back to the floor. It has been a very, very active
season, but I want to assure you that the Voting Rights Act is
at the top of the agenda.
Thank you all. That concludes the hearing.
[Whereupon, at 11:15 a.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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