Photo credit: Newsday

For some reason I've become obsessed with NYS Attorney General Eric Schneiderman's recent order ending 'English-only' elections in ten upstate counties by applying a federal law enacted to ensure voter participation by American citizens of Puerto Rican heritage that are illiterate in English. The law was originally written to overcome literacy tests or other devices used as barriers to voter registration. And in the forty-five years since the statute's constitutionality was affirmed, Puerto Rican Americans have achieved a literacy level and English-proficiency on par with the rest of the nation.
I strongly believe that Mr. Schneiderman is improperly using Puerto Rican voters as the wedge to hold open the door to greater electoral participation by other Hispanic voters who otherwise wouldn't qualify under Section 203 of the Voting Rights Act. I make my case below:

State OAG Civil Rights Bureau Chief Kristen Clarke notified those counties’ election commissioners that the Voting Rights Act requires jurisdictions with significant numbers of Puerto Rican residents with limited English to ensure they can vote. The BOEs were instructed to provide bilingual ballots and other bilingual voter assistance or face civil liability. Those same counties have larger numbers of Hispanic residents who are not Puerto Ricans.

So far the City of Schenectady, Dutchess County and Ulster County have said that they are taking steps to comply in time for the September 13 primary election. Montgomery County election officials say they are working with the OAG and Centro Civico in advance of the November election.

As I pointed out in two earlier posts, Orange County (NY) recently signed a federal consent decree accepting Section 4(e) and Section 203 minority language rights coverage because the Hispanic (not just the Puerto Rican) population in the county had grown to over 29,210 people.

According to the USDOJ press statement,

Section 4(e) of the Voting Rights Act requires that jurisdictions with significant Puerto Rican populations cannot deny an individual’s voting rights based on their ability to read, write, understand or interpret any election matter in English. ” 

That Section 4(e) of the federal VRA applies to citizens educated in Puerto Rico who are categorized as limited-English proficient is unquestioned. The statute, however, does require evidence proving that less than 50% of language minority citizen voting age population (CVAP) was registered to vote or less than 50% of CVAP voted in the most recent presidential election. The OAG did not offer such evidence.

Unlike Section 203, Section 4(e) does not specify what constitutes a “significant number” of Puerto Rican residents with limited English. That’s because it’s a prohibition against literacy tests or having voters prove that they have completed a certain level of schooling (“test or device”).

Interestingly, around the time that Orange County acquiesced to the consent decree, the pro-statehood government of Puerto Rico announced a ten-year plan to transition to English as the language of instruction in public schools. Prior to 1948, English was the language of instruction in public high schools in Puerto Rico.

I understand that Section 4(e) was written to apply to Puerto Rican voters born and educated in the island Commonwealth at a time when states and localities maintained literacy requirements for voters. In this instance, the law applies to citizens educated in “American flag schools” (a rather quaint designation) in Puerto Rico who are categorized as limited-English proficient. The law had to maintain the legal fiction that the territory was in “free association” with the United States (although it was and remains a colony) and its residents American citizens.

Until the mid-1960s, New York law permitted a voter to qualify either by passing an English literacy test or by presenting a certificate showing completion of the sixth grade of an approved elementary school in which English was the language of instruction.

In Cardona v. Power (1966), the US Supreme Court upheld the constitutionality of § 4(e) of the Voting Rights Act of 1965 and ordered NY courts to determine if the state’s English literacy requirement was valid in light of § 4(e). Justices Douglas and Fortas dissented holding that the NY law violated a fundamental right and violated equal protection. State court later invalidated the literacy test law.

In 1973, Congress added Section 203 to the VRA enumerating protections for language minorities, not just their right to vote. Bilingual ballots and bilingual voter assistance were established to ensure meaningful electoral participation for language minorities with limited-English proficiency.

The Congress concluded that 'English-only' elections excluded language minority citizens from participating in the electoral process. And Congress declared that in "many areas of the country, this exclusion is aggravated by acts of physical, economic, and political intimidation." I'm sure that the federal prohibition against English-only elections will come as a surprise to many Americans.
Although technically outlawing 'English-only' elections, the new statute also enumerated certain thresholds that had to be met in order to trigger the prescribed voter assistance, i.e., 5% language minority group CVAP or 10,000 or more CVAP; less than 50% language minority CVAP voter registration or less than 50% CVAP voting in last Presidential election.
The Voting Rights Act of 1965 and its subsequent revisions were enacted to deter state and local governments from preventing or otherwise harming the electoral participation of groups based on their race, ethnicity or language. Since Puerto Ricans and other aboriginal Americans were absorbed against their will into the United States, I understand the sentiment against requiring them to participate in ‘English-only’ elections. However, I do think that there should be some sunset on outdated legal remedies that only serve to perpetuate disunion and racial, ethnic and language silos.

It will be interesting to see if this action by Attorney General Schneiderman is used to justify creating new racial and ethnic silos in urban centers outside of New York City. I am concerned that creating racial and ethnic silos only serves to institutionalize the political marginalization of minority groups.

I believe that the VRA has been used improperly to coerce the creation of racial silos across our nation. The law should serve to deter state and local governments from hindering communities, particularly black communities, from otherwise electing representatives of their choosing. Sadly, the VRA is used to politically institutionalize the racial and ethnic segregation and political isolation it was enacted to remedy.

I can only hope that AG Schneiderman’s effort increasing voter participation for allegedly, er, previously excluded voters will redound to the benefit of all New Yorkers and not just to one political party or the other.

[Cardona v. Power – 384 672 (1966)]