Spelling Out Solutions: Strengthening  Section 203 Language Protections in  the Voting Rights Act

I attempted to explain a paragraph of  complex legal affirmations in Spanish as  a voter waited to sign the last page of  his voter check-in. The paragraph was  available only in English on the page in front of him. Even though he understood the importance of his vote to his  broader community, all of the election materials that day were in highly complex,  legal English, a language he didn’t understand. Although voters are ensured group  language accommodations under Section 203 of the Voting Rights Act of 1965,  gaps in coverage mean that many eligible voters don’t receive them. Voters who  must navigate inaccurate translations, find personal translators, and complex legal  language in English often decide to vote less often or not at all. To address ongoing  gaps in voter participation, a concerted effort from local election administrators and  reform at the federal level are needed to protect voters. 

Gaps in Language Assistance Coverage 

Barriers persist to accessing non-English resources. In 1982 and 2006, amendments  to the Voting Rights Act of 1965 (VRA) created new legal protections for speakers  of a single language in areas if they represent at least 10,000 voters or 5% of the  voting population with an illiteracy rate higher than the national average (The 1982  Amendments to the Voting Rights Act, 2006). Of American households, 22 percent  speak a language other than English at home, and 8.2 percent report that they speak  English “less than well (“United States”, 2022; “Language Spoken at Home”, 2022).  Despite this, gaps in coverage mean that not all voters receive language protections  under the law. 

First, the VRA lacks any language coverage for African, Caribbean, and Arabic languages. The VRA revolutionized how many minority language speakers in the  US vote by requiring local jurisdictions to translate key documents (like ballots) and  collect data about multilingual poll workers. These protections under Section 203,  however, only apply to “persons who are American Indian, Asian American, Alaskan  Natives, or of Spanish heritage” and leave other major languages such as Arabic,  Haitian Creole, or Somali uncovered (The 1982 Amendments to the Voting Rights  Act, 2006). Some jurisdictions, including Dearborn and Hamtramck, Michigan, have  voluntarily passed legislation mandating ballots be provided in Arabic, however, gaps  in Section 203 leave voters with little recourse if their jurisdiction doesn’t voluntarily  provide translated resources (Kai-Hwa Wang, 2022). 

In addition, even when voters of a language group do receive coverage, translation  accuracy is loosely enforced. In 2012, Spanish-speaking voters in Arizona received  notices claiming the election was on November 8th rather than November 6th (Forbes  & Shelly, 2013). Similar issues occurred in Broward School District, Florida when a  ballot question proposing a school tax hike from a half to a full “mill” (referring  to the property tax rate) was mistranslated as increasing by a “million” in Spanish  (Travis, 2022) Although individuals can bring lawsuits against jurisdictions that fail  to provide language assistance, the high burden of proof and privacy restrictions  around election plans and data mean that suits from communities are rare (Higgins,  2015; Pitts, 2007). This problem is further worsened when undervoting leads to  a lack of representation, especially in local government (Marschall & Rutherford,  2015). As a result, many jurisdictions fall through the cracks of legal enforcement.  Given the issues with both implementation and enforcement, reform is critical to  protecting the voting rights of language minority groups.  

Policy Solutions 

Two primary models exist for addressing these gaps in the VRA: updating translation  practices at the local level and expanding coverage at the federal level. 

To increase consistency and voter comprehension, jurisdictions should create  standard language “word banks” based on local dialects. Translating election  documents is a complex task that requires election administrators to understand  regional dialects present in their district and make non-English or multilingual  translations available under a tight budget (“Making Sure the Translation is Right”,  n.d.). Further complicating the issue, only a third of jurisdictions report outreach to  local communities to create translations (Tucker & Espino, 2006). Word banks allow  election administrators to address both issues. By creating consistent language that  can be used year after year, word banks respond to financial concerns while also  increasing accuracy and usability for local communities.  

Reducing the compliance gap also requires increasing awareness among election  administrators. In a 2012 report, 45 percent of precincts covered under the VRA were  missing non-English materials or did not display them to voters (Voices of Democracy,  2013). Although part of this can be attributed to racist opposition to non-English  election resources, the primary issue is a lack of awareness among administrators and  poll workers. Of 361 jurisdictions surveyed, the majority believed that 5.5% of their population required language assistance; however, Census data signaled closer to  10% did (Tucker & Espino, 2006). Some have proposed creating financial and legal  penalties for jurisdictions that lack accurately translated materials, however, this  could place additional financial stress on jurisdictions that already lack the resources  to meet legal requirements (Friedrichs Benson, 2007). Instead, the lack of awareness  among election officials signals a need for greater collaboration on this issue.  

Others have proposed requiring jurisdictions to post language plans publicly or  submit them for review. One of the reasons it is so difficult to enforce language  accommodations is that jurisdictions are tasked with both identifying if their  populations qualify and creating accommodation plans. While some cities like  Minneapolis post these publicly, most do not. In response, some have suggested  a federal review process for language accommodation plans to increase national  compliance (Higgins, 2015). This, however, is likely to face legal challenges. In  2013, Shelby County v. Holder found similar preclearance policies in the VRA  unconstitutional. In addition, the national clearinghouse for elections, the Election  Assistance Administration, is regularly criticized for delays. As a result, requiring  federal review would likely increase the responsibilities of local jurisdictions without  substantially helping voters.  

Another legislative proposal involves increasing the number of languages covered. A  major challenge for voters is that group accommodations are only available to speakers  of Native American, Native Alaskan, Asian, and Spanish languages. Expanding  this can create an even playing field across the country, especially for speakers of African languages and Arabic. One study comparing covered and uncovered districts  found that the impact was greatest for languages other than Spanish due to the low  occurrence of voluntary language assistance, such as a poll worker in a noncovered  district who happens to speak the language (Fraga & Lee Merseth, 2016). As a result,  expanding the languages covered would target voters who wouldn’t receive assistance  otherwise. Given the vast majority of Arab Americans, “90%... over the age of 5[,]  speak Arabic at home, and nearly 35% speak English “less than very well,” this would  dramatically increase access to the polls (Forbes & Shelley, 2013). Although it would  increase the responsibilities of election officials, expanding the languages covered  would help target underserved populations. 

Another path for federal intervention is requiring oral assistance in key precincts on  a sliding scale. Under the current legislation, speakers of one minority language must  represent either 5 percent of the population of the entire jurisdiction or at least 10,000  people (The 1982 Amendments to the Voting Rights Act, 2006). Under the status quo,  Asian voters across language groups are far more likely to live in communities with  populations between 5,000 and 15,000 and narrowly miss population requirements.  In practice, lowering this threshold to 5,000 could increase the number of covered  districts by 31% and 131% for Latino and Asian voters respectively (Fraga & Lee  Merseth, 2016). Opponents of reducing the population requirement argue that it  would cause undue hardship for jurisdictions while serving fewer voters. Creating  limited precinct-level coverage, such as requiring oral translations only, would reduce the gap in coverage while addressing this concern (Ancheta, 2007). A sliding scale  like this would redirect limited bilingual poll workers to areas where they are needed  most without overburdening jurisdictions. As a result, limited language assistance at  the precinct level would ensure voters have language assistance even when the overall  county or jurisdiction does not reach the higher population threshold.  

Recommendations 

Overall, I recommend a three-pronged approach to increase outreach by election  administrators, expand languages covered by the VRA, and create a precinct-level  classification for populations that narrowly miss current requirements. A lack of  awareness, rather than a lack of need, is driving the lack of compliance nationally.  Increasing community outreach and coordination between election administrators  are critical to reducing this gap. To address broader gaps in coverage, federal  legislation should expand the definition of a language minority and ensure precinct level support for communities that narrowly miss the cutoff. This combination  of action from election administrators and policymakers is critical to protecting  language-minority communities and, as a result, American democracy itself. 

References 

Ancheta, A. N. (2007). Language accommodation and the Voting Rights Act. Santa Clara Law Digital  Commons. https://www.law.berkeley.edu/files/ch_11_ancheta_3-9-07.pdf Asian Americans Advancing Justice. (2013). (rep.). Voices of Democracy: Asian Americans and  Language Access During the 2012 Elections. Los Angeles, CA. 

Forbes M. & Shelly, J. (2013). Language Challenges and Voting. Election Assistance Commission.  https://www.eac.gov/sites/default/files/document_library/files/Language_ Challenges_and_Voting_Forbes_and_Shelly.pdf 

Fraga, B. L., & Lee Merseth, J. (2016). Examining the Causal Impact of the Voting Rights  Act Language Minority Provisions. The Journal of Race, Ethnicity, and Politics, 1(1), 31–59.  doi:10.1017/rep.2015.1 

Friedrichs Benson, J. (2007, September). Towards Full Participation: Solutions for Improvements  to the Federal Language Assistance Laws. American Constitution Society. http:// onlineresources.wnylc.net/pb/orcdocs/LARC_Resources/LEPTopics/VO/9122007_ AmericanConstitutionSociety_Benson_Issue_Brief.pdf 

Higgins, M. (2015). Language Accommodations and Section 203 of the Voting Rights Act:  Reporting Requirements as Potential Solution to the Compliance Gap. Stanford Law  Review, 67(4), 917-960. 

Hopkins, D. J. (2011). Translating into Votes: The Electoral Impacts of Spanish-Language  Ballots. American Journal of Political Science, 55(4), 814–830. https://doi.org/10.1111/ j.1540-5907.2011.00534.x 

Kai-Hwa Wang, F. (2022, November 4). Why Arabic Ballots Are Now Being Offered in Michigan  and What This Means for Voter Access in the U.S. PBS. https://www.pbs.org/newshour/ politics/with-ballots-in-arabic-how-one-community-is-voting-with-dignity-in-michigan 

King County Elections. (2023, June 13). King County Elections Provides Russian and Somali Ballots  for the First Time in Upcoming August Primary Election. King County. https://kingcounty. gov/en/legacy/depts/elections/about-us/newsroom/news-releases/2023/ June/13- russian-and-somali-ballots-for-primary.aspx 

Making Sure the Translation is Right: A Guide and Checklist for Reviewing Machine Translation. Center  for Civic Design. (n.d.). https://civicdesign.org/subtopics/making-sure-the-translation-is-right-a-guide-and-checklist-for-reviewing-machine-translation/ 

Marschall, M. J., & Rutherford, A. (2015). Voting Rights for Whom? Examining the Effects  of the Voting Rights Act on Latino Political Incorporation. American Journal of Political  Science, 60(3), 590–606. https://doi.org/10.1111/ajps.12182  

Pitts, M. J. (2007). Defining Partisan Law Enforcement. Stanford Law & Policy Review, 18(2),  325-350.  

The 1982 Amendments to the Voting Rights Act, 52 U.S.C. §10503 (2006). https://uscode. house.gov/view.xhtml?req=(title:52%20section:10503%20edition:prelim) 

Travis, S. (2022, August 18). In Florida, Broward Schools Set Out to Correct Spanish Translation Mishap  on Ballot. American Translators Association. https://www.atanet.org/industry-news/in florida-broward-schools-set-out-to-correct-spanish-translation-mishap-on-ballot/ 

Tucker, J. T., & Espino, R. (2006). Government Effectiveness and Efficiency? The Minority  Language Assistance Provisions of the VRA. Texas Journal on Civil Liberties & Civil Rights,  12(1/2), 163–232. 

United States. United States Census Bureau. (2022). https://data.census.gov/profile/United_ States?g=010XX00US 

Why We Ask About... Language Spoken at Home. United States Census Bureau. (2022, March 8).  https://www.census.gov/acs/www/about/why-we-ask-each-question/language/