Language accommodations and section 203 of the Voting Rights Act: reporting requirements as a potential solution to the compliance gap.

• Author: Higgins, Matthew

INTRODUCTION I. Shelby County mo Recent Proposals for Disclosure A. Shelby County and the Legislative Response B. The Case for Reporting Requirements for Voting Changes II. Sustained Vulnerability of LEP Voters and Current Legal Protections A. Reauthorization of Section 203 and the Law's Vague Standards B. Section 203 as a Partial Solution to LEP Voters' Low Participation Rates and Sustained Vulnerability C. A Confusing Legal Standard and Widespread Misperceptions Largely Contribute to Jurisdictions ' High Rates of Noncompliance with Section 203 D. The Infrequency of Enforcement Likely Contributes to the Compliance Gap III. Proposing and Defending Reporting Requirements for Section 203 A. Mechanics of Disclosure in the Section 203 Context B. Reporting Requirements Will Increase Section 203 Compliance Primarily by Correcting Confusion Among Election Officials C. Reporting Requirements Will Enhance the Effectiveness of Poll Watching, Place Informal Pressure on Election Officials, and Ease Section 203's Litigation Burden 1. More efficient and effective poll watching 2. Easing section 203's litigation burden D. Exploring Alternative Proposals and Counterpoints: The Virtue of Embracing Slight Modifications to Spur Compliance and Focusing on the Imperative of Universal Enforcement of Voting Laws E. Applying the "Current Needs" Standard Introduced in Shelby County, Section 203 and This Plan Are Likely Constitutional CONCLUSION INTRODUCTION

To state it mildly, Shelby County v. Holder (1) was a significant decision. The merits of the opinion are perhaps debatable, (2) but the final result is not. By ruling section 4 of the Voting Rights Act (VRA) unconstitutional, the decision effectively transformed the "heart of the Voting Rights Act" (3)--section 5--into a "nullity." (4)

The response from various commentators and legislators alike was immediate and in some cases powerful. (5) Indeed, Congress has demonstrated at least the limited capacity to foster bipartisan support and craft a compromise bill to "restore the protections of the Voting Rights Act." (6) Many proposals attempt to reinfuse legal force into section 5 "preclearance"--that is, to devise a remedy that once again requires high-risk jurisdictions to receive approval from the federal government before changing their voting laws. (7)

Other proposals, however, are more novel. Among them is the plan to create a nationwide disclosure requirement, mandating that jurisdictions publicly disclose certain prospective changes to their voting laws before those changes take effect. One of the proposal's animating rationales is to identify and ideally prevent violations before such laws jeopardize important voting rights. Upfront, complete, and accessible information will decrease the plaintiffs' burden in identifying and challenging discriminatory voting practices and, in theory, will deter bad actors from passing such laws at the outset. This proposal was most recently articulated by Samuel Issacharoff, (8) and a version of it has been substantially incorporated into the multifaceted voting rights bill currently before Congress. (9)

As commentators and Congress each turn their attention to refining the "two distinct structures" (10) of the VRA--section 2 and section 5--one of the most pressing voting rights issues of our time goes largely unaddressed: limited English proficient (LEP) voters continue to face obstacles as federal voting laws designed to enhance their participation remain critically underenforced. Section 203 of the VRA guarantees oral and written language assistance to certain

tain voters "unable to speak or understand English adequately enough to participate in the electoral process." (11) Unfortunately, compliance with this provision is unacceptably low. Although the compliance rates have not been widely studied, one examination suggested that forty percent of section (203) covered (12) jurisdictions fail to provide written and oral language assistance to LEP voters, (13) as is required by law. Moreover, even for those jurisdictions that do provide the requisite accommodations, the quality of assistance varies tremendously. (14)

Unlike section 2, which forbids states and localities from passing voting laws with a racially discriminatory effect, (15) section 203 creates and imposes affirmative duties. Section 203 applies only to Spanish, Asian languages, and Native American and Alaska Native languages, (16) and is governed by a coverage formula that is updated every five years. (17) If coverage is triggered in a state or jurisdiction, election officials must then administer bilingual elections. (18) All written election materials, such as ballots, voter registration materials, and ballot instructions, must be translated, and oral assistance must be available to voters in the appropriate languages. (19)

Under section 203's coverage formula, two criteria must be satisfied for the provision to apply in a given state or jurisdiction. First, the LEP citizens of voting age in a single protected language group must (1) number more than 10,000, (2) comprise more than five percent of all citizens of voting age, or (3) comprise more than five percent of all American Indians of a single language group residing on an Indian reservation. (20) Second, the illiteracy rate of the citizens of the LEP group must exceed the national illiteracy rate. (21)

The stakes of fully implementing section 203 are considerable. The compliance failures undermine the rule of law, contribute to the sustained vulnerability of LEP voters, and significantly impact political dynamics on the national, state, and local levels. While section 203 has been effective when properly implemented, (22) voting rates in the LEP community continue to substantially lag behind the electorate as a whole. (23) In the 2012 presidential election, 48% of eligible Hispanic voters cast ballots, as opposed to 66.6% of blacks and 64.1% of whites. (24) The turnout figures were even lower for Asian Americans and American Indians. (25) LEP citizens make up a large portion of Latino, Asian, and American Indian communities, (26) and English proficiency has been shown to significantly influence voter turnout, independent of other factors like age or income. (27) As the number of protected LEP voters continues to grow, low turnout rates and obstacles to participation will likely become more visible and significant. As of 2011 census calculations, section 203 applied in jurisdictions with 5,578,600 LEP voting-age citizens, representing a 38.6% increase from 2002. (28)

Much of the section 203 compliance gap is rooted in the law's vague mandates, as well as the requirement that election officials themselves (1) assess the need for language accommodation in their jurisdictions and (2) develop their own compliance plans. (29) Election officials often misunderstand the law's requirements, underestimate the numbers of LEP voters in their jurisdictions, or both. (30) As a result, many election officials only partially enforce the law, while others fail to do so altogether.

In this Note, I argue that a version of the "voting changes" reporting requirement currently proposed in the Voting Rights Amendment Act of 2014 (31) (VRAA) should be applied to section 203. Proponents of the "voting changes" disclosure requirement argue that the availability of advance information in the voting context is warranted due to the particular expense entailed in identifying and challenging violations (32) and the preferability of defeating "proposed restrictions on voting" prior to, as opposed to after, an election. (33) Although the mechanisms by which the disclosure proposals function slightly diverge, in both instances disclosure will cheaply and efficiently promote substantive compliance before violations occur.

My proposal would require section 203 covered jurisdictions to issue reports documenting the manner in which they will comply with section 203's requirements in an upcoming election. First and foremost, this proposal would allow jurisdictions to ensure that their compliance plans properly adhere to the law's complex and context-specific requirements. The proposal has the additional benefit of providing increased opportunity for third-party involvement through ex ante collaboration with election officials and more targeted and effective poll watching. (34) At the outset, this requirement would enable private parties to use public reports to alert jurisdictions of inadequacies or misperceptions contained in their compliance plans. Then, more strategic and effective poll watching would informally pressure election officials to comply, reduce the litigation burden for private parties, and provide the Department of Justice (DOJ) with useful information to lessen enforcement costs and potentially initiate more enforcement actions. Moreover, on the margins, public disclosure may deter bad actors who otherwise would intentionally violate section 203's requirements.

This proposal raises the following question: If election officials do not comply with section 203's substantive requirements, why would they comply with additional reporting requirements? The answer lies in part in the ease of enforcing the reporting requirement itself. Currently, the primary means to spur compliance with section 203's substantive requirements is an enforcement action brought by the DOJ, (35) although private litigants--usually civil rights groups--can, and sometimes do, bring claims. (36) Such litigation is expensive, uncertain, and of course hampered by personnel and resource constraints within the DOJ and at civil rights organizations. To win a section 203 lawsuit, the DOJ or a private plaintiff must present "detailed and widespread evidence" of violations "reported by location (e.g., neighborhood, county), poll site and election" (37) --an endeavor that, needless to say, requires a "great deal of time, resources, and funds." (38) For a variety of...