Happy 2022! As the new year begins, so too does the onset of a federal election year, with elections for the U.S. Congress and many statewide offices on the ’22 ballot.
2022 also marks the first year of the new Voting Rights Act language assistance provisions. The U.S. Department of Justice describes the significance of the Voting Rights Act’s language requirements as follows:
“Through the use of various practices and procedures, citizens of language minorities have been effectively excluded from participation in the electoral process. Among other factors, the denial of the right to vote of such minority group citizens is ordinarily directly related to the unequal educational opportunities afforded them resulting in high illiteracy and low voting participation. The Congress declares that, in order to enforce the guarantees of the fourteenth and fifteenth amendments to the United States Constitution, it is necessary to eliminate such discrimination by prohibiting these practices, and by prescribing other remedial devices.”
Legal Requirements for Election Language Assistance
On December 8, 2021, the U.S. Census Bureau issued a notice identifying the cities, counties, and states subject to the language assistance provisions of Section 203 of the Voting Rights Act. See Voting Rights Act Amendments of 2006, Determinations Under Section 203, 86Fed. Reg.69,611 (Dec. 8, 2021).
The Director of the Census is authorized by the Voting Rights Act to make the language assistance determinations. The Director’s determinations are not reviewable by any court and are effective upon publication in the Federal Register. See 52 U.S.C. § 10503(b)(4). The new determinations are based upon the most recent five years of American Community Survey (ACS) census data. The new determinations update those last made in 2016.
As a result of the new determinations, a total of 331 political subdivisions nationwide are now covered by the Voting Rights Act’s language requirements. This is an increase of 68 jurisdictions from the 263 political subdivisions covered by the 2016 determinations. Demographic changes since 2016 have led to 19 states now having more covered political subdivisions than under the 2016 determinations.
The Voting Rights Act has two language assistance provisions, Sections 203 and 4(e). They both require comprehensive language assistance in voting and elections, including for:
- Voter registration materials ·
- Voting notices (including information about opportunities to register, registration deadlines, time/ places/locations of polling places, and absentee voting)
- Voting materials provided by mail ·
- All election forms
- Polling place activities and materials
- Instructions
- Publicity
- Ballots
- Other materials or information relating to the electoral process
The Voting Rights Act’s language requirements apply to four groups: Alaska Natives; American Indians; Asian-Americans; and Hispanics as well as the distinct languages and dialects within those groups.
Under Section 203(c) of the Voting Rights Act, a state or political subdivision is covered and required to provide language assistance if it has a sufficient number of “limited-English proficient” voting-age U.S. citizens (persons 18 years and older) who experience a higher illiteracy rate than the national average. “Limited English proficient” is defined as the inability “to speak or understand English adequately enough to participate in the electoral process.” 52 U.S.C. § 10503(b)(3)(B).
The Census Director determines Section 203 coverage using three population formulas (or “triggers”) applied to each jurisdiction: (1) more than five percent of the voting-age U.S. citizens are members of a single language minority and are limited-English proficient; (2) more than 10,000 voting-age U.S. citizens are members of a single language minority and are limited-English proficient; or (3) in a political subdivision containing any part of a Native American reservation, more than five percent of the American Indian or Alaska Native voting-age U.S. citizens residing on the reservation belong to a single language minority and are limited-English proficient. See 52 U.S.C. § 10503(b)(2)(A).
New Places Required to Provide Election Information in Other Languages
- The number of states covered in whole or in part by Section 203 has increased from 29 states to 30 states.
- Section 203 coverage has been extended to political subdivisions of two states not covered under the previous 2016 determinations: Minnesota for an American Indian language and Hmong, and Ohio for Spanish.
- The number of jurisdictions covered by Section 203 does not include the total number of jurisdictions that must provide language assistance in voting. The actual number of “political units,” such as cities, school districts, water districts, and fire districts covered by Section 203 is likely many times greater.
- Language assistance for Seminole, which was required in past Section 203 determinations, was restored in Glades County, Florida;
- Language assistance in the Shoshone language, which was required in past Section 203 determinations, was restored in Nye County, Nevada;
- Spanish language assistance must be provided statewide in California, Florida, and Texas, and a total of 232 political subdivisions in 26 states, an increase from the 214 political subdivisions covered in 26 states under the 2016 determinations;
- Language assistance must be provided in Asian languages in 32 political subdivisions in 14 states, up from the 27 political subdivisions in 12 states covered in the 2016 determinations;
- Wisconsin is now covered for Native American languages spanning 44 tribal areas in the state;
- Two counties in the Washington, D.C., region — Prince George’s County (MD) and Prince William County (VA) now for the first time must offer Spanish language access assistance to limited English proficient people.
Prince George’s County Council Member Deni Taveras spoke about the impact of the new language requirements for her constituents and county residents. Her comments speak to the vital importance of ensuring that all citizens have full access to elections and voting regardless of the languages they speak.
She said that while non-English speakers already have access to ballots in Spanish, Council Member Taveras hopes that now with the new Census determinations and Voting Rights Act language coverage, more assistance at the polls will be available.
“To me, what that would mean is that every person is asked, ‘Do you need help? Do you need help filling out your ballot,” Taveras said? “We do need Latino people that say ‘Do you need somebody in your language to go help you vote?
Latinos are countywide, so we’ve got to make sure we’ve got Latinos at every precinct,” Taveras added.
Taveras stressed this need because it could be someone’s first time voting, so they may not know their rights or know whom to ask for help. She also underscored the importance of language access for the Spanish-speaking community since Latinos are the fast-growing population in Prince George’s County. Latinos make up nearly 20 percent of the local population, according to the Census.
“We need to start ensuring that the county and all county services and the staff reflect the population that lives in the county,” she says.
© Bruce L. Adelson 2022. All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney. Mr. Adelson is a faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness. Mr. Adelson’s blogs are a Bromberg exclusive