Limary Ruiz Torres, a 51-year-old accountant in Lawrenceville, Ga., was eager to vote in this year’s presidential primary. But when Torres, who was raised in Puerto Rico and speaks limited English, received her mail-in ballot application in April, she felt shut out. “I cannot read the absentee ballot request I received this week,” she later told a federal court. Ultimately, she and another plaintiff, Albert Mendez, sued the county and state.
Roughly 11.5 million voting age citizens have limited proficiency in English, and their rights are supposed to be protected by the Voting Rights Act, which requires local election officials to provide language accommodations whenever the population of those who need them reaches certain thresholds. In many counties and cities, and increasingly states, those populations are big enough to swing elections, making language access all the more pressing this November.
There are more than 16,000 Spanish-speaking voters in Gwinnett County, Ga., with limited English proficiency, more than enough to trigger the law’s protections. But Torres and Mendez fell into a gaping loophole. Since this absentee ballot application came from the state, which unlike the county isn’t subject to the language-access portion of the Voting Rights Act, the state and county argued that no law was broken. On October 5, a Trump-appointed district judge agreed.
In the past, this would be the type of case in which the Department of Justice’s civil rights division might intervene. “Taking advantage of this apparent loophole cynically flouts the legislative intent of the VRA language provisions—to ensure that limited-English-proficient voters can cast a fully informed ballot,” Susana Lorenzo-Giguere, who worked on language access cases for the Department of Justice (DOJ) and is now an attorney for the Asian American Legal Defense and Education Fund, told me in an e-mail.
But the DOJ is nowhere to be seen. Since January 2017, when President Donald Trump took office, the DOJ civil rights division has not launched a single lawsuit or consent agreement under these language provisions. In that period, the DOJ has filed just one amicus brief upholding the language protection provisions of the VRA.
In response to detailed questions about the lack of lawsuits and briefs filed under language access laws, a spokesperson for the Department of Justice said that the department has continued to send federal observers to monitor compliance. “The department is firmly committed to enforcing all laws, including the Voting Rights Act,” said Alison Kjergaard, a spokesperson for the department, in an e-mail. She did not point to any newly initiated litigation or briefs.
By comparison, between 1975 and 2016, the DOJ initiated 53 lawsuits and consent decrees to enforce the Voting Rights Act’s language protections according to its own data, suing jurisdictions from California to Massachusetts for failing to provide bilingual election materials or to allow voters assistance from people of their choosing.
Some advocates worry that this fall will see more voting rights violations, including language access violations, than in the past. As the country’s Latino and Asian American populations grow and spread into formerly monolingual communities, jurisdictions that never before had to think about this issue now have to accommodate non-English speaking voters.
Much of that growth is happening in the South, in states like Georgia and Florida that are part of the conservative US Court of Appeals for the 11th Circuit. It’s there that new interpretations of language access law are being hashed out by recently appointed justices, according to Juan Cartagena, president of the legal advocacy group Latino Justice. The confluence of migration into the South and a conservative judiciary there is “a real damn kick in the ass,” he said.
John C. Yang, president and executive director of the advocacy group Asian Americans Advancing Justice, has been negotiating with local jurisdictions to protect immigrants’ right to vote in the absence of DOJ enforcement. The Trump DOJ, he told me, “has failed in its mission to protect the people’s right to vote.”
A well-established right
The right to vote in another language is a cornerstone of the Voting Rights Act, passed in 1965 and significantly amended a decade later. In 1965, the Department of Justice joined its first lawsuit to compel a local jurisdiction to abide by the VRA’s language-minority protections and, until Trump came to power, steadily fought for these rights.
For the most part, once a jurisdiction has more than 10,000 voting-age citizens of a single language minority—or more than 5 percent of its population, whichever comes first—all elections in that jurisdiction must be bilingual in that minority language. This applies not only to ballots, but to nearly all aspects of the election process, including application forms, websites, signs, and official communications.
As of 2016, the most recent round of Census Bureau determinations, 263 counties and county equivalents and three states were covered under such protections. There are also special provisions in place for US citizens educated in American schools where the language of instruction isn’t English, like residents of Puerto Rico, who have the right to bilingual elections anywhere in the country.
Still, millions of Americans with limited proficiency in English fall outside these criteria. Many languages, such as Arabic and Haitian Creole, do not qualify for protection, no matter the size of the population, because they were not included on the original list of language minorities written by Congress in 1975. Attempts to have Congress extend language protections to additional communities have been unsuccessful, despite the growing need.
For these voters, excluded from coverage, there is an additional catch-all protection: Any voter who cannot use the ballot on their own, whether on account of disability, illiteracy, or limited English proficiency, can get help voting from anyone they want, as long as that person isn’t a representative of their employer or union. It’s this last right, advocates say, that is most often trampled upon by poll workers who don’t understand voters’ rights to assistance. It’s also the only one to receive attention from the DOJ since Trump took office.
In 2014, Mallika Das, a native Bengali speaker, tried to vote with the help of her son in Williamson county, Tex. State law, contrary to the Voting Rights Act, stipulated that she could not receive interpretation from anyone who wasn’t a registered voter in the same county, disqualifying her son. The DOJ expressed an early interest in the case during the Obama era. Then, after years of inaction, it filed a brief on February 6, 2017—17 days after Trump’s inauguration—affirming that the state’s law violated the VRA. “All of a sudden it was just entered onto the docket,” said Jerry Vattamala from the Asian American Legal Defense and Education Fund, who was the lead attorney for the plaintiffs on the case. “It was in the very early, early stages of the Sessions DOJ so it seems like somebody was able to slip that in before other people were able to put a stop to it.” It would be the last time the DOJ took a public stand on language access.
Missing in action
As the DOJ remains silent on the issue of language access in elections, problems are cropping up around the country, leaving private organizations to fill the gaps.
Election Protection, a coalition of advocacy organizations that provide a suite of voter assistance hotlines, says it received language access complaints from voters in Florida, Texas, Pennsylvania, and California during the 2018 midterms. According to an estimate from DOJ attorneys, the Civil Rights Division receives roughly 3,000 complaints per year regarding voting. Though it does not release the breakdown of problems raised, advocates say that language access issues are common.
One of those complaints came from Dona Kim Murphey. In 2018, she and fellow Korean Americans tried to offer Korean-language interpretation in Harris County, Tex., but were told by poll workers that they were too close to the polling place. Though campaign volunteers typically need to stay outside of a 100-foot electioneering boundary, Murphey told me that she finds it “laughable” that interpreters are treated the same way. “The ADA folks, they’re there, they offer people help at the door,” she said. “I feel like translators should have the same opportunity.”
Murphey said she called the DOJ’s hotline and was called back with a promise of an investigation, but that she had no further interactions with them. The Department of Justice declined to comment on the case.
Since then, Murphey said, the community and the county have reached a mutual understanding—the volunteer interpreters will approach voters only outside the 100-foot boundary, and the county will not try to stop them from accompanying voters inside the polling sites to interpret. The county has also hired two bilingual Korean-speaking poll workers. “We didn’t push it any further,” she said, “because at the time we were just glad to get that.”
Other examples are easy to find. Like thousands of other Puerto Ricans, Marta Valentina Rivera Madera, 69, fled the damage from Hurricane Maria in October 2017 and relocated to Florida. Her new home, Alachua County, conducted elections entirely in English, which worried her. “I want to be able to vote in the language I speak best because I take voting very seriously and have always educated myself about the candidates and issues before casting my ballot,” she said in a statement to advocates at the time.
Less than a year after arriving in Florida, she became the class representative in a lawsuit trying to force 32 Florida counties with large populations of Puerto Rican residents with limited English proficiency to conduct bilingual elections. The judge in Rivera Madera’s case, an Obama appointee, was baffled. “It is remarkable that it takes a coalition of voting rights organizations and individuals to sue in federal court to seek minimal compliance with the plain language of a venerable 53-year-old law,” he wrote in his scathing ruling. More than two years later, there are accommodations in place, but private negotiations between plaintiffs and the counties over a permanent arrangement are ongoing. Critics say private lawsuits like this have become the norm.
“Since Trump was elected, the private voting rights bar has had to shoulder all the burdens of litigation,” said Gerry Hebert, a voting rights attorney who worked for the DOJ for 21 years. “Previously you had the DOJ, which had more resources than any of us, would be out there enforcing the act.”
Without DOJ resources being deployed to protect voters, the situation has become akin to a game of “whack-a-mole,” Vattamala told me. “It’s back to pre-VRA where you’re just constantly litigating these voter suppression tactics in a lot of the formerly covered jurisdictions.… It’s too little too late in a lot of places.”
Inside the department
Several former employees of the voting section as well as outside advocates who litigate voting rights cases attribute the slowdown to Trump’s political appointees at the department. The voting section has a large staff of civil servants, and is led by a career civil servant, Chris Herren, but it can bring cases only with the approval of the assistant attorney general for civil rights, a political appointee. The current officeholder, Eric Dreiband, was a tendentious choice for the role, not least because of his track record defending corporations against employment discrimination claims brought, in some cases, by the federal government itself. In 2016 he represented the University of North Carolina as a defendant in an Obama-era DOJ civil rights lawsuit over the right of trans people to use the bathroom corresponding with their gender identity.
Career attorneys conduct investigations and create memos detailing why the DOJ should intervene in a violation of someone’s voting rights, and those memos are reviewed by higher-level political appointees. Historically, political appointees at the department have allowed civil servants to enforce voting rights largely as they see fit, even under Republican presidents. During the Reagan administration, former employees say, career civil servants were able to bring cases. Hebert, the former staffer, said Reagan appointees rarely, if ever, turned down a request for enforcement from the career staff.
The Voting Section became more politicized under President George W. Bush, whose administration staffed the Civil Rights Division with controversial lawyers such as Hans von Spakovsky and J. Christian Adams. Von Spakovsky has since risen to prominence in Republican circles for promoting the discredited notion that voter fraud is a widespread problem in the United States. At the time, many inside the department saw his appointment as a conservative power grab. During his tenure, more than half of the members of the Voting Section quit in protest. The partisan hiring practices of Bush-appointed civil rights head Bradley Schlozman sparked a highly critical 2008 report from the DOJ Office of the Inspector General that called him “unsuitable for federal service.” Schlozman’s lawyer at the time called the report “inaccurate” and “biased.”
Still, even Bush’s DOJ continued enforcement of the language-minority provisions of the Voting Rights Act. During the George W. Bush administration, the DOJ launched 31 actions to enforce language-minority rights. “That was done out of a political belief that Republicans could win Hispanic votes,” said William Yeomans, who spent two decades at the Civil Rights Division, including as the former acting assistant attorney general for civil rights. “I don’t think that Republican push exists anymore.” (A 2013 Inspector General’s report was unable to substantiate the notion that Bush’s DOJ based its actions on political calculations).
Today, department veterans suspect, the political appointees have created a bottleneck through which few, if any, cases can pass. Advocates accustomed to working closely with the DOJ prior to 2016 say that under Trump, it’s been near-total radio silence.
Perhaps, some say, that’s better than the alternative, given the current administration. They point to a Texas voter ID case, where the DOJ reversed the position it had held under the Obama administration that the voter ID law was racially discriminatory. For the voting rights community, it was shocking. When asked if they would welcome DOJ involvement in ongoing cases, some advocates told me, remarkably, they’re not sure which side the DOJ would be on. “Do you welcome DOJ in general?” Cartagena mused. “First, I want to know what they’re going to say.”