Last week the 9th Circuit Court of Appeals held that Arizona allegedly violated the Voting Rights Act based, at least in part, on evidence that Hispanic voters have faced language-based barriers in the electoral process. The appellate court’s decision should prompt a fresh look at the newly-approved Election Procedures Manual, which for the first time in nearly 20 years eliminated state law requirements to print ballots and other election materials in both English and Spanish.
The new Election Procedures Manual provides that Arizona election officials need only print election materials in Spanish if federal law requires them to do so, making clear that no state law will govern officials’ duties going forward. Some or even many officials will likely continue printing in Spanish as a matter of prudence, but that misses the broader point: shouldn’t we have a law in Arizona that requires Spanish language voting materials?
To place the issue in context, it is worth considering the 9th Circuit’s choice words in Democratic National Committee v. Hobbs, issued on January 27, 2020:
. . . New Mexico’s constitution provides that the “right of any citizen of the state to vote, hold office or sit upon juries, shall never be restricted, abridged or impaired on account of . . . race, language or color, or inability to speak, read or write the English or Spanish languages.” It also requires the legislature to provide funds to train teachers in Spanish instruction. California’s constitution required all state laws to be published in Spanish as well as English.
By contrast, Arizona’s constitution did not include such provisions. Indeed, two provisions required precisely the opposite. The Arizona constitution provided that public schools “shall always be conducted in English” and that “[t]he ability to read, write, speak, and understand the English language sufficiently well to conduct the duties of the office without the aid of an interpreter, shall be a necessary qualification for all State officers and members of the State Legislature.”
The Court also focused on more recent history:
[T]he district court found that Maricopa County has repeatedly misrepresented or mistranslated key information in Spanish-language voter materials. (“Along with the State’s hostility to bilingual education, Maricopa County has sometimes failed to send properly translated education[al] materials to its Spanish speaking residents, resulting in confusion and distrust from Hispanic voters.”). In 2012, the official Spanish-language pamphlet in Maricopa County told Spanish-speaking voters that the November 6 election would be held on November 8. The county did not make the same mistake in its English-language pamphlet. Four years later, Spanish-language ballots in Maricopa County provided an incorrect translation of a ballot proposition.
Putting aside the merits, the Court’s opinion should place the newly-approved Election Procedures Manual in a new light.
All previous election procedures manuals, going back to at least 2002, contained a Spanish language requirement. For example, the 2014 Manual mandated that “The County Recorder or other officer in charge of elections shall supply printed instructions both in English and Spanish to early voters[.]” The draft 2018 Manual, which was not ultimately enacted, unambiguously stated that “All voting materials utilized in conjunction with Arizona elections must be printed and/or provided in both English and Spanish.”
However, the new 2019 Manual makes Spanish-language voting materials merely optional in all but four Arizona counties:
After the U.S. Supreme Court’s decision in Shelby County v. Holder, 570 U.S. 529 (2013), the State of Arizona is no longer a covered jurisdiction required to provide all voting materials in Spanish under the federal Voting Rights Act, Sections 4(b), 4(f)(3), and 4(f)(4). Nonetheless, counties and other political subdivisions are strongly encouraged to continue to provide voting materials in Spanish, as well as other languages previously required in the county. Pg. 159.
Thus, other than in Maricopa, Pima, Yuma and Santa Cruz counties (where Spanish language voting materials are required under federal law), neither the Secretary of State nor any of the remaining 11 counties have any obligation to translate voting materials into Spanish. This includes not only ballots and accompanying voter instructions, but also any election-related forms to be completed, notices mailed to households, polling place signs, publicity pamphlets, and even voting equipment instructions (both written and audio).
As mentioned, there are no doubt some “non-covered” jurisdictions that will continue to print voting materials in Spanish as a matter of policy. But some jurisdictions will begin to pull back (otherwise, this policy change would not have been requested). The question is, especially in light of the Hobbs decision, whether this is the time to provide less bilingual language assistance in Arizona.