S. HRG.109–669

CONTINUING NEED FOR SECTION 203’S PROVISIONS FOR LIMITED ENGLISH PROFICIENT

VOTERS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JUNE 13, 2006

Serial No. J–109–84

Printed for the use of the Committee on the Judiciary

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CONTINUING NEED FOR SECTION 203’S PROVISIONS FOR LIMITED ENGLISH 

PROFICIENT VOTERS 

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30–760 PDF 2006

S. HRG.109–669

CONTINUING NEED FOR SECTION 203’S PROVISIONS FOR LIMITED ENGLISH PROFICIENT

VOTERS

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JUNE 13, 2006

Serial No. J–109–84

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE,Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

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C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 1

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 3

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 287

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 22

WITNESSES 

Chavez, Linda, Chairman Center for Equal Opportunity, Washington, D.C. .... 15

Fung, Margaret, Executive Director, Asian American Legal Defense and Education Fund, New York, New York ..................................................................... 9

Kirsanow, Peter N., Member, National Labor Relations Board Commissioner, 

Commission on Civil Rights, Cleveland, Ohio ................................................... 11

Mujica, Mauro E., Chairman of the Board, Chief Executive Officer, U.S. 

English, Inc., Washington, D.C. .......................................................................... 7

Trasvin ̃ a, John, Interim President and General Counsel, Mexican American 

Legal Defense and Educational Fund, Los Angeles, California ....................... 6

Wright, Deborah, Acting Assistant Registrar-Recorder, Department of Registrar-Recorder, Los Angeles, California ............................................................ 13

QUESTIONS AND ANSWERS 

Responses of Linda Chavez to questions submitted by Senators Specter and 

Coburn ................................................................................................................... 34

Responses of Margaret Fung to questions submitted by Senators Specter, 

Coburn, Leahy and Kennedy ............................................................................... 36

Responses of Peter N. Kirsanow to a question submitted by Senator Coburn ... 51

Responses of John Trasvin ̃ a to questions submitted by Senators Leahy, Kennedy, Coburn, and Specter .................................................................................. 53

Responses of Deborah Wright to questions submitted by Senators Specter, 

Coburn, Kennedy and Leahy ............................................................................... 94

SUBMISSIONS FOR THE RECORD 

American Federation of Labor and Congress of Industrial Organizations 

(AFL–CIO), William Samuel, Director, Department of Legislation, Washington, D.C., letter ............................................................................................... 103

American Jewish Committee, Richard T. Foltin, Legislative Director and 

Counsel, Washington, D.C., letter ...................................................................... 105

Asian American Justice Center, Karen K. Narasaki, President and Executive 

Director, Stewart Kwoh, President and Executive Director, Asian Pacific 

American Legal Center, Tuyet Le, Executive Director, Asian American Institute and Gen Fujioka, Interim Executive Director, Asian Law Caucus, 

Washington, D.C., letter and statement ............................................................ 106

Associated Press: 

September 25, 2002, article ............................................................................. 134

Houston, January 16, 2005, article ................................................................. 136

Salt Lake City, August 8, 2005, article .......................................................... 138

Milwaukee, April 26, 2006, article .................................................................. 140

Atlanta Journal-Constitution: 

October 28, 2004, article .................................................................................. 143

May 29, 2006, article ........................................................................................ 146

Page

IV

Bullock, Charles S., III, and Ronald Keith Gaddie, prepared for American 

Enterprise Institute, Washington, D.C., statement .......................................... 147

CBS Broadcasting Inc., Steve Pickett, report ........................................................ 158

Chavez, Linda, Chairman Center for Equal Opportunity, Washington, D.C., 

prepared statement .............................................................................................. 159

Clegg, Roger, President and General Counsel, Center for Equal Opportunity, 

Sterling, Virginia, article ..................................................................................... 170

Cuban American National Council, Guarione M. Diaz, President and CEO, 

Miami, Florida, letter and statement ................................................................. 173

Department of Justice, Washington, D.C.: 

article, May 15, 2006 ........................................................................................ 177

Election Fraud Prosecutions & Convictions, list ............................................ 178

Desert Morning News, Salt Lake City, Utah, February 10, 2005, article .......... 187

English First Foundation, Springfield, Virginia, articles ..................................... 190

Epstein, David, Professor of Political Science, Columbia University, New 

York, New York, letter ......................................................................................... 208

Fraga, Luis Ricardo, and Maria Lizet Ocampo, Department of Political 

Science, School of Education, Stanford University, statement ......................... 210

Friends Committee on National Legislation, Ruth Flower, Senior Legislative 

Secretary, Washington, D.C., letter .................................................................... 227

Fung, Margaret, Executive Director, Asian American Legal Defense and Education Fund, New York, New York, prepared statement and attachment ...... 229

Greenbaum, Jon, Director of the Voting Rights Project, Lawyers’ Committee 

for Civil Rights Under Law, statement .............................................................. 234

Harris, C. Fredrick, Associate Professor of Political Science, Director, Center 

for the Study of African-American Politics, University of Rochester, Rochester, New York, letter ........................................................................................ 253

Hasen, Richard L., William H. Hannon Distinguished Professor of Law, Loyola Law School, Los Angeles, California, article ............................................... 255

Honolulu Advertiser: 

Scott Ishikawa, September 9, 2000, article .................................................... 259

Scott Ishikawa and Kevin Dayton, article ...................................................... 260

Horowitz, Donald L., James B. Duke Professor of Law and Political Science, 

Durham, North Caroline, letter .......................................................................... 262

Houston Chronicle, January 16, 2005, article ....................................................... 265

Human Events, Online: 

July 03, 2006, article ........................................................................................ 268

May 8, 2006, article .......................................................................................... 270

Ivory, Rev. Elenora Giddings, Director, Washington Office Presbyterian 

Church, Washington, D.C., letter ....................................................................... 271

Keyssar, Alexander, Matthew W. Stirling, Jr. Professor of History and Social 

Policy, Chair, Democratic Institutions and Politics, Kennedy School of Government, Harvard University, Cambridge, Massachusetts, statement ........... 273

Kirsanow, Peter N., Member, National Labor Relations Board Commissioner, 

Commission on Civil Rights, Cleveland, Ohio, prepared statement and attachments ............................................................................................................. 281

Leadership Conference on Civil Rights, Wade, Henderson, Executive Director 

and Nancy Zirkin, Deputy Director, Washington, D.C., letter ......................... 291

League of Women Voters of the United States, Kay J. Maxwell, President, 

Greenwich, Connecticut, letter ............................................................................ 293

Legal Affairs, Edward Blum, and Roger Clegg, article ........................................ 294

Los Angeles Times, March 25, 2006, article .......................................................... 298

Miller, John J., Vice President, Center for Equal Opportunity, Bradley Fellow 

at the Heritage Foundation, statement .............................................................. 300

Mujica, Mauro E., Chairman of the Board, Chief Executive Officer, U.S. 

English, Inc., Washington, D.C., prepared statement ....................................... 303

National Association of Latino Elected and Appointed Officials Educational 

Fund, Arturo Vargas, Executive Director, Washington, D.C., letter ............... 307

National Congress of American Indians, Joe Garcia, President, Washington, 

D.C., letter and resolution ................................................................................... 309

National Council of Asian Pacific Americans, Washington, D.C., letter ............. 314

National Council of La Raza, Janet Murguia, President and Chief Executive 

Officer, Washington, D.C., letter ........................................................................ 316

National Journal Group, Inc., May 13, 2006, article ............................................ 318

National Review, July 6, and 17, 2006, articles .................................................... 321

New York Times, New York, New York: 

June 13, 2006, article ....................................................................................... 325

Page

V

New York Times, New York, New York—Continued

June 25, 2006, article ....................................................................................... 327

Norby, Chris, Supervisor, Fourth District County Board of Superviors, Santa 

Ann, California, letter .......................................................................................... 331

Oliver, Dana M., General Registrar, Salem, Virginia, letter ............................... 334

Organizations opposed to the reauthorization of the multilingual election 

requirements, joint letter .................................................................................... 337

Pamintuan, Rudy, Chair, President’s Advisory Commission on Asian Americans and Pacific Islanders, Washington, D.C., letter ........................................ 340

Scott, Mark C., Commissioner of Borks County, Reading, Pennsylvania ........... 341

Seattle Times, October 8, 2002, article .................................................................. 343

Seidenberg, Ivan, Chairman and Chief Executive Officer, Verizon, New York, 

New York, letter ................................................................................................... 345

Trasvin ̃ a, John, Interim President and General Counsel, Mexican American 

Legal Defense and Educational Fund, Los Angeles, California, prepared 

statement and attachment .................................................................................. 346

Tyler, Jan, Investment Advisor Representative, Securities Service Network, 

Inc., Denver, Colorado, letter .............................................................................. 356

UAW, Alan Reuther, Legislative Director, Washington, D.C., letter .................. 361

United States Commission on Civil Rights, Sock-Foon Macdougall, Washington, D.C., statement ........................................................................................ 363

Urban Institute, Immigration Studies Program, Washington, D.C., brief .......... 364

Wall Street Journal: 

October 23, 2000, article .................................................................................. 366

June 12, 2006, article ....................................................................................... 368

June 20, 2006, article ....................................................................................... 370

Wal-Mart Stores, Inc., H. Lee Scott, President and Chief Executive Officer, 

Bentonville, Arkansas, June 20, 2006, letter ..................................................... 372

Washington Post, July 6, 2006, article .................................................................. 373

Washington Times, November 29, 2000, article .................................................... 376

Watts, J.C., Jr., former Representative in Congress from the State of Oklahoma, Washington, D.C., June 21, 2006, letter ................................................. 379

Women demanding passage of the Voting Rights Act Amendment, join statement ...................................................................................................................... 380

Wright, Deborah, Acting Assistant Registrar-Recorder, Department of Registrar-Recorder, Los Angeles, California, prepared statement ......................... 384

July 10, 2006 

ADDITIONAL TESTIMONY AND QUESTIONS AND ANSWERS ONLY 

QUESTIONS AND ANSWERS 

Responses of Constance Slaughter-Harvey to questions submitted by Senator 

Leahy ..................................................................................................................... 389

Responses of James Thomas Tucker to questions submitted by Senator Leahy 402

Responses of Alfred Yazzie to questions submitted by Senator Leahy ............... 414

SUBMISSIONS FOR THE RECORD 

Hearne, Mark F., (Thor), II, Attorney, St. Louis, Missouri, statement ............... 417

James, Kay Coles, Richmond, Virginia, statement ............................................... 434

Slaughter-Harvey, Constance, Attorney, Mississippi, statement ........................ 440

Tucker, James Thomas, Voting Rights Consultant, National Association of 

Latino Elected and Appointed Officials, statement ........................................... 463

Yazzie, Alfred, Tempe, Arizona, statement ........................................................... 491

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CONTINUING NEED FOR SECTION 203’S PROVISIONS FOR LIMITED ENGLISH PROFICIENT VOTERS 

TUESDAY, JUNE 13, 2006

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The hearing was convened, pursuant to notice, at 9:31 a.m., in 

room SD–226, Dirksen Senate Office Building, 

Hon. Arlen Specter, Chairman of the Committee, presiding. 

Present: Senators Cornyn, Coburn, Leahy, Kennedy, Feinstein, 

and Feingold. 

OPENING STATEMENT OF HON. JOHN CORNYN, A U.S. 

SENATOR FROM THE STATE OF TEXAS 

Senator CORNYN. The Committee will come to order. 

Senator Specter, by the way, is going to be delayed slightly, so 

I offered to open up for him so we could get started, and then he 

will be joining us as soon as he can. 

Today we are holding the sixth in a series of hearings focusing 

on the proposed reauthorization of the expiring provisions of the 

Voting Rights Act. 

Chairman Specter called a number of hearings prior to our last 

recess, but unfortunately that was during a time when we were addressing another important issue, and that is immigration reform, 

on the floor of the Senate and many of us were unable to attend 

the last two hearings on Section 5. 

I am encouraged to hear that the Chairman is holding this hearing and plans to hold several additional hearings on the Voting 

Rights Act generally, as well as with problems such as voter fraud 

in elections. 

It is imperative that we vet this issue fully in order to increase 

the likelihood that this legislation will pass Supreme Court muster, 

which no doubt will ultimately come, and to ensure that the Voting 

Rights Act continues to operate as Congress intended. 

Before us today, of course, is the issue of reauthorization of Section 203, the provision that requires ballots and voting materials 

to be provided in a language other than English under certain circumstances. 

Section 203 applies to States and localities where more than 

10,000, or 5 percent, of the voting-aged citizens are Alaskan Native, American Indian, Americans of Spanish heritage, or Asian 

Americans who are limited- English proficient. These citizens have 

2

a higher rate of illiteracy, as defined by failure to complete the fifth 

grade, than the national average. 

I have previously stated my concerns about this particular provision. It seems to me that if we rightfully require proficiency in 

English to become a naturalized citizen in this country, that for the 

same reasons it is not only reasonable, but in fact entirely appropriate, for jurisdictions to offer ballots and voting materials in 

English. 

Just a few weeks ago, the U.S. Senate overwhelmingly passed a 

provision declaring English our National language, as well as a second provision that overwhelmingly recognized English as a common 

and unifying language for our Nation. 

Section 203 does not appear to unify us, and even more, it is not 

clear to me that Section 203, as currently drafted, is an effective 

method of protecting voting rights. 

I know each of you have your own opinion about this important 

subject, and we are glad to have you here today, each of the witnesses, to help us learn more and to continue to build a record that 

will help us ensure the continued success of the Voting Rights Act. 

Our witnesses today include Mr. John Trasvin ̃ a, a graduate of 

the Harvard and Stanford Law Schools, and president and general 

counsel to the Mexican American Legal Defense and Education 

Fund. Mr. Trasvin ̃ a once worked for this Committee as general 

counsel for the Senate Subcommittee on the Constitution, and we 

welcome you back. 

Margaret Fung is a graduate of Barnard College and NYU Law 

School, and is executive director of the Asian American Legal Defense and Education Fund. Ms. Fung has testified before the House 

Judiciary Committee on issues related to voting rights and the 

need for bilingual voting materials. 

Mauro E. Mujica. And forgive me if I have mispronounced your 

last name. Is that close? 

Mr. MUJICA. Yes. 

Senator CORNYN. I am sensitive. With a name like Cornyn, it 

gets butchered often and I am a little sensitive. So, I apologize if 

I missed at all. 

Mr. Mujica is a graduate of Colombia University and is Chairman of the Board and CEO of U.S. English, a citizens’ action group 

working to make English the official language of the United States. 

He testified before the 104th Congress during its consideration of 

official English legislation. 

Deborah Wright is a graduate of the University of Missouri and 

Acting Assistant Registrar-Recorder and County Clerk of Election 

Services in Los Angeles County, the largest electoral jurisdiction in 

the United States. 

Peter Kirsanow is a graduate of Cornell and Cleveland State 

Universities, and he currently serves as a Commissioner on the 

U.S. Commission on Civil Rights, and is a member of the National 

Labor Relations Board. 

In addition, he is Chairman of the Board of Directors of the Center for New Black Leadership. Mr. Kirsanow frequently testifies before members of the U.S. Congress on matters affecting civil rights 

and labor-related issues, appearing most recently before the Senate 

Judiciary Committee to support the nominations of Chief Justice 

3

John G. Roberts and Justice Samuel Alito to the U.S. Supreme 

Court. 

Linda Chavez is a graduate of the University of Colorado and 

Chairman of the Center for Equal Opportunity, a nonprofit public 

policy research organization in Sterling, Virginia. 

She also writes a weekly syndicated column that appears in 

newspapers across the country, and is a political analyst for Fox 

News Channel. She has held a number of appointed positions, and 

is an author and has testified on a variety of subjects on Capitol 

Hill. 

We welcome each of you here today and look forward to your testimony. 

Senator Kennedy, I might yield to you for any opening statement 

you would care to make. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. I thank you, Mr. Chairman. I thank the 

Chairman of our committee, Senator Specter, for convening these 

hearings and for continued commitment to keeping us on track for 

the reauthorization of the Voting Rights Act during this Congress. 

We all understand that English is the common and unifying language of the United States, and becoming proficient in English is 

important to becoming part of American society and pursuing the 

American dream. There is no disagreement on that. We all understand that voting is a fundamental right, the right from which all 

others derive. Again, there is no disagreement on this point. 

But we must also understand that not all citizens of the United 

States know English well enough to participate in English-only 

elections, and without bilingual ballots and assistance at the polls, 

there are millions of our fellow citizens who would be unable to 

vote effectively. These include many native-born Americans who, 

because of poverty and unequal educational opportunities, have 

high rates of illiteracy and limited English proficiency. 

They also include many Puerto Ricans, who are U.S. citizens by 

birth and have given so much to this country: 65,000 Puerto Ricans 

served in World War II, 48,000 in Vietnam, and as of November, 

2003, 3,500 Puerto Ricans were serving in Iraq or Afghanistan, and 

as of last February, 48 of them had died fighting in Iraq and Afghanistan. Since World War II, Puerto Rico has suffered more military casualties per capita than any other jurisdiction. 

Puerto Ricans educated in classrooms where instruction was in 

Spanish should not be denied a ballot they can understand and voting instructions that they can understand, yet some States try to 

do that. 

In the Voting Rights Act of 1965, Congress prohibited States 

from conditioning the right of Puerto Ricans to vote on their ability 

to read and write English, and the Supreme Court, in Katzenbag

v. Morgan, upheld the constitutionality of that provision. 

The same principle applies to Native Americans and Alaskan natives. On many Indian reservations and Alaskan villages, translators are necessary to translate ballots into unwritten languages 

for Native Americans and Alaskans who cannot read their ballots 

and could not vote effectively without assistance. We owe it to 

4

these Americans to provide them the help they need to cast their 

votes. 

The same principles should apply to naturalized U.S. citizens. 

They were attracted to our country by opportunity and the promise 

of democracy, and they are no less worthy to exercise their right 

to vote. 

It is wrong to equate knowing enough English to become a naturalized citizen with knowing enough English to participate responsibly in an election. According to current Federal law on naturalizations, persons must be able to read or write simple words and 

phrases in English to become naturalized citizens. Naturalization 

law also exempts some Americans over 50 from having to satisfy 

an English-language requirement to become a citizen. 

Even under the more demanding English-language requirements 

of the recent Senate immigration bill, applicants for naturalization 

will need to demonstrate a sufficient understanding of the English 

language for usage in everyday life. 

But many elections require more than an understanding of everyday usage to participate effectively. Often ballots contain complex referenda and initiatives. Here is one example. It is an initiative that appeared on the ballot in Denver, Colorado in 2004. The 

county is required to providing voting materials in Spanish under 

Section 203. 

Here is the text of the initiative, which will appear on the poster 

board: ‘‘Shall regional transportation district taxes be increased 

first full year, dollar increases annually and by whatever additional 

amounts are raised annually thereafter, increasing the rate of sales 

tax levied by the district by four-tenths of 1 percent from the current six-tenths of 1 percent to one percent, commencing January 1 

the first calendar year, that commences after the election of which 

the ballot question is submitted, and in connection therewith, shall 

regional transportation district debt be increased, principal 

amount, with a repayment cost...with all the proceeds going to debt 

and taxes,’’ et cetera, et cetera. That is just one sentence. 

[Laughter.] 

Even those who think we can speak English probably could use 

Cliff Notes for that version of the ballot. 

Our limited-English proficient fellow citizens know the importance of learning English. We have now a two- year wait in my 

own city of Boston, 24,000 individuals who are working hard, paying their taxes, trying to learn English, and they have to wait, now, 

2 years in order to see that. 

We cannot get an increase in the appropriations by the Majority, 

who have professed such commitment in terms of learning English, 

which is certainly disappointing, at best. 

Our limited-English proficient fellow citizens know the importance of learning English. Access to the franchise in their native 

language is not a disincentive to learn English. Their lives and 

struggles are a daily reminder of how important learning English 

is to succeed in this country. It should upset all of us here today 

that we are not meeting our obligation to help them learn English. 

They want to learn English. 

I mentioned, in Boston, the waiting list to learn English now is 

17,000 students, and the waiting period is as long as 3 years. Three 

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years. In New York, it is estimated that one million residents need 

English language instruction, yet there are only 41,000 slots. 

The problem is national. In Albuquerque, Catholic Charities reports 1,000 people on their waiting list and a waiting time of 12 

months for services. In Phoenix, the waiting list in Rio Saledo 

Community College is over 1,000, and the waiting time is 18 

months. 

Let us not punish American citizens who want to learn English 

by conditioning the fundamental right to vote on the ability to read 

and write in English. If we are sincere about including naturalized 

citizens in the American way of life and promoting American values and traditions, there is no better way than through the ballot 

box, and we need to continue Section 203 to make it possible. 

Thank you, Mr. Chairman. 

Senator CORNYN. We will go to the opening statements of the 

witnesses. 

Senator KENNEDY. Mr. Chairman? 

Senator CORNYN. Yes? 

Senator KENNEDY. Could I ask, at the termination of the hearing 

today, there are a couple of excellent reports, one from Luis Fraga 

and Maria Ocampo entitled ‘‘More Information Requests’’ and ‘‘The 

Different Effect of Section 5 and the Voting Rights Act’’ be included 

in the record? There is an extensive report, and I do not think this 

should be included. It ought to be in the file of the committee. This 

is Jane Tucker’s report. 

I would ask the staff to reduce this to a manageable area and 

the whole report be included in the record and referenced in our 

record that this report is there. If I could ask for that inclusion. 

Senator CORNYN. Certainly. Without objection. 

Thank you for reminding me. I had three documents that, without objection, will also be made a part of the record at the end of 

the hearing transcript. 

The first, is correspondence from Chris Norby, supervisor, Fourth 

District, Orange County Board of Supervisors, to Senator Specter 

regarding Orange County’s administration of Section 203 of the 

Voting Rights Act. 

The second, is a study by Anna Henderson and Chris Edley, Jr. 

of the Warren Institute entitled, ‘‘Voting Rights Act Reauthorization: Researched-Based Recommendations to Improve Voting Access.’’ 

The third, is from Jan Tyler, who served as Election Commissioner for the City and County of Denver for eight years, to Senator 

Specter and Senator Leahy. Those will also be made a part of the 

record. 

Mr. Trasvin ̃ a, if we could to you, please, for your opening statement. 

We would like for you to please confine each of your opening 

statements to 5 minutes, then we will proceed with a round of 

questioning where we will be able to get further into the subject 

matter. 

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STATEMENT OF JOHN TRASVIN ̃ A, INTERIM PRESIDENT AND 

GENERAL COUNSEL, MEXICAN AMERICAN LEGAL DEFENSE 

AND EDUCATIONAL FUND (MALDEF), LOS ANGELES, CALIFORNIA 

Mr. TRASVIN ̃ A. Thank you, Mr. Chairman and members of the 

committee. 

On behalf of MALDEF, I want to thank the Committee for its 

leadership regarding the continuing need for Section 203 of the 

Voting Rights Act, and the opportunity to testify today. I am very 

pleased to be back before this Committee to testify about the critical importance of language assistance in elections. 

One of my proudest moments during my service here for Senator 

Simon on the Constitution Subcommittee was working with Senator Hatch and many members of the Committee and your staffs 

on the 1992 Voting Rights Act language amendments. 

When this Committee displays bipartisanship on language assistance as it did in 1992, you make a powerful statement to the American people, and the world, about the sanctity with which we hold 

the right to vote in the United States. 

Protections against language discrimination in voting were included in the original Voting Rights Act of 1965, which prohibited 

the enforcement of English language literacy tests for voters. 

Congress enacted these protections to protect the rights of Puerto 

Rican U.S. citizens who were educated in American-flag schools in 

Puerto Rico where instruction took place in Spanish. 

Section 203 was included during the 1975 reauthorization because Spanish-speaking Latino citizens in the Southwest and elsewhere, as well as other language minorities, were still being subjected to laws and practices that effectively denied them the right 

to vote, much as similar laws and practices denied the right to vote 

to African-Americans living in the South. 

After hearing testimony about the denial of equal educational opportunities by State and local governments that had left many 

Latinos, Asian-Americans, and American Indians functionally illiterate in English, Congress found it necessary to eliminate such discrimination by prohibiting English-only elections and by prescribing other remedial devices. 

Section 203, providing language assistance in the election process, was the remedy Congress devised to counter the effects of language-based discrimination on U.S. citizens’ right to vote. 

Unconstitutional discrimination in elections and education has 

created persistent, discriminatory conditions which continue to require the Congressional remedy of Section 203. 

Many of the U.S. citizens subject to intentional discrimination in 

public education systems, which lasted well into the 1970’s in 

Texas and other States, continue to require language assistance in 

order to cast a meaningful, informed vote. 

In the State of Texas alone, the Census found, in 2002, that 

there were over 818,000 Latino voting-age citizens, nearly 1 of 4 

Latino voting-age citizens in the State, not yet fully proficient in 

English. 

Section 203 is a proper exercise of Congress’s authority to enforce 

the 14th and 15th amendments, which grant Congress the power 

7

to enforce equal protection of the laws and non-discrimination in 

voting through appropriate remedial legislation. 

The Supreme Court has repeatedly found that Congress may 

adopt strong remedial and preventative measures to respond to the 

widespread and persisting deprivation of constitutional rights resulting from a history of racial discrimination. 

Because language assistance required under Section 203 is, as 

required under City of Boerne v. Flores, congruent and proportional 

to the discrimination that it addresses and it is no broader than 

necessary to redress this discrimination, it is a proper exercise of 

Congress’ constitutional authority under the 14th and 15th amendments. 

Many Section 203 opponents argue that, because immigrants 

must speak English to become naturalized citizens, language assistance in voting is not needed. Complicated ballot provisions, 

however, demand a higher level of English language proficiency 

than do the naturalization requirements. 

Even native speakers of English often find legalistic language—

such as that stated by Senator Kennedy—of many ballot provisions 

difficult to interpret. Further, English-language naturalization requirements do not apply to native-born citizens, many of whom, as 

I have noted, suffer from limited-English proficiency as a result of 

discriminatory education systems. 

Section 203 is not costly to implement. As Mayor Feinstein knew 

way back in the 1980’s when she appointed me to the Citizens’ Advisory Committee on Elections, bilingual ballots—and in San Francisco we have three languages—are able to be implemented on a 

cost-effective basis: less than 3 percent of all election costs, 16/

10,000ths of 1 percent of the city budget. 

A recent Arizona State University study found that Section 203 

represents no additional costs to most jurisdictions and costs very 

little in those jurisdictions which do incur additional costs. 

The Voting Rights Act removes barriers between the electoral 

process and U.S. citizens. It is easier and more cost effective than 

ever to provide language assistance for registration, and at the 

polls. The necessity to read and write English to get ahead every 

day is not diminished by getting a bilingual ballot on election day. 

As a matter of sound public policy and as a constitutional remedy 

to discrimination in voting, we should facilitate these citizens’ participation in American political systems and we should continue to 

provide language assistance in voting to those who are unable to 

participate fully without it. 

Thank you. 

Senator CORNYN. Thank you very much. 

[The prepared statement of Mr. Trasvin ̃ a appears as a submission for the record.] 

Mr. Mujica, we would be glad to hear from you. 

STATEMENT OF MAURO E. MUJICA, CHAIRMAN OF THE BOARD 

AND CEO, U.S. ENGLISH, INC., WASHINGTON, DC 

Mr. MUJICA. Thank you, Mr. Chairman and members of the committee, for giving me the opportunity to testify today regarding 

Section 203 of the Voting Rights Act. 

8

My name is Mauro E. Mujica. I am the Chairman of the Board 

of U.S. English, Inc., a nonprofit organization based in Washington, 

D.C. 

U.S. English was founded in 1983 by one of your former colleagues, Senator S.I. Hayakawa, and we have now grown to over 

1.8 million members. Our organization focuses on public policy 

issues that involve language and national identity. 

Mr. Chairman, I am a naturalized citizen. I speak Spanish regularly with my family and friends, and I am proud to speak four languages fluently. Our concerns about Section 203 do not reflect an 

opposition to other languages or the people who speak them. 

I recognize that any section of any law that has been in effect 

for a generation has a presumption in favor of reauthorization. I 

also know that it will take political courage to revisit anything that 

is part of the admirable voting rights. 

Still, we believe that if this Committee brings independent judgment to bear, it will see that the considerable costs of Section 203 

outweigh its now-questionable benefits. 

First, the law is at odds with an important legal tradition. In 

1906, President Theodore Roosevelt signed a measure requiring 

candidates for naturalization to demonstrate their ability to speak 

English. Just last month, this body reaffirmed that policy when it 

voted overwhelmingly for the similar language in Senator Inhofe’s 

amendment. 

If English is a necessary condition for citizenship, and citizenship 

is a necessary condition for legal voting, then the purpose of foreign-language ballots must be questioned. 

If we are naturalizing individuals who cannot speak English, we 

must address that issue. If we are failing to teach English to individuals born in this country, we must address that issue. Multilingual ballots should not be used as a way of covering up the fact 

that we are not adequately addressing other challenges. 

Second, to the degree that law has a teaching effect, Section 203 

sends exactly the wrong message. According to the Census, there 

are 54 different languages spoken in American homes by more than 

50,000 people. 

But in most places where Section 203 is triggered, governmenttranslated voting materials send a message to Spanish speakers, 

and only Spanish speakers, that English is optional. 

When a person steps into a voting booth, he or she is exercising 

the highest civic duty. Yet, at that very moment the government 

sends a signal that English is not really necessary to join our National political conversation. 

Ironically, this message will not be sent to the Spanish speaker 

in Burlington, Vermont or the Chinese speaker in Wichita, Kansas. 

It will be sent only to those who live in high enough language concentrations to trigger Section 203’s requirements. In short, it will 

be sent to the very immigrants who are likely to live in linguistic 

enclaves where an English-optional lifestyle is a real possibility. 

Finally, Section 203 raises troubling questions about where we 

draw the lines in civil rights laws. Section 203’s provisions were 

originally limited as a remedy for people of Hispanic, Asian, Native 

American, and Native Alaskan heritage, but the Congressional 

9

findings that caused the lines to be drawn at those groups could 

well be anachronistic. 

Let me respectfully ask this question: is there any evidence on 

the record that, in 2006, a Chinese speaker is more likely than an 

Arabic speaker to face such language-based discrimination? The 

Chinese speaker qualifies for a special ballot; the Arabic speaker 

does not. 

The original Voting Rights Act is rooted in our belief as a Nation 

that all men are created equal. Regardless of one’s race, the law 

protects a person from discrimination. But Section 203’s message 

is that we will give you a government service, but only if there are 

enough of you to qualify. 

Since this is at odds with our civil rights traditions, it seems that 

the real purposes of bilingual ballots is to satisfy political constituencies who are large enough to demand them. 

Though Section 203 may have originated with the best of intentions, we should make the decision that binds us for the next generation on the conditions of today, not the conditions of 30 years 

ago. Today, Section 203 provides selected and questionable benefits 

at the cost of a Balkanizing message. 

U.S. English opposes the reauthorization of Section 203’s language in its current form. We respectfully urge this Committee to 

craft a policy that more closely reflects legal and economic sense 

and one which promotes what voting and being an American is all 

about. 

Senator CORNYN. Thank you, Mr. Mujica. 

Ms. Fung, we would be glad to hear from you. 

STATEMENT OF MARGARET FUNG, EXECUTIVE DIRECTOR, 

ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, 

NEW YORK, NEW YORK 

Ms. FUNG. Good morning, Mr. Chairman and members of the 

committee. 

My name is Margaret Fung and I am executive director of the 

Asian American Legal Defense and Education Fund, which is a 32-

year-old New York-based national organization that does litigation, 

legal advocacy, and community education. 

Since 1988, we have monitored elections and conducted multilingual exit polls to document barriers to voting faced by AsianAmericans. In November of 2004, we conducted the Nation’s largest 

multilingual exit poll of 11,000 Asian-American voters in eight 

States to assess the needs of Asian-American voters with limited 

English proficiency and to document voting problems. 

We have also litigated cases to defend the voting rights of AsianAmericans, most recently a lawsuit on behalf of groups and individual voters in a suit against the New York City Board of Elections for violating the language assistance provisions of the Voting 

Rights Act. 

We have prepared a new report. It is called ‘‘Asian Americans 

and the Voting Rights Act: The Case for Reauthorization.’’ 

I have attached a copy of our 47-page report to this statement, 

and I am hoping that you will accept for the official record the report, as well as the appendices which are here, which includes a 

lot of original documentation and letters to registrars in eight 

10

States where we describe exactly where the voting problems have 

occurred, how many voters have been affected, and our experience 

with these issues. 

As you know, Asians in America were barred for over 150 years 

from becoming naturalized citizens and, thus, were not eligible to 

vote. Those citizenship restrictions were finally rescinded in 1943 

for Chinese Americans, and for other Asian immigrant groups in 

1952. 

But as a result, this legacy of discrimination effectively blocked 

Asian-Americans from participating in the political process until 

the Civil Rights era of the 1960s. That is exactly why the Voting 

Rights Act has such significance for our community. 

When the language assistance provisions of the Voting Rights 

Act were enacted in 1975, and then expanded in 1992, Section 203 

helped to remove other obstacles for Asian-American voters not yet 

fluent in English. It has opened up the political process for AsianAmericans, especially first-time voters and new citizens. 

At the most fundamental level, translated ballots in voting machines have enabled Asian-Americans to exercise their right to vote 

privately and independently. Almost one-third of the respondents 

in our 2004 exit poll of 11,000 Asian-American voters needed some 

form of language assistance in order to vote, and the greatest beneficiaries of this assistance, 46 percent, were first-time voters. 

The Asian-American population, according to the Census, is now 

14 million. Over half have acquired citizenship through naturalization, and 40 percent of our community is limited-English proficient. 

We are now a growing part of the electorate, and this can be attributed in large part to Section 203, which covers 672,000 AsianAmericans in 16 jurisdictions in 7 States. 

Behind the statistics, of course, are the real voters. One of our 

clients, Shiny Liu, is a Chinese-American voter from Queens County. This is what she said about the use of translated ballots: ‘‘The 

first time I voted was in 2003. I used an interpreter and a ballot 

that was translated into Chinese. Now I know how to vote, so I 

vote alone without any assistance. I have voted on ballots in 

English before, but I am not comfortable doing so because I am not 

confident that I properly understand the English. I would rather 

vote on ballots translated into Chinese because I can be sure of 

who, and what, I am voting for.’’ 

We also represented a Korean-American truck driver, Byung Soo 

Park, someone who was recently naturalized. He became a citizen 

in 2001. He registered to vote at a community organization, with 

bilingual assistance. 

This is what he had to say: ‘‘Ever since I first registered to vote, 

I have never missed an election. Every time I vote, I need to use 

the assistance of an interpreter. I want to learn English, but I have 

no time because I am a truck driver and I work long hours on the 

road. Korean-Americans should be treated as U.S. citizens because 

that is what we are. I want us all to be treated equally.’’ For Mr. 

Park and countless other new citizens, economic barriers have hindered their ability to learn English. 

I just want to mention that voting discrimination against AsianAmericans still continues today. We have seen it at the polls on a 

repeated basis in the very explicit form of racist poll workers, harVerDate 0ct 09 2002 12:38 Nov 22, 2006 Jkt 030760 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30760.TXT SJUD4 PsN: CMORC
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assment, improper identification checks, and the outright refusal to 

provide language assistance, which is currently required by Federal 

law. 

A basic tenet of our democracy is that all citizens should be able 

to elect candidates of choice and have a voice in governmental decisionmaking. 

Section 203 has enabled the Asian-American community to participate in democracy and it has helped to promote meaningful civic 

participation. We hope that you will reauthorize Section 203, as 

well as the other temporary provisions of the Voting Rights Act. 

Thank you. 

Senator CORNYN. Thank you, Ms. Fung. 

[The prepared statement of Ms. Fung appears as a submission 

for the record.] 

Senator CORNYN. Mr. Kirsanow? 

STATEMENT OF PETER N. KIRSANOW, MEMBER, NATIONAL 

LABOR RELATIONS BOARD, COMMISSIONER, U.S. COMMISSION ON CIVIL RIGHTS, CLEVELAND, OHIO 

Mr. KIRSANOW. Thank you, Mr. Chairman and members of the 

committee. 

I am Peter Kirsanow, member of the U.S. Commission on Civil 

Rights, and also a member of the National Labor Relations Board. 

I am here in my personal capacity. 

The U.S. Commission on Civil Rights was established pursuant 

to the Civil Rights Act of 1957 to, among other things, act as a national clearing house for matters pertaining to denials of voting 

rights and equal protection. 

In furtherance of the clearing house function, the commission recently held a hearing on the reauthorization of the temporary provisions of the Act. The report that issued therefrom does not make 

any recommendations as to whether any or all the provisions 

should be reauthorized, nonetheless, I will respectfully submit to 

the Senate that, in its deliberations concerning the temporary provisions, it focus on at least four issues: 1) cost and waste; 2) fraud 

and error; 3) use of racial and ethnic profiling and stereotyping in 

administration of the Act; 4) constitutional compliance. 

First, cost as a function of efficacy. The evidence shows that the 

cost to cover jurisdictions of Section 203 compliance is disproportionate to its utility. There have been a number of GAO reports—

at least two—that have cited that the majority of covered jurisdictions barely use bilingual ballots at all. 

In addition, a 1986 GAO report showed that in most covered jurisdictions not one voter used any form of language assistance 

whatsoever, and, moreover, 90 percent of jurisdictions report that 

no language assistance whatsoever is needed. 

Now, the sparse usage is in stark contrast to the fairly substantial costs of compliance. The average covered jurisdiction spends an 

estimated 13 percent of all election costs on Section 203 compliance. 

This is actually just the tip of the iceberg, because some jurisdictions spend as much as 50 percent on compliance, and that number 

is rising rapidly, by as much as 40 percent over just one election 

cycle for some jurisdiction. 

12

The cited costs are monetary only. They do not include the effects 

of fraud and error. The use of bilingual and multilingual election 

materials necessarily increases the risk of both. 

Non-English election materials can confound those who are the 

gatekeepers of voting integrity. There have been scores of report, 

and reports abound about the false and misleading information 

that may be conveyed by ballots. 

For example, in one jurisdiction a bilingual ballot transposed the 

party labels of the candidates so that a Democrat became a Republican, and vice versa; in another, the ‘‘yes’’ and ‘‘no’’ on a ballot 

proposition were reversed. Proofreaders simply missed these errors. 

In addition, bilingual language requirements can facilitate voting 

by those ineligible to vote. There have been numerous instances, 

particularly in Florida and California, in which substantial numbers of non-citizens have voted, and it is unclear whether, or if, 

there has been an effect on the outcome. 

A third issue that merits consideration is the use of racial 

profiling and stereotyping in administration and enforcement of the 

Act. It would be unlawful for local election officials to disenfranchise voters with ethnic surnames on the basis of suspect citizenship status, yet the review of surnames for enforcement of 203 purposes is done by the Federal Government itself. 

Voter registration rolls are reviewed for surnames common to 

language minority groups to determine whether polling places in 

areas with presumed substantial numbers of language minority 

groups are adequately complying with Section 203’s bilingual requirements. 

Now, the purpose may be benign, but it is racial and ethnic 

stereotyping, nonetheless. Ethnic surnames are not proxies for limited English proficiency. This racial profiling and stereotyping implicates constitutional issues of Section 203’s proportionality and 

congruence. 

The rational and factual bases for eliminating discriminatory access to the polls by providing bilingual language assistance are, to 

say the least, underdeveloped. 

One of the chief justifications cited for Section 203, and that is 

unequal educational opportunities provided to language minorities, 

could just as easily be applied to blacks and other groups that are 

not usually viewed as being of limited English proficiency. 

Moreover, the coverage triggers related to literacy could also be 

applied to some black communities—even some white ones—yet 

they are not, and this raises a host of equal protection, as well as 

congruency and proportionality, concerns. 

Mr. Chairman, it is respectfully submitted that prior to reauthorization of Section 203, Congress consider some of the recommendations that I think you cited in the letter from Mr. Edley, one of my 

former colleagues who is now dean at Boalt Law School. 

With respect to Section 5, he suggested that Congress appoint a 

commission to study and report back on some of the concerns I just 

mentioned. I would respectfully submit that Congress consider 

doing the same for Section 203. 

Thank you, Mr. Chairman. 

Senator CORNYN. Thank you, Mr. Kirsanow. 

13

[The prepared statement of Mr. Kirsanow appears as a submission for the record.] 

Senator CORNYN. Ms. Wright, we would be glad to hear from you. 

STATEMENT OF DEBORAH WRIGHT, ACTING ASSISTANT REGISTRAR-RECORDER, DEPARTMENT OF REGISTRAR-RECORDER, LOS ANGELES, CALIFORNIA 

Ms. WRIGHT. Thank you, Mr. Chairman and members of the committee. Thank you for the invitation to appear before the Committee to offer testimony and to submit materials with regard to 

Los Angeles County’s program that provides assistance to limitedEnglish proficient voters. 

My point of view is probably a little different than the other panelists. We do not really have a point of view and we do not have 

a recommendation about renewal, we just wanted to report on the 

actual experience of our jurisdiction. 

Los Angeles County is the largest and most diverse local election 

jurisdiction in the United States. In compliance with Section 203, 

we provide assistance to voters in six languages in addition to 

English: Chinese, Japanese, Korean, Spanish, Tagalog, which is 

Filipino language, and Vietnamese. We provide both translated 

written election materials and oral assistance on election day. 

The costs to Los Angeles County for the multilingual program, 

we believe, are reasonable in light of the challenges the county 

faces and are proportional to the numbers of people the Census reveals to be limited-English proficient. 

Only eight States have more registered voters than our nearly 4 

million voters. The 2000 Census reported that L.A. County has approximately 5 million voting-age citizens, 12.9 percent of whom are 

limited-English proficient in one of the six covered languages. Our 

cost for translation tends to run at or below about 10 percent of the 

cost of each election. 

My own role with the county’s program is to provide direct management and oversight of the multilingual assistance program and 

to coordinate community-based organization input and interface 

with the Department of Justice on these issues, so I am reporting 

to you from, sort of, on the ground. 

As Senator Kennedy mentioned, often a high level of English proficiency is needed even by native speakers of English to understand 

some of the complex ballot initiatives, especially in California, and 

to cast an informed ballot. Appropriate targeted language assistance makes it much more likely than informed voter intent is realized. 

There are three key facets to our multilingual program in Los 

Angeles County: 1) we provide translated written materials; 2) we 

provide oral assistance at voting locations; 3) we have an extensive 

program of collaboration with community-based organizations. 

Our translation of written materials include: sample ballot booklets that are mailed to each voter; the State ballot pamphlet, which 

is also provided in all the languages; voter registration forms; absentee ballot application forms; instructions on how to use the voting system; provisional ballot instructions, and a wide variety of 

voter education materials. 

14

We have realized considerable cost savings in Los Angeles County by restricting our printing to the exact precincts within the 

county where written materials are needed. 

Our oral assistance program far exceeds legal requirements of 

targeting that would be based solely on U.S. Census data. We believe it is important for voters entering the polling place to see that 

election workers reflect the neighborhood, including the languages 

spoken in that community. 

We target oral assistance based on several criteria: the Census 

data that is required by law; we consider the number of requests 

that are on our voter file from voters who have specifically asked 

for materials in another language; we take into consideration input 

from community-based organizations that tell us a neighborhood 

perhaps has been changing in its demographic since the last Census and that we need to look at providing assistance; and also information gathered directly from poll workers denoting how many 

requests they received for multilingual assistance on election day. 

Our collaboration with community-based organizations is the 

third component in our outreach to multilingual voters. The groups 

we work with include NALEO, MALDEF, APALC, and many others, and they collaborate with the county in identifying neighborhoods and specific voting precincts that are in need of assistance 

in specific languages. 

We do our best to get the word out to voters to make sure that 

they learn about the availability of these materials. Every registered voter in Los Angeles County gets a voter information pamphlet prior to every election day, and we make sure that every 

booklet contains a full page of information so that people can understand how to request services. 

We make it easy. On the voter registration form, voters can request that their names be included in our list of voters who have 

a request on file to receive translations. We do public service announcements on cable TV and radio at no cost to the county, and 

we work back and forth with our community-based organizations to 

get the word out. 

We believe that a comprehensive program is only as good as the 

results it achieves, and we believe that the program is successful 

based on a number of indices: first, the large number of precincts 

that are targeted for recruitment of poll workers who speak the 

identified languages. In most elections, we achieve better than 90 

percent of our goal. 

The number of voters that have called our office to request translated written materials, and in conversations back and forth with 

the Department of Justice, we have consistently been described as 

having a very good and comprehensive program. 

In conclusion, Los Angeles County is proud of our proactive, 

multi-faceted, multilingual program that reaches beyond the minimum standards of legal compliance and focuses on a commitment 

to excellence in serving all the voters in our diverse community. 

Thank you. 

Senator CORNYN. Thank you, Ms. Wright. 

[The prepared statement of Ms. Wright appears as a submission 

for the record.] 

15

Senator CORNYN. Ms. Chavez, we would be glad to hear from 

you. 

STATEMENT OF LINDA CHAVEZ, CHAIRMAN, CENTER FOR 

EQUAL OPPORTUNITY, WASHINGTON, DC 

Ms. CHAVEZ. Thank you very much, Mr. Chairman. Thank you 

also to members of the committee. 

In that very nice introduction of my bio, Senator Cornyn, there 

was one job that I had that was missing in that list, and that was 

that I was a staff member of the House Judiciary Committee from 

1972 to 1974, working, as Senator Kennedy will remember, for the 

then-Majority, the Democrats, and it was actually at that time that 

consideration of amending the Voting Rights Act of 1965 and adding the bilingual provision was under consideration. I would be 

happy, in the question and answer period, to go into that more. 

I am not going to read my testimony. I would like it to be submitted for the record in full. 

Senator CORNYN. Without objection. 

[The prepared statement of Ms. Chavez appears as a submission 

for the record.] 

Ms. CHAVEZ. And I obviously will summarize some of what I 

said. There were four points made in that written testimony, some 

of which seemed to neatly parallel Peter Kirsanow’s testimony. I 

did deal with the subject of whether or not Section 203 is necessary; whether or not there are sufficient numbers of persons unable to speak English to require a change of this sort in the law; 

whether or not the expense of providing these ballots did not constitute an unfunded mandate; and whether or not some of the 

translations available, as Mr. Kirsanow testified, were not confusing. 

I also dealt with the issue of voter fraud and the way in which 

bilingual ballots can facilitate voter fraud, and I dealt with the 

issue of whether or not Section 203 is, in fact, constitutional. 

This goes back to my history at the Judiciary Committee because, in order to be constitutional, one would have to interpret ‘‘an 

English ballot’’ as proof of, evidence of, deliberate and intentional 

discrimination, and I do not think that providing ballots only in 

English does constitute deliberate discrimination. 

But I would like to spend the few minutes I have with you here 

to talk about the fourth part of my testimony, and that dealt with 

the subject of Balkanization and whether or not the provision of 

multilingual ballots does not, in fact, further the Balkanization of 

this country. 

I speak about this in the context of the current debate on immigration. Much to the chagrin of some of my fellow Republicans, I 

find myself more aligned in my views on immigration with Senator 

Kennedy than some of the members of my own party; as you know, 

I have been an outspoken commentator on the current immigration 

debate. 

It has, frankly, puzzled me why we are, I believe, in the midst 

of a kind of national hysteria on immigration, given the fact that 

our immigration levels are not at an all-time high, given the fact 

that even illegal immigration was higher in 2000 than it was in 

16

2004, the last date for which we have official figures of apprehensions at the border. 

But one of the things that I believe has led the country to focus 

so much on immigration, is a fear that many of the Latino immigrants who are coming into the United States are not going to do 

what generations of immigrants have done before them: learn the 

language, assimilate into the mainstream, and become fully participating members of our civil society. 

I have, as you know, written on this issue for more than 20 

years, including a book called Out of the Barrio, which, in fact detailed—and this book was published 15 years ago—the assimilation 

of Hispanics into the American mainstream. 

Hispanics are learning English, and they are doing so not just as 

rapidly as the Italians, Greeks, Poles, Jews and others before them, 

but I believe more quickly than those groups have. Senator Kennedy is correct, that there is a long waiting list for people to learn 

the language. 

Eighty-six percent of second-generation Hispanics in the United 

States, for example, graduate from high school, so the notion that 

Hispanics have a much higher illiteracy rate and that they are unable to speak English, I think, is simply fallacious. 

According to the Pugh Hispanic Center, which has some of the 

best statistics on this available, 78 percent of third-generation Hispanics in the United States speak only one language, and that language is English. 

That is not to say that there are not pockets in parts of the country of newly naturalized citizens, or even in my home State of New 

Mexico, of some born in the United States who are not entirely proficient in the English language. 

But I would contest that the way in which the Census Bureau 

currently measures that proficiency for the purposes of this section 

of the Act, namely constituting people who do not speak English at 

least ‘‘very well,’’ according to Census records, is not a good way 

of going about determining how many people it is that need such 

assistance. 

I believe, moreover, that even if you believe that there are people 

who need such assistance, that it is possible to provide that assistance through other means other than having bilingual ballots required by the Federal Government in all jurisdictions that meet the 

provisions of Section 203. 

Thank you very much. 

Senator CORNYN. Thank you, Ms. Chavez. 

We will now proceed to a round of questions of five minutes each. 

I know each of you, during the immigration debate that we had 

here in the Senate a couple of weeks ago, are aware of this, but 

I just want to make this a part of the record. 

There were two different amendments that were accepted by the 

U.S. Senate, one sponsored principally by Senator Ken Salazar, 

which declared English as ‘‘the common and unifying language of 

the United States, and to preserve and enhance the role of the 

English language,’’ and the second, which actually received 62 

votes to 35 against, was principally sponsored by Senator Jim 

Inhofe, which was to amend Title IV of the U.S. Code to ‘‘declare 

17

English as the national language of the United States and to promote the patriotic integration of prospective U.S. citizens.’’ 

I can tell you that, from watching the news and listening to discussions afterwards, a lot of people were confused about what differences, if any there were, between those two amendments. 

But I will just say that in both, under the ‘‘Findings,’’ there was 

this statement: ‘‘Unless otherwise authorized or provided for by 

law, no person has a legal entitlement to services authorized or 

provided for by the Federal Government in any language other 

than English.’’ 

So, some of you have addressed this issue of, if in fact to become 

a naturalized citizen you must show English language proficiency, 

and in order to vote you must be a United States citizen, then why 

is there the need for multilingual ballots? 

Senator Kennedy offered an example of some incomprehensible 

ballot language in English, which leads me to the conclusion that 

maybe what some people need is not a translator, but a lawyer 

when they go vote, because of the language. 

Even for someone who speaks English only with some little smattering of Spanish, I think I am not alone in finding language like 

that, even in English, for native English speakers, to be incomprehensible. But that, to me, speaks to another issue about whether 

we insist that ballot language actually be comprehensible in 

English. 

But it seems to me an indictment of our educational system, and 

perhaps even of the requirements of our naturalization laws, if we 

say that we are going to give up on this goal that the U.S. Senate—

at least in these two amendments—overwhelmingly supports, and 

that is that English be the common and unifying language, or be 

the national language, or however you would want to say it. 

For our educational system, for individuals who are educated in 

our public schools and our compulsory school system that graduate 

illiterate and are incapable of speaking the English language, that 

is a serious, serious problem, larger in some ways than the immediate issue before us here. 

Certainly being able to engage in the political life of our Nation 

is absolutely important; there is no denying that, no dissension 

there. But if somehow we are graduating students from our public 

schools that cannot read the English language, and we are allowing 

people, as part of the naturalization process, to become American 

citizens without truly meeting some sort of basic English-language 

proficiency, then that is something we ought to look at as well. 

Mr. Trasvin ̃ a, let me ask you, you mentioned the remedial nature 

of these provisions, in other words, suggesting this was a remedy 

required by historical discrimination and voting practices prejudicial to the rights of some non-English speaking minorities. I 

would just ask you if it is in fact designed to be remedial, is there 

any end to it? In other words, if it is remedial, should we say that 

this should be permanently part of the Voting Rights Act or should 

we do something else to try to make sure that the remedy is no 

longer required by addressing the underlying problem? 

Mr. TRASVIN ̃ A. It is the latter, Senator. The way we get beyond 

these provisions is, as we do and as many members of the Senate 

and House do on a daily basis, by addressing the educational inVerDate 0ct 09 2002 12:38 Nov 22, 2006 Jkt 030760 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\30760.TXT SJUD4 PsN: CMORC
18

equities. We have litigation in our San Antonio office, in U.S. v. 

Texas, that has been around for many years, and we continue to 

see the disparities that Latino students face. 

To address your larger question about a national language, the 

U.S. Supreme Court addressed this back in 1923. This is not a new 

issue about promoting a common language. The U.S. Supreme 

Court, in Meyer v. Nebraska, addressed this and said that, ‘‘The 

protection of the Constitution extends to all, to those who speak 

other languages as well as to those born with English on the 

tongue.’’ 

And perhaps it would be highly advantageous if everybody spoke 

the common language, but you do not reach that result—that desirable result—by limiting people’s constitutional rights. 

In that case, it was the right of German-speaking parents to 

have a say in their children’s education. That is the case that the 

Congress relied on in 1975, and again in 1982 and 1992. 

So education is the key to resolving many of these issues, but we 

continue to have the persistent effects of educational discrimination 

in your State and in other States as well. 

Senator CORNYN. Well, certainly we need to make sure that people get the benefits of a compulsory education system so they are 

completely equipped not only to participate in our political life, but 

in the opportunities that our Nation provides. 

I see my time has expired, so I will turn to Senator Kennedy. 

Senator KENNEDY. Thank you. Thank you very much. 

I do note that the support by the Congress, in terms of what they 

call the provision’s English language provisions, ‘‘Educational’’ has 

declined from 2004, 2005, and then from 2005 to 2006 as the desire 

and the demand has gone up. 

So it seems, in order to try and deal with the challenges, I think 

we have seen in my own State, which has a remarkable and long 

history in terms of immigration, is the desire of individuals to learn 

the language. 

Certainly the indicators, as I had mentioned in my opening statement, show that is just as true today, with a recognition by those 

that are limited English speaking that they want to be able to 

learn English and understand it. That is really the key to their 

own success. 

But there are some realities. The Puerto Rican reality is a prime 

example. We have more than 2.2 million Puerto Ricans in the 

United States over the age of 18 eligible to vote, educated in Puerto 

Rican schools where, primarily, Spanish is the language, and we 

have, obviously, the Native Americans and others on this. 

I want to get to issues on the constitutionality, because ultimately the Supreme Court is going to be reviewing the Act and this 

aspect of the constitutionality. 

John, you had commented briefly on this issue and it has been 

raised by other members of the panel. Perhaps you could just review a little bit about the strength of the constitutionality, because 

this, I think, is a key aspect of it. If there are others that differ 

with it, maybe we will get a chance to hear from them a well. 

But what do you say is the strongest case in terms of justifying 

the constitutional provisions of Section 203? 

19

Mr. TRASVIN ̃ A. Thank you, Senator. The governing case is City of 

Boerne v. Flores, and that sets forth a three-part test to determine 

congruence and proportionality. 

Congress must identify unconstitutional discrimination, develop 

a record that justifies a Congressional remedy, and implement only 

those remedies that are proportional to the constitutional injuries. 

Section 203 meets that test. 

It remedies identified language-based discrimination in voting. 

Congress currently has before it, and has had before it in previous 

Congresses, a substantial record that documents significant present 

discrimination against language minority citizens living in Section 

203 jurisdictions. 

Finally, the record clearly demonstrates that discrimination in 

elections is longstanding, pervasive and continuing, while the remedy of language assistance in elections does not unduly burden 

State and local election officials. So, Section 203, in this regard, addresses and meets the governing Supreme Court standard. 

Ms. CHAVEZ. Could I respond, Senator? 

Senator KENNEDY. Yes. 

Ms. CHAVEZ. Because I have a very different view of that, obviously. I do not believe that Section 203 does satisfy the constitutional requirement, and I so testified. 

I can tell you, as someone who worked on this legislation, as I 

said earlier, in the House Judiciary Committee, there was no concern at that time that the provision of an English language ballot 

did constitute intentional discrimination. 

There was an interest on the part of MALDEF, and some other 

organizations representing Mexican-Americans primarily, to have 

Hispanics included under other sections of the law, namely the sections that allow for pre-clearance and some of the other measures, 

special provisions. 

The designation of an English ballot as a literacy test was, in 

fact, the key to being able to bring Hispanics in under the other 

provisions, and that was the reason. There was almost no testimony—in fact, considerable testimony to the contrary—that there 

was widespread intentional discrimination against Latinos. 

At the time that the provision was enacted in 1975, the State of 

Arizona and the State of New Mexico both had Mexican-American 

Governors; Dennis Chavez, who as the Chairman of the commission that built this building, had served in the U.S. Senate from 

New Mexico for many, many years, one of the longest-standing 

members. 

So there really was, I believe, absolutely no record of being able 

to demonstrate that there was intentional discrimination against 

Latinos, either because of their ethnicity or because of their inability to speak English. 

Senator KENNEDY. My time is short. Could I ask Mr. Trasvin ̃a 

if he would comment on that? Then my time will be expired. 

Mr. TRASVIN ̃ A. The 1975 hearings that MALDEF did participate 

in and did demonstrate the record in the State of Texas and other 

parts of the Southwest of electoral discrimination. Senator Chavez 

and Senator Montoya were aberrations—historical—there were 

very, very few Hispanic Senators until today, where there are now 

three Latino U.S. Senators. 

20

Throughout the successes of the Voting Rights Act in the Southwest, we see the first Latinos ever elected to city councils or as 

mayors in cities where the vast majority of the population were 

Latino, it was because they were not allowed to vote prior to the 

1975 Act because of the English-only ballot. 

Senator KENNEDY. My time is up. 

Thank you very much, Mr. Chairman. 

Senator CORNYN. Senator Coburn? 

Senator COBURN. Thank you. 

Mr. TRASVIN ̃ A, you used the words ‘‘fully proficient.’’ What does 

that mean? In your testimony you used the words ‘‘fully proficient 

in English.’’ What does that mean? 

Mr. TRASVIN ̃ A. Fully proficient in English, for purposes of voting, 

is being able to understand the terminology on the ballot. There is 

a test called the Flesch-Kincaid test that evaluates, based upon the 

length of sentences, the word usage and the like. A lot of the State 

ballots are written at a tenth, eleventh, twelfth grade level of 

English or even higher; you can be fully proficient for naturalization at a fifth grade level of English. 

You are determined literate or illiterate at a fifth grade level of 

English. So in terms of being fully proficient, fully proficient means 

a much higher level of English than for naturalization. 

Senator COBURN. Well, I would pretend that most State questions on the ballots in Oklahoma, nobody is fully proficient unless 

they are a lawyer. Unless we are going to address that issue in the 

Voting Rights Act reauthorization or in the reauthorization of this 

bill, we are addressing the wrong problem. 

Mr. TRASVIN ̃ A. Senator, you are correct in one respect, and that 

is that, based on my experience in San Francisco, the Voting Rights 

Act implementation has promoted ballot simplification in English. 

The same thing is true for court interpreters. The move for getting court interpreters to make things translatable has led to a 

movement of making things more understandable for English 

speakers in court or on the ballot. So, this is a good government 

tool as well. 

Senator COBURN. Maybe we could just get lawyers to speak 

English instead of lawyerese. 

Ms. CHAVEZ. Mr. Coburn, could I also just add something to 

that? The way in which the law is written, it is the Census Bureau 

that determines how many people qualify under the provision. 

Senator COBURN. That is actually my next question, and it was 

coming to you. 

Ms. CHAVEZ. All right. 

Senator COBURN. What does ‘‘very well’’ mean in the Census 

questionnaire, and what are the instructions with the question that 

is asked to define what ‘‘very well’’ means? 

Ms. CHAVEZ. Well, what the Census Bureau has decided to do, 

is to count people who self-identify—because that is what the Census data is, you determine how well you speak the language and 

you check a box on the long form of the Census—and to throw out 

all of the people who determined that they speak English ‘‘well’’ 

and they count them as limited-English proficient. 

Senator COBURN. Which would include most Senators. 

21

Ms. CHAVEZ. Right. Well, there are cultural factors here, too. I 

do not know how many people, particularly if it was not their first 

language, would say they speak a language ‘‘very well.’’ 

I am not sure that I would say I speak the language ‘‘very well,’’ 

even though I make my living writing in English. So, I do think 

that this is a very, very slippery standard and not one sufficient 

to justify bilingual ballots. 

Senator COBURN. All right. 

Ms. Fung, I had a question for you. You gave the example in 

your testimony of this truck driver. I believe your words were, he 

did not have time to learn English because he was driving a truck. 

But the fact is, he had to at least know English at the fifth grade 

level to become a U.S. citizen to qualify for a vote. 

So I have a real problem with this rub where we require, under 

8 USC 1423, ‘‘Aliens and Nationality, Immigration Nationality’’: 

‘‘No person, except as otherwise provided in this subchapter, shall 

hereinafter be naturalized as a citizen of the United States, upon 

his own application, who cannot demonstrate an understanding of 

the English language, including the ability to read, write and speak 

words in ordinary usage in the English language,’’ and then there 

is a provision relating to ‘‘the ability to read and write shall be met 

if the applicant can read and write simple words and phrases and 

that a reasonable test of his literacy shall be made.’’ 

The point being, if by the very testimony that you give he is not 

proficient to a fifth grade level in English and therefore requires 

a ballot, a bilingual ballot or a translation of a ballot, yet he is a 

citizen, we need to redefine where the problem is. 

Either we are not enforcing USC 1423, and if we are not we need 

to fix that problem rather than to fix the other one. If we really 

require people to have a fifth grade level of English proficiency to 

become a U.S. citizen, then it would seem to me that that would 

obviate some of the other needs. 

Would you comment on that, please? 

Ms. FUNG. I think there are important values in having English 

as the language that is in usage. I think it is clear that most people, most immigrants, most new citizens want to learn English and 

would like to be more proficient in English. But let me, first, deal 

with the point about the Census questionnaire. 

Many times people also do not want to admit that they do not 

speak English very well, so they will state that they know English, 

but the reality is, they cannot function as well as they might like 

to. That is just a fact. 

Senator COBURN. Sure. 

Ms. FUNG. So in terms of the level of proficiency needed for a 

naturalized citizen, there is a big gap between that and what is 

needed in order to cast a ballot. It is not just the casting of the ballot, it is the instructions for using the voting machine, it is dealing 

not only with voting for a particular candidate, but whether or not 

you can read the 100-word referendum that was given as an example, or any other number of referenda. 

Senator COBURN. So that would follow my question. Your testimony is, the requirement to become a U.S. citizen in terms of 

English proficiency is not enough, not proficient enough, to be able 

to be a voter. That is your testimony? 

22

Ms. FUNG. The reality is that many items on a ballot are not understandable. 

Senator COBURN. No. I am going to ask you for a ‘‘yes’’ or ‘‘no’’ 

answer. Is it your testimony that the requirement for becoming a 

U.S. citizen, in terms of language, does not give you the skills to 

be able to vote as a U.S. citizen? 

Ms. FUNG. Yes. I think there are different levels of usage. Voting 

occurs on one day or two days in the year. It involves the exercise 

of a fundamental right. Any kind of assistance that is needed in 

order for citizens who have that right—they ought to be able to 

have access to language assistance. 

Senator COBURN. Mr. Chairman, I would just suggest that we 

are fixing the wrong problem. 

I have one other question—I need to leave—if I could just offer 

it. 

Would you all comment, and you can do it in writing, about the 

possibility for opt-out provisions for areas where they have demonstrated they have prepared tremendous amounts for bilingual 

voting, and yet it has not been utilized? 

Would you please respond to the Committee on your thoughts on 

giving areas which by Census data require it, but by practical nature show that there is no need, an opt-out provision to Section 

203? If you would respond to that in writing, I would appreciate 

that very much. 

Thank you, Mr. Chairman. 

Senator CORNYN. We have been joined by the Chairman, Senator 

Specter. Senator Specter, Senator Feinstein is next in order, and 

I will turn that over to you. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 

THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Thank you very much, Senator Cornyn, for 

presiding in my absence. I regret my late arrival, but I was occupied on the issue of cancer research and cancer funding. 

In addition to chairing this committee, I chair the Subcommittee 

on Labor, Health, Human Services and Education. If my parents 

had been a little more perspicacious, they would have made me 

twins so I could have been in both places. But I know you have 

been in good hands. 

This is a very, very important subject, renewal of the Voting 

Rights Act. I know we have a very distinguished panel here today. 

I know a number of you personally and admire the work you have 

done. I will be reviewing the transcript. We are going to move 

ahead as expeditiously as we can to complete this important assignment. 

Now let me yield to the distinguished Senator from California, 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. 

John, it is very good to see you again. The years have been good 

to you, I must say that. 

Mr. TRASVIN ̃ A. I had a good start, Senator. Thank you. 

Senator FEINSTEIN. I was thinking, when you mentioned that appointment, how many years ago it was. It is just great to see you 

again, so welcome. 

23

I was listening to Senator Coburn’s questions and I was thinking 

back in my own life. My mother was an immigrant from Russia. 

She came here very young, I would say 4 years old. 

She had just a primary education; the family was very poor. She 

was a naturalized citizen. She studied English. She passed the test. 

I helped her with her ballot. She could never really fully understand propositions, which even then were complicated and filled 

with legalese. 

I think the issue really is whether 203 enables the full comprehension of a ballot, which I think is very important. California’s 

ballots can be arm long, and despite ballot simplification they can 

be extraordinarily complicated. 

I, myself, often read a proposition two and three times before I 

can understand it, and even then sometimes I do not fully understand it. I look to other things to clarify it. 

So it seems to me, that because we are in a day where initiatives 

and propositions really become integral parts of ballots, that it is 

much more important to add that bilingual help to an individual. 

My response to Senator Coburn would be, you might be able to 

understand the difference between the candidates through the 

English courses provided in naturalization, but I very much doubt 

whether you can understand the complexity, fully, of propositions 

which often line our ballots. 

I would like to hear from anyone on that precise point, either pro 

or con. Yes, Mr. Mujica? 

Mr. MUJICA. Yes. I am an immigrant. I live in Maryland. I have 

the same problem. I see it all the time, every time I have to vote. 

I have two degrees from Colombia University and one from Cambridge in England, and I cannot read those propositions. 

Frankly, I read them three and four times and I end up not voting for half of them because I do not understand what they say. 

I do not think that any amount of translation is going to help. 

Senator FEINSTEIN. But do you not think it is a good aid to have? 

Mr. MUJICA. If I had it in Spanish, I would be laughing out of 

the booth because the Spanish of Chile is very different from the 

Spanish of Puerto Rico or Mexico. There is no way that someone 

could translate what Senator Kennedy showed into Spanish that 

would be understood by a Spanish speaker from any country in 

Latin America. So, I do not think it is a solution. I think the solution is to prohibit that kind of language in the propositions. 

Senator FEINSTEIN. So, in other words, you have to kind of 

‘‘dumb down’’ the ballot to be able to achieve a level of comprehension. 

Mr. MUJICA. Unfortunately, yes. Even Americans who have a low 

education could not understand that huge proposition. 

Senator FEINSTEIN. I just profoundly disagree with that. I think 

it is important to enable everybody that votes to have the largest 

comprehension possible. If language is one aid, that is fine. If simplification is another aid, that is fine. But a democracy, in my view, 

depends on an enlightened electorate, and that means being able 

to understand what you are voting on. 

So it seems to me, the language help that the government might 

provide to an individual, in a democracy, is most important when 

it comes to a ballot. 

24

Mr. MUJICA. Well, I agree with that. But maybe some sort of 

seminar held the day before the election would help, someone who 

could come and explain in as man languages you want what exactly is in the propositions. Maybe that would help. 

Ms. CHAVEZ. Senator, could I just briefly address that? 

Senator FEINSTEIN. Yes, Ms. Chavez. 

Ms. CHAVEZ. Because I think you provided the answer in your 

description of you helping your mother. I do not think it would be 

fair. There are a lot of instances where somebody is totally illiterate but has the right to vote, or someone who is blind but has 

the right to vote, or you were allowed to take someone into the polling booth with you to provide assistance. 

In terms of language difficulties, the ethnic press serves a very 

useful function. Anybody who saw all of those people out in the 

streets demonstrating for immigration reform knows that the ethnic Spanish-speaking press is alive and well and very active politically, so they can provide that kind of assistance. 

And, by the way, even if this 203 were not included in the Voting 

Rights Act, it would not prohibit States from deciding on their own 

to provide bilingual ballots if they thought it was necessary. 

Mr. TRASVIN ̃ A. Senator, if I could add on that point, it is the 

exact wrong move to go to privatization of this issue. The reason 

we have a Voter Information Handbook for English-speaking citizens is so that each voter will get information on both sides of the 

proposition. We do not want to have someone go in with an interpreter if that person is their spouse, or their union leader, or their 

boss. 

The newspapers. I respect the ethnic press, but there is no guarantee that they are going to have both sides of an issue in any 

newspaper. The important thing is having the Voter Information 

Handbook for all the voters—not just those that speak English, but 

for all the voters. 

Senator FEINSTEIN. Thank you. 

My time is up. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Feinstein. 

Mr. Chris Norby, an election official from Orange County, California, wrote to Senator Leahy and me, reporting: ‘‘Department of 

Justice agents have given our registrar a list of Spanish, Vietnamese, Korean, and Chinese surnames. Based on surnames alone, 

we are to assume that 25 percent of voters with these surnames 

are limited in English speaking.’’ 

Ms. Jan Tyler, an election official from Denver, says about the 

same thing: ‘‘The Department of Justice uses a form of ethnic 

profiling called a Surname Analysis to identify locations for bilingual polling districts in covered jurisdictions. 

The Justice Department also compels covered jurisdictions to 

conduct voter outreach efforts—that is, mass mailings—targeting 

limited-English proficient voters based on analysis of the surnames 

of voters in covered jurisdictions.’’ 

I would be interested to know if you ladies and gentlemen have 

any knowledge or jurisdiction using surname analysis, or being encouraged to use surname analysis. Would you think it worthwhile 

to amend Section 203 to prohibit such racial profiling by DOJ? Ms. 

Chavez, what do you think about that? 

25

Ms. CHAVEZ. Well, I can only assume that there has been surname analysis because I routinely get material sent to me in Spanish. As anyone who knows me knows, English is my one and only 

language; I am not proficient in Spanish. I know in the District of 

Columbia I received such material, and I believe I have received 

such material in Virginia as well. 

Chairman SPECTER. Ms. Wright, does that smack of racial 

profiling to you? 

Ms. WRIGHT. Mr. Chairman, my perspective is a little different. 

I would not want to state an opinion on whether it is racial 

profiling, but I would submit that, in our experience, it is not the 

most efficient way to determine who in your jurisdiction actually 

needs assistance. 

It can be very misleading in both directions, actually. We have 

had some evidence that you can end up under-serving a population 

if you do not pay attention to voters who actually request materials. 

I think that is an extremely objective, reliable indicator. If a person checks off on their voter registration form that they would like 

to receive materials in Chinese, I think you can presume that they 

do want those. When you accumulate a number of those within a 

voting precinct, then you know that oral assistance would be a good 

idea in that area. 

Chairman SPECTER. Mr. Kirsanow, do you think it would be a 

good idea to amend Section 203 to prohibit those approaches to 

identification? 

Mr. KIRSANOW. Absolutely, Mr. Chairman. It absolutely qualifies 

as racial profiling. Just conduct the thought experiment of reversing the proposition so that it is used for malevolent purposes. We 

would have a flurry of lawsuits sounding under a number of different sections of the Code, 1982, you name it, and we would be 

knee deep in such litigation. 

It is imperative to amend, for reasons that have to do with constitutional implications, because we have here over-inclusiveness 

and under-inclusiveness in terms of the definitional predicates to 

the Act, and also from the standpoint of policy issues. 

Normally, Americans are offended by anything that smacks of racial profiling that is not tethered to matters of national security. 

Here, as Ms. Chavez had testified before, the House, at least, did 

not adduce a factual predicate for substantiating the need, at least 

in terms of a constitutional basis, for Section 203. So, I think it is 

very important that we do away with anything that smacks of this 

offensive type of stereotyping. 

Chairman SPECTER. My red light is going to go on before you finish your answer, Ms. Fung. So I would like to have your comments, 

and I would like to observe the rule of Senators not asking questions after the red light goes on. 

So you have the question, Ms. Fung, and if you would follow, Mr. 

Mujica and Mr. Trasvin ̃ a, on the basic point of whether you consider it racial profiling, and whether you think it would be wise to 

bar that kind of an approach under Section 203. 

Ms. FUNG. Yes. I could not disagree more with respect to a ban 

on the use of surnames. Obviously it is not a precise tool, but many 

26

of the panelists, as well as members, have expressed concerns 

about the costs of Section 203. 

Section 203 does permit, and there are regulations that deal 

with, targeting so that local registrars can determine which areas 

need to have materials sent or which precincts need to have interpreters on election day. 

I think surname analysis should be one of the tools that is used, 

but not the only tool, and there should be much greater reliance 

placed on outreach to community groups that can help to identify 

where limited-English proficient voters are located. 

Mr. MUJICA. Actually, you touched one of my biggest problems in 

this country. I have been here 40 years and I am still profiled as 

an Hispanic. It really bothers me. I get mail all the time, as Linda 

said, offers in Spanish, the PEPCO bill, bills in Spanish, you name 

it. 

The funny thing is, my last name is not even Spanish, it is 

Basque. I always write back and say, why do you not send me a 

letter in Basque? I am a part-time genealogist, and I will tell you, 

segregating people using last names is a very bad way of segregating people. 

Half of the time they do it wrong. For instance, I have friends 

with names like Tom Evans in Chile. He probably gets everything 

in English, and he does not speak a word of English. The last name 

does not mean anything. 

I am sure your mother received things in Russian when she got 

mail. It is a shame. I think we are all Americans and we should 

get things in the common language of this country. 

If we have a problem, then we can write back and say, look, I 

cannot understand what you are offering me, would you mind sending me something in Spanish, or in Russian, or in Polish, or whatever. But every single day of my life I feel profiled. 

Chairman SPECTER. Mr. Trasvin ̃ a? 

Mr. TRASVIN ̃ A. Mr. Chairman, I do not think this surname analysis is a particularly effective device for targeting. I would be surprised even if the Assistant Attorney General for Civil Rights had 

approved it. I do not think you need to clutter up the statute with 

a provision prohibiting it. 

Most of the registrars do targeting and they work with the community organizations. The effective ones do that, and there is a lot 

of cooperation so they will know to send the materials to the right 

neighborhoods. 

But there have been interpretive guidelines on the Voting Rights 

Act since 1976 that the Ford administration put out, and there are 

a wide variety of vehicles and tests that the registrars can use. 

This is one of many. It may be something that other administrations would not want to use. I do not think it really needs to be 

put into the statute to prohibit it. 

Chairman SPECTER. Thank you. 

Senator Cornyn? 

Senator CORNYN. Thank you, Mr. Chairman. 

Chairman Specter read a little bit from a letter that has been 

made a part of the record already by Chris Norby, supervisor from 

the Fourth District Orange County Board of Supervisors, and he 

notes, as Senator Specter did, that the current interpretation of the 

27

Voting Rights Act requires his county to provide translations in 

Spanish, Vietnamese, Chinese, and Korean. 

He goes on to note that if the standards of the Voting Rights Act 

are unchanged, after the 2010 Census his county could be required 

to print ballots in Tagalog, Hindi, Punjabi, Urdu, and Farsi, depending on immigration patterns. 

My question really goes to, again, the remedial nature of this 

provision. If this is supposed to be a permanent part of our legal 

requirements, whether it really is consistent with what Justice 

O’Connor said in the Michigan affirmative action cases where she 

said, ‘‘We expect that race-based remedies for past racial and ethnic discrimination would not be necessary after 25 years in the future.’’ And that was, I believe, in 2003. 

Mr. Kirsanow, do you have any thoughts about that? I understood your testimony to criticize the current standard. But if the 

Congress were to embrace the current standard, whether there 

would be some sunset provision or something that would lead us 

in that direction toward a unified country. 

Mr. KIRSANOW. Yes, Senator. In order to incorporate immigrants 

into the national fabric, I think it is important to establish a certain baseline. The presumption is, apparently, that English speaking is an immutable characteristic, that is, there is no evolution toward speaking English once you have arrived in the United States. 

I know, for example, my father was an immigrant. It took him 

a few years to get proficient in speaking English. But I think everybody does after a certain point. It is one of the easiest languages 

to understand, if you get away from transitive verbs, and everything like that that we learn in class. But at least in terms of fundamentals, it is something that you can comprehend sufficient to 

cast a ballot. 

Some of these opaque ballot provisions at the State level—as you 

have indicated, I think John Roberts might have a difficult time 

understanding. But it is important to have a terminal point so that 

we have decided that, finally, everybody has been incorporated. 

There may be a standard by which you could say, for recent arrivals, we are going to give them a prescribed period of time in 

which to learn English, but it should not go on into perpetuity, especially considering that Congress is contemplating expanding immigration. 

If that is the case, as with the Los Angeles example, it is going 

to continue on and expand to the point where it becomes, not the 

United States, but the United Nations, at least in terms of ballot 

language requirements. 

Senator CORNYN. Ms. Wright—and we will come to you, Mr. 

Mujica, after that—you administer this election system in Los Angeles. How much does that cost for you to comply with the provisions of 203? 

Ms. WRIGHT. Roughly somewhere, plus or minus, about 10 percent of our election costs, which is fairly proportional to the numbers of people that we serve. 

Senator CORNYN. And what is your total cost? 

Ms. WRIGHT. About $30 million per election. 

Senator CORNYN. So you figure it would cost you about $3 million 

to comply with the multiple language requirements? 

28

Ms. WRIGHT. Yes. 

Senator CORNYN. Mr. Mujica, you had a comment? 

Mr. MUJICA. Yes. I have a comment about what was said before. 

Israel has a fantastic system called ULPAN. When immigrants arrive in the country, they are given enough money to survive five 

or 6 months so they do not have to work. 

They go to an ULPAN, which is a school that will help them assimilate into their new country, will teach them Hebrew, will teach 

them what it is to be an Israeli, will help them survive in the new 

country. 

That is what we need here, some sort of safety net for new immigrants that will be taken in. They do not have to have three jobs 

to survive. They can get enough money at the very beginning so 

they can survive, they can go to a school where they will learn 

English, they will learn how to apply for a job, they will learn how 

to open a bank account, how to cash checks, et cetera, without 

being exploited by those people who are very happy to take in people who do not speak a word of English. 

Senator CORNYN. Thank you. 

Ms. Fung, my time is almost up. But let me ask you, in your 

written comments you cite some language discrimination against 

Asian-Americans in Queens County, New York. 

I note that Queens County is covered obviously by Section 203, 

but it is not covered by Section 4(f) the pre-clearance requirements 

that were adopted in 1975 for those jurisdictions with a history of 

disenfranchising language minorities. Would you support expanding 4(f) to include counties like Queens? 

Ms. FUNG. Well, as a practical matter, because New York City 

has three other covered counties under Section 5, when a language 

assistance plan is being reviewed—which includes language assistance in New York and in Kings County—then the rest of the plan 

is also considered. 

Senator CORNYN. So are you saying that it is required to be precleared? 

Ms. FUNG. So I think there is no need to expand Section 4(f) further. The fact that Section 203 covers Queens County means that 

language assistance can be provided. If there are problems with the 

implementation of a language assistance program city-wide, then 

that would be submitted to the Justice Department under Section 

5, currently. 

Senator CORNYN. Do you believe it should be compulsory preclearance? 

Ms. FUNG. I believe that Section 5 has played an important role 

in helping to secure effective implementation of language assistance. Our experience has been that, if you are going to have a program which is carefully tailored to meet the problems that voters 

are facing, that citizens are facing, then it is important to have a 

comprehensive program. 

Senator CORNYN. I am still not sure what the answer is, but I 

will give up. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Cornyn. 

Senator Feingold? 

29

Senator Feingold. Thank you, Mr. Chairman. I am pleased that 

the Committee is finally moving forward on this, and I appreciate 

the witnesses joining us today to testify regarding the important 

provisions of the Voting Rights Act. 

Let me start with Ms. Fung and Mr. Trasvin ̃ a. We have heard 

testimony today from some who think that Section 203 somehow 

discourages language minorities from learning English. What do 

you make of this argument based on your experience working with 

language minorities? 

Do you agree that enabling language minority citizens to fully 

participate in the electoral process actually facilitates further integration into American society and culture? I will start with Ms. 

Fung. 

Ms. FUNG. Well, voting occurs a few days in every year. Language assistance clearly does encourage political participation. It is 

good not only for the voters, but also for the decisionmaking processes themselves. Elected officials, government officials, do not pay 

attention to communities if they are not voting. It actually improves and expands the process for consideration of various public 

policies. 

In fact, even though language assistance is used for voting, it 

does not limit the desire for individuals who are not fully proficient 

in English to learn English and to be more comfortable in English. 

Another question that was raised earlier with respect to how 

many languages keep coming under coverage for Section 203, as 

people do not need to have language assistance, then that is fine, 

they will not be using the bilingual ballots. But there may still be 

others who do need the language assistance. There is a constantly 

changing population. 

I am glad that, in the bill, there is going to be more periodic review of Section 203 coverage based on updated Census data. That 

is a very important addition to the bill. 

Senator FEINGOLD. Thank you. 

Mr. Trasvin ̃ a. 

Mr. TRASVIN ̃ A. I would concur with Ms. Fung, and that is that 

community colleges, districts, school boards of education are much 

more responsive when they know their language minority citizens 

are voting in their elections, and they provide more opportunities 

and more resources for English classes rather than fewer. 

Beyond that, the long waiting list for adult English classes, those 

waiting lists went up after 1975, they did not decrease. Just because you get a bilingual ballot on election day certainly does not 

discourage English the rest of the time. 

In fact, even U.S. English has cited data that shows that Latinos 

in Miami more often have a greater percentage of individuals saying it is essential for people to read and write English perfectly 

than non-Latinos, so I think the love of English is certainly there 

within the Latino community and other language minority communities. Bilingual ballots certainly do not discourage that. 

Senator FEINGOLD. Ms. Wright, how has the Justice Department 

helped your county comply with Section 203 in a cost-effective 

manner? 

Ms. WRIGHT. We meet, and we have met for many years, on a 

regular basis with representatives from the Justice Department. 

30

They review our data. I think they learn from us, as we learn from 

them. We have a very complex jurisdiction. 

I am not sure that I would say that they have been of assistance 

to us. We have a very comprehensive program, very professionally 

administered. They review it and they have sort of put their seal 

of approval on that over the years, that it is a good and comprehensive program. 

Senator FEINGOLD. All right. Thank you. 

Let me go back to Ms. Fung and Mr. Trasvin ̃ a. The argument 

has been made that we do not need Section 203 because knowledge 

of English is a prerequisite to naturalized citizenship. 

But among other difficulties, this appears to completely ignore an 

entire population of Americans who qualify for language assistance 

under Section 203 and whose ancestors were in this country long 

before those of most Americans. 

During a previous hearing on the Voting Rights Act, we heard 

very powerful testimony from Natalie Landreth, an attorney with 

the Native American Rights Fund, who spoke about the plight of 

certain Native American populations in terms of participating in 

elections. 

I raise this because I think it underscores the point that this is 

not an immigration issue, this is about the fundamental right of 

American citizens, naturalized and native-born, to participate in 

the electoral process. 

So Mr. Trasvin ̃ a and Ms. Fung, would you like to respond to the 

argument that Section 203 is unnecessary because of the English 

requirements for naturalization? Mr. Trasvin ̃ a? 

Mr. TRASVIN ̃ A. Yes, Senator. The language requirement for naturalization is less than it is for understanding the ballot and understanding it effectively. 

Beyond that, as you note, there are many native-born citizens 

who are not fully proficient, that is, reading and writing English. 

We are not talking about speaking English for this purpose, we are 

talking about reading and writing English in order to understand 

the ballot and be able to fill out the forms. So, there is no discrepancy between the naturalization level of English and the voting 

level of English. 

It seems that the tenor is, well, the naturalization levels should 

be same as the level for voting. We decided, in 1965, that we would 

not have a literacy test for voting. 

If you suddenly decided the only people who could vote are those 

that can understand the ballot measures, we would wipe out hundreds and thousands of voters, hundreds of thousands of citizens, 

and we do not want to do that in this Nation. 

Senator FEINGOLD. Thank you. 

Ms. CHAVEZ. Could I just add one thing to that, Senator Feingold? Because I think you have touched on a very interesting point. 

I would direct the Committee to note that the Native American 

languages that are covered by the Voting Rights Act, some of them 

were not, in fact, written languages. 

One of, I think, the true ironies of the Voting Rights Act is that 

the Justice Department essentially had to oversee the creation of 

written forms of some Native American languages in order to provide ballots in those languages. 

31

The kind of assistance that could have been provided orally or 

through other means, frankly, would have been more appropriate 

in those cases than having to actually try to create written forms 

of a language that historically had no written form. 

Chairman SPECTER. Thank you, Senator Feingold. Referring 

again to the letter from Ms. Jan Tyler, who is an election official 

in Denver, she raises a question that the Census Bureau interprets 

‘‘limited English proficiency’’ to include persons who self-identify 

themselves as speaking English ‘‘not at all,’’ ‘‘not well,’’ or even 

‘‘well,’’ or to see how someone who identifies themselves as speaking English ‘‘well’’ would be included, but that is at least her assertion. 

She then goes on to say that she doubts that the truly limited 

English-proficient population of Denver County meets the 5 percent 

threshold that would require triggering under the law. 

But since the Census Bureau’s threshold includes broad interpretation of limited English proficiency and there is no judicial review, 

should there be judicial review to correct such errors by the Census 

Bureau? What do you think, Mr. Mujica? 

Mr. MUJICA. Well, I do not see how they arrived at the 5 percent. 

On the other hand, why do you not just print everything in 322 

languages, all the languages that are spoken in this country? I 

mean, how do we draw the line? Why does a Russian not get help, 

or a Pole, or an Italian? 

Chairman SPECTER. How would you draw the line? 

Mr. MUJICA. I would have it in English and I would spend money 

teaching English to the immigrants. That is the only thing that can 

help. That is the way it used to be here before this political correctness sickness came to the county. 

Chairman SPECTER. Mr. Trasvin ̃ a, do you think there ought to be 

judicial review of this issue? 

Mr. TRASVIN ̃ A. The mechanism to cover Section 203 is appropriate, with the Census Bureau determining both the number as 

well as the language proficiency. There is not a need for judicial 

review because it is a mathematical compilation of the data. 

Chairman SPECTER. It is mathematical if they apply the standards correctly. 

Mr. TRASVIN ̃ A. I do not think there is a question about the standards being applied correctly. The Census Bureau looked at this 

during the last reauthorization in 1992 and determined that that 

was the appropriate line to draw, at ‘‘very well’’ versus ‘‘well,’’ because people tended to over-emphasize or overstate their ability to 

speak English. 

I would say also, in 1982 when Congress reauthorized the Act, 

it raised the standards and cut out a lot of jurisdictions. For those 

individuals who say, the jurisdictions are just going to do it anyway, that was not the case. A lot of jurisdictions dropped bilingual 

election services when they were no longer required to by the Federal Government. We also lost a lot of Federal enforcement of the 

Act. 

Chairman SPECTER. Does anybody on the panel think there 

ought to be judicial review? Mr. Chavez, you are nodding in the affirmative. We will give you the last word. 

32

Ms. CHAVEZ. I can almost assure you that if Congress does reenact Section 203, that there will be a judicial challenge. There will 

be litigation on this issue. 

Chairman SPECTER. Whether or not we allow for judicial review? 

Ms. CHAVEZ. Well, I believe that Section 203, as written, is unconstitutional and I can almost assure you, it will be challenged. 

Chairman SPECTER. All right. We do not have to provide for judicial review if it is unconstitutional. That will take care of itself. 

Well, thank you very much, ladies and gentlemen, for coming in 

today. 

Just a couple of closing comments. We have had many hearings 

on the reauthorization of the Voting Rights Act. We face the potential for a court challenge. We have seen the Supreme Court, in recent years, find it very difficult to satisfy on an adequate record. 

In U.S. v. Morrison, the legislation involving protecting women 

against violence, the Chief Justice wrote a 5 to 4 opinion declaring 

part of the Act unconstitutional because of the Congressional 

‘‘method of reasoning.’’ Until I read his opinion, I did not know that 

there was a deficient Congressional ‘‘method of reasoning.’’ 

Maybe I should have, but I had not noticed that. At least let me 

say, with a speech and debate clause and the right to say whatever 

I want to here in this Committee room, I had not noticed any difference between the method of reasoning of the Supreme Court and 

Congress. It seemed to be a little, candidly, high-handed to say our 

method of reasoning was deficient, but since they have the last 

word, we have to be pretty careful. 

Then they came up with the test of whether the statute was proportionate and congruent. I had an occasion recently to talk to the 

author of that standard, which was plucked out of thin air. The air 

is very thin over at the Supreme Court; I do not know if you have 

noticed it. [Laughter.] 

But that standard was plucked out of thin air. I do not know 

what ‘‘proportionate and congruent’’ means. We had two cases 

under the Americans With Disabilities Act; in one case they decided it was constitutional on access to a courtroom, the other case, 

on discrimination, they decided it was unconstitutional, 5 to 4. So 

we have to be pretty careful. 

Now, there are strong views about concluding a mark-up before 

the 4th of July. We will do our very best. It is sort of like scheduling the Supreme Court hearings. We are going to do it right, as 

opposed to doing it fast. There are others who want to be sure that 

we have a very expansive record, so it is a balancing act. 

But I wanted to make those comments because I have had some 

discussions with people about this and I thought I ought to put it 

on the record and let everybody know what the thinking is as to 

how we are proceeding. 

But there is no doubt about the importance of the Voting Rights 

Act. It is highly desirable to reauthorize it at an early date, although it does not expire until next year, but we are very mindful 

of that responsibility. 

At the same time, we are now in conference on the immigration 

bill. We are considering legislation on the constitutionality of the 

NSA program on electronic surveillance. We are trying to determine what is going on with telephone companies providing records. 

33

We have an important shield law for journalists before us. We are 

looking to bring asbestos back to the floor. It has been a very, very 

active season, but I want to assure you that the Voting Rights Act 

is at the top of the agenda. 

Thank you all. That concludes the hearing. 

[Whereupon, at 11:15 a.m. the hearing was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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Æ


30760.471