Senate Elections,
Reapportionment and Constitutional Amendments Committee
Federal Voting Rights Act
SENATOR DEBRA BOWEN: --even allowing for the
differences in watches between some parts of
I’m
Senator Debra Bowen, the chairwoman of the Senate Elections, Reapportionment,
and Constitutional Amendments Committee.
This is an issue, the Federal Voting Rights Act issue, that was raised
most recently by a group of people who were celebrating the work of the freedom
writers in the 1960s. they were at a
luncheon at Loyola Marymount University and a discussion began about the
Federal Voting Rights Act and at that point, I decided it would be a good idea
for all of us in California to become more educated about the 1965 Federal
Voting Rights Act, if you will, which was intended to insure that the 15th
Amendment to the Constitution that guarantees a person’s right to vote is not
denied or abridged based on race, color, or previous condition of
servitude. And the Federal Voting Rights
Act is intended to enforce that provision of the Constitution.
Much
of it is permanent, but there are a number of provisions that will expire in
2007 unless Congress affirmatively moves to reenact them. So what we will talk about today is the
significance of those provisions that are up for reenactment, what they mean to
To
make this subject matter more manageable, I have broken the agenda into four
pieces, and at the end of the scheduled panels, we will take testimony from any
member of the public who would like to testify.
If you would not mind signing up on the list that the Senate Sergeants
have, that will just help us make sure we have allocated enough time to receive
comments.
And
with that, let me first call up our panel consisting of Robert Rubin, Kathay
Feng, and Margo Reeg. This is—I was
going to call it the lawyers’ panel, but it’s really broader than that. This is the panel that will lay our
groundwork, provide us for an introduction on the Voting Rights Act and some of
the legal issues. Let me begin with Mr.
Rubin if I might. _____ think.
MR. ROBERT RUBIN: I’ll thank you again after you know, mike is
on.
SENATOR BOWEN: And I know the vents system is loud in this
room. Can you all in the back hear? Yes?
Okay, good. Then it’s better back
there than it is up here, apparently. If
anybody’s having trouble hearing, just please let one of our sergeants know and
we—feedback is the breakfast of champions.
Without knowing whether or not you can hear, we can’t make adjustments
to make sure that everything is audible.
Alright, now let’s try that again.
MR. RUBIN: Thank you.
And again, I am Robert Rubin, the legal director of the Lawyers
Committee for Civil Rights in
Whether
it involves the photo identification requirements in
I
think it’s also an auspicious time to be conducting these hearings because of
late, we have heard noise from two of the four Section V covered counties. Of course, you know, in
And
so I’d like to talk a little bit about some of the things that we have done
over the course of the years that show how important it is that those
provisions do remain. As the chairperson
may be aware, we brought and prevailed on two United States Supreme Court cases
in
There
have been letters of objection also in Monterey County in the Chular Union
Elementary School District, a school district that had almost 75 percent Latino
student population, yet even then when the school district proposed to
converting from a district to an at large system, and typically when you have
over 50 percent overall minority population which is of course, no longer an
minority, at large elections don’t tend to dilute votes quite as much. Even there, because of the way the county
populace had manipulated the vote and engaged in racially polarized efforts,
the Justice Department issued its letter of objection under Section V which of
course, prevents any change from going into effect. Section V prevents any voting practice or
policy from going into effect until it has been approved by the Department of
Justice or until a federal court has issued a declaratory judgment.
In another
example of the efficacy of Section V, in the 2003 gubernatorial recall
election, we, together with MALDEF and other civil rights organizations, were
engaged in litigation in Monterey County and other Section V counties,
challenging their principally the elimination of voting precincts. Now some might question why is that such a
big deal? Well, it’s a bid deal because
for disabled, for elderly, for the poor who do not own cars having to travel
five miles instead of being able to walk across the street to your school house
where your precinct has typically been, is a big deal. And that’s what
We
obtained a restraining order in that case, although of course, we’re well aware
the gubernatorial election did take place and everything that has happened
since did ensue. The elimination of
those polling places was stopped and those polling places were restored as a
direct result of effective implementation of Section V. So again, another example of the efficacy of
Section V. It doesn’t necessarily stop
elections, though sometimes it can, but what it does do is that is shifts what the
Supreme Court called the burden of time and inertia from the perpetrators of
the evil, from the victims of the evil, to the perpetrators of the evil. And that is so that for example, in the deep
south, when
The last
area that I’ll mention is actually not involving the Federal Voting Rights Act,
but it points the importance of the Federal Voting Rights Act. As the chairperson is undoubtedly aware, the
California Legislature in 2001 passed something we call the California Voting
Rights Act. And it is modeled
principally on Section II of the Federal Voting Rights Act although it
eliminates the compactness requirement.
That is one does not need to demonstrate a 50+ percent district in order
to get a remedy. You can show what we
call influence districts. That is a
district in which there might be 35 or 40 percent of a minority population that
together with crossover voting from traditional Anglo voters and other
crossover votes, they have an ability to influence and perhaps even ability to
elect their candidates of choice.
We
have filed two cases there. One is in
the California Court of Appeal in an instance where the constitutionality of
the law passed by this Legislature is being challenged. We believe that the law is
constitutional. The City of
SENATOR BOWEN: On what grounds?
MR. RUBIN: That it is a racial classification, because it
prevents discrimination on the basis of race.
And if you raise an eyebrow to that, it’s understandable, we don’t
really quite understand the difference between what you all did in the
California Voting Rights Act and what federal and state legislatures have been
doing for decades in terms of outlawing racial discrimination. But, a Superior Court Judge in
SENATOR BOWEN: And this is the City of
MR. RUBIN: The City of
In
the second case which is against the Hanford School Board, that case was
successfully settled. And again, it’s
another good example of the efficacy of Section V, because having Section V
there ensured that once the school district agreed to convert its election
system from an at large to a district system, the manner in which it would
district the school board elections would have to be what is called
non-retrogressive. That is not that the
minority community would not be worse off than it was before and that was a
serious stick that we had in getting the kinds of fair districts in
And
so why is this relevant to reauthorization?
Because as I noted earlier,
SENATOR BOWEN: Can you explain the legal process for the
bailout?
MR. RUBIN: It’s complicated. Essentially what a jurisdiction would need to
show, and a jurisdiction, of course, in
So it
is essential that this body send a clear message to Congress that the
protections of Section V and the Voting Rights Act are not confined to, the
importance of them is not confined to
Let
me just close quickly with a vignette about the importance of voting rights
protections. My clients in the
After
the decisive hearing at which we had achieved our goals, he pulled me aside and
told me how difficult it was for him to even speak publicly. He told me that growing up he was told to
keep his head down, his mouth shut, and to mind his own business. But, emboldened by the protections of the
Voting Rights Act, he stood up and challenged the school board in
So
you see there from the United States Code esoteric provisions that we talked
about in terms of bail out down to the grassroots community level, the impact
that the voting rights has. So don’t
kick the chair out from under Richard Leon.
Please be sure that the legal foundation for the Voting Rights Act for
African-Americans, Latinos, and Asians stays in place so as this state embarks
on being a majority minority state, we keep the promise that the ability of
those respective minority communities to elect candidates of their choice
through utilization of fair electoral practices is not compromised. Thank you very much.
SENATOR BOWEN: Thank you.
Let me turn to Ms. Feng.
MS. KATHAY FENG: Thank you, Senator Bowen and Senator Joseph
Dunn, for the opportunity to speak before you.
My name is Kathay Feng and I’m the executive director of California
Common Cause. And we’re a state
organization of 35,000 members dedicated to holding power accountable.
Prior
to joining Common Cause, I was also a voting rights attorney at the Asian
Pacific American Legal Center for over seven years where we engaged very
actively in protecting the Voting Rights Act in particular ensuring that the
bilingual provisions, requirements of the Section 203 of the Voting Rights Act
were fully applied in those counties that were required to provide assistance
in Asian languages.
And
so what I’d also like to do is like Robert, I provided written comments and
it’s all there, but I’d like to give a quick synopsis of it. Wanted to talk about, I think, to start out
with I think one of the most poignant examples of the type of discrimination
that still goes on in our poll sites.
When we think of the Voting Rights Act, a lot of times the picture or
the images that come up are black and white, something that happened in the
south, something that was in the 60s. It’s
a thing of the past. And certainly many
of the people who would argue that the Voting Rights Act sections should not be
renewed say discrimination was thing of the past. We’ve solved all our problems and we don’t
need any new laws to continue protecting traditionally disenfranchised voters
from being denied the vote. And that
story is that in a recent presidential election where I was poll monitor, I
went to a lot of poll sites where there were a lot of people voting who didn’t
speak English as their first language.
Many of them do speak English, but you know, the ability to speak
English well enough to be able to understand a proposition, well enough to be
able to understand Prop. 80 or 79 or name them, is a very challenging
task. And especially if it’s their first
time voting, walking into a poll site can be very challenging because it’s the
first time that they may be casting a ballot.
So knowing how to insert a ballot into the machine, knowing how to punch
it correctly or mark it correctly, knowing how to appropriately pull it out and
give it to the poll worker, that’s all an intimidating thing, because for many
people, the first time that they’ve ever done it.
And I
went to a poll site where there was a long line. It was in a senior citizen center. Many people were of Asian-American background
and they were really excited because it was a presidential election, and so
they got to vote for the first time around a really hot election. And so there was a certain excitement in the
air. People talking about how they were
going to vote. And what I noticed was
that the line was moving very slowly, because when people got to the front of
the line, they were trying to communicate their name, and because some of them
spoke with accents, their names were Asian and maybe not familiar to the poll
workers and they were a little bit nervous.
They were taking a little bit longer than people who have voted
regularly.
The
poll inspector, the person who headed up that poll site decided to stand up and
announce in a very loud voice, “Everybody who doesn’t speak English, I need you
to go to the back of the line. Back of
the line, right now, so we can help the normal voters.” Imagine is this is the first time that you
are voting being sent to the back of the line, the humiliation that you feel,
the message that it sends to you that you are not equal, the message that it
sends that your vote doesn’t matter, the feeling that you are less than a
citizen. And many people were on the
verge of tears. They had never been
treated this way and they had fought so hard to become citizens of the
That’s
a story that has a positive outcome, which is that because of the Voting Rights
Act and the monitoring like groups like the Asian Pacific American Legal Center
does, we were able to immediately contact L.A. County, let them know about the
incident, and have those folks counseled and then have additional poll workers
brought in to be able to assist the people who were trying to vote. And really, the key thing about the Voting
Rights Act is making sure that everybody who shows up to vote who is
legitimately allowed to vote has full access to the ballot. That when they’re casting a ballot, they’re
voting the way that they had intended to, and that it’s recorded
accurately.
Wanted
to talk very quickly about some other areas that we might not think of when we
think about the impact of the Voting Rights Act. One is that, you know, in November of 2000,
we had a very controversial election that opened America’s eyes to the kinds of
election irregularities that could happen, sometimes county to county with
different regulations, sometimes machines that were malfunctioning, sometimes
poll workers who were turning people away because of the way they looked or
because their name had been removed from the polls, from the poll lists without
any strong standards. And one of the
things that came up very clearly was that we learned a whole new vocabulary
around things like chads and butterfly ballots and that chads could be
pregnant, and that the machines we had assumed, punch card machines, that we
had assumed were widely reliable were in fact highly unreliable. And in
Using
the Voting Rights Act and the 14th Amendment, we were actually able
to sue the State of
An
additional example, the Help America Vote Act, passed in the wake of the
debacle in 2000, required a lot of new provisions, some of them, for instance,
the change to new voting machines from punch card voting, requiring that there
be a statewide database of registered voters, requiring that there be standards
for whose name gets purged and notifying voters before they get purged. Requiring that certain new voters present
voter I.D. or in some way or another, affirm that they were who they were. And requiring that counties develop
standardized process for provisional voting and other types of voting, so that
there was not a difference within a state.
All
of those types of requirements under the Help America Vote Act are implicated
by the Voting Rights Act. And California
had to come up with a state plan that would outline what we would do in
implementing the Help America Vote Act, and it was very much informed by the
notion that we had to make sure that in implementing the Help American Vote Act
that we were not inadvertently having a disproportionate impact on minority
communities or language minority communities.
And as a result, as I outlined in my written testimony, there are a lot
of aspects of
And
finally I would just mention redistricting.
We just went through a very heated election around whether or not redistricting,
the redistricting process should be changed and removed from the hands of
legislators and put into an independent redistricting commission. But, one of the key questions is to what
extent as we change the lines each decade, do we need to continue respecting the
Voting Rights Act? Without a strong
Voting Rights Act protection, concepts like protection of traditionally
disenfranchised minority voters and communities of interest would not
exist. And so we, like many of our
colleagues who will be speaking here today, want to strongly urge that the Voting
Rights Act has had a very meaningful impact for
SENATOR BOWEN: Thank you.
MS. MARGO REEG: Good morning. My name is Margo Reeg. I am representing the League of Women Voters
of California. I am actually the
president of the L.A. County League of Women Voters which is an organization of
13 Leagues within
The
League of Women Voters since its founding in 1920 had protecting and promoting
the right of citizens to vote as a guiding principle of the organization. The Voting Rights Act, widely considered one
of the most successful civil rights laws in our county has institutionalized
that principle by outlawing discriminatory practices in elections and
protecting the rights of minority voters.
The League of Women Voters urges you to strongly support the
reauthorization and the renewal of the expiring provisions of the landmark
Voting Rights Act of 1965.
The
League has been involved in many voting rights issues over the last 35
years. We advocated strongly for
amendments to the Voting Rights Act to extend it and to expand its coverage to
include language minorities. The League
was the leader in the fight to strengthen the Voting Rights Act in 1982 and to
extend the major provisions for 25 years, which will be up ‘til 2007. And we worked enthusiastically in 1992 for
the reauthorization of the language assistance requirements that are so
important in
The
League has worked effectively to oppose amendments to weaken Section V, which
applies, as Robert said, to four counties within
Since
then, the League has been heavily involved in helping write and pass the Motor
Voter law to make voter registration available to people in all states with, to
facilitate voter registration to make it as simple and easy as possible. We have opposed voter I.D. requirements and
other restrictions that would negatively impact on minority communities
specifically. And the League has been,
as a result of the broadening of the voting rights to language minorities and
providing election materials to language minorities, we have been proactive in
providing election education materials both on our smart voter site, which has
been operative since 1996. It has voter
lookup, polling place lookup facility, information about all the statewide
ballot measures, information about federal, state, and local candidates, and as
many links as possible are placed in at least Spanish to facilitate that access
by all voters.
In
addition, we’ve been involved with the Easy Voter Guide which in its first production
was called the Easy Reading Voter Guide.
The, it was designed to help literacy challenged adults, English learners
and other underserved Californians become informed voters. This began in 1994 as a State Library project
and has been operated by the League and other organizations since then. The Easy Voter Guide is published in Spanish,
Chinese, Vietnamese, and Korean, in additional to literacy level English, and
is distributed by the League and other organizations and libraries throughout
And
the League was heavily involved in the Help America Vote Act writing to make
sure that the provisions were both strong in requiring all states to provide
broad access to the ballot for people and to find strict requirements for
voting equipment and voting database and so forth. More recently, the League has been involved
both on the national level with the coalition organized by leadership
Conference on Civil Rights to promote the reauthorization of the Voting Rights
Act and has also been a member involved with the California Voter Empowerment
Circle in dealing with not only the Voting Rights Act reauthorization project
which we’re currently working on, but also other issues of voting
accessibility.
And
on a personal note, I’ve been a poll worker since 1990 and a polling place
inspector and my most recent job was polling place inspector at the early
voting site in
And
I’ve also worked at Braille Institute where we have used the touch screen
voting machines with the audio and keyboard capability to facilitate blind and
disabled voters voting independently on their own for the first time and it is
just really exciting to see how thrilled they are to be able to do this.
So
the Voting Rights Act is something that also applies to bringing voting to
every citizen and making it as accessible as possible. And that is why the League of Women Voters
firmly advocates for reauthorization of Section V and Section 203 of the Voting
Rights Act without changes, unless those changes would strengthen the law to
enfranchise more voters, provide for a more representative government, or give
additional protection to the rights of minority voters. And in
SENATOR BOWEN: I do have one, one question for the panelist
having to do with Section V. In a recent
Newsweek article a writer noted that
with regard to the preclearance provisions that they are still identified by a
formula on minority participation in elections more than three decades
ago. And the results are weird.
But,
in looking just at the four counties in
MR. RUBIN: It may make some sense, but before we talk
about changes, I’d like to, you know, just make sure that we all understand why
those four counties are covered in the first place. There are essentially two triggers for
Section V coverage. One is whether
there’s a discriminatory test or device in effect and what was in effect then
was a state literacy test. And the
second is voter participation in the 1968 presidential election, if it dropped
below 50 percent of registered voters, then that was an indicia of the
discriminatory device chilling the interest of voters to participate, because
that was such a low threshold.
So,
it’s not, I mean properly understood, I guess I would say it’s not so weird,
although what George Will thinks is weird I often think is, you know,
completely common sense. Someone
____. Although he says it much better
than I ever could, even if we disagree on the substance. So, should, not to completely dodge your
question, should it be updated? I think
that there probably could be, you know, a fresh look at some of the formula
coverage. However, I think that our
experience is at least in two of the four covered counties, and those are Kings
and
SENATOR BOWEN: Well, I think you’re assuming my question goes
in a particular direction in terms of the reform. It was not meant to imply that perhaps we
should narrow the preclearance jurisdictions.
It was intended more to inquire whether a different set of criteria
might be more accurate under current circumstances and could result in some
jurisdictions that are not currently covered being covered, as well as the
other way. And I think about what’s
happened in the last 30 years, and it’s hard for me to imagine that we have
picked all of the places where there are discriminatory practices based on
those two tests.
MR. RUBIN: Sure. I
think that’s a very fair comment, and the only thing that we would urge this body
to the extent that it is attempting to influence the Congress is that whatever
be done, be done on a full record, because there have been some poison pills
proposed along the way here, such that why don’t we make Section V coverage
national? Why don’t we make it
permanent? And the problem with just
summarily doing something like that is that as the United States Supreme Court
has said repeatedly, Congress only has power to do so much. And that is typically restrictive and
Congress does not have a full record upon which it would act. And so when I talk about the poison pill,
some I think were trying to lead members of the civil rights community down the
primrose path by saying, well, you know, as you were suggesting, you know, why
don’t we just make it, you know, I guess you weren’t suggesting universal, but
some were suggesting universal or broader.
And my point is simply that however broader it be made and certainly if
it’s made universal, I think universal would be extremely problematic. I don’t think the Supreme Court would uphold
the statute. And that would be a
devastating blow to civil rights to have the Voting Rights Act declared
unconstitutional.
SENATOR BOWEN: Senator Dunn.
SENATOR DUNN: You mentioned a poison pill and you just
described one of them from your perspective.
Are there other poison pills that you see are out there at the federal
level in this discussion? At that level,
I’d just be curious.
MR. RUBIN: Well, yeah, I mean, I’ll defer on Section 203,
I think there are issues. The other one
that I think I just briefly mentioned is permanency. And again, that seems to be something that
the court has relied on in upholding at least implicitly, the constitutionality
of Section V is that it’s constantly looked at and reauthorized and reexamined
to ensure that it is current.
SENATOR DUNN: Though a proposal of permanency would be a
poison pill from your perspective.
MR. RUBIN: I think so.
I would be very, very concerned that the Supreme Court is currently made
and as well as it may be made up in the coming weeks and months, would find
that an unauthorized extension of Congressional power that is not authorized
under the Constitution. And that’s
principally, as I’m sure you all are aware where the Supreme Court has really
been cutting back on Congressional power.
And even in the most obvious of instances, they’re insisting on finding
a federal nexus, so that even when you’re talking about guns or in schools, the
Supreme Court has struck down Congressional legislation in that area, because
of Congressional overreaching. And so we
would be very concerned about getting a victory in Congress on universal
coverage of Section V, for example, and the next day metaphorically it being
struck down by the Supreme Court as an unauthorized extension of Congressional
power.
MS. FENG: One of the things that—I know we’re not in the
process of making law, because this is just a discussion, but I think one of
the things that people have certainly talked about in terms of a potential
expansion is looking at the recent record of court cases and also settlements
and memorandums of agreements with counties where there has been a finding that
some practice has had a discriminatory impact and where the county entered into
an agreement to make changes, that those may be counties that we want to keep a
watchful eye on to make sure that as we progress for the next 25 years or 50 years or however long the
Voting Rights Act provisions are extended for, that those counties, as they
endeavor to meet the changes that are required by courts or by the agreements,
by consent decree, are meeting those obligations. So that may be, there are some natural ways
to think about how to extend it where there is a record that exists, and where
we would not necessarily be advocating for a universal coverage, but a sensible
coverage.
Senator
Dunn, you’d also asked about questions or poison pills that may exist. The other area is around Section 203, the
Bilingual Voting Rights Assistance provisions and there are several colleagues
who are here who are also experts, so I’ll leave some of the details to them,
but the threshold for Section 203 coverage is if there is within a county a
community that either is 10,000 persons of five percent who do not speak
English very well. And so for instance,
in
So
there’s all sorts of questions about whether some of those numbers should be
adjusted up or down. One of the things
that I think my colleague from the Asian Pacific American Legal Center will
testify to is we’ve done some numbers, run some numbers and adjusting the
percentages up or down from five percent to four percent or three percent
doesn’t necessarily bring in any new groups.
Adjusting the number threshold of 10,000 to 9,000 or 8,000 will bring in
new groups. So one example might be for
instance in
SENATOR BOWEN: Actually, when it comes to the initiative, I
think, initiatives, we more commonly get complaints that someone with a fifth
grade literacy rate in English—
MS. FENG: Yeah (LAUGHTER)
SENATOR BOWEN: --is ill prepared.
MS. FENG: Absolutely.
And there was a recent case that came down talking about as people are
gathering signatures for petitions, that they need to now gather them not only
in English, but in the different languages that are required by Section 203,
largely because we want to make sure that as people are signing petitions, just
as we want to make sure as people are casting a ballot, that they’re voting or
signing the way that they had intended to.
And
then the last piece is just what language groups should be covered under
Section 203. And currently it is
Latinos, Asian-Americans, and Native Americans.
And this is another one of those areas that could be a potential poison
pill. Folks are saying, well, in
SENATOR DUNN: (INAUDIBLE) Let’s take
MS. FENG: In the 2000—so following the 2001 elections,
Now,
that is not a, it doesn’t impact on sort of your bottom line of how much you
spend. You’re just making sure that the
people in the polls reflect the people who are coming to vote. But, they do provide those extra
languages. In the 1990s it was all those
languages minus Korean.
SENATOR DUNN: Let me stop you for a second, I just want to
make sure I understand. When you say
provide those other languages other than the mandated one, you don’t mean
materials are provided, it’s just you got, you might have a volunteer at your
polling place.
MS. FENG: It varies.
It varies. So to give the example
in the 1990s, it was five languages. So
it was all the, the six languages that I mentioned minus the, minus Korean
coverage. And the City of
SENATOR DUNN: This was before it was mandated.
MS. FENG: This was before it was mandated. So they actually allocated funding to
translate materials, to have simple ballots available, to do outreach in the
Korean-American community, and to hire bilingual poll workers. In the 2000 decade, what we see is for some
communities, they are very eager to have bilingual assistance, so they will
work with the county to get materials translated and some of those materials
appear on, for instance,
SENATOR DUNN: But not at county expense.
MS. FENG: Not at county expense.
SENATOR DUNN: So it would be, say, a particular community is
looking for, in a cooperative relationship, translated materials. The cost of is probably borne by the
communities seeking the translated materials.
MS. FENG: That’s right.
On the other hand, the county or city can choose to add as many
languages as they want. We see that
happening across the
So
states around the country have done similar types of extension of voluntary,
bilingual assistance.
MR. RUBIN: And other counties, too, in
SENATOR DUNN: Okay, now
MR. RUBIN: Correct.
SENATOR DUNN: We’ve got the chart here, Chinese, Filipino, Vietnamese.
MR. RUBIN: Right.
SENATOR DUNN: Are there additional languages that
MR. RUBIN: I believe they are covering Spanish.
SENATOR DUNN: Well, no, these are in addition. I think all counties have to do that in
Spanish. That’s already there.
MR. RUBIN: Okay, I’m sorry. You mentioned the three.
SENATOR DUNN: These are the additional languages over and
above Spanish which is true, Spanish is true for every county as I understand
our materials in
MR. RUBIN: You know, it’s just coming up and reminding me
of this, and this took place probably in the early ’90s. I know Zoe Lofgren was still on the Board of
Supervisors at the time, so whenever that was.
I honestly don’t remember what the language was, but I know that it was
beyond the requisite languages under the statute.
SENATOR DUNN: And it may have been. And what I’m really driving at right now, and
I’ll finally let this go, Madam Chair, is today in California how many counties
at county expense provide translated materials over and above those languages
that are mandated?
MS. FENG:
SENATOR DUNN: Okay, what does San Diego provide on a voluntary basis at
their expense over and above what’s mandated on, at the list that we’ve got
here is simply Filipino, in addition to Spanish.
MS. FENG: Right.
So
SENATOR DUNN: Okay, I’m going to say a consent decree isn’t
quite voluntary. (LAUGHTER)
MS. FENG: Okay, but not technically required by Section
203, yes. So I just put that out as an
example, but you’re right. It’s not
voluntary.
SENATOR BOWEN: ____ category of voluntary consent decrees.
SENATOR DUNN: Exactly.
And the reason I keep driving at this is because we talk about the
abilities of a county to step further forward than mandated, but the real
question is in reality, it doesn’t sound like other than some early ‘90s examples
which subsequently became mandated, I don’t see a rush by counties to provide
at their cost to their voters translated materials in other than mandated
languages.
MS. FENG: I think that that’s correct.
MR. RUBIN: Of course, should the Legislature decide to
appropriate funds ____, I’m sure they would rush to the fore. Yeah and admittedly,
SENATOR DUNN: I understand.
____ gives them the money, they’ll be happy to do it.
MR. RUBIN: Right.
Well,
SENATOR DUNN: I didn’t want to go into that, but my guess is
for those that have done it on a voluntary basis historically I’m going to
guess it was done at flush budget time.
SENATOR BOWEN: You know, we’ll just ask Google to do the
translations and we can solve the problem.
SENATOR DUNN: Very true.
MR. RUBIN: But, that may be something that the
Legislature is, you know, should consider.
SENATOR BOWEN: I think that’s part of the reason we’re asking
these questions, is to look at what happens, what the state’s options are. That will be part of the conversation, as
well.
MR. RUBIN: Like you did with the California Voting Rights
Act by extending beyond the protections of the federal Voting Rights Act
Section II, you could do something similar here in Section 203.
SENATOR BOWEN: Sure.
Senator Dunn has one more question then we’re at
SENATOR DUNN: Madam Chair, I knew there was going to be a
problem when I showed up.
SENATOR BOWEN: Oh, your kinds of problems I’ll take in a
hearing, thank you.
SENATOR DUNN: Here’s my other question that I know it’s an
area that the three of you, and I welcome our additional panel members if they
so choose to offer their comments, as well, on an issue that I think you’re
intimately aware of. And I want to raise
it and just get your input, quick response to it, because it’s a little bit off
the beaten path for today. And that is,
as we look, as we watch the folks a the federal level look at the Voting Rights
Act, the question is as we’re probably in this room all aware, and to put it in
lay terms, you have a constitutional right to vote, but do you have a
constitutional right to have that vote counted?
The gap that exists that we saw come up in neon lights in the election
of 2000. Some argue that had we had the
constitutional right to have a vote counted, the outcome of the presidential
election, 2000, would have been different.
I’m
not here to debate that. My question is,
if we look at tinkering with the Voting Rights Act, your thoughts on adding a
provision that in addition to the right to vote, the right to have that vote
counted.
MR. RUBIN: Embodied in statute?
SENATOR DUNN: If we could do it constitutionally, great. But, since that’s a more difficult process,
putting it in the Voting Rights Act itself.
MR. RUBIN: That’s, well the constitutional convention
always makes me nervous.
SENATOR DUNN: Right, that’s why, okay, let’s do it
statutorily.
MR. RUBIN: I mean, I think it’s an interesting notion,
although the Supreme Court said that it would not apply to any other instance,
that is pretty much what they said in Bush v. Gore. That the fact that you voted in one county
and I voted in a different county and they’re going to be counted, those votes
were going to be counted differently would be a violation of equal protection
is, of course, the basis for them stopping the vote. So, certainly as a principle, I think it’s
very important and it certainly as we see, I think you might have missed the
earlier comments. We did reference the
SENATOR DUNN: I’m going to distinguish that one, Mr. Rubin,
because I think that’s more the issue of act of voting and the barriers that
may exist for that which has been our historical fight, versus the okay, I’ve
given you the full right to have access to that, to the ability to cast your
ballot.
MR. RUBIN: Right.
SENATOR DUNN: Now the question is, what happens after you’ve
cast it?
SENATOR BOWEN: Now the issue is that we have that provision
in law in
MR. RUBIN: Right.
SENATOR BOWEN: Right.
Even though it’s clear that had the write in vote been counted, that
would have happened.
MR. RUBIN: Sure.
SENATOR BOWEN: So, I mean, I think that’s the question we
face.
MR. RUBIN: Well, it would certainly, I mean, I guess the bottom line and I don’t know whether you’re getting at th