Urging the Census Bureau and the Department of Justice to Release the Next Set of Section 203 Determinations

Recipient: Director Dr. Robert M. Groves & Assistant Attorney General Thomas E. Perez

Dr. Robert M. Groves
Director
U.S. Census Bureau
Suitland, MD 20746

The Honorable Thomas E. Perez
Assistant Attorney General
Civil Rights Division
U.S. Department of Justice
Washington, DC 20530

Dear Director Groves and Assistant Attorney General Perez:

On behalf of The Leadership Conference on Civil and Human Rights, a
coalition charged by its diverse membership of more than 200 national
organizations to promote and protect the rights of all persons in the
United States, we write to urge the Census Bureau and the Department of
Justice to release the next set of Section 203 determinations as soon as
possible, and to oppose the delay sought by Representatives Trent
Franks and Trey Gowdy in their August 10, 2011 letter to each of you.

The Leadership Conference has a strong commitment to civil rights and
voting rights and, together with our member organizations, was
integrally involved in the reauthorization of the Voting Rights Act of
1965 (VRA), including Section 203, the language assistance provision.
As noted in the February 8, 2011 letter from key members of The
Leadership Conference to Director Groves and Attorney General Holder,
the need to ensure that language minority citizens can participate fully
in our nation’s democracy is critical. Accordingly, we urged the
Census Bureau and the Department of Justice to work together to ensure a
timely determination of those jurisdictions subject to Section 203 of
the VRA, in order to allow the newly identified Section 203
jurisdictions sufficient opportunity to ensure that elections are
accessible to their language minority communities. It is our
understanding that a list of covered jurisdictions is expected to be
published in the Federal Register later this summer.

Notwithstanding the importance of this issue, Reps. Franks and Gowdy
urge delay on two grounds. First, ignoring legal precedent and strong
methodological support, they call into question the definition used by
the Census Bureau for “Limited English Proficiency.” Second, they
express concern about the cost to state and local jurisdictions in
complying with Section 203. The issues of cost associated with Section
203 compliance and the definition of “Limited-English Proficiency”
raised by Reps. Franks and Gowdy were both debated thoroughly and
resolved during consideration of the Fannie Lou Hamer, Rosa Parks, and
Coretta Scott King Voting Rights Act Reauthorization and Amendments Act
of 2006, which passed both houses of Congress by overwhelming margins.
Thus, these issues are not new concerns and should not impede the Census
Bureau and the Department of Justice from moving forward to make the
next set of Section 203 determinations as soon as possible.

Regarding the first issue, “Limited-English Proficient” (LEP) for the
purposes of Section 203 of the Voting Rights Act is defined as the
inability “to speak or understand English adequately enough to
participate in the electoral process.” See generally 42 U.S.C.
§ 1973aa-1a(b)(3)(B). The Representatives’ letter suggests that the
Census Bureau’s decision to treat all those who answer other than “very
well” as LEP is based solely on studies from the 1980s. In fact, the
Census Bureau reexamined this issue in 2000–01 and reached the same
conclusion:

Research has shown that those who are
reported able to speak English very well performed as well on tests
using English written material as English-only speakers. The remainder
performed worse on the test and could be labeled as having limited
English language proficiency. They may require materials and
instructions in another language in order to vote or secure basic
services.

See U.S. Census Bureau, Language Use and Linguistic Isolation:
Historical Data and Methodological Issues (Feb. 12, 2001) (paper
prepared for the session on Language Differences and Linguistic
Isolation at the FCSM Statistical Policy Seminar, Bethesda, MD Nov. 8-9,
2000). The rationale for the Bureau’s definition of Limited-English
Proficiency is clear and well settled and should not be cause for delay.

Second, Reps. Franks and Gowdy cite the potential cost of Section 203
compliance and the need to look for cost savings. However, as the VRA
reauthorization record makes clear, the costs associated with Section
203 are, in most cases, minimal. In a May 1997 study on the costs of
Section 203, the General Accounting Office (GAO) surveyed all 422
jurisdictions and 28 states covered by Section 203. For the respondents
that provided cost data, the average cost for written assistance was
only 14 percent of total costs, and the average cost of oral assistance
was only 6.5 percent of total costs. Some jurisdictions even
demonstrated that it is possible to provide oral assistance at no or
minimal cost. An Arizona State University study by Dr. James Tucker and
Dr. Rodolfo Espino in 2005 confirmed the GAO’s findings. This research
found that a majority of jurisdictions incurred no additional costs for
either oral or written language assistance. Nearly 60 percent of
reporting jurisdictions incurred no additional costs for providing oral
language assistance, and nearly 55 percent of reporting jurisdictions
incurred no additional costs for providing written language assistance.
The study also concluded that, after controlling for factors such as
population size and classification of costs, the average percentage of
total election costs attributable to language assistance was 2.9 percent
for oral assistance and 7.6 percent for written assistance. Simply
put, any purported cost concerns about Section 203 are misplaced and
should not delay the next set of Section 203 determinations.

The right to vote is a basic tenet of our democracy, and it must be
made accessible to all of our citizens. It is imperative that these
determinations be made in a timely manner, as Section 203 helps to
eradicate language barriers to voting for many limited English
proficient voters. As you know, the Director of the Census Bureau has
the authority to make these determinations, which are effective upon
publication in the Federal Register. 42 U.S.C. § 1973aa-1a(b)(2). The
Director’s determinations are not subject to review in any court. 42
U.S.C. § 1973aa-1a(b)(4).

We urge you to exercise your authority to make these determinations this summer, as scheduled.

Thank you for your prompt consideration of our views.

Sincerely,

Wade Henderson
President & CEO

Nancy Zirkin
Executive Vice President