Time to Revive Puerto Rican Voting Rights
Abstract
Section 4(e) of the Voting Rights Act of 1965 (VRA) was enacted specifically to prohibit denial of voting rights of persons born in Puerto Rico based on any inability to speak, read, or understand English. The Supreme Court has emphasized that the "practical effect" of 4(e) was to prohibit denying the right to vote to large segments of the Puerto Rican community, furthering the aims of the Equal Protection Clause with regard to the right that is "preservative of all rights."
For Puerto Ricans, there is no requirement to speak English to be U.S. Citizens, and for many educated in public schools in Puerto Rico in Spanish, their voting rights are compromised if elections are held in English only. A series of cases were brought in the 1960's and 70's in New York, Chicago and Philadelphia, to enforce the Puerto Rican community's rights to access to elections in Spanish according to Section 4(e). Since then, this section of the VRA has been under-utilized, perhaps because through the 1975 VRA amendments, Section 203 became available as a more direct means to provide language access.
Section 203 requires that a state or political subdivision must provide bilingual access to elections if strict population threshold requirements, such as "more than 10,000..., or more than 5 percent of the citizens of voting age of such State or political subdivision are members of a single language minority and are limited-English proficient," are met. Section 203 is implemented through the federal Census Bureau's publication of covered jurisdictions every ten years. Since its enactment, millions of limited-English proficient Spanish-speaking voters have been provided with increased access to voting rights.
However, in the meantime, another generation of Puerto Ricans migrated from the Island to live "Stateside," e.g. to the mainland United States, and many are not covered under Section 203, as they live outside of the areas covered under Section 203 population threshold requirements. Over one million Puerto Ricans live in districts where elections are still held in English-only, and their voting rights are compromised if they cannot understand the ballot in English.
In 2003, in Reading, Pennsylvania, the United States Department of Justice brought its first case to enforce Section 4(e) since 1965. This case shows that Section 4(e) remains a viable tool for resolving discrimination against Puerto Rican voters.
This article will analyze how past and recent litigation under Section 4(e) has served to remedy language-based discrimination and improve treatment of Puerto Rican voters. It will also examine how enforcing Section 4(e) can help improve treatment of other Latinos whose voting rights may be compromised, and demonstrate that Section 4(e) should be revitalized as a tool to protect against the growing tide of discrimination against Latinos in the post-9/11 era.
This article will follow the chronology of Puerto Rican migration to the U.S. mainland and the issues facing Stateside Puerto Rican voters since the enactment of the 1965 Voting Rights Act.
Part I of this article (covering 1945-1975) will briefly examine historical Puerto Rican migration to the U.S. mainland, the discrimination faced by those who arrived during the post-World War II "Great Migration," and analyze the first generation Puerto Rican voting rights cases brought after the enactment of Section 4(e) of the VRA in 1965. Part II of this article (covering 1975-1976) will discuss the 1975 VRA amendments expanding its language access provisions to include Section 203, which requires language access based on population threshold formulas.
Part II will then compare and contrast Sections 4(e) and 203.
Part III (covering 1976-2008) will examine post-1975 migration from Puerto Rico, analyze the impact of voting rights cases brought under Section 203 benefitting Spanish-speakers in general, and evaluate the recent Section 4(e) case brought to preserve voting rights for Puerto Ricans who have been left out of Section 203 coverage.
Finally, Part IV will discuss the need for renewed enforcement of Puerto Rican voting rights under Section 4(e) for over one million Stateside Puerto Rican citizens who are living outside of the protections of Section 203, during this current period of time in which Latino voting rights are under siege.