Teddy Roosevelt might have wished for there to be “room for but one language here, and that is the English language,” but now we have an unelected judge mandating that the states provide multilingual ballots for the core citizenship function of voting, based on his arbitrary standards.
On Friday, Judge Mark Walker of the Northern District of Florida ruled that Florida’s secretary of state must instruct 32 of Florida’s 67 counties to begin providing Spanish-language ballots with endless assistance, marketing, and advertisement, based on his reading of the demographics in those jurisdictions. This same Obama appointee ruled last September that sample ballots in those counties must be printed in Spanish. Now, he has extended that edict to Election Day ballots and marketing and assistance throughout the entire election process.
Even if federal law required what Judge Walker is demanding, it would be an unconstitutional commandeering of a state’s power over election law. Congress only has a small angle to get involved to set a national Election Day (Art. I, §4, cl. 1), and the 15th Amendment ensured that it cannot strip voting rights from freed slaves. Nothing in the text of the 14th or 15th Amendments fundamentally altered this arrangement of states controlling election law. Senator Jacob Howard, one of the prime drafters of the 14th Amendment, made it clear during the floor debate in 1866: “The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right.”
Yet Judge Walker contends that section 4(e) of the Voting Rights Act (VRA) compels Florida to provide Spanish-language ballots and endless bilingual marketing and assistance for Puerto Ricans living in Florida (who are deemed automatic citizens). He contends that the law “prohibits English-only elections for those citizens — yes, citizens — educated in Puerto Rico in Spanish.”
For once, the judge is actually correct about the general law but not to the degree he applies it. In 1975, Congress did pass this unfunded liability on the states, at a time when there was only a fraction of the immigrant population we have in the country today. However, section 203 of the VRA only requires bilingual ballots based on census reporting that more than 10,000 individuals or five percent of the population in that county speak a specific language. How can a judge expand this in middle of a decennial census without new data?
Walker claims that section 4(e)(2) requires this result without question because it says that anyone from Puerto Rico, among other places, whose “predominant classroom language was other than English” must not “be denied the right to vote in any Federal, State, or local election because of his inability to read, write, understand, or interpret any matter in the English language.” But nobody is denying their right to vote. Forcing a county to affirmative supply bilingual ballots plus assistance, marketing, and advertising for them is quite a different story from denying them ballots, and such a mandate is only covered with valid census data pursuant to section 203.
The broader issue here is that the Florida government is not even trying to block Spanish-language ballots, and the judge even conceded that “the Governor and Secretary should be lauded for initiating a rulemaking process to ensure compliance.” Walker further admitted that “Plaintiffs conceded that no record evidence exists of a citizen who falls within the ambit of Section 4(e) but who was unable to cast an effective ballot under the protocols established by this Court’s prior preliminary injunction.”
Nonetheless, he says that he is entitled to babysit and intervene in every aspect of the process and order all sorts of processes and funding to be spent for a “toll-free, county-specific, Spanish-language hotline with at least one bilingual employee for the purpose of translating or otherwise assisting Spanish-language voters during all early voting hours, hours when polls are open, and all hours during which voters can cure deficiencies with absentee or provisional ballots following election days, and all business hours on other days.”
Why? Because Walker speculates that perhaps the reason why no Spanish-speaker was denied was “because this Court did not order proactive advertising or marketing regarding the sample ballots,” and thus, presumably, they never knew about the availability of bilingual ballots!
The judge therefore issued 11 orders demanding the secretary of state do everything she can to hire bilingual staff and provide bilingual assistance for every step of the electoral process.
Since when does a court have the power to demand appropriations and policies through a preliminary injunction? Courts have the power to protect individuals from positive action taken against them by the government. They don’t have the power to demand executives take authority or spend money they don’t want to spend, even when the judge is reading the law correctly. And in this case, if the other branches believe this law is unconstitutional, especially this judge’s expansion of it, they have an obligation to only use their resources in concert with the Constitution.
Also, where is the injury-in-fact? Who has been denied the vote? How can a court just order policies like a legislature? Courts are mechanical bodies that simply grant judgement or relief to a plaintiff.
Walker is the same judge who ruled even before Floridians voted to restore voting to felons that the Constitution mandates such a result. Clearly, Walker believes the courts can babysit every aspect of state election law.
There are a couple of other important observations in order:
Moreover, it’s time to go a step further and codify English as the official language for government business, programs, and grants. Congress should also re-introduce the 1996 bill that passed the House, which would have repealed the requirement to offer bilingual ballots. It should also remove any mandates on the states that either directly force them to cater to the balkanization agenda or open them up to private litigation.
Those who truly support the values of immigration should champion the movement to restore the English language to its proper role in our society, especially as it relates to those who are not just immigrants but have become American citizens.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.