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Saturday, October 24
Constitutional Clash: When English-Only Meets Voting Rights in Iowa
by
Trish Nelson
on Sat 24 Oct 2009 01:00 AM CDT
Constitutional Clash: When English-Only Meets Voting Rights in Iowa
 by Michael A. Zuckerman
Cornell University
Yale Law & Policy Review, Vol. 28, 2010
Posted with permission from the author. The following is an excerpt (citations have been excluded for space). Click on the link at the bottom of the post to download the entire article.
Abstract:
This paper examines the constitutional vulnerability of English-only laws as they relate to voting materials. The topic is timely in light of King v. Mauro, a recent Iowa decision that drew national attention by interpreting a state statute to bar non-English voter registration materials. In short, this paper argues that English-only policies as applied to voting are constitutionally suspect. After providing background about the English-only movement and the recent high-profile Iowa decision, the paper considers complex and uncertain areas of constitutional law, outlining how one might argue that English-only laws violate the Fourteenth and Fifteenth Amendments to the U.S. Constitution and the federal Voting Rights Act. In the end, the nation has an important choice to make: encourage participation in the electoral process, or use voting rights as means to disenfranchise language minority citizens. If the nation continues down the latter path, civil rights lawyers must be ready to respond.
INTRODUCTION
An ironic tension exists between politicians and an increasingly influential block of potential voters. During the 2008 election, Barack Obama and John McCain appealed to Hispanic voters by campaigning in Spanish, yet states like Iowa prevented those very same voters from registering to vote in any language other than English. This is the new American reality, where the Spanish-speaking electorate is expanding rapidly as calls for forced assimilation and closed borders grow louder. A consequence of this has been the rise of English-only legislation in a number of states. One state in particular, Iowa, made national headlines last year when a state court in King v. Mauro interpreted its English-only statute to prevent the Iowa Secretary of State from providing non-English voter registration forms. As a result, eligible voters in Iowa who did not speak English were hindered from registering to vote in state and national elections.
Legislative efforts, like Iowa’s, to restrict state communications to English are not new. Indeed, this debate has raged on since the founding of our nation. Although early attempts to establish a national language were rejected, politicians have continued to push language legislation since that time. The World War I era, for instance, saw the rise of state bans on teaching of foreign languages. Similarly the modern English-only movement has focused on establishing English as the official language of the United States and restricting government communications accordingly. To date, nearly 30 states have passed English language legislation, although many of these measures are merely symbolic and the courts have limited their scope. Using Iowa as a backdrop, this Article explores the constitutional vulnerability of English-only laws when states apply these laws to voting.
The purpose of this piece is not to argue that English-only laws are facially unconstitutional; rather, it aims to chronicle the recent application of English-only laws to voting and provide the legal foundation that practitioner and plaintiffs may use to overturn these laws as applied to voting. It considers complex and uncertain areas of constitutional law, detailing how one might argue that English-only laws violate the U.S. Constitution and the federal Voting Rights Act.
To that end, Part I provides a brief overview of the English-only movement. It considers the history and status of language in the United States, language legislation, and significant court decisions that have informed the English-only debate. Part II turns to the Iowa English Language Reaffirmation Act. Specifically, it provides an overview of the Act, and then describes how one Iowa court, in King v. Mauro, recently interpreted this law to enjoin state officials from distributing non-English voter registration materials. Using Iowa as a backdrop, Part III argues that English-only legislation is legally suspect when applied to voting. It details the strongest arguments that can be marshaled against the constitutionality of laws like the Iowa English Language Reaffirmation Act.
Excerpt:
II. KING V. MAURO: THE IOWA ENGLISH LANGUAGE REAFFIRMATION ACT
Discussion of the recent controversy over English in Iowa begins with the state’s passage of the Iowa Language Reaffirmation Act (ILRA). Signed into law by Governor Tom Vilsack in 2002, the Act declares English “to be the official language of the state of Iowa.” To that end, it mandates that “the English language shall be the language of government in Iowa.” The Act explains that this means “[a]ll official documents, regulations, orders, transactions, proceedings, programs, meetings, publications, or actions taken or issued [by the state] shall be in the English language.” The stated legislative purpose of the Act is to encourage proficiency in English, thereby promoting civic and economic participation in society. Indeed, although the Governor recognized that the legislation was not without controversy, he implied that enacting the English-only bill would improve the lives of children in Iowa.
The roots of the recent controversy in Iowa can be traced back to 2003 when then-Iowa Secretary of State Chester Culver made non-English voter registration forms available online. By 2006, the forms were available in at least four languages: Spanish, Vietnamese, Laotian, and Bosnian. As the 2008 election approached, a number of individuals and groups, including U.S. Congressman Steve King and English Only Inc.* brought a lawsuit in Iowa state court contending that the non-English voter registration forms violate the ILRA. The Iowa Secretary of State defended its action by arguing that (1) its action did not violate the text of the statute; (2) even if it did violate the statute’s prohibition, it falls into one of the statute’s exceptions; and (3) the Act is unconstitutional.
*The other plaintiffs were Iowa County Auditors Scott Reneker, Joni Ernst, Judy Howrey, and Karen Strawn; Iowa Senators Paul McKinley, Jerry Behn, and Ralph Watts; Ngu Alons, a citizen of Iowa; and U.S English Only, Inc., an interest organization “dedicated to preserving the unifying role of the English Language in the United States.”
Michael Zuckerman holds his undergraduate and law degrees from Cornell University. Over the last two years, he has written four articles on constitutional law that have appeared (or will appear) in legal journals at Cornell, Yale, the University of Virginia, and Notre Dame. Michael, who graduated law school in 2009, is currently a law clerk to a federal judge.
Download the entire article here
Thursday, September 11
ELECTION ’08: Scoring Secretary of State Seats for Dems
by
Sam Garchik
on Thu 11 Sep 2008 09:06 PM CDT
ELECTION ’08: Scoring Secretary of State Seats for Dems
By Sarah Laskow, www.publicintegrity.org
Plagued by memories of Florida’s Katherine Harris and Ohio’s Ken
Blackwell, a little-known 527 group helped win secretary of state posts
for Democrats in five swing states during the last election cycle. Now
the group has its sights on four more.
The Secretary of State Project, which as a 527 non-profit group can
exert influence on elections, raised more than $500,000 in 2006 to
ensure no right-leaning secretary of state will swing the 2008
presidential election to the GOP, as they did in Florida in 2000 and
Ohio in 2004. So far the group has scored victories in Nevada, New
Mexico, Minnesota, Iowa, and Ohio.
The SoS Project organizers formed the group “to
protect our elections from dirty Republican tricks,” according to the
group’s website. In many states, secretaries of state oversee voter
registration, election rules, voting machines, and recounts.
Positioning allies in these slots became a key strategy and a natural
starting point.
Though disclosure forms do not capture the group’s involvement, the SoS
Project has generated huge financial support for the seven candidates
it supported last election season (the group backed losing candidates
in Colorado and Michigan). While $500,000 might not seem like much
compared to some of the figures being tossed around in national races,
that sort of money makes a huge difference in state races.
For instance, the SoS Project reports giving Jennifer Brunner $167,000
toward her race for Ohio’s secretary of state spot (when she won the
seat being vacated by Blackwell, the Democrats’ nemesis from the 2004
presidential race). That amount puts the group among the campaign’s top
three donors. According to its website, the group also contributed 10
percent of the campaign budget for Mary Herrera, who won the New Mexico
secretary of state race. The remaining money (around $300,000) was
dropped in contests where the largest donors were putting in just
$15,000.
Using ActBlue, an online fundraising tool for left-leaning activists,
the SoS Project raised, on average, $250 per donor. Major funding for
the group itself, however, came from some prominent Democratic
fundraisers.
Analysis of state election data provided no apparent similar nationwide effort being made by Republicans.
Thursday, February 28
Support Post-Election Audits for Iowa this November
by
Sam Garchik
on Thu 28 Feb 2008 01:17 PM CST
Support Post-Election Audits for Iowa this November
By Sean Flaherty, IVI
Dear Friends,
We are close to victory in the fight for paper ballot systems in Iowa, but we need your help on an equally important component of secure elections: random hand audits. Time is short, but there is still active discussion of audits this year.
Please contact Secretary of State Michael Mauro at 515-281-5204 and urge him to support legislation to require hand-count audits of the 2008 election.
Background
Voter-marked paper ballots are the foundation of a reliable voting system. But paper ballots offer security only if we use them to check the software that reads the ballots and tallies our votes. And the computer voting systems we use in elections have grave vulnerabilities. Don't take our word for it, though. Here is a sample of what software experts say about security and the need for audits:
University of Iowa professor Douglas Jones, one of the world's experts on voting technology, stated in an affidavit in Pennsylvania court this year that hand counted audits are the only defense against weaknessess found by recent security reviews: "..the only effective defenses against the weaknesses discovered by the California TTBR [top-to-bottom review] and the Ohio EVEREST studies is the defense mandated by Pennsylvania law 25 P.S. 3013.7, a recount of a random sample of the ballots cast in an election."* The Ohio and California reviews included all of the voting systems used in Iowa, including paper ballot/optical scan systems.
The Brennan Center's Task Force on Voting System Security wrote in 2006: "The value of paper ballots without the Automatic Routine Audits is highly questionable, " (p. 83). The Task Force included Professor Jones, Ron Rivest, professor of computer science of MIT and one of the founders of the field of computer security, and Howard Schmidt, former chief security officer of the Microsoft Corporation. When a team that includes Microsoft's security officer says we need hand audits to secure our elections, we should listen.
Secretary Mauro supports post-election audits; it's a matter of getting it done this year. Please be sure to thank him for his support of paper ballot systems, but let him know that an election with no check on the software counting our votes is not an option in 2008.
Thank you for all you do.
Best regards,
Sean Flaherty
Co-Chair, Iowans for Voting Integrity
* Certification of Douglas W. Jones, Ph.D. Submitted to the Commonwealth Court of Pennsylvania, January 23, 2008.
Monday, February 4
Tell Governor Culver: Iowans Deserve Paper Ballots Statewide
by
Sam Garchik
on Mon 04 Feb 2008 08:40 AM CST
Tell Governor Culver: Iowans Deserve Paper Ballots Statewide
By Sean Flaherty, IVI
Great story in the Sunday Register, quoting frequent contribs Flaherty and Depew. Guys, keep up the good work. The rest of us? urge the gov to follow Mauro's lead.
Dear Friends,
Iowa is very close to adopting a statewide paper ballot system in time for the 2008 elections. We need your help to make sure this happens.
Click here to
sign Verified Voting's alert urging Governor Culver and legislators to
fund paper ballot voting systems, with optical scanners and
ballot-marking devices for voters with disabilities. Then please forward this on.
Voter-marked paper ballots provide the most reliable record of the voter's intent. An article in yesterday's Des Moines Register shows how close we are to this badly needed reform. See here for a summary of reasons that paper ballots are superior to a "paper trail."
Timing is crucial, and we need you to send a message today. Take one minute to send a message to the Governor and the legislature. Click here to fill out the form, and your message will be sent automatically.
Thank you for all you do!
Best regards,
Sean Flaherty
Wednesday, January 30
Congress -- Stop dawdling!
by
Sam Garchik
on Wed 30 Jan 2008 05:51 PM CST
Congress -- Stop dawdling!
By Common Cause
It's outrageous. We're less than a week away from "Super Tuesday," when 24 states are voting in the first major decision of the 2008 election, and we still do not have an election process we can trust.
Become a Citizen Co-Sponsor of the Holt bill!
Let's make sure everyone's vote is backed by paper in 2008.
The regrettable fact is that what's done is done. Now, we must forge ahead, together, to ensure that Congress does not continue to slip up all the way through the general election.
That's why I'm hoping you'll become a Citizen Co-Sponsor of the Holt bill immediately, to ensure that any mistakes on "Super Tuesday" February 5th, stop at February 5th.
Sign your name to become a Citizen Co-Sponsor of Rep. Holt's bill right now -- before the Super Tuesday deadline!
Despite our strong efforts to get Congress to pass verifiable voting, ensuring all states' voting machines are backed up by a paper record, Congress dilly dallied, and did not pass legislation in time for the Super Tuesday primaries – when hundreds of thousands of Americans will be voting for president.
We have no choice but to go into February 5th without a secure election process in many states. But, we do have a choice when it comes to the general election on November 4th. We can choose to do everything we can to pass the Holt bill (H.R. 5036, the Emergency Assistance for Secure Elections Act of 2008) before that election.
The faster you sign on as a co-sponsor, the quicker the bill will be passed, and the sooner the emergency funding will get to the states. The time to act is right now.
Sign your name to become a Citizen Co-Sponsor of Rep. Holt's bill right now – before the February 5th Super Tuesday deadline!
Having insecure elections when 24 states go to the polls is inexcusable. Having insecure elections when all 50 states go to the polls is a recipe for disaster.
Now is the time to stand up to Congress' dawdling and demand that they pass the Holt bill immediately. Will you join us?
Thanks for all you do,
Susannah Goodman
Director of Election Reform, Common Cause
P.S. Keep an eye on your inbox. We'll soon be sending Common Cause's up-to-the-minute report on the threat level of voting machine malfunction in every state across the country to every Citizen Co-Sponsor of the Holt bill. This is one report I can guarantee you will not want to miss.
Tuesday, January 29
Feds HAVA Key to Mauro-Culver Split
by
Sam Garchik
on Tue 29 Jan 2008 01:27 PM CST
By Jerry Depew, Iowa Voters
A new federal bill could resolve the tension between two of Iowa’s top Democrats–the Governor and the Secretary of State. Today’s Register reports
that Mauro wants to get all our votes on paper ballots, but Culver is
content to buy “paper trails” for the tempermental touchscreens that
now infect the state’s polling places.
It’s a question of money (big surprise!). The good stuff that Mauro
wants costs $10 million. Culver is content to waste $2 million on the
widely cussed paper trail printers.
They should put their egos aside for a minute and agree on one
thing: to call on our state’s Congressmen to support the brand new HR
5036. That new bill
by New Jersey’s Rush Holt pays for replacement equipment when states
wise up and dump their DRE touchscreens. It is not a mandatory bill, so
there is only one point of contention: Do we have the money in the
federal budget to mop up the mess HAVA made of voting machines all over
the nation. States that are loving their mess don’t have to do a thing.
States that are ready to wash up can have the soap paid for by the
Congress that caused this problem in the first place.
None of Iowa’s Congressmen have signed on to this bill yet. I called
Latham’s office in Fort Dodge this morning. Can you do your part?
Boswell in Des Moines (toll free) (888) 432-1984
Braley in Davenport: (563) 323-5988 or more choices
Latham in Ames: 515-232-2885 or tom.latham@mail.house.gov
Loebsack: email or in Cedar Rapids 319-363-2288
King on the web or in Sioux City call 712.224.4692
Wednesday, December 19
Ohio Voting Machine Review Has Major Implications For Iowa
by
Sam Garchik
on Wed 19 Dec 2007 10:58 AM CST
Ohio Voting Machine Review Has Major Implications For Iowa: Critical Security Vulnerabilities, Threats to Voter Privacy
By Iowans for Voting Integrity
Iowa's
discussion of purchasing new election equipment is likely to be
affected by a landmark review of voting systems in Ohio. A report
ordered by the Ohio Secretary of State and released December 14 found
severe flaws in all of the voting systems Iowa uses.
“The Ohio
review looked at every system Iowa uses, and found real risks to the
integrity of elections,” said Iowans for Voting Integrity co-chair Sean
Flaherty. Ohio Secretary of State Jennifer Brunner said that the
security problems discovered were “worse than she anticipated.” [1]
Computer
scientists who analyzed the software wrote that within a few weeks,
they were able to subvert “every voting system they were provided in
ways that would often lead to undetectable manipulation of election
results.” Computer scientists have previously found that
malicious code can be written to escape pre-election and post-election
testing, running only under desired conditions.[2] The Ohio reviewers
warned that it is “safe to assume that motivated attackers will quickly
identify – or already have – these and many other issues in the
systems.”[3]
Equally troubling was a threat to voter privacy in
the design of the TSx touch screen voting machine, made by
Diebold/Premier and used in 71 Iowa counties. Ohio reviewers
confirmed reports that the TSx records votes in its computer memory
with a time stamp, allowing anyone with access to the system and
knowledge of the time of day that a vote was cast to violate voter
privacy.[4] Iowa Code 52.7 requires that all voting systems used in the
state permit voting “in absolute secrecy.”
Ohio Secretary
Brunner has recommended scrapping all touch screens and using only
optically scanned paper ballots. Flaherty said, “Hopefully, these
findings will seal the fate of touch screen systems in Iowa”.
Legislation signed by Governor Culver in May requires counties
eventually to scrap touch screens and adopt a system of optically
scanned paper ballots, which are marked by the voter and later
tabulated by a machine. Funding is needed for counties to make
switch as quickly as possible. Iowa's legislators, Governor
Culver, and Secretary of State Michael Mauro are discussing funding for
new equipment this month.
Paper ballots are the beginning of the
solution. Ballot scanners also use software, so hand-count audits
of a sample of ballots to check the electronic tally are
necessary. Audits are championed by many computer scientists who
study voting systems, including a task force that included the former
chief security officer of Microsoft and University of Iowa voting
system expert Douglas Jones.[5] 16 states have laws requiring hand
audits of election results.[6]
“The combination of optically
scanned paper ballots and hand audits provides checks and balances that
build confidence in the system,'' Flaherty said.
[1]
“Ohio Elections Official Calls Machines Flawed.” By Bob Driehaus. New
York Times, December 15, 2007.
http://www.nytimes.com/
2007/12/15/us/15ohio.html?_r=1&ref=us&oref=slogin
[2]
“The Machinery of Democracy: Protecting Elections in an Electronic
World.” Report of the Brennan Center for Justice Task Force on
Voting System Security, pages 43-45. http://brennancenter.org/
dynamic/subpages/download_file_39288.pdf
[3]
EVEREST Academic Review Team Findings, page 4 (page 22 of pdf),
http://www.sos.state.oh.us/sos/info/EVEREST/
14-AcademicFinalEVERESTReport.pdf
[4] IBID, page 154 (page 172 of pdf)
[5] “The Machinery of Democracy,” page 3. http://brennancenter.org/dynamic/subpages/
download_file_39288.pdf
[6]
“Manual Audit Requirements.” The Verified Voting Foundation. March
2007, http://www.verifiedvoting.org/downloads/
stateaudits1007.pdf
For More Information Contact Sean Flaherty, Co-Chair
Iowans for Voting Integrity
319-621-8651
sean@iowansforvotingintegrity.org
www.IowansForVotingIntegrity.org
Wednesday, December 5
One More Push for Funding of Paper Ballot Voting System
by
Sam Garchik
on Wed 05 Dec 2007 09:43 AM CST
One More Push for Funding of Paper Ballot Voting System
By Sean Flaherty, IVI
Dear Friends,
We need you to make one more push to place paper ballot voting systems throughout Iowa in time for the 2008 elections.
Please contact Governor Culver 515-281-5211 and urge him to provide full funding for optical scan voting systems, with ballot-marking devices to serve voters with disabilities.
We were concerned a few weeks ago when the Governor called for discussion of adopting a statewide vote by mail system. To our relief, the Governor has indicated that he is not going to push for a statewide vote by mail in lieu of funding for new equipment. But he has also noted that the current budgetary environment is tight, and the Revenue Estimating Conference for next year's budget is December 11. So timing is important.
The new equipment we need for 2008 could cost the state $8 million more; $2 million has already been allocated. With a state budget that exceeds $6 billion a year, a one-time expense of $8 million is not a bad bargain for counting our votes accurately.
Here are some of the most important reasons that optical scan equipment with ballot-marking devices is the best voting system for Iowa:
Iowa deserves reliable voting equipment in 2008 and beyond. The alternative to voter-marked paper ballots with optical scan is to add "paper trail" printers to touch screen voting machines (DREs), which print votes on a continuous roll. These printers have proven unreliable: in Cuyahoga County, Ohio in November 2007, 20% of the paper trail printouts were unreadable. There is a history of problems with paper trail printers.
Voter-marked paper ballots counted by optical scanners at the precinct produced the lowest rate of residual votes of any voting system used in Iowa in 2006.
Paper ballots are much easier for election officials to recount or audit by hand than the continuous paper roll than the direct-recording electronic machines offer for voter verification.
Paper ballots are more intuitive to the voter.
Voters may fail to check the voter-verified paper record. Paper ballots are inherently voter-verified.
In case of a recount, ballots are better for public confidence than a printer roll. A ballot marked by the voter is stronger evidence of the voter's intent than a secondary printout.
With optical scanners and ballot-marking devices, all voters use the same type of ballot, and all votes are counted using the same method. The state could not be accuses of treating voters unequally in the tabulation of votes.
It is easier to protect voter privacy with paper ballot systems, because the DRE paper trail printers store the votes on a continuous roll.
The current generation of DREs has proven vulnerable to calibration problems; e.g., vote flipping.
Federal legislation could soon ban the use of thermal paper and reel-to-reel vote rolls for the paper trail printers. Optical scan with accessible ballot-marking devices would meet the requirements of proposed federal legislation.
Tell the Governor that it is time for the state to make a smart investment in democracy. Call him at 515-281-5211, or use the contact information below.
Thank you for all you do.
Best regards,
Sean Flaherty
Co-Chair, Iowans for Voting Integrity
www.IowansForVotingIntegrity.org
Governor Culver's Contact Information
Address:
Office of The Governor and Lt. Governor
State Capitol
Des Moines, IA 50319
E-mail form at:
http://www.governor.iowa.gov/administration/contact/
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