No day is more important in the United States than election day. It is a day on which all Americans are equal as they go to the polls. Too often, though, discrimination, ignorance or incompetence take away the right to equal treatment and interfere with the right to vote.
In 2000, the Department of Justice successfully brought a lawsuit against the City of Hamtramck, Michigan, on behalf of Yemeni voters. In the preceding city election, more than 40 Arab American citizens had been challenged by poll watchers when they tried to vote
The poll watchers claimed the Arab Americans were not citizens, although in fact they were challenged solely based on their appearance and their Arabic names. Some of the Arab Americans actually produced their passports, proving that they were U.S. citizens.
Actual proof of citizenship did not matter. All of the Arab American voters, including those who could prove their citizenship, were required to stand in the polls and take an oath that they were in fact U.S. citizens
Not one “white” voter was required to take a citizenship oath.
Poll workers also demanded to see the drivers’ licenses and voter registration cards of voters who they thought “looked Arabic.” No non-Arab voter was required to produce identification. Naturally some Arab American citizens decided not to vote rather than undergo such embarrassment.
Many racial and ethnic groups suffer discriminatory treatment at the polls. The horrors of September 11 have placed Arab Americans especially at risk of discriminatory treatment.
As the ensuing Justice Department lawsuit showed, however, Arab Americans enjoy protections under federal law. Congress has passed a number of laws on the rights of voters as they go to the polls, and Arab American citizens can take an active part in using these laws to protect their rights.
Voting Rights Act
Chief among these laws is the Voting Rights Act of 1965. The Act marshals a series of provisions to protect the voting rights of all citizens. Two of its provisions are especially important for Arab Americans
Section 2 of the Act protects all citizens from discrimination in voting on account of their race and membership in a language minority group. The term “language minority group” is defined in the Act to include Hispanic, Asian American, Native American and Alaskan Native citizens – groups that historically have been subjected to discrimination in voting.
Racial and language minority groups overlap, and the term “race” is imprecise at best. In many ways race is a cultural rather than biological term. While Arabs are grouped with “whites” as “Caucasians” in some contexts, the Supreme Court has recognized that they deserve protection against racial discrimination.
The essence of a Section 2 claim is that a practice puts a burden on the minority voters that is not placed on others – like the oath and ID requirements in Hamtramck.
To establish discrimination in violation of Section 2, it is necessary to show that minorities suffered these burdens and white citizens did not, or at least that white citizens did not suffer to the same extent.
Successful challenges to racial discrimination at the polls on election day have included, but are by no means limited to, cases involving subjecting minority voters to racial slurs, rude treatment, race-based challenges to the voters’ eligibility, racial discrimination in hiring poll officials, disparate demand for ID, disparate offering of provisional ballots, coercing voters to select certain candidates, blocking the entrance to the polls, and refusal to allow illiterate, disabled or non-English speaking voters to receive necessary assistance in voting or to choose the person whom they prefer to assist them.
The impact of Section 2 litigation on the treatment of votes has been dramatic. Equally dramatic has been the impact of voting rights litigation on minority participation. As a Department of Justice official testified regarding a lawsuit in California:
“As a result of our lawsuit, San Diego added over 1,000 bilingual poll workers, and Hispanic voter registration increased by over 20 percent between our settlement in July 2004 and the November 2004 general election. There was a similar increase among Filipino voters, and Vietnamese voter registration rose 37 percent. Our lawsuits also spur voluntary compliance: after the San Diego lawsuit, Los Angeles County added over 2,200 bilingual poll workers, an increase of over 62 percent.”
Additional provisions of federal law secure the rights of all citizens. Section 208 of the Voting Rights Act provides that:
“Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.”
The protections of Section 208 apply to any other person who cannot access, read and understand the English language ballot or otherwise navigate the voting process without assistance. Arabic-speakers enjoy a right to assistance in Arabic under Section 208.
“Any person” means just that. A voter can choose, for example, a candidate, a poll watcher or someone who already has assisted multiple voters, and poll officials cannot observe or monitor the assistance.
Help America Vote Act (HAVA)
By far the most common issue problems found by non-partisan monitoring groups had to do with voter registration. Many citizens go to the polls and find that their names are not on the list of registered voters. HAVA provides that if a citizen declares that she is registered to vote in that precinct, she has the right to cast a provisional ballot.
Election officials are required to alert voters to the opportunity to case a provisional ballot. They also must give the voter a paper letting him know that he can find out whether his vote was counted (and, of not, why not) through a cost-free system.
Where a court order the polls to stay open beyond normal voting hours, those who cast ballots during the extended period must vote by provisional ballot.
HAVA’s provisional ballot requirement is especially tricky. The statute leaves up to the states the circumstances under which provisional ballots actually will be counted, if they will be counted at all. A provisional ballot that would be counted in one state will not be counted in another state. Voters should check the rules in their state. In some states, voters need only cast their ballots in the appropriate city, county or state in order to have at least part of their ballots counted.
What can ordinary citizens do?
Ordinary Arab Americans have considerable opportunity both to deter unlawful treatment and also to prevent problems from recurring in future elections. Citizens can best seize those opportunities with a little groundwork.
Community members can identify those areas where there are a significant number of Arab American voters. Precincts into which Arab Americans have been moving recently may deserve special attention as areas of likely tension and discrimination. They can volunteer or recruit fellow Arab Americans — especially Arabic speakers — to serve as polling place officials in those precincts on election day.
There may be nothing more effective in stopping discrimination of a group at the polls than having a member of that group on the team of poll officials, serving in a position of authority. Polling place officials are selected by local election officials, often from lists submitted by the political parties.
Local citizens also can monitor the polls. Almost all states allow for political parties to have poll watchers at each precinct, and the parties should welcome help from any citizens. Some states, such as Illinois, California and Michigan, allow monitors from organized committees of interested citizens. In New York City, the Asian American Legal Defense and Education Fund regularly has monitored conditions inside polling places.
Poll watchers can make a written record of what happens in the polls. They should be careful not to talk to individual voters while inside the polls, but they can step outside to report problems, and also to obtain contact information for follow-up from individual victims of discrimination.
Monitors who are outside the polls also can play a role. They can attempt to interview voters — especially those who appear agitated — as the voters leave the polling place and obtain information about their experience and contact information.
Where the poll workers lack language skills to serve Arabic-speaking voters, or where voters who require assistance have reason to distrust the poll workers, monitors who speak Arabic and enjoy the trust of voters may also help by making themselves available to assist voters.
Resources are available for citizens who seek more information or who wish to organize to protect their rights. Citizens who use those resources will improve the lives of all who come after them.
The Department of Justice’s Voting Section, the office that brought the Hamtramck cases, can be reached at 1.800.253.3931.
The writer is former chief of the Justice Department’s Voting Section. The views in this article are solely those of the author and do not necessarily reflect those of the Department of Justice.