English Only Ballots

November 3, 2009

In New York City, today’s ballots will be available in English, Spanish, Chinese and Korean. That is not the case in most of the rest of the country. A movement which began in the mid 1990’s to make English the official language of the United States has gained traction, and today 30 states have English only laws on the books. Next year, Oklahoma seeks to join them- an “English Only” Initiative will be on the ballot in November of 2010.

Historically, these movements are not unusual. In the 19th century, in reaction to periodic increases in immigration, these laws were frequently enacted.  Those laws were enacted prior to the enactment of  Title VI of the Civil Rights Act of 1964…which prohibits discrimination on the basis of race, color, and national origin.”

U.S. Attorney General Eric Holder’s office sent a letter to Oklahoma officials in April threatening a loss of federal funding if the state passed a constitutional amendment making English the official language.

His letter raises significant constitutional issues which have yet to be resolved, or even addressed, by the Supreme Court. Among them include First Amendment “access” rights and political speech restrictions, and Fourteenth amendment equal protection arguments.

The ACLU has published an extensive position paper on the subject. According to the Blog For Iowa, Michael Zuckerman will be publishing a paper in the Yale Law and Policy Review based on Iowa’s state statute and case law, which will set forth federal constitutional arguments against English Only ballot laws.  That article, Constitutional Clash: When English-Only Meets Voting Rights in Iowa, is scheduled to be published in 2010.

Those in favor of the English only laws are making their own constitutional arguments. Oklahoma representative Mary Fallin said  “This incident should send shock waves through every state in the union. The letter from DOJ is an affront to Oklahoma’s tenth amendment rights under the Constitution. We should be allowed to pursue this policy without facing preemptive manipulation from the federal government.”

We may hear from the U.S. Supreme Court on the issue if Attorney General Holder acts on his threats next year.

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