A lot of recently enacted laws in Arizona have spawned major constitutional controversy. But laws don’t have to be newfangled to generate heat. In the space below, I analyze some of the constitutional issues raised by the recent invocation of longstanding Arizona laws that require candidates for elective office there to demonstrate proficiency in the English language in order to appear on the ballot.
The Dispute Involving English Language Competence and Officeholding Eligibility
San Luis, Arizona, is a small southwestern municipality where the vast majority of the inhabitants are Mexican-American and where the Spanish language is pervasive. The city’s Mayor, who is Latino, has challenged the eligibility of a candidate for City Council, Alejandrina Cabrera, also Hispanic, and has sought to block Cabrera’s name from the ballot on the ground that Cabrera is not proficient in English.
Ms. Cabrera is a U.S. citizen who graduated from high school in Arizona (ironically, the same high school from which the Mayor graduated), but who spent much of her childhood in Mexico. The legal basis for the challenge against her derives from an Arizona law providing that a “person who is unable to speak, write and read the English language is not eligible to hold a state, county, city, town or precinct office in the state.” This law, which appears to have been passed in the 1950s, echoes a provision of the Arizona constitution (adopted in 1910, at the time of statehood) that says, for state-level officials, that “the ability to read, write, speak, and understand the English language sufficiently well to conduct the duties of the office without the aid of an interpreter, shall be a necessary qualification for all state officers and members of the state legislature.”
A state trial judge, after an initial hearing, appointed a sociolinguistics expert, a Professor at Brigham Young University (a school located in neighboring, but much less Hispanic, Utah) to conduct a test of Ms. Cabrera’s language skills. The expert (who himself is said to have a relatively pronounced Australian accent) reported back last week that “in [his] studied opinion, based upon the results of the range of tests and analyses [performed], she does not yet have sufficient English language proficiency to function adequately as an elected City Council member.”
The judge then removed Ms. Cabrera’s name from the ballot, and her lawyers have now gone straight to the Arizona Supreme Court for relief, arguing that the Arizona law should not be applied to bar her candidacy.
One of the Constitutional Provisions Implicated: The First Amendment
In addition to making for fascinating political theater, the case brings to mind a number of intriguing legal issues. For instance, it is possible that the Arizona law requiring English competence is in tension with federal, or other state, statutes. The federal Voting Rights Act (VRA) does ban state literacy tests as applied to voters, although this provision may not, by its terms, apply to officeholders. But there may be other aspects of the VRA that do apply.
In any event, my focus here is on some of the constitutional questions that are implicated, in particular three sets of issues: (1) First Amendment rights of expression, association and ballot access; (2) Fourteenth and Fifteenth Amendment entitlements to equal protection and freedom from racial discrimination in political arenas; and (3) related problems that arise from vague and manipulable standards used in laws that regulate elections.
Let’s start with the First Amendment. Surely individual adults enjoy the right to decide not to learn English—or any other language—just as they have the First Amendment right to master it if they choose. The Supreme Court has affirmed the First Amendment right to teach and to learn languages; the corollary right of adults to decide not to learn languages would also seem strong. But the question raised by the San Luis episode isn’t whether someone has a right to remain English-illiterate; the question is whether someone who is English-illiterate can be denied public office.
In general, no one has an entitlement to hold elective office. That is why the Supreme Court has declined to apply so-called “strict scrutiny” to many laws that regulate access by candidates to the ballot. Instead, as a number of Justices observed three decades ago in Clements v. Fashing, “[i]n assessing challenges to state election laws that restrict access to the ballot, [the] Court has not formulated a ‘litmus-paper test for separating those restrictions that are valid from those that are invidious’” under the Constitution. The Justices went on to note that “[d]ecision in this area of constitutional adjudication is a matter of degree, and involves a consideration of the facts and circumstances behind the law, the interests the State seeks to protect by placing restrictions on candidacy, and the nature of the interests of those who may be burdened by the restrictions.”
Of course, not all ballot access limits will be upheld. Indeed, requirements that prohibit persons of particular races, ethnicities, religions or political parties, or persons who lack property, from seeking office are almost always going to be struck down. But many laws regarding ballot access that don’t discriminate on the basis of an immutable trait, a socioeconomic status, or a particular viewpoint will be allowed.
Sometimes, the Supreme Court has gone farther than this and intimated that the government can’t prevent someone from running for office simply because of things they have done, or wish to do, that fall within First Amendment-protected activity. In Republican Party of Minnesota v. White, for example, the Court held that Minnesota could not disqualify candidates for judicial election because they had registered their views on controversial issues of the day; the State’s desire to avoid perceptions of bias with respect to would-be judicial officers was an insufficient justification under the First Amendment.
In the past, including in a prior column, I have been somewhat critical of White, in part because the Court there didn’t grapple with the fact that other modes of selection, such as executive or blue-ribbon-panel appointment, would have permitted disqualification of candidates who had spoken out on public issues. Of course, once a state decides to have elections, even if it could have proceeded by a different means of filling offices, certain requirements under the First Amendment that otherwise would not have been applicable sometimes kick in.
In the present Arizona situation, however, my sense is that requiring the “ab[ility] to speak, write and read” in English would not be treated the same as prohibiting candidates from registering their views on controversial issues of the day (as in White). Language proficiency—while invariably the result of First-Amendment-protected learning activity—seems more like a skill or an attainment than a straightforward exercise of expressive liberty.
By way of analogy, consider a requirement that judicial candidates be admitted to practice law; the decision whether or not to become a lawyer and take a bar exam might be protected by the First Amendment, but a requirement of a license to practice law as a condition for running in a judicial election seems very different than the situation presented in White. If my instinct here is right, it is at least arguable that the San Luis controversy does not implicate heavy-duty First Amendment review.
Or perhaps some requirements of demonstrated English language skill do trigger significant First Amendment scrutiny, but simply seem reasonable and important enough to survive even meaningful intermediate review by courts. For example, a mandate that judges, in particular, be members of the bar makes sense because judges need to review the work of lawyers who appear before them, and need to understand law in order to apply and administer it. (Indeed, judges might also need strong English language skills, since most of the consumers of a judge’s work product—lawyers, litigants, and would-be litigants—do use English primarily, and need to be able to fully understand and appreciate the judge’s reasoning and explanations.)
If we were to apply an intermediate-level test to Arizona’s requirement of English proficiency, the law might survive, because American government does operate mostly in English and because many of the documents that elected officials need to understand might be prohibitively expensive to provide in languages other than English.
But perhaps the distinctive demographics of San Luis—and the large percentage of constituents there who use Spanish as their main language—undermine the real-world reasonableness, and thus the constitutional permissibility, of applying the English proficiency requirement specifically to that geographical area. In this regard, it is worth noting that the job of a City Councilperson in a small municipality might involve much more direct contact with citizen constituents than would be the case for elective officeholding at a higher level in the state, and the language skills necessary to succeed at the City Council might depend a great deal on the particular language skills of the city denizens themselves.
Other Constitutional Provisions that May Be Implicated: The Fourteenth and Fifteenth Amendments
As noted earlier, a ballot access law that embodied a racial or ethnic classification—say, a law limiting an office to members of certain races—would certainly violate the Constitution. Most obviously, it would violate the Equal Protection Clause of the Fourteenth Amendment and the Fifteenth Amendment’s ban on racial discrimination in the exercise of political rights such as voting, officeholding and jury service. (Although the Fifteenth Amendment speaks explicitly only of a “right to vote” free from race discrimination, many of its framers understood the right to vote, linguistically and structurally, as including the right to be voted for, and to vote in a variety of capacities.)
Of course, the Arizona statute in question does not overtly regulate persons based on race or ethnicity, but rather based on English language proficiency. Yet few could deny that there is a strong correlation between English proficiency and race/ethnicity, especially in the American Southwest. There is, in other words, a racially/ethnically disparate impact (against minorities) that is created by a requirement of English language proficiency.
Ordinarily, in equal protection law, evidence of a racially disparate impact, without accompanying evidence of a racially discriminatory intent on the part of the government actor that has imposed the burden, is insufficient to make out a claim of a federal constitutional violation. There may be evidence of racial animus against Latina(o)s in connection with the adoption of the Arizona constitution in 1910 and/or the enactment of the Arizona statute in the 1950s—I cannot say for certain, as I am not expert in the history surrounding these measures. Yet even if there is no smoking-gun evidence of racism underlying the adoption of the English language proficiency requirements, I should point out that the one legal realm in which the requirement of proof of invidious motive is, in practice, relaxed is the realm of political rights—voting, officeholding, jury service and the like. In these areas, unlike in the areas of discrimination in housing, education or employment, disparate impact alone—without strong proof of invidious intent—sometimes carries the day.
So because the Arizona law has such a pronounced disparate impact along racial/ethnic lines in the context of a core political right—the ability of racial minorities to hold office and to elect candidates of their choice—the law might be subject to successful challenge even absent strong evidence of racial motivation.
Another Constitutional Issue Possibly Plaguing the English-Language Requirement: Vagueness
All of this brings me to what might be the biggest vulnerability in the Arizona requirement: the vagueness and manipulability of a standard of “[i]nab[ility] to speak, write and read” in English. Remember, the Arizona law disqualifies from all elected offices those who are “unable to speak, write and read” in English. What does “unable” mean? Who decides? How sophisticated does one’s understanding of the presentation of ideas in English have to be to qualify? And how might this standard vary by office?
These are key questions, because imprecision in the standard inevitably creates discretion on the part of the enforcer. And that discretion may be manipulated by bureaucrats and even judges (especially state judges, who are often elected) to achieve impermissible partisan or racial ends.
In some settings, imprecision may be relatively untroubling. For example, we may not be too worried by a judge’s having the power to excuse a juror “for cause” if the judge thinks that the juror’s language skills are insufficient to process the evidence in a particular case. Although we might actually prefer use of a predetermined test of English competence even in this setting, in large part our tolerance of a vague standard here might stem from our sense that jurors are considered relatively fungible, jurors are not selected for their particular opinions and policy proposals, and each litigant has a due process right to have jurors understand her case.
But would-be legislators, be they local City Council members or state House members or Senators, are far from fungible. To the contrary, each represents a distinct combination of policy preferences and personal qualities. And the constituents/voters have strong interests in being able to elect the particular candidates of their choice. (In this vein, think back to Bush v. Gore; one big problem with the assertedly vague “intent of the voter” standard being applied differently in each county in Florida in 2000 was the strong possibility that each ballot counter would, or at least might, use the softness of the standard to favor his preferred candidate for President.)
For these reasons—to make sure that voters who belong to racial or political groups are not improperly deprived of their right to elect persons of their choice—ballot access laws should not be any fuzzier than is reasonably necessary. Judged under that standard, the Arizona provision may be unnecessarily opaque.
And the U.S. Supreme Court itself may already have demonstrated it appreciates this kind of argument in a closely related setting. In what is probably the most famous Supreme Court case involving the permissibility of a literacy test, Lassiter v. Northampton Election Board, the Court in 1959 upheld the ability of North Carolina to require voters to demonstrate that they are able to “read and write any section of the Constitution of North Carolina in the English language.” English literacy, the Court said, is a reasonable quality for states to insist that their voters possess before exercising the franchise.
Lassiter involved a literacy test for voters, not officeholders. And Lassiter predates (and is largely eclipsed by) the Voting Rights Act, which, as noted above, statutorily prohibits literacy tests for voters. Moreover, Lassiter also predates a number of important constitutional voting rights cases of the 1960s declaring voting to be a fundamental right (and it predates, as well, the increase in the amount of political information that is available through television and video, media that one needn’t be literate to understand.) For these reasons, whether Lassiter is still good law may be open to question.
But even the Lassiter Court, whose result might strike some people as conservative, recognized that not all literacy tests are constitutionally tolerable. To be sure, a requirement that would-be voters read and write passages from the state constitution was upheld. But in the same breath, the Court disparaged a law challenged in another case that required would-be voters to “understand and explain” an article of the federal Constitution. The Justices said that the latter law, because of its nebulous, subjective character, opened the door to—and was likely a product of—racial discrimination: “The legislative setting of that provision and the great discretion it vested in the registrar made clear that a literacy requirement was merely a device to make racial discrimination easy.”
And the Arizona provision—with its “unable to speak, write and read” test—arguably is more like the “understand and explain” law called into question by Lassiter than the “read and write any section of the Constitution of North Carolina” literacy law that was actually upheld.
The Arizona courts will have to decide how to resolve this matter very quickly, inasmuch as ballots need to be printed and distributed soon for the March primary election in which Ms. Cabrera hopes to run. In a year sure to provide much election-related legal excitement, this seems a case well worth watching.