Voting Rights of Arab American Citizens

John Tanner
Former Chief of the Justice Department’s Voting Section*

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 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 US
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 US 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 Justice Department lawsuit shows, however, Arab Americans they 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 if 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 a defined 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 racially 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 and 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

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 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 and 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-artisan 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
it 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 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

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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
1organized 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 views in this article are solely those of the author and do not necessarily reflect those
of the Department of Justice.