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Feb 01 2012

English Proficiency Requirements For Candidates?

Here’s a rather disturbing ruling. In Arizona, a judge has ruled that a woman cannot run for city council because she doesn’t speak English well enough, even though about 84% of that city’s residents speak Spanish and she could have a translator help her with what she doesn’t understand.

The woman does speak some English, she just doesn’t speak it well enough for the judge. It’s not clear whether this was a state judge or a federal judge, but apparently the federal law that made Arizona a state contains this language:

“The ability to read, write, speak, and understand the English language sufficiently well to conduct the duties of the office without aid of an interpreter shall be a necessary qualification for all state officers and members of the state legislature.”

But this is a local officer, not a state officer. The law may still apply if cities are viewed legally as divisions of the state.

When Alejandrina Cabrera speaks English, it doesn’t quite roll off of her tongue the way it does when she speaks in her native Spanish.

Instead of the confident, strong way she speaks in Spanish to the residents of San Luis, Arizona, she speaks a bit more slowly, and perhaps with a bit less conviction, when she switches to English. That’s something she admits, but she says that she can communicate at the level she needs to in English, given where she lives.

In San Luis, 87% of residents speak a language other than English in their home and 98.7% are of Hispanic origin, according to 2010 U.S. Census data. After all, most of the people there, by all accounts, will speak in English and in Spanish. In the comfort of communal settings, they’ll speak the way they’re most comfortable.

“You go to a market, it’s Spanish,” Cabrera told The New York Times. “You go to a doctor, it’s Spanish. When you pay the bills for the lights or water, it’s Spanish.” …

But Cabrera’s lawyers argued in court that her disqualification was truly unfair and may be unconstitutional, seeing as there is not an actual standard for a specific level of proficiency for a council candidate.

It also leaves open many questions about the democratic process, among them: How far can you take the issue of proficiency? Would there be a problem if someone just had too thick of an accent for people to understand? Does it matter if a candidate can speak expertly with most of her constituents, who also may share a similar grasp of a language? And should it be a decision made by the courts, or should the voters be able to choose an elected official who appeals to them most, or choose to vote against her if they feel she can’t grasp the language well enough? Should there be a test to determine English language proficiency? Does it matter if most documents and laws in the area are also provided in Spanish for residents to be able to understand?

I hope this ruling is appealed. There are some interesting issues here. But it seems to me that the voters should get to decide whether she speaks good enough English for them. The fact that there is no standard for proficiency does offer a strong constitutional argument. And all of this is purely political. It was the current mayor, a man she has worked to remove from office, who filed the original lawsuit trying to keep her off the ballot. And it’s worked, so far.

34 comments

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  1. 1
    Taz

    The ability to read, write, speak, and understand the English language sufficiently…

    Doesn’t this law rule out a candidate who’s mute?

  2. 2
    christdenier

    @Taz #1: Indeed it would.

    Interestingly, the law, as worded, IS actually unconstitional because it violates the First Amendment – freedom of speech – which regards freedoms of expression.

  3. 3
    eric

    Taz – and probably many (but not all) deaf people.

    This seems to be one of those a**hole moves guaranteed to backfire down the road. If the mayor who lost the election thinks he’s going to endear himself to the voting population by getting their preferred candidate disqualified, he’s an idiot. Any other elected officials in the town (police chiefs, attorney generals, school boards, etc.) would be smart to immediately treat him as a lame duck and attack, rather than support, his policy choices. Meanwhile, nothing stops Ms. Cabrera from improving her English, kicking that guy’s a** in the next election, and using the resulting groundswell to get the law changed.

  4. 4
    imrryr

    [insert joke about George W. Bush's lack of proficiency in English here]

  5. 5
    laurentweppe

    It was the current mayor, a man she has worked to remove from office, who filed the original lawsuit trying to keep her off the ballot. And it’s worked, so far.

    Say it with me: someone’s trying to rig the eleeeeection.

  6. 6
    Michael Heath

    I find this issue somewhat related to term limits for legislators. I am opposed to term limits from a policy perspective. I also find term limits to be an unconstitutional encroachment of power which suppresses the rights of voters to decide who they want representing them.

    As a voter I’m strongly in favor of having elected officials who are fluent and literate in English. That’s directly related to my already wanting sufficient political pressure to get all candidates tested on how literate they are in civics, history, current events (including foreign policy), science, finance, and economics; pressure similar to how they now release their tax returns.

    Consider that one of the first things I learned about Sarah Palin the day the McCain camp announced her as their VP candidate. I found her answering a survey that she supported “under God” in the Pledge because the founders did as well. I’d far prefer seeing test results on what I’d like tested than their tax statements. In fact given my desire for seeing test results, I’m discouraged we’re instead debating a far lower standard of competency for an elected official.

    However like Ed and my position on my term limits, I find no proper authority by government to suppress voter rights to vote only for candidates fluent and literate in English. But as dysfunctional as our government already is, with conservatives operating within a a reality that doesn’t exist, adding the inability to productively communicate is not welcomed by this voter.

    And of course I’m perfectly cognizant that conservatives demagogue “English only” with their bigotry, jingoism, nationalism, ethnocentrism, and xenophobia. Which is why I disregard what they have to say on just about everything when it comes to forming my own conclusions; but that doesn’t equate to the better answer being the opposite of what conservatives argue. There are worthy premises to want our government officials capable of communicating in the predominant language and the language we use in our documents.

  7. 7
    dogmeat

    This old law is very much a “Jim Crow”-esque effort to limit the participation of non-white citizens in the election process. One of the sad things I’ve discovered living in Arizona is that there is still a very nasty underlying racist residue here. Most of the people here in Arizona came from somewhere else, but while some of them are from more liberal states and have more positive views towards diversity and the rights of others, a sadly large number of these transplants also brought with them rather disturbing racist ideas. SB1070 was promoted by a local Neo-Nazi organization, some argue that it was actually written by them. Some members of the state legislature have been found to have attended white supremacy rallies, possibly belong to such organizations, etc. The sad thing is when they’ve been recalled and/or voted out of office, they are often replaced by “good” conservatives who may only be “good” because they are better at hiding their attitudes towards minorities and women.

    Many forget that Arizona was the last state to desegregate. Tucson public schools are still under a court order to desegregate and receive federal funds to accomplish this. I’ve been in the state for nearly a decade and really haven’t seen any evidence that they’re doing so. AZ didn’t celebrate Martin Luther King day until after they lost a Super Bowl and even then I’ve hear people grumble about celebrating a “nobody.” I’ve had students who have argued that discrimination doesn’t happen and, within mere seconds, support a law or legal outcome that is quite obviously discriminatory.

    Sadly I think the judge is right, based purely on the law, but I think the law itself is unconstitutional. I also wouldn’t be at all surprised if, in the event the law is declared unconstitutional, the ruling being followed up with an attempt to establish a new law with parameters more narrow and justified as an argument for “good government” serving the needs of the people. There is a lot of language down here that quite obviously has double meaning. In public it’s all about “illegal immigrants,” but in a “safe audience” (read all “white”) it is obvious that they mean anyone whose ancestry is non-WASP.

  8. 8
    scienceavenger

    @Taz#1: Yes, as well as Sarah Palin.

  9. 9
    Jordan Genso

    And the reading and writing clause would also prevent blind individuals from being able to attain office. In 2010, we had a blind candidate running for Michigan’s Attorney General position, but he lost in the Democratic primary.

  10. 10
    eric

    @2: Interestingly, the law, as worded, IS actually unconstitional because it violates the First Amendment – freedom of speech – which regards freedoms of expression.

    Are you sure about that? IANAL, but 1st amendment rights are limited when you are acting in an official capacity as a representative of the government. This is a good thing and a basis for preventing (for example) teachers teaching creationism in science classes. So we pretty clearly do want to say that the goverment can put reasonable and justifiable limits on any Mayor’s official speech.

    “You must demonstrate ability to communicate with those you govern” seems no less reasonable to me than “you must demonstrate an ability to teach evolution.” I’m not saying we must have such a requirement. Districts or states could do entirely without them and just say the problem is solved via election. But I am saying that there are constitutionally allowable ways to have such a job qualification.

    I totally agree with most of the posters here that this particular case is full of fail. But not because demanding some minimal level of communcation ability for the job of mayor is prima facie unconstitutional. Rather, I think its wrong because this candidate appears to have met any reasonable standard for that, and her diqualification appears arbitrary and unfair.

  11. 11
    Michael Heath

    dogmeat,

    Now that you’ve noted the self-evident ill intent by conservatives who promote this law, please explain how an elected official who can’t speak English and isn’t literate in English can competently govern.

  12. 12
    eric

    Ah, couldn’t think of the legal phrasing for what I was trying to argue, but now I just did.

    Some requirements for Mayoral communication competence could be legal. But this requirement, IMO, fails the rational basis test.

    Maybe it was rational back when Arizona became a state. I couldn’t say. But now, it isn’t.

  13. 13
    Blondin

    C’mon, everybody knows English is the lingua franca of America.

  14. 14
    Aquaria

    English Proficiency Requirements For Candidates?

    Ironic. 90% of the current GOP aren’t proficient in it themselves.

  15. 15
    harold

    Michael Heath said –

    As a voter I’m strongly in favor of having elected officials who are fluent and literate in English.

    For me the key words here are “as a voter”.

    As a voter, when I choose which representative to vote for, I also, all else being equal, agree that good speaking and writing skill, in English, are beneficial in a representative.

    In general, I am likely to be strongly biased against a candidate who appears to deliberately use poor English as a mechanism of pandering to low-education voters, whose interests he is actually acting against – a classic example of this being George W. Bush.

    Having said that –

    1) In this country, anyone can speak any language they want, and I strongly oppose unconstitutional laws that attempt to take this right away. If someone wants to run for office giving their speeches only in Japanese, that’s their constitutional right. (My brother lives in the extremely pleasant Canadian province of Quebec, where laws are in place to require the use of French in certain circumstances. Those laws are pretty benign, and prevent silly conflicts, but I still prefer total protection for freedom of speech.)

    2) Needless to say, I’d support a candidate who advocates positions I agree with, even if such a candidate speaks with an accent or dialect, is dyslexic, etc, and I never support right wing authoritarian candidates, even though some of them actually have excellent English language skills.

  16. 16
    dogmeat

    Now that you’ve noted the self-evident ill intent by conservatives who promote this law, please explain how an elected official who can’t speak English and isn’t literate in English can competently govern.

    Actually I can see serious problems with having elected officials who lacked the majority language fluency. In this specific case though, with such a large percentage of the population who are non-English/ELL that such a problem would be less dramatic than it may be elsewhere. A translator would likely be present at many of the meetings regardless of the council member. Personally I see this as a instance where the negative motives of a group unfortunately coincide with a legitimate and reasonable expectation.

  17. 17
    eric

    harold:

    If someone wants to run for office giving their speeches only in Japanese, that’s their constitutional right.

    I disagree. If the President delivered his state of the union speech (or report) to Congress in some unbreakable code, I think we would all agree he didn’t fulfill that official requirement. Saying “but he delivered one, Congress just doesn’t understand it” is idiotic.

    A legal requirement to be able to communicate with constituents or with the rest of the elected goverment is, IMO, a reasonable and sensible job qualification for government. Its a justifiable manner restriction on official speech. But, to reiterate, in this particular case the law in question does not appear to be reasonable or justifiable.

  18. 18
    Chiroptera

    Ed Brayton: …but apparently the federal law that made Arizona a state contains this language….

    Interesting. So, considering that Arizona was admitted with the understanding that this would be part of the deal, does that mean that declaring this provision unconstitutional would invalidate Arizona’s statehood?

    Heh. Yeah, I know probably not, but I think it’s a funny question.

  19. 19
    Chiroptera

    dogmeat, #16: Actually I can see serious problems with having elected officials who lacked the majority language fluency.

    I can serious problems with it, too.

    On the other hand, I can also understand the argument that if it doesn’t bother the majority of the consituents who elect that person, then maybe it really isn’t a problem after all.

    I mean, we the people of the US seem to have a penchant for electing officials who don’t have the knowledge or critical thinking skills or basic raw intelligence to perform their duties adequately.

  20. 20
    Jordan Genso

    @17 harold

    I think as long as the President’s message can be translated so that each individual member of Congress can understand it, that should suffice.

    They already have sign-language translators at most government events (I think). When I saw the President speak in Ann Arbor last Friday, there was a lady in the stands behind him signing what he was saying. If there was something similar at the SOTU, which I assume there was, a deaf member of Congress would’ve still been able to understand the message, and that would’ve fulfilled the constitutional requirement.

    What if the President utters a phrase in another language during the SOTU, such as something quick in Spanish? Should that be prohibited, even though the rest of the speech was in English?

    The UN is able to overcome the hurdle of many languages, so it shouldn’t be too difficult for our country to manage the rare exceptions to the standard.

    Like some of the commenters have said here though, I would be less inclined to vote for someone who didn’t speak a language I’m familiar with, all else being equal. But if they were elected, as long as that official’s messages are available to me in a language I know (and vice-versa, him or her getting my messages in their language), I would not see a problem.

  21. 21
    Chris from Europe

    please explain how an elected official who can’t speak English and isn’t literate in English can competently govern.

    I think already pointed out that it’s a Spanish-speaking town and that she could have a translator. I think it would be a bigger problem if she was a candidate for state-wide office.

  22. 22
    eric

    Jordan:

    @17 harold

    I think as long as the President’s message can be translated so that each individual member of Congress can understand it, that should suffice.

    @17 was me. :)

    I mostly agree with you, which is why I think this particular ruling was bad. Clearly Ms. Cabrera can communicate with other government officials and constituents without much trouble. There’s no rational basis for preventing her candidacy.

    But if AZ wanted to pass a much more neutral law that says any mayor must be able to give real-time public service announcements in the language of the majority of constituents, and that any mayor must pay for a translator out of their own salary if they cannot do so, I think that would be constitutional too. Its got a rational basis, and doesn’t set some arbitrary condition on candidacy. It basically says: mayors must be able to communicate with the majority of the public. We don’t care how you get there, but its up to you – not the city treasury – to ensure you can.

  23. 23
    briandavis

    I can see the need for a US mayor to be proficient in English even if she and all of her constituents share another language. Their city doesn’t exist in a vacuum. As mayor she will need to work with the county, state and federal governments also.

    But it would be amusing to see the enabling act that created the state of Arizona declared to be unconstitutional. Would they be allowed to keep their current governor, or would Obama get to appoint a territorial governor?

  24. 24
    Jordan Genso

    eric (sorry about the name confusion)

    But if AZ wanted to pass a much more neutral law that says any mayor must be able to give real-time public service announcements in the language of the majority of constituents, and that any mayor must pay for a translator out of their own salary if they cannot do so…

    I would support that.

  25. 25
    parasiteboy

    Taz@1, christdenier@e, eric@3 and Jordan Genso@9

    The federal American Disabilities Act would override this state law for anyone with a disability that is stated in the law.

    harold@15

    The US constitution does not state an official language like the Canadian constitution does.

    Is there a federal law that requires laws, speeches, meetings, ect. to be conducted in english?

  26. 26
    jd142

    I agree that the law is racist and that if people want to elect someone who can’t speak English, that’s their business. There’s also the revenge factor in this particular instance that is particularly disturbing.

    However, watching the video of her inability to answer the question “Where did you go to school?” was just painful. I couldn’t find the video on the TV station’s website, so here’s a version from YouTube. I apologize for the other content on the YouTube page.

    http://www.youtube.com/watch?v=M-LWw0qFVfk

  27. 27
    harold
    If someone wants to run for office giving their speeches only in Japanese, that’s their constitutional right.

    I disagree. If the President delivered his state of the union speech (or report) to Congress in some unbreakable code, I think we would all agree he didn’t fulfill that official requirement. Saying “but he delivered one, Congress just doesn’t understand it” is idiotic.

    Luckily, I didn’t even come close to saying what you characterize as “idiotic”.

    1) I spoke about the constitutional right of a candidate for office to campaign in a non-English language. The president is an office-holder, not running for office.

    2) It would indeed be idiotic for a president, or any elected representative, to behave as you suggest. It would also tend to be idiotic for a candidate for US office to campaign using ONLY speeches in Japanese, arguably even in the few local US jurisdictions that have a high percentage of Japanese speakers. My obvious point was the construction of a strong imaginary example, in order to best illustrate my support for the constitutional rights of candidates for office.

    3) Whether it would be idiotic for the president to behave so is not controversial; it clearly would be. Whether it would be unconstitutional in itself, or would be sufficient grounds for the vice president to assume presidential responsibilities based on presumption of presidential mental collapse, I am not able to say. Arguably these questions are on topic, broadly speaking. My comment was, however, about candidates for office.

    4) Japanese is not an “unbreakable code”.

    5) Numerous members of congress are probably too stupid to fully understand State of the Union speeches made in English.

  28. 28
    eric

    Harold @17: I think you missed the point of my analogy. I was comparing a political communication act that has a legal requirement with another communication act that has a legal requirement. Your analogy, OTOH, compares the AZ case with a practice which does not have any legal requirement. I think this is a critical or at least very important flaw in your comparison. A presidential candidate has no legal requirement to know English, so of course there is no issue about what language he/she may or may not speak. The AZ mayoral candidate does have a legal requirement. Not being able to meet this communication requirement is very much analogous to a President not being able to meet the communication requirement to give a state of the union report to Congress.

    And just to repeat, I don’t find this particular case to be a good one. I’m trying to make the point that there can be a rational basis for some (other, not this one) job requirement that says a candidate for office must be able to communicate with constituents and other government employees. If they can do that by a self-provided translator, more power to them. and I would further completely agree with parasiteboy in @25 that the ADA would probably override such a law and require the government to provide said tranlation services, in the case of candidates with a disability. AFAIK, not speaking English or Spanish is not an ADA disability.

  29. 29
    harold

    eric –

    I don’t think we have all that much disagreement.

    I think that perhaps we are reacting to different aspects of this story. Here are two different aspects of the story –

    1) Clearly, some of us are picking up on the overtones of attempts to limit free expression, in an attempt to specifically target Spanish speakers. Those of us who react to this element, including, apparently, the blogmaster, are inclined to note that such efforts seem to run afoul of the First Amendment. Incidentally, given the location and history of Arizona, the law in question may reasonably be thought to possibly be of this nature.

    2) Somewhat paradoxically, those of us with progressive values tend to support education and object to anti-education, anti-science, anti-intellectual right wing candidates. Such candidates typically either can’t speak their own native language very well, or, equally commonly, feign a dialect, in an effort to portray themselves as ill-educated “tough guys”, even if they actually have an undergraduate degree from Yale and a graduate degree from Harvard. This is the aspect of the story that some people are responding to – “Yes, actually, a representative should be able to express themselves articulately”.

    Yes, good communication skills and high education are, all else being equal, highly desirable in a candidate. (Incidentally, there’s no reason at all to doubt that the candidate mentioned here lacks this; she’s just said to be more comfortable in Spanish than in English).

    However, the constitution doesn’t allow us to set language tests for candidates, and I for one, despite my preference for educated, articulate candidates, don’t want it to.

  30. 30
    parasiteboy

    From the DOJ website http://www.justice.gov/crt/legalinfo/natorigin.php

    Federal laws prohibit discrimination based on a person’s national origin, race, color, religion, disability, sex, and familial status. Laws prohibiting national origin discrimination make it illegal to discriminate because of a person’s birthplace, ancestry, culture or language. This means people cannot be denied equal opportunity because they or their family are from another country, because they have a name or accent associated with a national origin group, because they participate in certain customs associated with a national origin group, or because they are married to or associate with people of a certain national origin.

    So federal law will probably trump the state law in this case eventually.
    The next question would be who foots the bill for a translator.

  31. 31
    parasiteboy

    I get so annoyed when someone says, “My ancestors had to learn english when they came to the US to survive so why can’t “they” learn it too.” because it most likely isn’t true. When groups of immigrants have come to the US it is typically their children that integrate the language and culture. For adults they will either use a family or friend to help them communicate or learn enough english to get by. It is just another way to stereotype immigrants as lazy and it has been done for every major influx of immigrants like the Irish or Polish.

  32. 32
    eric

    Harold: Clearly, some of us are picking up on the overtones of attempts to limit free expression, in an attempt to specifically target Spanish speakers.

    But its not a free expression issue, any more than its a free expression issue if the State were to tell a teacher they must conduct classes in English. Its an employment issue. AZ is not limiting Ms. Cabrera’s right to express herself as a private citizen. They are limiting the expression of whomever holds the position of [mayor] in their official capacity. Now, substitute [teacher] or [judge] or what have you in that sentence and tell me whether you think the state has a right to do that…as long as they have a rational basis for the restriction. Yes, they do. Correct? (And again, with a nod to parasiteboy that the ADA may overrule any such restriction in the case of a disabled person.)

    I’m arguing that in this case, this restriction isn’t rational. But I think any argument that such restrictions generally violate the constitution are incorrect.

  33. 33
    Chris from Europe

    Its an employment issue.

    Yet we are talking about elected officials. (And a judge shouldn’t be elected anyway.)

  34. 34
    exdrone

    I saw a lot of comments similar to dogmeat @16:

    I can see serious problems with having elected officials who lacked the majority language fluency.

    not to pick on dogmeat alone.

    There is a presumption here that the candidate has not found an adequate way of coping. No reasonable person would exclude someone who is blind, deaf or mute as a candidate because they have likely found the means to facilitate intercommunications. How is a translation assistance any different?

    I suspect that people are making the judgment that someone who is disabled are dealt the cards they have, but someone who does not speak English is somehow not trying hard enough to conform.

    In Canada (sorry raven), federal governance is best carried out by someone who is bilingual in English and French. Unilingual English speakers do get elected, and they make use of translation services and advisors to compensate, but there is an expectation that they improve their bilingualism over their time in office, and usually they do. Of course, this example actually supports the argument for the importance of speaking the native language(s), but the point I’m trying to make is that lack of full language competence should not be an automatic disqualifier.

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