Cardona v. Power/Dissent Douglas

by William O. Douglas

United States Supreme Court

384 U.S. 672

Cardona  v.  Power

 Argued: April 18, 1966. --- Decided: June 13, 1966

Mr. Justice DOUGLAS, with whom Mr. Justice FORTAS concurs, dissenting.

Appellant is an American of Spanish ancestry, literate in the Spanish language but illiterate in English and hence barred from voting by New York's statute.

I doubt that literacy is a wise prerequisite for exercise of the franchise. Literacy and intelligence are not synonymous. The experience of nations ^[1] like India, where illiterate persons have returned to office responsible governments over and again, emphasizes that the ability to read and write is not necessary for an intelligent use of the ballot. Yet our problem as judges is not to determine what is wise or unwise. The issues of constitutional power are more confined. A State has broad powers over elections; and I cannot say that it is an unconstitutional exercise of that power to condition the use of the ballot on the ability to read and write. That is the only teaching of Lassiter v. Northampton Election Board, 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072. But we are a multi-racial and multi-linguistic nation; and there are groups in this country as versatile in Spanish, French, Japanese, and Chinese, for example, as others are in English. Many of them constitute communities in which there are widespread organs of public communication in one of those tongues-such as newspapers, magazines, radio, and television which regularly report and comment on matters of political interest and public concern. Such is the case in New York City where Spanish-language newspapers and periodicals flourish and where there are Spanish-language radio broadcasts which appellant reads and listens to. Before taking up residence in New York City she lived in Puerto Rico where she regularly voted in gubernatorial, legislative, and municipal elections. And so our equal protection question is whether intelligent use of the ballot should not be as much presumed where one is versatile in the Spanish language as it is where English is the medium.

New York's law permits an English-speaking voter to qualify either by passing an English literacy test ^[2] or by presenting a certificate showing completion of the sixth grade of an approved elementary school in which English is the language of instruction. ^[3] But a Spanish-speaking person, such as appellant, is offered no literacy test in Spanish. Her only recourse is to a certificate showing completion of the sixth grade of a public school in, or a private school accredited by, the Commonwealth of Puerto Rico; ^[4] and prior to § 4(e) of the Voting Rights Act that school had to be one in which English was the language of instruction. The heavier burden which New York has placed on the Spanish-speaking American cannot in my view be sustained, under the Equal Protection Clause of the Fourteenth Amendment.

We deal here with the right to vote which over and again we have called a 'fundamental matter in a free and democratic society.' Reynolds v. Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 12 L.Ed.2d 506; Harper v. Virginia State Board of Elections, 383 U.S. 663, 667, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169. Where classifications might 'invade or restrain' fundamental rights and liberties, they must be 'closely scrutinized and carefully confined.' Harper v. Virginia State Board of Elections, supra, at 670, 86 S.Ct. at 1083. Our philosophy that removal of unwise laws must be left to the ballot, not to the courts, requires that recourse to the ballot not be restricted as New York has attempted. It little profits the Spanish-speaking people of New York that this literacy test can be changed by legislation either in Albany or in Washington, D.C., if they are barred from participating in the process of selecting those legislatures. This is a fundamental reason why a far sterner test is required when a law-whether state or federal-abridges a fundamental right. ^[5]

New York, as I have said, registers those who have completed six years of school in a classroom where English is the medium of instruction and those who pass an English literacy test. In my view, there is no rational basis-considering the importance of the right at stake-for denying those with equivalent qualifications except that the language is Spanish. Thus appellant has, quite apart from any federal legislation, a constitutional right to vote in New York on a parity with an English-speaking citizen-either by passing a Spanish literacy test or through a certificate showing completion of the sixth grade in a Puerto Rican school where Spanish was the classroom language. In no other way can she be placed on a constitutional parity with English-speaking electors.

Notes

1. Puerto Rico in the last quarter century has also provided a demonstration of the point, although it is fast overcoming its illiteracy problem. In 1940 31.5% of its people were illiterate. The rate was reduced to 13.8% in 1965. Selected Indices of Social and Economic Progress: Fiscal Years 1939-40, 1947-48 to 1964-65 (Puerto Rico Bureau of Economic and Social Analysis) 7-8. During this period the people have elected highly progressive and able officials.
2. Section 168(1), McKinney's Consolidated Laws of New York Ann., Election Law.
3. Id., § 168(2).
4. Ibid.
5. See Thornhill v. State of Alabama, 310 U.S. 88, 95-96, 60 S.Ct. 736, 740, 84 L.Ed. 1093; Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430; Ashton v. Kentucky, 384 U.S. 195, 86 S.Ct. 1407, 16 L.Ed.2d 469.