Shifting global demographics continue to produce political discourses on immigration. In the United States, history continues to repeat itself through the forged rhetorical relationship between individuals who speak English and individuals who are considered “American.” As the debate over immigration reform intensifies, so do efforts to regulate/restrict all languages deemed “foreign.” In Arizona, both officeholders and seekers who do not read, write, speak and understand English “sufficiently well” risk having their candidacy revoked. This was the case with former city-council candidate in the southern Arizona border city of San Luis, Alejandrina Cabrera. This essay argues that the political history of Arizona, as it pertains to matters of an English-only society, has historically operated within the restricted parameters of a paranoid style whereby the Cabrera case illustrates its modern metamorphosis.
racial and ethnic demographics continue to shift in the United States, so do mounting so-called concerns over how best to preserve American traditions, values, and laws. Intensified by political efforts to “take our country back” (a phrase most commonly heard in reference to the divided state of American politics), the passage of controversial state-level immigration enforcement laws, lack of congressional coordination over immigration reform, along with a weakening economy, all amount to a perfect storm. The current political atmosphere surrounding language and cultural assimilation, (Edwards 2009) is akin to earlier American political campaigns concerned about the “German threat” (Brown 2011). Concerns over American authenticity, especially amidst times of war and shifting national demographics continue to give way to questionable articulations of American national identity (Huntington 2004; Tancredo 2006). Forever preoccupied with articulating what it means to be American, lawmakers attempt to justify “common tongue” (Brown, 2010) interpretations of who is and who is not American.
It is unclear whether an intensified quest to define and articulate American commonality has benefitted or been harmed by official language legislation. Our efforts to “unify” the nation have resulted in the passage of official language laws in twenty-nine states, with Oklahoma being the most recent in 2010. With the supposed socio-political and economic implications of a growing Latino demographic looming, which include speculations over the lost of “core” American values (Buchanan, 2002), our pace toward achieving national unity continues to suffer from a seemingly systemic dissociation between “us” and “them,” “ours” and “theirs” (Santa Ana, 2002). Because the historical and rhetorical legacy of political campaigns aimed at promoting national unity have adjusted to shifting demographic trends, the legal battle that Alejandrina Cabrera faced came as no surprise. Cabrera is a former city council candidate in the southern Arizona border city of San Luis, who, upon being labeled “not sufficiently fluent” in English by the Arizona Superior Court in Yuma County, resulted in the removal of her name from the ballot. While the 1910 passage of the state’s Enabling Act requires both office holders and seekers to “read, write, speak and understand English sufficiently well,” (Act June 20, 1910, c. 310, 36 U.S. Stat. 557, 568-579) it does not specify or quantify proficiency, nor does it articulate ways to measure fluency. This policy leaves many unanswered questions and further directs suspicion to a state legislature engulfed in a political crisis over both its enactment of immigration laws and its banning of ethnic studies classes in public schools. Given these and other troublesome developments, this essay will pursue this peculiar pairing of shifting demographics and questionable political actions.
Despite recent news coverage and protest over recent policy enactments by the state of Arizona, I argue that the state of Arizona’s racial politics have a legal history and legacy of disenfranchisement preceding Arizona’s statehood. Specifically, I contend that the state of Arizona has historically operated within the restricted parameters of a paranoid style. The Alejandrina Cabrera case illustrates the most recent manifestation of this paranoid style.
I, like Richard Hofstadter, refer to this genre of political rhetoric as a “paranoid style simply because no other word adequately evokes the qualities of heated exaggeration, suspiciousness, and conspiratorial fantasy that I have in mind,” particularly when accounting for the peculiar racial dimension involved in such policy formations, whether acknowledged by state lawmakers or not (Hofstadter 1965). To begin, I review the legal history surrounding Arizona’s English-only movement will be revisited to not only better situate the context of the Cabrera controversy, but also to illustrate how this case does not stray far from the political precedent. Next,I examine the actions and arguments offered to successfully deny Cabrera her city-council candidacy in light of this paranoid style before concluding with final thoughts.
The Backstory: From 1910 to Present
While most documents point to 1988 as Arizona’s first attempt toward securing an official language, there is evidence suggesting Arizona sought English as its official language prior to becoming a state in the Union. In anticipation of statehood, the 1910 adoption of the Arizona Constitution included numerous sections and subsections regarding the construction and maintenance of the state apparatus such as, public education, achieving “perfect toleration of religious sentiment,” amongst many others (Act June 20, 1910, c. 310, 36 U.S. Stat. 557, 568-579). On face value, many of the stated purposes of the 1910 Arizona Constitution and goals are to be expected. Some, however, raise serious concern not only about the state’s founding nativist principles, but about how such principles are selectively cited and enforced today, especially pertaining to race, and therefore the Latino community. At the center of the current controversy over what defines English fluency is Section 20 of Arizona’s Enabling Act, which reads:
That said State shall never enact any law restricting or abridging the right of suffrage on account of race, color, or previous condition of servitude, and 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 (Ch. 310, 36 Stat. 559 (1910)).
Given the central argument that two Arizona courts pursued to remove Alejandrina Cabrera’s name from the ballot in consultation with Section 20, a closer examination at issues pertaining to “official” and “national language” policies and their peculiar correlation to race and immigration is warranted (Lieberman 2005). The ambiguous meaning of, “understand the English language sufficiently well,” acts as the foundational stanza that links the past to the present, providing the needed legal elasticity to execute questionable maneuvers against a particular group of people. Here, the paranoid style “represents an old and recurrent mode of expression in our public life which has frequently been linked with movements of suspicious discontent” against those viewed and defined by lawmakers as a so-called threat to our overall wellbeing (Hofstadter 1965). This 1910 law established the legal basis for paranoia and distrust because, given there is no way to gauge, quantify, or otherwise assess the meaning of “sufficiently well,” such ambiguity allows for the legal elasticity needed to deny the absorption and incorporation of those groups of people who lawmakers deem undesirable.
Since 1910, Arizona experienced two fundamental addendums to state law that contribute to the paranoid political and legal atmosphere surrounding the Cabrera case. Supporters of the organization Arizonans for Official English (created in 1988) canvassed the state for signatures in favor of a ballot initiative prohibiting the state government’s use of languages other than English. Following their successful petition drive, the proposed amendment became known in some circles as the “most restrictive official language law in the nation” (Tatalovich 1995). By a slim one percent margin (50.5 percent to 49.5 percent), Arizonans approved the state constitutional amendment, Article 28, entitled “English as the Official Language.” Arizona’s Article 28, unlike other existing laws, is comparatively lengthy and more restrictive in scope. It contains four sections, numerous subsections, and is applicable to the legislative, judicial, and executive branches, along with all “political subdivisions, departments, agencies, organizations, and instrumentalities” (Article 28, Section I, Arizona Constitution). For instance, when discussing linguistic restrictions under Section three, Article 28 notes:
(a) This State and all political subdivisions of this State shall act in English and in no other language.
(b) No entity to which this article applies shall make or enforce a law, order, decree or policy which requires the use of a language other than English.
(c) No government document shall be valid, effective or enforceable unless it is in the English language. (Article 28, Section I, Arizona Constitution).
While Article 28 makes allowances for federal compliance, teaching foreign languages, protecting public health and protecting the rights of criminal defendants or victims of crimes, it also includes an enforcement provision that allows persons to pursue legal action against those businesses, officials, or other parties who violate this law. As seen here, for the sake of preservation and supposed unity, lawmakers had to “assume that without proper mechanisms any society can possibly have too much diversity or even foster the wrong kind of diversity” (Rodriguez 2007). In its most basic elements, the central image of a paranoid style “is that of a vast and sinister conspiracy, a gigantic and yet subtle machinery of influence set in motion to undermine and destroy a way of life.” Therefore, bilingualism is the looming threat that must be contained by means of legislative restraint if order is to remain (Hofstadter 1965, 29).
The legal challenge associated with Article 28 stemmed from a lawsuit filed by Maria-Kelley Yniguez, a state employee who processed medical-malpractice claims. In fulfilling the duties of her job, Yniguez explained she would oftentimes assist citizens in both English and Spanish. Yet, as written, Article 28 made her cease speaking Spanish while operating in her official capacity for fear of disciplinary actions. While Article 28, amongst other mandates, establishes English as the official language of state, Section 4 of Article 28 also requires official actions of the state to be conducted in English only. Thus, Yniguez asserted that this article violated her First and Fourteenth Amendment rights under the United States Constitution. In seeking an injunction against Article 28’s enforcement, Martiza Peña recounts, “reaching the merits of Yniguez’s claim, the U.S. Court of Appeals for the 9th District ruled that Article 28 was facially broad in violation of the First Amendment. In granting declaratory relief, the District Court denied injunctive relief in favor of Yniguez because no enforcement action was pending, and thus the court did not reach the other constitutional issue that Yniguez asserted.” (Peña, 1997) When the State decided not to file an appeal, the Court of Appeals permitted Arizonans for Official English to intervene and appeal the judgment. Given the great importance of this case, the Ninth Circuit Court of Appeals also affirmed the ruling of the lower court in Yniguez’s favor in an en banc decision, opining that Article 28 violated the First Amendment rights of public employees and elected officials. Arizonans for Official English then appealed to the Supreme Court of the United States.
On 25 March 1996, the United States Supreme Court granted certiorari, agreeing to review the lower courts’ decisions. On a case that embodied such a compelling state interest, the anticipated ruling drew much attention, given the highly politicized nature of official language policies. In a decision that could determine not only the fate of Arizona’s amendment but also the constitutionality of further attempts to legislate English-only, the Court’s unanimous decision was surprising. In delivering the opinion of the Court, Justice Ruth Ginsburg turned a deaf ear to both of Yniguez’s First and Fourteenth Amendment claims and instead stated,
Federal courts lack competence to rule definitively on the meaning of state legislation […] Participants in the federal litigation, proceeding without benefit of the views of the Arizona Supreme Court, expressed diverse opinions on the meaning of the amendment. Yniguez commenced and maintained her suit as an individual, not as a class representative. A state employee at the time she filed her complaint, Yniguez voluntarily left the State’s employ in 1990 and did not allege she would seek to return to a public post. Her departure for a position in the private sector made her claim for prospective relief moot. The Ninth Circuit had no warrant to proceed as it did. The case had lost the essential elements of a justiciable controversy and should not have been retained for adjudication on the merits by the Court of Appeals. We therefore vacate the Ninth Circuit’s judgment, and remand the case to that court with directions that the action be dismissed by the District Court. We express no view on the correct interpretation of Article XXVIII or on the measure’s constitutionality (Arizonans for Official English v. Arizona (95-974), 520 U.S. 43 1997).
In scolding both the reach and scope of the Ninth Circuit’s earlier actions, Justice Ginsburg declined to rule on the merits of Yniguez’s constitutional challenge to Arizona’s Article 28 and instead dismissed the case on account that Yniguez’s both filed suit as an individual, not as a class representative and was no longer a state employee once the case reached the Supreme Court, making her claim moot in the eyes of the Supreme Court. In what could have been a landmark decision, directly impacting the reach and scope of the English-only movement, the Supreme Court chose to sidestep questions of constitutionality and avoided judgment altogether.
While rulings prior to the Yniguez case, such as Puerto Rican Organization for Political Action (PROPA) v. Kusper (1973), Lau v. Nichols (1974), and Asian American Business Group v. City of Pomona (1989), established a connection between language discrimination and racial/national origin discrimination, the judges ruling over the Yniguez case did not invoke those rulings. For instance, in Hernandez v. New York (1991), a case involving a prosecutor who used peremptory challenges to disqualify bilingual jurors, Justice Anthony Kennedy (writing on behalf of the majority) made the link between language discrimination and racial/national origin discrimination. In Justice Kennedy’s words, “as we make clear, a policy of striking down all who speak a given language, without regard to the particular circumstances of the trial or the individual responses of the jurors, may be found by the trial judge to be a pretext for racial discrimination” (Hernandez v. New York, 500 U.S. 352 1991). While Justice Kennedy provided the foundation to support Yniguez’s First and Fourteenth Amendment challenges, Justice Ginsburg and the other Justices instead decided to take the path of least resistance, neglecting to provide constitutional guidance to a political movement guided by questionable legal underpinnings.
While the various courts did not rule Article 28 unconstitutional or in violation of the Fourteenth Amendment, proponents knew their greatest obstacle resided in the Free Speech Clause of the First Amendment. Knowing the limits of legal feasibility, proponents returned to the drawing board in efforts to again approach Arizona voters over the question of an “official language,” though this time, with a few modifications. While official language proponents did not take immediate action toward redirecting their efforts at remobilizing their political base, in 2006 Arizona was introduced to Proposition 103, the English as the Official Language Act. On 7 November 2006, by means of a legislatively referred constitutional amendment, Arizona voters overwhelming approved a new official language measure aimed at preserving, protecting, and enhancing the role of English as the official language. By securing seventy-four percent of Arizonans’ approval, the state welcomed its new English-only amendment, replacing Article 28. Rewritten in light of the previous legal challenges, Proposition 103 sought to strike a balance between free speech concerns and the preservation of the English language by most notably defining the parameters of state official action, the key point of tension in the Yniguez case. Nonetheless, Proposition 103, like Article 28, maintains its historical legacy of suspiciousness towards the states thriving Latino population, as both policies believe an official language will enhance and protect the role of English in Arizona.
The year 2006 is a landmark on policy deliberations pertaining to immigration and official language legislation at all levels of government. These deliberations include two failed attempts at immigration reform introduced in both the House and Senate chambers along with a Senate amendment introduced by Oklahoma Republican Senator James Inhofe, entitled the National Language Act of 2006 (Brown 2012). The belief that an official language will safeguard the nation against socio-political collapse is an all too common theme repeated by official language proponents like Indiana Republican Congressman Mark Souder. Without an official language, warns Congressman Souder, “we are all going to descend into chaos,” later adding, “if you are going to come to America, then learn our language” (Gamboa, 2006, A.5). What remains peculiar about the passage of Proposition 103 for instance, is that it came just two years after a 2004 United States Census Bureau report announced Latinos as the nation’s largest and fastest growing “minority” group, overtaking African Americans, thus inviting much attention and many questions regarding the state of Latino politics in America. Latinos, often characterized as a “swing vote,” as Christina Beltrán informs us, possess “the potential of providing the margin of victory in close races,” and represent “the electorate’s fastest growing segment,” whereby what once was deemed a political “safe seat,” no longer exists in such absolute terms (Beltrán 2010, 4). If nothing else, 2006 provides a unique snapshot of policy deliberation pertaining to issues aimed at a growing Latino population (Barreto, Manzano, Ramierez, & Rim, 2009).
Arizona’s new official language law, Proposition 103, outlined a series of highly questionable core assumptions. As it reads,
Whereas, the United States is comprised of individuals from diverse ethnic, cultural and linguistic backgrounds, and continues to benefit from this rich diversity; and
Whereas, throughout the history of the United States, the common thread binding individuals of differing backgrounds has been the English language, which has permitted diverse individuals to discuss, debate and come to agreement on contentious issues; and
Whereas, in recent years, the role of the English language as a common language has been threatened by governmental actions that either ignore or harm the role of English or that promote the use of languages other than English in official governmental actions, and these governmental actions promote division, confusion, error and inappropriate use of resources; and
Whereas, among the powers reserved to the States respectively is the power to establish the English language as the official language of the respective States, and otherwise to promote the English language within the respective States, subject to the prohibitions enumerated in the Constitution of the United States and federal statutes (Arizona English as the Official Language, Proposition 103 2006).
The alleged justification behind this measure is the mitigation of a looming threat that promises to interrupt and possibly displace the role of the English language. Such core assumptions raise suspicion and foster distrust to a point where the established political hierarchy, argues Amardo Rodriguez, “is supposedly vital for the evolution of a good society,” which is the state of Arizona in this case. (Rodriguez 2007). These “government actions that either ignore or harm the role of English” represent programs like bilingual education, inaction at the federal level over immigration reform among others. Yet, no evidence is offered or examples stated to illustrate how federal actions continue to “promote division, confusion, error and inappropriate use of resources,” leaving many questions unanswered (Arizona English as the Official Language, Proposition 103 2006). Even the assumption that “the common thread binding individuals of differing backgrounds has been the English language, which has permitted diverse individuals to discuss, debate and come to agreement on contentious issues” raises serious questions over historical accuracy and factual evidence (Arizona English as the Official Language, Proposition 103 2006). Landmark cases, such as Meyer v. Nebraska (1921), Negrón v. New York (1970), Garcia v. Gloor (1980), Plyer v. Doe (1982), amongst others, illustrate how the English language was and is by no means the “common thread binding individuals,” as Native Americans (Trafzer, Keller & Sisquoc, 2006), German immigrants (Martin 2010), Latinos (Del Valle 2003), “national origin-minorities” (Schmid 2001), along with those deemed “limited English proficient” (Carrasquillo & Rodriguez 2002), have all learned through scores of discriminatory actions that eventually resulted in changes to federal law.
As seen here, the policy’s stated core assumptions about the nature of societal unity amidst shifting demographics are questionable, further illustrating that “what is at stake is always a conflict between absolute good and absolute evil,” allowing for the paranoid style to become more readily consumable to the general public (Hoffstadter 1965). Continuing down this path, Proposition 103 introduces a series of maxims and guiding “definitions” that govern its existence, execution, and oversight. To avoid the legal fallout generated under Article 28, Proposition 103 is explicit in defining the parameters of state “official action,” whereas Article 28 failed to differentiate “official action” from other possible forms, bringing us to the exact sticking point in the Yniguez case. Here, state official action includes, “the performance of any function or action on behalf of this state or a political subdivision of this state or required by state law that appears to present the views, position or imprimatur of the state or political subdivision or that binds or commits the state or political subdivision” (Arizona English as the Official Language, Proposition 103 2006). Nevertheless, in this rather sweeping bundle of actions, lawmakers demonstrated the knowledge gained from their previous legal challenges by excluding the following actions from their articulation of “official action”:
(a) The teaching of or the encouragement of learning languages other than English.
(b) Actions required under the federal individual with disabilities education act or other federal laws.
(c) Actions, documents or policies necessary for tourism, commerce or international trade.
(d) Actions or documents that protect the public health and safety, including law enforcement and emergency services.
(e) Actions that protect the rights of victims of crimes or criminal defendants.
(f) Using terms of art or phrases from languages other than English.
(g) Using or preserving Native American languages.
(h) Proving assistance to hearing impaired or illiterate persons.
(i) Informal and nonbinding translations or communications among or between representatives of government and other persons if this activity does not affect or impair supervision, management, conduct or execution of official actions and if the representatives of government make clear that these translations or communications are unofficial and are not binding on this state or a political subdivision of this state (Arizona English as the Official Language, Proposition 103 2006).
With this list of exceptions, lawmakers sought to create distance from past actions while creating an outward appearance that, despite insisting on an official language law, Proposition 103 makes allowances in areas that should please most of its critics. Although on one hand these “official action” exclusions place state law out of the immediate grasp of constitutional challenges, on the other hand Proposition 103 contains a series of troublesome core assumptions that allow me to analyze the Alejandrina Cabrera case.
Text in Context: The Alejandrina Cabrera Case
What began as a typical campaign for city council at the Arizona border town of San Luis, ended on a far less typical note. As written, the 1910 law in question simply provides that candidates must possess the ability to “read, write, speak and understand English sufficiently well,” leaving many questions unanswered. Such questions include: (1) who is to decide what “sufficiently well” means? (2) how, if possible, can “sufficiently well” be quantified or measured? (3) Just how fluent must Arizona officeholders and seekers be? These questions, amongst many others surrounding this case, leave much to be desired from the actions taken by the Arizona Superior Court in Yuma County and the Arizona Supreme Court, as state law does not establish any standards for fluency.
When Alejandrina Cabrera decided to run for San Luis City Council, Mayor Juan Carlos Escamilla filed a lawsuit challenging her eligibility on grounds of her alleged lack of English fluency. San Luis, a town in political turmoil that resulted in twenty-four recall attempts of local office holders since 2001, along with the recent rash of peculiar measures passed in the Arizona state legislature, placed reasonable doubt on the nature of fair and objective consideration (Lopez 2012b). Embedded in the state’s political culture is a “paranoid style that finds it directed against a nation, a culture, a way of life whose fate affects not himself alone but millions of others” (Hofstadter 1965) at least that appears to be the preferred means to mitigate the “Latino threat” is concerned (Chavez 2008).
In efforts to gauge whether or not Cabrera’s English proficiency complied with A.R.S. § 38-201. C, the 1910 law that established the sufficient proficiency clause in question, Judge John Nelson first framed the context of the legal challenge by articulating what he believed to be the relevant concerns before the court. In doing so, Judge Nelson explained:
The only issue before the Court is whether Respondent Cabrera satisfies the requirement of A.R.S. § 38-201. C that she is able to speak, write and read the English language with sufficient proficiency. . . However, the issue of proper interpretation of A.R.S. § 38-201 is an issue of first impression, as the statute is not the subject of any reported Arizona appellate decision. In interpreting a statute, a court must look to the legislative intent, but little evidence of legislative intent has been provided to the Court. A.R.S. § 38-201. C would be rendered meaningless if, as suggested by Respondent Cabrera, it were interpreted as having no standard or only requiring minimal or bare proficiency at speaking, reading, and writing in the English language. The standard to be applied under A.R.S. § 38-201. C. . . must be in the context of the political office at issue, here City Councilman for the City of San Luis, Arizona (Cabrera v. Escamilla, 2012).
According to the United States Census Bureau, 98.7 percent of the population in San Luis, Arizona is Latino and 87.9 percent of the population speaks a language other than English in the home. Thus, if one were to interpret the statute within the context of “the political office at issue, here City Councilman for the City of San Luis, Arizona,” then such an interpretation must account/acknowledge this reality (Cabrera v. Escamilla, 2012). For instance, former San Luis City Councilman Carlos Bernal explained, “my [English] pronunciation was weak, it’s rare to have council members who have a 100 percent grasp of the English language. There have been very few.” (Lopez 2012a). If nothing else, interpreting A.R.S. § 38-201. C within the context Judge Nelson outlines created an arbitrary standard of English fluency that provides a legal pathway to invite other such cases, especially in places where Spanish is quite prevalent. More troubling is Judge Nelson’s interpretation of the challenge introduced by Cabrera. The dispute was not that A.R.S. § 38-201. C requires “minimal or bare proficiency. ” Yet, given the lack of benchmarks, measures, or matrix to assess English proficiency it is impossible to definitively interpret the law.
To assist with the Court’s efforts to determine compliancy with A.R.S. § 38-201. C, linguistic expert Dr. William Gregory Eggington of Brigham Young University was hired to conduct and report testing results of Cabrera’s English proficiency. What many thought would be a fairly objective and scientific method of assessment, turned out to possess neither of those qualities. Prior to conducting a series of three English proficiency tests at the law offices of Garcia, Hengl, Kinsey and Villarreal, P.L.C., the law firm representing Cabrera, Eggington was informed of Cabrera’s poor hearing. Yet, he failed to make accommodations and proceeded regardless, marking the first of many oversights throughout this case. (Cabrera v. Escamilla, 2012)
Still, with no established benchmark to articulate proficiency, Dr. Eggington’s presented findings indicating that Cabrera failed to meet the minimum level of English proficiency to be in compliance with A.R.S. § 38-201. C. However, while Judge Nelson argued that “the standard to be applied under A.R.S. § 38-201. C. must be in the context of the political office at issue, here City Councilman for the City of San Luis, Arizona,” Dr. Eggington testified he never conducted the research necessary to establish such a baseline in relation to someone seeking the office of City Councilperson for the City of San Luis, Arizona. Furthermore, Dr. Eggington also testified to never visiting San Luis, nor taking into consideration the “Hispanic English” dialect of southern Arizona. (Cabrera v. Escamilla, 2012)
While Eggington testified that Cabrera read English between a 9th and 10th grade level for instance, he never tested her writing abilities (Cabrera v. Escamilla, 2012). Despite the numerous shortcomings in the expert’s evidence and Cabrera’s demonstrated willingness to both testify and read a San Luis Council Meeting Agenda and Minutes in English, Judge Nelson nonetheless concluded, “the Court finds his testimony to be compelling and adopts it,” whereby “the Court finds that Respondent Cabrera does not satisfy the requirement of A.R.S. § 38-201. C that she possesses the ability to speak, read and write the English language with sufficient proficiency to perform as a City Councilman for the City of San Luis” (Cabrera v. Escamilla, 2012).
In light of Judge Nelson’s decision to remove Cabrera from the ballot, Cabrera’s legal team presented the Arizona Supreme Court with five issues that specified their request for an appeal. To no surprise, three of their challenges pertained to the peculiar nature of establishing and articulating an English language proficiency standard that injected trivial specificity into the otherwise ambiguous “sufficient proficiency” clause. These objections included:
Whether the trial court erred in interpreting A.R.S. § 38-201. C to impose a proficiency standard specific to a member of City Council for the City of San Luis, Arizona, then misapplied it to the evidence produced at trial?
Whether the trial court erred in admitting and relying upon Dr. Eggington’s opinions and in the testimony of Appellant in granting the injunction?
Whether the test adopted by the trial court is in violation of Appellant’s constitutional right to participate in government? (Cabrera v. Escamilla, 2012)
When examined closer, these points of objection raise serious concerns over how the Court ruled Cabrera unfit to run for public office. A first concern is raised in how the Court created and ultimately accepted an English proficiency standard that was mostly created by an Australian socio-linguist. Amongst other troubling variables, this socio-linguist testified he never visited nor studied any part of the Southeast U.S. border, its people, their English dialect, let alone studied or visited San Luis, Arizona (Cabrera v. Escamilla, 2012). Additionally, Cabrera’s legal team argued in their appeal, “Appellant knows of no statute, case or other law that provides for or otherwise permits a trial court to adopt an English proficiency standard that will only be applied to that case, based upon unverified opinions and unaccepted testing methodologies” (Cabrera v. Escamilla, 2012). As affirmed by the Arizona Superior Court in Yuma County, there is nothing stopping other state courts from creating and enforcing their own proficiency standards, much akin to superficial litmus tests, like literacy tests, used throughout history to disenfranchise and discourage the political participation of people of color. Such tests have been outlawed on account of their overt prejudicial intentions, stemming largely from the passage of the Voting Rights Act of 1965, (42 U.S.C. §§ 1973–1973aa-6). Therefore, the question of whether or not the tests adopted by the Court to gauge Cabrera’s proficiency violated the equal protection clause of the 14th Amendment, at least through the Court’s eyes, are irrelevant.
The heightened level of paranoia in this case continues to invite much skepticism, questioning its overall handling and objectiveness. Despite Dr. Eggington’s inability to prove that Cabrera was “unable to speak, write, and read the English language,” the Court attempted to superficially assess Cabrera’s level of English-language proficiency. Furthermore, during trial, Dr. Eggington admitted that one of the three tests administered was “experimental,” never before used as evidence in a civil or criminal trial. This statement called into question whether or not the Court observed the Frye rule, which states that the proponent of scientific evidence must show evidence’s underlying reliability (Frye v. United States, 293 F. 1013, 1014 (App. D.C. Dec. 03, 1923). Nonetheless, despite the series of concerns raised over the validity of Dr. Eggington’s expert testimony and tests, his evidence was not disqualified. Rather, it was cited by Judge Nelson when affirming his ruling to strike Cabrera’s name from the ballot. Disregarding the aforementioned shortcomings, the Arizona Supreme Court signed a short order affirming the lower Court’s decision.
In a state that continues to garner unflattering attention over its handling of political and legal issues that possess a peculiar racial dimension, the Cabrera case was plagued by many state-centered ailments from the outset. For a paranoid style to be effective, that is, to garner support amongst the masses, there must exist a shared level of distrust and suspicion that centers on increased calls for social regulation (Rodriguez, 2001). Modern day political efforts aimed at the creation and/or enforcement of official language statutes, writes Raymond Tatalovich, “is a policy response to a perceived threat to the normative order,” caused in large part by a hesitancy generated over “official” versus “non-official” languages (Tatolovich 1995, 9). These calls for “official language” measures, like calls for its enforcement, illustrate a worst-case scenario dichotomy that fuels much of the public distrust over “foreign languages” and “foreign peoples” seen throughout the policy history of Arizona. In this light, writes Cass Sunstein, we witness political actors using “probability neglect so as to promote attention to problems that may or may not deserve public concern” (Sunstein 2005, 65). For instance, within the confines of the Cabrera case, because the 1910 law failed to articulate precisely what it means for officeholders and seekers to speak, read, write and understand English “sufficiently well,” let alone define how to assess this requirement, prosecutors relied on probability neglect to elevate the existence of a political threat shaped in the form of Cabrera’s candidacy.
The paranoid style in American politics, while historically rooted throughout the socio-political experiences of many immigrant groups and communities of color, continues to exist by means of discursive political formations steeped in anxiety, suspiciousness, and polarity (Sunstein 2009). While the Cabrera case initially generated much attention, later followed by controversy, it is imperative to revisit the legal developments on all levels of government toward establishing “official language” laws, as its history and recent developments all tell an unfortunate story of a sweeping paranoid style in American politics aimed at a thriving Latino population.
42 U.S.C. §§ 1973–1973aa-6.
Act June 20, 1910, c. 310, 36 U.S. Stat. 557, 568-579.
Arizona English as the Official Language, Proposition 103 (2006).
Arizonans for Official English v. Arizona (95-974), 520 U.S. 43 (1997).
Article 28, Section I, Arizona Constitution.
Asian American Business Group v. City of Pomona (1989).
Barreto, Matt et al. 2009. Mobilization, participation, and solidaridad: Latino participation in the 2006 immigration protest rallies, Urban Affairs Review 44(5): 736–764.
Brown, Donathan. 2010. On defining community: Race, rhetoric and exclusion within the English as the national language debate. In Domestic Policy Discourse in the US and the UK in the New World Order. Edited by Lori Maguire. Cambridge: Cambridge Scholars Press.
———. 2011. In defense of unity & English only: On the early political battles to ‘unite’ the nation. Communication Law Review 11(1): 14-25
———. 2012. The strange life of assimilation in the national language debate. Journal of Race and Policy 11(1):1-12.
Buchanan, Patrick J. 2002. Death of the west: How dying populations and immigrant invasions imperil our country and civilization. New York: St. Martin’s Griffin.
Cabrera v. Escamilla, CV-12-0039 (2012)
Carrasquillo, Angela and Vivian Rodríguez. 2002. Language minority students in the mainstream classroom. Clevedon, Great Britain: Multilingual Matters.
Chavez, Leo. 2008. The Latino threat constructing immigrants, citizens, and the nation. Stanford: Stanford University Press.
Del Valle, Sandra. 2003. Language rights and the law in the United States: Finding our voices. Clevedon, Great Britain: Multilingual Matters.
Edwards, John. 2009. Language and identity: Key topics on sociolinguistics. Cambridge: Cambridge University Press.
Frye v. United States, 293 F. 1013, 1014 (App. D.C. Dec. 03, 1923).
Gamboa, Suzanne. 2006. House speaks up on making English official language. Denver Post, July, 27, A5.
Hernandez v. New York, 500 U.S. 352 (1991).
Hofstadter, Richard. 1965. The paranoid style in American politics and other essays. Cambridge: Harvard University Press.
Huntington, Samuel P. 2005. Who are we? The challenges to America’s national identity. New York: Simon and Schuster.
Lau v. Nichols, 414 U.S. 563 (1974).
Lieberman, Robert C. 2005. Shaping race policy: The United States in comparative perspective. Princeton: Princeton University Press.
Lopez, Ricardo. 2012a. Arizona English-fluency case may have wide repercussions. Los Angeles Times, February 5, 2012.
———. 2012b. Arizona Supreme Court bars candidate with limited English. Los Angeles Times, February 8, 2012.
Martin, Susan. 2010. A nation of immigrants. Cambridge: Cambridge University Press.
Puerto Rican Organization for Political Action (PROPA) v. Kusper, 490 F.2d 575 (7th Cir. 1973).
Rodriguez, Amardo. 2001. On matters of liberation (I): The case against hierarchy. Cresskill: Hampton Press.
———. 2007. Diversity: Mestizos, Latinos, and the promise of possibilities. Mountain View: Floricanto Press.
Santa Ana, Otto. 2002. Brown tide rising: Metaphors of Latinos in contemporary American public discourse. Austin: University of Texas Press.
Sunstein, Cass R. 2005. Laws of fear: Beyond the precautionary principle. Cambridge: Cambridge University Press.
———. 2009. Going to extremes: How like minds unite and divide. Oxford: Oxford University Press.
Tancredo, Tom. 2006. In mortal danger: The battle for America’s border and security. Nashville: WND Books.
Tatalovich, Raymond. 1995. Nativism reborn? The official English language movement and the American states. Lexington: University of Kentucky Press.
Trafzer, Clifford E., Jean A. Keller and Lorene Sisquoc. 2006. (Eds.), Boarding school blues: Revisiting American Indian educational experiences. Omaha: University of Nebraska Press.