- Permanent Injunction
1. The United States is authorized by statute to seek permanent relief for
Voting Rights Act violations. 42 U.S.C. 1973j(d).
2. The Voting Rights Act authorizes the Attorney General to seek
"preventative relief, including an application for a temporary or permanent
injunction" whenever any person has engaged or there are reasonable grounds to
believe that a person is about to engage in a violation of the Voting Rights
Act. 42 U.S.C. § 1973j(d).
3. It is well established that Congress's specific provision for injunctive
relief in a statute establishes Congress's determination that irreparable harm
will result if proscribed acts are not enjoined. See, e.g.,
Instant Air Freight v. C.F. Air Freight, 882
F.2d 797, 803 (3d Cir. 1989)(citing Government of Virgin Islands, Dept. of
Conservation and Cultural Affairs v. Virgin Islands Paving, 714 F.2d 283,
286 (3d Cir. 1983)) ("a statutory provision authorizing preliminary injunctive
relief upon a showing of probable cause to believe that the statute is being
violated may be considered a substitute for a finding of irreparable harm");
see also United States Postal Service v. Beamish,
466 F.2d 804, 806 (3d Cir. 1972).
4. The "right to vote freely for the candidate of one's choice is of the
essence of a democratic society, and any restrictions on that right strike at
the heart of representative government." Reynolds v. Sims,
377 U.S. 533, 555 (1964).
5. Denial of the right to participate in an election is by its nature an
irreparable injury. See id., 377 U.S. at 585, (once it has
been established that Section 2 has been violated in legislative apportionment
context, "it would be the unusual case in which a court would be justified in
not taking appropriate action to insure that no further elections are conducted
under the invalid plan").
6. Congress has determined that irreparable injury occurs and permanent
relief should be provided when a protected class will have "less opportunity
than other members of the electorate to participate in the political process and
to elect representatives of their choice." 42 U.S.C. § 1973.
7. The Third Circuit requires that, in deciding whether a permanent
injunction should issue, the trial court must consider four factors: (1) whether
the moving party has shown actual success on the merits; (2) whether denial of
injunctive relief will result in irreparable harm to the moving party; (3)
whether granting of the permanent injunction will result in even greater harm to
the defendant; and (4) whether the injunction serves the public interest.
See Shields v. Zuccarini, 254 F.3d 476, 482 (3d Cir. 2001).
8. Courts in this district have treated preliminary injunction hearings as
final hearings on the merits permitting entry of a permanent injunction when
additional proceedings were unnecessary to rule on plaintiff's claims.
See, e.g., Savin Corp. v. Chud, 1994 WL 421309 (E.D. Pa. Aug. 8,
1994) (Pollack, J.) (court converted preliminary injunction hearing into final
hearing on merits, with parties' consent, pursuant to Fed. R. Civ. P. 65(a)(2));
QVC, Inc. v. Tauman, 1998 WL 156982 (E.D. Pa. Apr.
3, 1998) (Dalzell, J.) (same); Calhoun v. Horn, 1997 WL 672629 (E.D. Pa. Oct.
29, 1997) (Shapiro, J.) (court converted preliminary injunction hearing into
non-jury trial on merits).
9. The United States has demonstrated success on the merits of its claims, as
set forth in paragraphs 10-47 infra; and the standard for issuance
of a permanent injunction is satisfied.
- Section 4(e)
10. Section 4(e) of the Voting Rights Act of 1965 protects the right to vote
of United States citizens educated in American-flag schools in any state,
territory, the District of Columbia, and Puerto Rico, in a language other than
English because of such citizens' inability to read, write, understand, or
interpret English. 42 U.S.C. § 1973b(e)(1,2).
11. The purpose of Section 4(e), according to its main Senate sponsor, Robert
F. Kennedy, was to bring the citizen of "Puerto Rican origin into a status of
equality with his fellow citizen[s]." 111 Cong. Rec. 11160.
12. The plain language of Section 4(e) is clear and unambiguous, and has been
interpreted broadly by federal courts to prohibit both the explicit conditioning
of the right to vote on the ability to speak English, and the conduct of
English-only elections. Arroyo
v. Tucker, 372 F. Supp. 764, 766
(E.D. Pa. 1974); PROPA v. Kusper, 350 F. Supp. 606 (N.D. Ill.
1972), aff'd, 490 F.2d 575
(7th Cir. 1973); Torres v. Sachs, 381 F. Supp. 309, 311 (S.D.N.Y.
1974). See also Katzenbach v. Morgan, 384 U.S. 641, 645 (1966)
(upholding constitutionality of Sec. 4(e)).
13. Persons born in Puerto Rico are citizens of the United States ipso
jure. 8 U.S.C. § 1402.
14. As United States citizens, Puerto Ricans are entitled to unrestricted
migration to the mainland states. Arroyo, 372 F. Supp. at 766;
PROPA, 490 F.2d at 578.
15. Unlike naturalized citizens, who must
demonstrate a facility with English in order to gain citizenship, Puerto Ricans
residing in the United States need not speak or read English to exercise the
full benefits of citizenship. PROPA, 350 F. Supp. at 609.
16. This case is analogous to Arroyo v. Tucker, 372 F. Supp. 764 (E.D. Pa.
1974), in which the court held that Section 4(e) was violated based on finding
the following salient facts: the plaintiff class consisted of United States
citizens of Puerto Rican descent residing in the City of Philadelphia; such
citizens were eligible to vote, but did not read, write, speak, nor comprehend
English; English was the sole language in which Philadelphia conducted its
election process; and plaintiffs' affidavits demonstrated that they were unable
to participate in the electoral process unless they received assistance in
Spanish. Id. at 767-768.
17. The right to vote encompasses more than the right to gain physical access
to a voting booth, to mark a ballot or pull a lever. Persons must have the
opportunity to comprehend the registration and election forms and the ballot
itself to cast an informed and effective vote. Id. 767.
18. The meaningful right to vote extends beyond the four corners of the
voting machine. If voters cannot understand English-only ballot language such as
the offices for which candidates are running, propositions, bond authorizations,
and constitutional amendments, as well as printed advertisements of polling
place locations and sample ballots, their right to vote effectively is
diminished. Berks Co., 250 F.
Supp. 2d at 527.
18. The meaningful right to vote extends beyond the four corners of the voting
machine. If voters cannot understand English-only ballot language such as the offices for which
candidates are running, propositions, bond authorizations, and constitutional amendments, as
well as printed advertisements of polling place locations and sample ballots, their right to vote
affectively is diminished. Berks County, 250 F. Supp. 2d at 527.
19. Voters who cannot speak or understand English may have difficulty
establishing their right to vote and their right to assistance in voting under
Section 208 of the Voting Rights Act, 42 U.S.C. 1973aa-6. Berks Co.,
250 F. Supp. 2d at 527.
20. Defendants' use of an English-only election process effectively
conditions the right to vote for Reading's sizeable Puerto Rican community, many
of whom attended school in Puerto Rico, on the ability to read, write, and
21. Defendants' failure to provide Spanish-language oral and written
assistance for Reading's large Puerto Rican population denies this group their
right to effectively register a political choice, in violation of Section 4(e).
- Section 208
22. Section 208 of the Voting Rights Act, 42 U.S.C. 1973aa-6, provides:
"[A]ny 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
choice, other than the voter's employer or agent of that employer or officer or
agent of the voter's union."
23. The legislative history of Section 208
reveals that Congress viewed Section 208, as it applied to illiterate voters, as
a corollary to the nationwide ban on literacy tests. See S. Rep. No.
97-417, at 63 (1982).
Congress concluded that "the only kind of assistance that will make fully
'meaningful' the vote of the blind, disabled, or those who are unable to read or
write, is to permit them to bring into the voting booth a person whom the voter
trusts and who cannot intimidate him." Id. at 62.
24. When Defendants deny Spanish-speaking voters in Reading the right to
bring their assistor of choice into the voting booth, voters feel uncomfortable
with the process, do not understand the ballot, do not know how to operate the
voting machine, and cannot cast a meaningful vote, in violation of Section 208.
- Section 2
25. Section 2(a) of the Voting Rights Act, as amended in 1982, prohibits any
state or political subdivision from imposing or applying any "qualification or
prerequisite" to voting or any "standard, practice, or procedure" which "results
in a denial or abridgement of the right of any citizen of the United States to
vote on account of race or color" or membership in a language minority group. 42
U.S.C. 1973(a). A violation of Section 2(a) is established where, "based on the
totality of circumstances, it is shown that the political processes leading to
nomination or election in the state or political subdivision are not equally
open to participation by members of a class of citizens protected by subsection
(a) in that its members have less opportunity than other members of the
electorate to participate in the political process and to elect representatives
of their choice." 42 U.S.C. 1973(b).
26. Section 2 ensures that minority voters are free from any election
practice "which operate[s], designedly or otherwise" to deny them the same
opportunity to participate in all phases of the political process as other
citizens. S. Rep. No. 97-417, at 28 (1982). The critical question in a Section 2
claim is "whether the use of a contested electoral practice or structure results
in members of a protected group having less opportunity than other members of
the electorate to participate in the political process and to elect
representatives of their choice." Thornburg v. Gingles,
478 U.S. 30, 63 (1986).
27. Congress extended the Voting Rights Act in 1975 to cover certain language
minority groups, including persons of Spanish heritage. 42 U.S.C. 1973(c)(3); 1973aa-1a(e). When
expanding the Voting Rights Act to cover these language minority groups,
Congress found that "voting discrimination against citizens of [such] minorities
is pervasive and national [in] scope." 42 U.S.C. 1973b(f)(1)).
28. Section 2 applies nationwide, and wherever
the totality of circumstances demonstrates that a jurisdiction's political
processes are not equally open to participation by minority voters in that its
members have less opportunity than other members of the electorate to
participate in the political process, a violation of Section 2 has occurred.
Courts have found that Section 2 claims may be brought to challenge
election officials' failure to provide language assistance,
Hernandez v. Woodard, 714 F. Supp. 963 (N.D. Ill
1989), and election officials' failure to appoint minority poll workers,
Harris v. Graddick, 593 F. Supp. 128, 132 (M.D.
29. Hispanics in Reading suffer from significant socio-economic inequality,
which is ordinarily linked to lower literacy rates, unequal educational
opportunities, and depressed participation in the political process.
See, e.g. Gingles, 478 U.S. at 69.
30. Election officials have knowingly permitted poll officials to express
hostility toward Hispanic and Spanish-speaking voters.
31. Hispanic voters have been subject to unequal treatment at the polls,
including being required to show photo identification where white voters have
not been required to do so.
32. Hispanic residents in Reading have been severely under represented as
poll workers. Berks. Co., 250 F. Supp. 2d at 539.
33. The only impediment to Defendants' appointment of bilingual persons to
serve as clerks or machine inspectors, and to fill vacant elected poll worker
positions, was Defendants' apparent unwillingness to ensure that poll workers
included persons reflective of the community. Id.
34. The adverse impact of hostility toward minority
voters on equal access to polling places is severe. See Harris,
593 F. Supp. at 131 n.3
(finding support for Section 2 violation in substantial evidence of "recent
unpleasant encounters" between non-minority poll workers and minority
35. Spanish-speaking voters in Berks County faced several substantial
barriers to casting an effective ballot prior to issuance of the preliminary
injunction: English-only election notices and materials; a dearth of bilingual
poll officials; and barriers to voters' ability to receive assistance from the
person of their choice.
36. The lack of minority poll officials alone is a
serious impediment to Hispanic voters gaining equal access to the polls. In
Harris, 593 F. Supp. at 137, the
court found that there was gross underrepresentation of black persons among poll
officials across the state of Alabama, and that such underrepresentation
substantially "impede[d] and impair[ed] the access of black persons to the state
political process" in violation of Section 2. 593 F. Supp. at 137. The dearth of minority
poll workers was found to be an independent Section 2 claim when accompanied by
evidence of past or present discrimination against the minority voters. See id.
37. The totality of the circumstances in this case demonstrates that
Defendants' practices and procedures result in an electoral system in which
Hispanic and Spanish-speaking voters have less
opportunity than other members of the electorate to participate in the electoral
- Federal Examiners
38. The Voting Rights Act expressly permits the Court to appoint Federal
examiners as a part of a final judgment. Section 3(a), 42 U.S.C. 1973a(a),
Whenever the Attorney General or an aggrieved person institutes a proceeding
under any statute to enforce the voting guarantees of the fourteenth and
fifteenth Amendment. . . the court shall authorize the appointment of Federal
examiners by the Director of the Office of Personnel Management in accordance
with [section 1973d of this title] to serve for such period of time . . . as the
court shall determine is appropriate to enforce the voting guarantees of the
fourteenth and fifteenth amendment . . . as part of any final judgment if the
court finds that violations of the fourteenth and fifteenth amendment justifying
equitable relief have occurred in such State or subdivision.
39. The Director of the Office of Personnel Management, when authorized by
the Court to appoint a Federal examiner pursuant to Section 3(a) of the Voting
Rights Act of 1965, as amended, 42 U.S.C. 1973a(a), may assign federal observers
pursuant to Section 8 of the Voting Rights Act, 42 U.S.C. 1973f.
40. Federal observers have the authority to enter and attend any place where
elections are administered, in accordance with Section 6 of the Voting Rights
Act, 42 U.S.C. 1973d, and Section 8 of the Voting Rights Act, 42 U.S.C. 1973f,
for the purpose of observing whether persons who are entitled to vote are being
permitted to vote, and to enter and attend at any place for tabulating the votes
cast at any election held in such subdivision for the purpose of observing
whether votes cast by persons entitled to vote are being properly tabulated. 42
41. The United States has demonstrated that Reading's Hispanic voters have
enjoyed less opportunity than other voters to participate in the political
process in past elections. The harm suffered by Reading's Hispanic voters in
past elections will occur in future elections if Defendants follow their past
policies and practices. Berks Co., 250 F. Supp. 2d at 541.
42. The impact of the discouragement
of equal participation in the democratic system cannot be redressed by money or
any other remedy and constitutes irreparable harm. Id.
43. Defendants will not suffer irreparable harm if a permanent injunction is
issued. Any small additional monetary expense to Defendants to conduct the
election in compliance with the Voting Rights Act is far outweighed by the
important fundamental right involved in this case. Id.; see also Johnson v.
Halifax County, 594 F. Supp. 161, 171
(E.D.N.C. 1984) (administrative and financial burdens on defendant not undue in
light of irreparable harm caused by unequal opportunity to participate in county
44. The public interest is served by entry of a permanent injunction.
Ordering Defendants to conduct elections in compliance with the Voting Rights
Act so that all citizens may participate equally in the electoral process serves
the public interest by reinforcing the core principles of our democracy.
Berks Co., 250 F. Supp. 2d at 541 (citing Harris, 593 F. Supp. at 136).
45. A permanent injunction is
warranted that prohibits further use of English-only elections in the City of
Reading; and requires Defendants to comply with Sections 4(e), 208, and 2 of the
Voting Rights Act; and authorizes the appointment of Federal examiners to serve
46. Defendants' knowledge of these
violations and reluctance to remedy them absent court orders further
demonstrates the need for a permanent injunction.
47. Judgment should be entered in favor of the United States
and against Defendants.