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United States Department of Justice
Civil Rights Division
P.O. Box 66128
Washington, D.C. 20035
AHE-4493

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY

THE UNITED STATES OF AMERICA,             
     Plaintiff,                                                          
                                                                             
     v.                                                                            CIVIL ACTION No._99-2544____
                                                                             
PASSAIC CITY, NEW JERSEY;                               Judge _NHP__
MARGIE SEMLER, Mayor of                             
Passaic; TINA FIORELLINO                              
City Clerk: and GARY SCHAER,                                CIVIL ACTION No.____________
CHAIM MUNK, HERMAN BARKLEY, Jr.,      
BENNI JAKUBOVIC, DANIEL                                Judge ___________
SCHWARTZ, GERARDO FERNANDEZ,                Judge ___________
ROBERT HARE, members of the                              Judge ___________
City Council; and                                                 
                                                                             
PASSAIC COUNTY, NEW JERSEY;                 
PASSAIC COUNTY BOARD OF                       
ELECTIONS COMMISSION,                             
MARIA HAVASY,                                              
Chairperson/Commissioner and                           
JOHN KRAUTHEIM, JOHN KURRIE,               
ALICE ZONA, members of the                            
Board of Elections Commission;                         
RONNIE NOCHIMSON, County                        
Clerk; and PETER RYERSON,                           
County Superintendent of                                     
Elections,                                                             
                                                                             
     Defendants.                                                     
______________________________________


COMPLAINT

     The United States of America, plaintiff herein, alleges:

     1.   This is an action to protect the voting rights of Hispanic citizens, including those with limited-English proficiency. The plaintiff alleges five independent claims:  (1) that the County's and City's failure to provide election-related information, forms, instructions, assistance or other materials or information, including absentee ballot applications and procedures, in the Spanish language violates Section 203 of the Voting Rights Act, 42 U.S.C. 1973aa-1a;  (2) that the County's and City's failure to ensure that Spanish-speaking voters who are unable to read the ballot are able to receive assistance from the person of their choice violates Section 208 of the Voting Rights Act, 42 U.S.C. 1973(a);  (3) that the County's and City's failure toappoint and assign Hispanic persons on the same basis as whites to serve as board workers violates Section 2 of the Voting Rights Act, 42 U.S.C. 1973;  (4) that the County and City defendants' ineffective oral and written bilingual assistance and discriminatory board worker appointments and assigment practices and procedures violate Secton 2 of the Voting Rights Act, 42 U.S.C. 1973, by denying Hispanic citizens, including Spanish-language minority citizens, an equal opportunity to participate in the electoral process;  (5) that the County's and City conduct elections in a manner that reflects a discriminatory urpose to limit participation by Hispanic voters and results in denial of Hispanic limited-English proficient voters' equal protection rights in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution and the Voting Rights Act, 42 U.S.C. 1973, 1973j(d), 42 U.S.C. 1973aa-1a. The United States seeks declaratory and injunctive relief for each stated claim.

JURISDICTION

     2.   The Attorney General files this action pursuant to Sections 2, 3(a), 11(a), 12(d), 203, 204, and 208 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 1973, 42 U.S.C. 1973i(a), 42 U.S.C. 1973j(d), 42 U.S.C. 1973aa-1a, 42 U.S.C. 1973aa-2, 42 U.S.C. 1973aa-6, and 28 U.S.C. 2201, and to enforce rights guaranteed by the Fourteenth and Fifteenth Amendments to the United States Constitution.

     3.   The Court has jurisdiction of this action pursuant to 28 U.S.C. 1345, 42 U.S.C. 1973j(f), and 42 U.S.C. 1973aa-2. The claim pursuant to Section 203 of the Voting Rights Act must be heard and determined by a court of three judges in accordance with the provisions of 28 U.S.C. 2284.

PARTIES

     4.   Defendant Passaic City is a political subdivision of the County of Passaic and exists as a charter city organized pursuant to the laws of New Jersey.

     5.   Defendant Passaic County is a county within the State of New Jersey and is governed by the laws of that State.

     6.   Defendant Margie Semler is the mayor of Passaic City, New Jersey, with the responsibility of serving as the chief executive officer of the City. Defendant Semler is a resident of Passaic City and is sued in her official capacity. The addres of the Passaic City Mayor is City Hall, 330 Passaic Street, Passaice, New Jersey 07055.

     7.   Defendant Passaic City Clerk Tina Fiorellino has statutory powers, duties, and responsibilities concerning the conduct of elections held in Passaic City. Defendant Fiorellino is a resident of Passaic City and is sued in her official capacity. The address of the Passaic City Clerk is City Hall, 330 Passaic Street, Passaic, New Jersey 07055.

     8.   Defendants Gary Schaer, Chaim Munk, Herman Barkley, Jr., Benni Jakubovic, Daniel Schwartz, Geraldo Fernandez, and Robert Hare are members of Passaic City Council, the general governing body of Passaic City. The members of the City Council are sued in their official capacity. Each resides in Passaic City. The address of the Passaic City Council is City Hall, 330 Passaic Street, Passaic, New Jersey 07055.

     9.   The Passaic County Board of Elections is governed by the Board of Elections Commission and has statutory powers, duties, and responsibilities concerning the conduct of elections and creation of election districts in Passaic County. Defendant Chairperson/Commissioner Maria Havasy, and Commissioners John Krautheim, John Kurrie, and Alice Zona are members of the Board of Elections Commission and reside in Passaic County. They are each sued in their official capacity. The address of the Passaic County Board of Elections Commission is Passaic County Administration Building, 401 Grand Street, Paterson, New Jersey 07505.

     10.  Defendant Ronnie Nochimson is the Passaic County Clerk with statutory duties, powers, and responsibilities concerning the conduct of elections held in Passaic County. Defendant Nochimson is a resident of Passaic County and is sued in her official capacity. The address of the Passaic County Clerk is Passaic Administration Building, 401 Grand Street, Paterson, New Jersey 07505.

     11.  Defendant Peter Ryerson is the Passaic County Superintendent of Elections, with statutory powers, duties and responsibility concerning voter registration and the conduct of elections held in Passaic County. Defendant Ryerson resides in Passaic County and is sued in his official capacity. The address of the Passaic County Superintendent of Elections is 311 Pennsylvania Avenue, Paterson, New Jersey 07503.

FACTS

     12.  According to the 1990 Census, Passaic County has a total population of 453,060 persons, of whom 98,092 (21.7%) are Hispanic persons; and a total voting-age population of 344,317 persons, of whom 66,140 (19.2%) are Hispanic persons.

     13.  According to the 1990 Census, Passaic County has a total of 39,594 (13.1%) citizens of voting age who are Hispanic. The census data also indicates that 18,789 (47.4%) of the County's Hispanic voting-age citizens are limited English proficient.

     14.  In 1986, pursuant to State law, the County Board of Elections targeted parts of two cities in Passaic County, the City of Paterson and the City of Passaic, to receive Spanish language election information.

     15.  According to the 1990 Census, Paterson City has a total population of 140,891 persons, of whom 57,711 (41.1%) are Hispanic persons. Paterson City has a total voting age population of 100,096 persons of whom 31,557 (31.5%) are Hispanic persons.

     16.  According to the 1990 Census, Passaic City has a total population of 58,041 persons, of whom 29,028 (50.0%) are Hispanic persons. Passaic City has a total voting-age population of 42,209 persons, of whom 19,464 (46.1%) are Hispanic persons. As of October 10, 1998, voters with Spanish surnames made up approximately 41% of Passaic City's registered voters.

     17.  Fifty-one out of seventy-one election districts in the City of Paterson were targeted in 1986 as Spanich election districts. Thirty out of thirty-three election districts in Passaic City have been targeted were targeted in 1986 as Spanish election districts.

     18.  County and City defendant election officials have knowledge of the need for Spanish language assistance among Passsaic citizens and State law requirements for use of the Spanish language in conductng elections.

     19.  New Jersey Election law requires that in election districts in which the primary language of 10% or more of the registered voters is Spanish, the county board shall appoint two additional members who shall be of Hispanic origin and fluent in Spanish.

     20.  Upon information and belief, each of the targeted Spanish election districts described in paragraph numbered 17 meets the State law threshold that the primary language of 10% or more of the registered voters is Spanish.

     21.  Upon information and belief, neither the County nor the City defendants have ever complied with the State law requirement to assign two additional board workers who are Hispanic and fluent in Spanish to work in each of the targeted Spanish election districts.

     22.  Hispanic persons in Passaic County have suffered a history of discrimination and bear the effects of that discrimination today; in particular, since their arrival in Passsaic County, Hispanic persons have suffered a history of discrimination and neglect in voting-related activities.

     23.  In conducting elections in Passaic County, the County defendants have failed to furnish effectively, in the Spanish language, the information and assistance necessary to afford Spanish-language minority citizens a fair opportunity for effective participation in the electoral process, including the following:

       a.  Defendants have failed to translate fully all election-related materials into the Spanish language, including, but not limited to, a chronological elections index which provides pertinent information for citizens who participate in the electoral process, election-related material available at the polls on election day, and certain absentee ballot materials, including the absentee ballot application;

       b.   Defendants have failed to provide effective oral language assistance to Spanish-language minority voters. For example, Spanish-language minority voters at several polling sites have been unable to receive oral Spanish-language assistance necessary to understand the ballot and the procedures for casting a ballot;

       c.  In some instances, Hispanic voters in Passaic County who were unable to read the ballot and who required voting assistance have been denied the right to have the person of their choice assist them at the polls;

       d.   Defendants have failed to recruit, appoint, train, and maintain an adequate pool of bilingual poll officials to provide Spanish-language minority voters with effective language assistance; and

       e.   Defendants have failed to train the existing pool of poll officials to provide effective language assistance to Spanish-language minority voters.

     24.  In conducting elections in Passaic City, defendants have failed to furnish effectively, in the Spanish language, the information and assistance necessary to afford Spanish-language minority citizens a fair opportunity for effective participation in the electoral process, including the following:

       a.   Defendants have failed to translate fully all election-related materials into the Spanish language, including but not limited to candidate nominating petitions, general election notices concerning participation in the political and electoral process, certain information concerning the process of casting a ballot, and absentee voting material including the absentee ballot application;

       b.  Defendants have failed to provide effective oral language assistance to Spanish-language minority voters. For example, Spanish-language minority voters at several polling sites have been unable to receive oral Spanish-language assistance necessary to understand the ballot and the procedures for using the voting machine;

       c.   In some instances, Hispanic voters in Passaic City, who were unable to read the ballot and who required voting assistance, have been denied the right to have the person of their choice assist them within the voting booth;

       d.   Defendants have failed to recruit, appoint, train and maintain an adequate pool of bilingual poll officials to provide Spanish-language minority voters with effective language assistance; and

       e.   Defendants have failed to train the existing pool of poll officials to provide effective language assistance to Spanish-language minority voters.

     25.  Although County and city defendants know of the need for Spanish language materials, defendants have failed to translate the absentee ballot applications to Spanish for distribution in the targeted Spanish electin districts.

       26.  Pursuant to New Jersey Election law, election officers, also known as boardworkers, must be certified annually. According to the same New Jersey law, defendant City Clerk Fiorellino and defendant Passaic County Board of Elections have responsibilities relating to the appointment of board workers. In practice, defendant City Clerk Fiorellini has appointed boardworkers for municipal and school board elections and defendant Passaic County Board of Elections has appointed board workers for Countywide primary and general elections.

     27.  Any enrolled voter is eligible to serve as a pollworker in Passaic unless that person is a candidate. Pollworkers are responsible for permitting qualified electors to cast ballots, for keeping records required by law, and for ensuring that primaries and general elections are honestly, efficiently, and uniformly conducted.

     28.  The County and City defendants recruit board workers from various English language organizations. The City and County defendants do not make similar efforts to recruit board workers from any of the local Hispanic organizations. For the 1998 electionsl, County defendants mailed at least 50 recruitment letters to local libraries, schools, and collegs, but mailed no recruitment letters to loca Hispanic organizations.

     29.  For each of the 1993, 1995, and 1997 municipal elections, defendant City Clerk Fiorellino hired a total of between 7 and 10 bilingual board workers out of a total of more than 130 board workers. In each instance, City Clerk Fiorellino started with the list of County board workers and attempted to recruit additional bilingual board workers.

     30.  Upon information and belief, the Passaic County defendants do not keep a record of the number of board workers who speak Spanish who work in the targeted Spanish election districts at each election.

     31.  Passaic City and Passaic County have consistently employed a disproportionately low number of Hispanic board workers compared to the number of Hispanic registered voters in Passaic City and County.

     32.  Because of the low number of Hispanic and bilingual board workers, many Hispanic citizens, especially those who do not speak English well, are intimidated by the electoral process and discouraged from voting at polling places. In some instances, bilingual volunteer board workers have been prevented from assisting Hispanic limited English proficient voters, and, in other instances, such voters have been told that they cannot receive assistance within the voting booth.

FIRST CAUSE OF ACTION

     33.  Passaic County is subject to the requirements of Section 203 of the Voting Rights Act as a result of a determination by the Director of the Census that more than 5% of Passaic's voting age citizens are members of a single language minority group (Spanish heritage or Hispanic) who do not speak or understand English well enough to participate in the English-language election process, and the illiteracy rate of such language minority citizens is higher than the national illiteracy rate. 58 Fed. Reg. 35371, 35374 (July 1, 1993). Passaic County first became subject to the requirements of Section 203 of the Voting Rights Act on June 25, 1984 (49 Fed. Reg. 25887). Passaic County's coverage under Section 203 continued when the Census issued new determinations in 1992.

     34.  Passaic City is subject to the same requirements of Section 203 as Passaic County, the covered political subdivision, because Passaic City is a political unit that holds elections within the County. Implementation of the Provisions of the Voting Rights Act Regarding Language Minority Groups, 28 C.F.R. 55.9.

     35.  Because Passaic County and City are subject to the requirements of Section 203, the defendants must "provide any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots" in the Spanish language so that Spanish-speaking voters can be effectively informed of and participate effectively in voting-connected activities. 42 U.S.C. 1973aa-1a(c).

     36.  Defendants' failure to provide Spanish-language minority citizens of Passaic County and Passaic City with the election information and assistance necessary for their effective political participation on an equal basis with other citizens described in the above paragraphs numbered 18 through 32 constitutes a violation of Section 203 of the Voting Rights Act, 42 U.S.C. 1973aa-1a.

     37.  Unless enjoined by this Court, defendants will continue to violate Section 203 of the Voting Rights Act, 42 U.S.C. 1973aa-1a, by failing to provide Spanish-language minority citizens of Passaic County and Passaic City with the election information and assistance necessary for their effective political participation on an equal basis with other citizens.

SECOND CAUSE OF ACTION

     38.  Section 208 of the Voting Rights Act provides that "[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." 42 U.S.C. 1973aa-6.

     39.  Defendants' actions described above in paragraphs 23, 24, and 32 constitute a failure to ensure that voters who are unable to read the ballot and who need voting assistance are permitted to have the person of their choice assist them at the polls, in violation of Section 208 of the Voting Rights Act, 42 U.S.C. 1973aa-6.

     40.  Unless enjoined by this Court, defendants will continue to implement voter assistance practices and procedures that violate Section 208 of the Voting Rights Act, 42 U.S.C. 1973aa-6, by failing to ensure that voters who are unable to read the ballot and who need voting assistance are permitted to receive assistance from the person of their choice.

THIRD CAUSE OF ACTION

     41.  Defendants, by implementing the board worker appointment process described above in paragraphs 19-21, 23, 24, and 26-32 have discriminated on the basis of race by failing to appoint and assign Hispanic persons on the same basis as whites to serve as pollworkers, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973.

     42.  Unless enjoined by this Court, defendants will maintain their discriminatory policy and practice of appointing and assigning board workers, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973.

FOURTH CAUSE OF ACTION

     43.  Section 2 of the Voting Rights Act prohibits defendants from imposing any "voting qualification or prerequisite to voting or standard, practice, or procedure" which results in a denial or abridgement of the right of Hispanic citizens to vote. 42 U.S.C. 1973.

     44.  Defendants' actions described in paragraphs 18 through 32 above have resulted in Spanish-language minority citizens having less opportunities than other members of the electorate to participate effectively in the Passaic County and Passaic City political processes, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973.

     45.  Unless enjoined by this Court, defendants will continue to enforce standards, practices, or procedures that deny Spanish-language minority citizens an opportunity to participate effectively in the political process on an equal basis with other members of the electorate, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973.

FIFTH CAUSE OF ACTION

     46.  Defendants have intentionally failed to provide certain election-related information, forms, instructions, assistance or other materials or information, including absentee ballot applications and procedures, in the Spanish language.

     47.  Defendants' knowing and intentional failure to provide certain election-related information, forms, instructions, assistance or other materials or information, including absentee ballot applications and procedures, in the Spanish language denies the 47.4% of Hispanic citizens in Passaic County who are of voting age and limited-English proficient equal protection of the laws.

     48.  Defendants' knowing and intentional failure to ensure that Spanish-speaking voters who are unable to read the ballot are able to receive assistance from the person of their choice denies the 47.4% of Hispanic citizens in Passaic County who are of voting age and limited-English proficient equal protection of the laws.

     49.  Defendants' knowing and intentional failure to appoint and assign Hispanic persons on the same basis as whites to serve as board workers denies the 47.4% of Hispanic citiezns in Passaic County who are of voting age and limited-English proficient equal protection of the laws.

     50.  Defendants' knowing and intentional failure to provide effective oral and written bilingual assistance, as described above in paragraphs 18 to 32, denies the 47.4% of Hispanic citizens in Passaic County who are of voting age and limited-English proficient access to the political process equal to that enjoyed by other members of the electorate in violation of the Fourteenth and Fifteenth Amendments.

Hispanics in Passaic City bear the effects of past discrimination in areas such as education, employment, and housing, as reflected in their depressed socioeconomic status relative to white Passaic residents. These effects of past discrimination hinder the current ability of Hispanics to participate effectively in elections in Passaic.

     WHEREFORE, the plaintiff United States prays for an order:

(1)  With respect to plaintiff's First Cause of Action:

(a) Declaring that defendants have failed to provide Spanish-language minority citizens of Passaic County and Passaic City with the election information and assistance necessary for their effective political participation, in violation of Section 203 of the Voting Rights Act, 42 U.S.C. 1973aa-1a;

(b) Preliminarily and permanently enjoining defendants, their agents and successors in office, and all persons acting in concert with them, from failing to provide Spanish-language minority citizens of Passaic County and Passaic City with the election information and assistance necessary for their effective political participation, in violation of Section 203 of the Voting Rights Act, 42 U.S.C. 1973aa-1a; and

(c) Requiring defendants to devise and implement a remedial plan to ensure that Spanish-language minority citizens of Passaic County and Passaic City are able to be effectively informed of and participate effectively in all phases of the electoral process, in compliance with Section 203 of the Voting Rights Act, 42 U.S.C. 1973aa-1a;

(2)  With respect to plaintiff's Second Cause of Action:

(a) Declaring that defendants' failure to ensure that voters who are unable to read the ballot and who need voting assistance are permitted to have the person of their choice assist them at the polls violates Section 208 of the Voting Rights Act, 42 U.S.C. 1973aa-6;

(b) Preliminarily and permanently enjoining defendants, their agents and successors in office, and all persons acting in concert with them, from implementing voter assistance procedures or practices that deny voters who are unable to read the ballot and who need assistance in voting the right to have the person of their choice assist them at the polls, in violation of Section 208 of the Voting Rights Act, 42 U.S.C. 1973aa-6; and

(c) Requiring defendants to devise and implement voter assistance procedures and practices which will ensure that voters who are unable to read the ballot and who need voting assistance are permitted to have the person of their choice assist them at the polls, in compliance with Section 208 of the Voting Rights Act, 42 U.S.C. 1973aa-6;

(3)  With respect to plaintiff's Third Cause of Action:

(a) Declaring that defendants have discriminated on the basis of race by failing to appoint and assign Hispanic persons on the same basis as whites to serve as board workers, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973;

(b) Preliminarily and permanently enjoining defendants, their agents and successors in office, and all persons acting in concert with them, from maintaining their discriminatory policy and practice of appointing and assigning board workers, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973; and

(c) Requiring defendants to devise and implement a remedial program to actively recruit for appointment and assignment, and to retain on a permanent basis, a pool of Hispanic boardworkers in each polling place that reasonably corresponds to the percentage of Hispanic registered voters assigned to that polling place;

(4)  With respect to plaintiff's Fourth Cause of Action:

(a) Declaring that defendants' ineffective oral and written bilingual assistance and discriminatory board worker appointment and assignment practices and procedures, operating under the totality of circumstances, have resulted in Spanish-language minority citizens having less opportunity than other members of the electorate to participate effectively in the political process, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973;

(b) Preliminarily and permanently enjoining defendants, their agents and successors in office, and all persons acting in concert with them, from implementing practices and procedures which deny Spanish-language minority citizens an opportunity to participate effectively in the political process on an equal basis with other members of the electorate, in violation of Section 2 of the Voting Rights Act, 42 U.S.C. 1973; and

(c) Requiring defendants to devise and implement a remedial plan which ensures that Spanish-language minority citizens have an opportunity to participate effectively in the political process on an equal basis with other members of the electorate, in compliance with Section 2 of the Voting Rights Act, 42 U.S.C. 1973;

(5)  With respect to plaintiff's Fifth Cause of Action:

(a)    (1)  Permanently ordering defendants, their agents and successors in office, and all persons acting in concert with them to provide election-related information, forms, instructions, assistance or other materials or information, including absentee ballot applications and procedures, in the Spanish language; (2) to ensure that Spanish-apeaking voters who are unable to read the ballot are able to receive assistance from the person of their choice; (3) to appoint and assign Hispanic persons on the same basis as whites to serve as board workers; and (4) to effectively provide oral and written bilingual assistance and bilnigual board worker appointment and assignment practices and procedures, in a manner that does not discriminate against and provides equal opportunity to participate in the political process to Hispanic citizens, including Spanish-language minority citizens.

(b)    Authorizing the director of the Office of Personnel Management to appoint Federal examiners for Passaic County pursuant to Section 3(a) of the Voting Rights Act, 42 U.S.C. 1973a(a), to enforce the guarantees of the Voting Rights Act and the Fourteenth and Fifteenth Amendments to the United States Constitution.

(6)  Requiring the defendants to publicize effectively the remedial plans and programs addressing the violations enumerated herein to ensure their widespread dissemination to the Hispanic citizens in Passaic County and City.

       Plaintiff further prays that this Court order such additional relief as the interests of justice may require, together with the costs and disbursements in maintaining this action.



                                                                                        JANET RENO
                                                                                        Attorney General

                                                                                        ______/s/_____________________
                                                                                        BILL LANN LEE
                                                                                        Acting Assistant Attorney General
                                                                                        Civil Rights Division



                                                                                        ______/s/_____________________
                                                                                        ELIZABETH JOHNSON
                                                                                        DONNA M. MURPHY
                                                                                        ANGELA HART-EDWARDS
                                                                                        Attorneys, Voting Section
                                                                                        Civil Rights Division
                                                                                        Department of Justice
                                                                                        P.O. Box 66128
                                                                                        Washington, D.C. 20035-6128
                                                                                        (202) 514-6108

General Information Voting Section
Contact

Toll-free - (800) 253-3931
Telephone - (202) 307-2767
Fax - (202) 307-3961
Email - voting.section@usdoj.gov
Web - Complaint form
Mailing Contact

Voting Section
Civil Rights Division
U.S. Department of Justice
Room 7254 - NWB
950 Pennsylvania Ave., N.W.
Washington, DC 20530

Redistricting Census Information
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