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MEMORANDUM OF AGREEMENT
This Memorandum of Agreement, effective this ___ day
of September 2007, is entered into by and between the United States of America ("United States")
and the County of Kane, Illinois ("Kane County") and the Kane County Clerk, John Cunningham
("County Clerk"), in his official capacity (collectively referred to as "the County").
The United States of America filed this
action pursuant to Sections 203 and 208 of the Voting Rights Act of 1965, as amended,
42 U.S.C. §§ 1973aa-1a and 1973aa-6, and 28 U.S.C. § 2201. The Court
has jurisdiction over this matter pursuant to 28 U.S.C. § 1345, 42 U.S.C. § 1973j(d)
& (f), and 42 U.S.C. § 1973aa-2.
The Complaint's first cause of action
under Section 203 of the Voting Rights Act, 42 U.S.C. § 1973aa-1a, must be heard
and determined by a court of three judges pursuant to 42 U.S.C. § 1973aa-2 and
28 U.S.C. § 2284. The second cause of action, under Section 208 of the
Voting Rights Act, may be heard and determined by one judge.
The United States alleges that the County
has been subject to the requirements of Section 203 of the Voting Rights Act ("Section 203"),
42 U.S.C. § 1973aa-1a, with respect to Spanish language since 2002. See 42 U.S.C. § 1973aa-1a(b)(2); see also 67 Fed. Reg. 48,871 (July 26, 2002). In the most recent
determination of coverage in 2002, the Director of the Census determined that more than
10,000 of Kane County's voting age citizens are members of a single language minority
group (Spanish heritage or Hispanic) and are limited-English proficient, and
the illiteracy rate of these persons as a group is higher than the national illiteracy rate.
Id. The determination of the Census Bureau that Kane County is covered by Section 203
for Spanish is final and non-reviewable. See 42 U.S.C. § 1973aa-1a(b)(4). As
a result, Kane County has been under notice of its obligations under Section 203 since 2002.
As of the 2000 Census, the number of Kane County's
Hispanic citizens of voting age that were limited-English proficient was 10,055. Kane County
had a total population of 404,120 persons, of whom 95,965 (23.75%) were Hispanic. Kane
County also had a citizen voting age population of 224,270 of whom 26,260 (11.7%) were Hispanic.
The United States states in its complaint that,
despite its good faith efforts to hire bilingual election judges and translate election-related
information into Spanish, the County has not complied with the requirements of Section 203 for Spanish-speaking citizens residing in Kane County by failing to provide an adequate number
of bilingual election judges trained to assist Spanish-speaking voters on election day, and
by failing to provide in an effective manner certain election-related information to
The County is also subject to the requirements of
Section 208 of the Voting Rights Act, as amended, 42 U.S.C. § 1973aa-6 ("Section 208").
Section 208 provides that "[a]ny voter who requires assistance 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. The United States states in its complaint
that the County has not met the requirements of Section 208 because, through its employees
and agents, it prevented certain limited English proficient Spanish-speaking voters from securing assistance at the polls necessary for their effective participation in the voting process,
in violation of Section 208. To avoid protracted and costly litigation, the parties have
agreed that this lawsuit should be resolved through the terms of this Agreement (the
"Agreement"). Accordingly, the United States and the County hereby consent to the entry of this
Agreement, as indicated by the signatures of counsel and/or the parties at the end of this
Agreement. Each party shall bear its own costs and fees.
The County does not admit liability to these
claims in the complaint; however the County is committed to complying fully with all
requirements in this Agreement in future elections.
The County stipulates that each provision in
this Agreement is appropriate and necessary.
Accordingly, it is hereby STIPULATED, AND AGREED that:
1. The County, its agents, employees, contractors, successors, and all other persons representing the interests of the County agree:
- To provide in Spanish any "registration or voting notices, forms,
instructions, assistance, or other materials or information relating to the
electoral process, including ballots" that they provide in English, as
required by Section 203 of the Voting Rights Act, 42 U.S.C. § 1973aa-1a;
- To allow '[a]ny voter who requires assistance to vote by reason of
blindness, disability, or inability to read or write . . . [to] 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; and
- To ensure that all polling place personnel are provided and receive
adequate training regarding Kane County's responsibility to comply with
Section 203 and Section 208 of the Voting Rights Act.
2. The terms of this
Agreement apply to all federal, state, and local elections administered by the County.
The parties agree that the term "the County" binds only the party who has authority
or responsibility under Illinois law with respect to each specific obligation set
forth in this Agreement. Whenever the County enters into an election services contract
with any other entity, political subdivision, or political party to conduct an election
on behalf of that entity, the County shall require such entity to agree to abide by the
terms of this Agreement as if such entity were a party to this Agreement with the United
States, and consistent with the responsibility of each entity to comply fully with
Sections 203 and 208 of the Voting Rights Act.
Assistors of Choice
3. The County shall train
all poll officials to ensure that Spanish-speaking voters are permitted assistance
from persons of their choice, other than the voters' employer or agents of those
employers or officers or agents of the voters' union, and that such assistance shall
include assistance in the voting booth, including reading or interpreting the ballot
and instructing voters on how to select the voters' preferred candidate. If a poll
official interferes with the right of any voter to receive such assistance the County
will, upon learning of such interference, promptly remove that poll official and bar
such official from further service.
4. The County shall
alert voters that Spanish-speaking election judges, poll officials, or interpreters
are available to provide assistance, and shall make such election judges, poll officials,
or interpreters available when voters choose these workers as their assistors of choice.
Translation and Dissemination of
5. All the information
that is disseminated by the County in English about "registration or voting notices,
forms, instructions, assistance, or other materials or information relating to the
electoral process, including ballots," 42 U.S.C. § 1973b(f)(4), shall also be
provided in the Spanish language. The County shall continue to provide in the Spanish language
election information, materials, and announcements that it provides in English, and through the
term of this Agreement, shall provide in the Spanish language all election information, materials,
and announcements it provides in English, and shall make such information, materials, and
announcements available on an equal basis.
6. The County shall continue
to provide in the Spanish language election information, materials, and announcements that
it provides in English, and through the term of this Agreement, shall provide in the
Spanish language all election information, materials, and announcements it provides in
English, and shall ensure such information, materials, and announcements are made equally
available and provided to the same extent as they are provided in English. Spanish
language information shall be distributed in newspapers, on the radio, in the Internet,
and in other media that exclusively or regularly publish or broadcast information in
Spanish to the local population. Dissemination of the Spanish language announcements shall be
in the form, frequency, and media best calculated to achieve notice and understanding equal to
that provided to the English-speaking population and to provide substantially the same
information, but need not be identical in all respects to English language announcements.
Spanish Language Assistance
7. Where Spanish language
assistance at locations where election-related transactions are conducted is currently
available, the County will ensure that such assistance continues to be made available,
and will ensure that such assistance is made available at locations where election-related
transactions are conducted and such assistance is not currently available. Trained
bilingual (Spanish and English fluent) election personnel or interpreters shall be
available to answer voting-related questions by telephone without cost during normal business
hours and while the polls are open on election days. The County may coordinate the provision of
such services with other governmental or non-governmental entities that conduct elections.
8. The County shall recruit,
hire, and assign election judges, poll officials, or interpreters able to understand,
speak, write, and read Spanish well enough to provide effective assistance in all phases
of the voting process to Spanish-speaking voters at the polls on election days.
9. The County shall survey
its employees to identify personnel who speak Spanish fluently and, to the extent such
employees can be made available to provide assistance, allow and encourage such employees
to serve at the polls on election day. The County shall request that cities, school
districts, and other entities that are involved in conducting elections in Kane
County perform similar surveys of their employees. The County shall also request each school
district or other educational entity within the County to devise and implement a program that
allows and encourages bilingual students selected (as permitted by State law and as part of an
educational program devised by such district) to serve as an election judge on election day for all
County elections, including election days that fall on school days, with such students receiving
the pay and benefits provided by law for such election judges. The County shall advise counsel
for the United States of any entity that does not participate fully in the event that there is
difficulty obtaining sufficient bilingual personnel.
10. The County shall invite
eligible voters, if qualified under Illinois law, who are members of the Advisory Group,
discussed below, to serve as election judges and to encourage other bilingual voters to do so.
11. In addition to the
requirements of State law,
- any election precinct in which there are 100-249 registered voters with
Spanish surnames shall be staffed by at least one bilingual election judge,
poll official, or interpreter;
- any election precinct in which there are 250-499 registered voters with
Spanish surnames shall be staffed by at least two bilingual election judges,
poll officials, or interpreters;
- any election precinct in which there are 500 or more registered voters with
Spanish surnames shall be staffed by at least three bilingual election
judges, poll officials, or interpreters; and
The County shall employ bilingual personnel,
trained in Spanish language election terminology as determined by the United States Election
Assistance Commission ("EAC"), who shall be on call and available to travel to a precinct
insufficiently staffed by bilingual election judges to provide any necessary assistance to any Spanish-speaking voter.
The United States shall be available to discuss
the status of the above recruiting of Spanish-speaking election judges, poll officials,
and interpreters on an ongoing basis prior to each election so that the United States is
fully apprised and placed on notice of the County's recruiting efforts prior to an election.
The parties may by written agreement adjust these requirements in light of reliable
information that the actual need for language assistance in a particular polling place
is lesser or greater than these standards or that the anticipated voter turnout is
substantially lower than average voter turnout.
12. Signs in both English
and Spanish shall be posted prominently at all polling places stating that Spanish
language assistance is available. At sites without bilingual staff, signs
in both English and Spanish shall be posted that explain how voters can obtain
Spanish language assistance.
Election Official Training
13. Prior to each election,
in addition to any required State or County training, the County shall train all
election judges, poll officials, interpreters and other election personnel present at
the polls regarding the following:
- The provisions of Section 203 of the Voting Rights Act, including the
legal obligation and means to make Spanish language assistance and
materials available to voters, and the requirement that election judges, poll
officials, and interpreters be respectful and courteous to all voters
regardless of race, ethnicity, color, or language abilities and to avoid
inappropriate comments; and
- The provisions of Section 208, including the legal obligation to allow
anyone to assist the voter at the polls, other than the voter's employer or
agent of that employer or officer or agent of the voter's union.
In addition to the general training for
election judges, poll officials, and interpreters, the County shall train all bilingual
election judges, poll officials, and interpreters on Spanish language election
terminology, voting instructions, and other election-related issues. The County shall
continue to maintain a record of which election judges, poll officials, and interpreters attend
training sessions, including the time, location, and training personnel involved.
Response to Complaints About Poll Officials
14. The County, upon receipt of
complaints by voters, whether oral or written, shall investigate expeditiously any
allegations of poll official, election judge, or interpreter hostility toward Spanish-speaking
and/or Hispanic voters in any election. Where there is credible evidence that poll
officials, election judges or interpreters have engaged in inappropriate treatment of
Spanish-speaking or Hispanic voters, the County shall remove those election judges,
poll officials or interpreters. The results of the investigation(s) conducted by the County shall be
reported to the United States within 45 days.
Spanish Language Election Program
15. The County shall
designate an individual to coordinate the County's Spanish language election program
("the Coordinator") for all elections administered in whole or part by the County Clerk
or by any persons acting as agents for the County Clerk. The County shall
provide the Coordinator with support sufficient to meet the goals of the program. The
Coordinator shall be able to understand, speak, write, and read fluently (i.e., at a level of
proficiency that allows language translation and communication of all oral and written election
information) both Spanish and English. The Coordinator's responsibilities shall include
coordination of the translation of ballots and other election information; development and
oversight of Spanish publicity programs, including selection of appropriate Spanish language
media for notices and announcements; training, recruitment, and assessment of Spanish language
proficiency of bilingual election judges and interpreters; and managing other aspects of the
16. The County shall
establish an Advisory Group to assist and inform the Spanish language election program.
The Advisory Group shall be open to any interested person or organization. The County
shall maintain a roster of the Advisory Group members together with the telephone and
facsimile numbers or e-mail addresses of each member. Prior to the first election
conducted by the County under this Agreement, the Advisory Group shall meet regularly,
at least once a month, for four months before such election and at least once during the
two months after the election. Thereafter, the Advisory Group shall meet as it determines is
necessary so long as it meets at least three times during the six months before the November
2008 general election, at least once during the two months after the November 2008 general
election, and at least twice during the five months before the November 2010 general election.
The parties may by writing adjust the Advisory Group's meeting schedule after consultation with
the Advisory Group. The Coordinator shall provide notice of all planned meetings, including the
date, time, location, agenda, at least 14 days in advance of such meeting, although members of
the Advisory Group may agree to waive or shorten this time period as necessary.
17. Within five business days
after each meeting, the Coordinator shall provide a written summary of the discussion
and any decisions reached at the meeting to all Advisory Group members and to the County
Clerk. If the County Clerk decides not to implement an Advisory Group's suggestion or
a consensus cannot be reached respecting such suggestion, the County Clerk shall provide
to the Advisory Group through the Coordinator, and maintain on file, a written statement
of the reasons for rejecting such suggestion, and subsequently the County shall provide
a copy of each such summary and report to each member of the Advisory Group and to any
additional interested member of the public who requests such information.
18. The County shall transmit
to all members of the Advisory Group, and to any additional interested member of the
public who requests such information, in English and Spanish, copies of all election
information, announcements, and notices that are provided or made available to the
electorate and general public, and request that they share such information with others.
19. To assist in monitoring
compliance with and ensure effectiveness of this Agreement, and to protect the Fourteenth
and Fifteenth Amendment rights of the citizens of Kane County, the appointment of federal
observers is authorized for elections administered by the County pursuant to Section 3(a)
of the Voting Rights Act, 42 U.S.C. § 1973a(a), for the duration of this Agreement.
20. The County shall
recognize the authority of federal observers to observe all aspects of voting
conducted in the polls on election day, including the authority to view County
personnel providing assistance to voters during voting, except where the voter objects.
Evaluation of Plan
21. The parties recognize
that regular and ongoing reassessment may be necessary to provide the most effective
and efficient Spanish language Program and to ensure compliance with the Voting Rights Act.
The County shall evaluate the Spanish language election program after each election to
determine which aspects of the program are functioning well; whether any aspects need
improvement; and how to affect needed improvements. The County also shall evaluate its
program to ensure that each polling place is in compliance with the Voting Rights Act.
The program may be adjusted at any time upon joint written agreement of the parties.
Retention of Documents and Reporting Requirements
22. Throughout the duration
of this Agreement, the County shall make and maintain written records of all actions
taken pursuant to this Agreement and shall produce copies of such records to the United
States upon reasonable notice, upon its request. Such records shall include all
documents, lists, and printed materials related to any provision of this Agreement.
23. Throughout the duration
of this Agreement, at least 30 days before each election administered by the County, the
County shall provide to counsel for the United States:
(a) the name, address, and precinct designation of each polling place;
(b) the name and title of each election judge appointed and assigned to serve at each precinct;
(c) a designation of whether each election judge is fluent in English and Spanish;
(d) an electronic copy of the final, official voter registration list to be used in each
such election; and
(e) copies of any signs or other written information provided at polling places.
Within 30 days after each such election, the County shall provide to counsel for the United States
any updated report regarding changes in these items as well as information about all complaints
the County received at the election regarding language or assistance issues, by express mail or
electronically to the following address:
United States Department of Justice
Civil Rights Division
1800 G Street, N.W., Room NWB-7254
Washington, D.C. 20006
Facsimile: (202) 307-3961
24. This Agreement is final
and binding between the parties and their successors in office regarding the claims
raised in this action. It shall remain in effect through December 31, 2010.
25. The Court shall
retain jurisdiction of this case to enter further relief or such other orders as
may be necessary for the effectuation of the terms of this Agreement and to ensure
compliance with Sections 203 and 208 of the Voting Rights Act.
Agreed to this 26 day of September 2007.
AGREED AND CONSENTED TO:
County of Kane
PETER D. KEISLER
Acting Attorney General
Chairman, Kane County Board
RENA J. COMISAC
Acting Assistant Attorney General
JOHN A. CUNNINGHAM
PATRICK J. FITZGERALD
Kane County Clerk
United States Attorney
Assistant United States Attorneys
219 South Dearborn St., 5th Floor
Chicago, IL 60604
Chief, Voting Section
Acting Deputy Chief
United States Department of Justice
Civil Rights Division
950 Pennsylvania Avenue NW
NWB - Room 7254
Washington, D.C. 20530
Telephone: (202) 514-6331