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R. ALEXANDER ACOSTA
Assistant Attorney General

KEVIN V. RYAN, United States Attorney
JOANN M. SWANSON, A.U.S.A. (#88143)
Telephone: (415) 436-7200
Facsimile: (415) 436-7234

                                                      ORIGINAL FILED                                                       May 26, 2004

JOSEPH D. RICH, Chief
JOHN TANNER, Special Counsel
JOHN "BERT" RUSS, Trial Attorney (#192471)
ABEL GOMEZ, Trial Attorney
Voting Section
Civil Rights Division
United States Department of Justice
950 Pennsylvania Ave., N.W. - NWB-7254
Washington, D.C. 20530
Telephone: (202) 353-7738
Facsimile: (202) 307-3961

Counsel for Plaintiff
United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

UNITED STATES OF AMERICA,                               CIVIL ACTION NO.

               Plaintiff,                                                          CO4 02056

                v.                                                                    COMPLAINT

SAN BENITO COUNTY, CALIFORNIA;                      THREE-JUDGE COURT REQUESTED
JOHN R. HODGES, the COUNTY                                 AS TO FIRST CAUSE OF ACTION
CLERK, AUDITOR, & RECORDER,
in his official capacity; and
the SAN BENITO COUNTY BOARD
OF SUPERVISORS,

            Defendants.

_______________________________

      The United States of America, Plaintiff herein, alleges:

         
  1. The Attorney General files this action pursuant to Section 203 of the Voting Rights Act of 1965 ("Section 203"), as amended, 42 U.S.C. 1973aa-1a; Section 302 of the Help America Vote Act of 2002 ("HAVA"), 42 U.S.C. 15482; 42 U.S.C. 1973aa-2; 42 U.S.C. 15511; and 28 U.S.C. 2201.

         

  2. Jurisdiction:   The Court has jurisdiction of this action pursuant to 28 U.S.C. 1345, 42 U.S.C. 1973aa-2, and 42 U.S.C. 15511.   In accordance with the provisions of 42 U.S.C. 1973aa-2 and 28 U.S.C. 2284, the Section 203 claim (the first cause of action) must be heard and determined by a court of three judges.  The second cause of action, under Section 302 of HAVA, may be heard and determined by one judge.

         

  3. Intradistrict Assignment:  The events relevant to this action occurred in San Benito County, in the San Jose Division of the U.S. District Court for the Northern District of California.  See Civil Local Rules 3-2(c) and 3-5(b).

  4.  Defendant SAN BENITO COUNTY is a political and geographical subdivision of the State of California.

  5. Defendant JOHN R. HODGES is the County Clerk, Auditor, & Recorder of San Benito County.  In his capacity as county clerk, Defendant Hodges has responsibilities concerning the administration of voting and elections in San Benito County.  Defendant Hodges is a resident of San Benito County, and is sued in his official capacity.   He has held the position of County Clerk, Auditor, & Recorder since 1983.

  6. Defendant SAN BENITO COUNTY BOARD OF SUPERVISORS is the primary budgetary authority for the county and for the County Clerk, Auditor, & Recorder of San Benito County.

  7. According to the 2000 Census, San Benito County had a total population of 53,234 persons, of whom 25,516 (47.9%) were Hispanic persons; and a total citizen voting-age population of 30,395 persons, of whom 10,765 (35.4%) were Hispanic persons.

  8. According to the 2000 Census, 2,540 Hispanic voting-age citizens in San Benito County were limited English proficient ("LEP").

  9. San Benito County is subject to the requirements of Section 203 with respect to the Spanish language, pursuant to the designation by the Director of the Census.  The Director has determined that more than 5 percent of San Benito County'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 have an illiteracy rate that is higher than the national illiteracy rate.   See 42 U.S.C. 1973aa-1a(b)(2); see also 67 Fed. Reg. 48,871 (July 26, 2002).  The determination of the Census Bureau that San Benito County is covered by Section 203 for Spanish language is final and non-reviewable.  See 42 U.S.C. 1973aa-1a(b)(4).

  10. San Benito County has been continuously covered under Section 203 to provide bilingual elections in Spanish since September 9, 1975.   See 40 Fed. Reg. 41,827 (Sept. 9, 1975); 49 Fed. Reg. 25,887 (Jun. 25, 1984); 57 Fed. Reg. 43,213 (Sept. 18, 1992); 67 Fed. Reg. 48,871 (July 26, 2002).  The Department has directly notified election officials, including Defendant Hodges, in all jurisdictions covered under Section 203 of the fact of Section 203 coverage, and has provided information regarding the requirements of Section 203.

  11. Because San Benito County is subject to the requirements of Section 203, "any registration or voting notice, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots" that Defendants provide in English must also be furnished in Spanish so that Spanish-speaking voters can be effectively informed of and participate in all voting-connected activities.  42 U.S.C. 1973aa-1a.

  12. Beginning on January 1, 2004, San Benito County became subject to the requirements of Section 302 of HAVA, including its provisions to provide written information to voters who cast provisional ballots, 42 U.S.C. 15482(a)(5)(A); to post six different categories of election information at the polls, 42 U.S.C. 15482(b); and to provide a free access system whereby voters who cast provisional ballots may learn whether their provisional ballot was counted, and if not, the reasons the vote was rejected, 42 U.S.C. 15482(a)(5)(B).

    FIRST CAUSE OF ACTION

  13. Defendants have not provided effective election-related materials, information, and/or assistance in Spanish to limited English proficient Hispanic citizens as required by Section 203 of the Voting Rights Act, including, but not limited to, the following:

    1. failing to recruit, appoint, train, and maintain an adequate pool of bilingual poll officials capable of providing Hispanic citizens with limited English proficiency effective language assistance;

    2. failing to translate into Spanish the official ballot, and all election-related announcements, instructions, and notices at election sites;

    3. failing to translate into Spanish all election-related information, including but not limited to information contained in legal notices publicizing elections and materials available to the general public on the internet website of the County Clerk, Auditor, & Recorder.

  14. Defendants' failure to provide Spanish-speaking citizens of San Benito County with Spanish-language election information and assistance, as described above, constitutes a violation of Section 203.

  15. Unless enjoined by this Court, Defendants will continue to violate Section 203 by failing to provide Spanish-speaking citizens of San Benito County with Spanish-language election information and assistance necessary for their effective political participation.

    SECOND CAUSE OF ACTION

  16. In the March 2, 2004 primary election for federal office, Defendants failed to comply with the following requirements of Section 302 of HAVA:

    1. Defendants did not provide written information to voters who cast provisional ballots on how they are able to ascertain whether their vote was counted, and if the vote was not counted, the reason the vote was not counted, as required by 42 U.S.C. 15482(a)(5)(A);

    2. Defendants failed to post in each polling place all of the voting information required by 42 U.S.C. 15482(b); and

    3. Defendants' system for allowing voters to check on the status of their provisional ballots did not provide the reasons why provisional ballots were rejected, as required by 42 U.S.C. 15482(a)(5)(B).

  17. Defendants' actions as described above in Paragraph 16 constitute a violation of Section 302 of HAVA, 42 U.S.C. 15482.

  18. Unless enjoined by this Court, Defendants will continue to violate Section 302 of HAVA, by failing to provide to voters the different types of information required under this provision.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff the United States of America prays that this Court enter an order:

(1) Declaring that Defendants have failed to provide election information and assistance necessary to those who require it in Spanish for effective political participation, in violation of Section 203 of the Voting Rights Act, 42 U.S.C. 1973aa-1a;

(2) Declaring that Defendants have failed (a) to provide to voters written information regarding their provisional ballots, (b) to post necessary voter information materials at each polling place, and (c) to provide provisional voters with an explanation of why their provisional ballots were rejected, as required by Section 302 of HAVA, 42 U.S.C. 15482;

(3) Enjoining Defendants, their employees, agents, and successors in office, and all persons acting in concert with them, from failing to provide Spanish-language election information and assistance to person with limited English proficiency as required by Section 203, 42 U.S.C. 1973aa-1a;

(4) Enjoining Defendants, their employees, agents, and successors in office, and all persons acting in concert with them, from failing to comply with the voter information requirements of Section 302 of HAVA, 42 U.S.C. 15482;

(5) Requiring Defendants to devise and implement a remedial plan to ensure that Spanish-speaking citizens with limited English proficiency are able to understand, learn of and participate in all phases of the electoral process as required by Section 203 of the Voting Rights Act, 42 U.S.C. 1973aa-1a;

(6) Requiring Defendants to devise and implement a remedial plan to provide to voters the information required under Section 302 of HAVA, 42 U.S.C. 15482;

(7) Requiring the Defendants to publicize effectively the remedial plans and programs addressing violations of Section 203 of the Voting Rights Act and Section 302 of HAVA enumerated herein to ensure their widespread dissemination of such plans and programs to San Benito County's voters; and

(8) Authorizing the appointment of federal examiners for elections held in San Benito County pursuant to Section 3(a) of the Voting Rights Act, 42 U.S.C. 1973a(a), through December 31, 2006.



     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.

Date: _26_ day of _May__, 2004

JOHN D. ASHCROFT
Attorney General

/s/ R. Alexander Acosta
R. ALEXANDER ACOSTA
Assistant Attorney General
Civil Rights Division

/s/ Joann M. Swanson
JOANN M. SWANSON, A.U.S.A.

/s/ Joseph D. Rich
JOSEPH D. RICH
Chief, Voting Section

/s/ John Bert Russ
JOHN TANNER
Special Litigation Counsel
JOHN "BERT" RUSS
ABEL GOMEZ
Attorneys, Voting Section
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue NW - NWB-7254
Washington, D.C. 20530
(202) 353-7738

General Information Voting Section
Contact

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