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RENA J. COMISAC
Acting Assistant Attorney General
Civil Rights Division
GEORGE S. CARDONA
United States Attorney
MICHELE C. MARCHAND
Assistant United State Attorney (#93390)
JOHN K. TANNER
Special Litigation Counsel
VERONICA SEUNGWON JUNG
Civil Rights Division
United States Department of Justice
950 Pennsylvania Ave., N.W. - NWB-7201
Washington, D.C. 20530
Telephone: (202) 307-3961
Facsimile: (202) 305-1291
Attorneys for Plaintiff
United States of America
UNITED STATES OF AMERICA, No. CV 07-2437-PA/SJO/MMS (VBKx)
Plaintiff, THREE-JUDGE COURT
CITY OF WALNUT, CALIFORNIA; THE AGREEMENT AND ORDER
WALNUT CITY COUNCIL, THE OFFICE OF
THE WALNUT CITY MANAGER; TERESA
DE DIOS, in her official capacity as Walnut
The United States of America filed this action pursuant to Sections 203 and 204 of the Voting Rights Act of 1965, as amended, 42 U.S.C. §§ 1973aa-1a and 1973aa-2, and 28 U.S.C. § 2201 arising from the City of Walnut's election practices and procedures.
In accordance with the provisions of 42 U.S.C. § 1973aa-2 and 28 U.S.C. § 2284, the United States' claim brought under Section 203 of the Voting Rights Act of 1965, as amended ("Section 203"), must be heard and determined by a court of three judges.
According to the 2000 Census, the City of Walnut had a total population of 30,004, of whom 8,853 (29.5%) were Chinese and 1,916 (6.4%) were Korean. The Census reported that the City had a total voting age population of 21,723, of whom 6,212 (28.6%) were Chinese and 1,369 (6.3%) were Korean. Of the Chinese voting age residents, 4,056 (65.3%) were limited-English proficient, and of the Korean voting age residents, 853 (62.3%) were limited-English proficient. The Census also reported that the total citizen voting age population of Walnut was 16,922, of whom 3,707 (21.9%) were Chinese and 916 (5.4%) were Korean.
The Census Bureau has designated the County of Los Angeles as subject to the requirements of Section 203 of the Voting Rights Act for Chinese, Filipino, Japanese, Korean, Spanish, and Vietnamese. See 42 U.S.C. § 1973aa-1a(b)(2); see also 67 Fed. Reg. 48,871 (July 26, 2002). As a political subdivision within the County of Los Angeles, the City of Walnut agrees that it is also subject to the requirements of Section 203 for these languages. See 28 C.F.R. § 55.9. As a political subdivision of Los Angeles County, the City of Walnut agrees that it has been continuously subject to Section 203's requirements to provide election materials and information in Chinese since September 18, 1992 and in Korean since July 26, 2002. See 57 Fed. Reg. 43,213 (Sept. 18, 1992); 67 Fed. Reg. 48,871 (July 26, 2002). The parties agree that there are Chinese-speaking citizens with limited English proficiency ("Chinese-speaking citizens") who may need assistance in the election process in the Chinese language and who reside in the City of Walnut. Similarly, the parties agree that there are Korean-speaking citizens with limited English proficiency ("Korean-speaking citizens") who may need assistance in the election process in the Korean language and who reside in the City of Walnut.
The City of Walnut conducts its own municipal elections, while the County of Los Angeles conducts county, state, and federal elections in which voters in the City also vote. The allegations in the Complaint and the terms of this Agreement and Order (hereinafter, "Agreement") apply to the City's municipal elections, and any other elections which the City has authority to conduct.
The Complaint alleges that Defendants (hereinafter, "City of Walnut" or "City") have not complied with the requirements of Section 203 by failing to translate written election materials and information into Chinese and Korean, including, but not limited to, information about voter registration, polling place locations, dates of elections, and other election related information; by failing to provide effective assistance in Chinese and Korean to limited-English proficient voters; and by failing to provide certain election related information, including but not limited to information publicizing elections and voter registration information, in a manner that provides limited-English proficient Chinese and Korean citizens an equal and effective opportunity to be informed about election related activities. The City contends that it has complied fully with applicable laws.
In the interest of securing the rights of voters, the parties have agreed that this lawsuit - and the Counterclaim that the City of Walnut filed against the United States - should be resolved through the terms of this Agreement. Accordingly, the United States and the City of Walnut hereby consent to the entry of this Agreement, as indicated by the signatures of counsel at the end of this document. The parties waive a hearing and entry of findings of fact and conclusions of law on all issues involved in this matter.
The City of Walnut is committed to complying fully with the requirements of Section 203 in future elections and stipulates that each provision of this Agreement is appropriate in securing the rights of voters.
Accordingly, it is hereby AGREED AND ORDERED that:
1. The City of Walnut, its agents, employees, contractors, successors and all other persons representing the interests of the City shall hereby also provide in Chinese and Korean any "registration or voting notices, forms, instructions, assistance or other materials or information relating to the electoral process" that it provides in English, as required by Section 203 of the Voting Rights Act of 1965, as amended. 42 U.S.C. § 1973aa-1a(c). The terms of this Agreement apply to all municipal elections in the City of Walnut and any other elections over which the City has authority to conduct. Whenever the City of Walnut enters into an election services contract with another entity - whether it be a political subdivision or some other public or private entity - to conduct an election on behalf of the City, the City of Walnut shall require such other 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.
Translation of Election Related Materials
2. All information that is disseminated by the City of Walnut in English regarding "registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots," 42 U.S.C. § 1973aa-1a(c), shall also be provided in at least Chinese and Korean. The City of Walnut shall ensure that English, Chinese and Korean language election information, materials, and announcements provided by the City of Walnut are made equally available to voters, along with any other required languages.
3. The City shall consult with trained translators who are familiar with Chinese and Korean language election terminology to produce clear and accurate written translations of English language election information. The City shall consult in a timely manner with the Advisory Groups, discussed below, regarding the translation of any written and audio-recorded materials. The City shall also develop and maintain a glossary of Chinese and Korean election terminology. The City may satisfy this obligation by using terminology provided by the Los Angeles County Registrar-Recorder/County Clerk or the Elections Division of the office of the Secretary of State of California.
4. The City shall translate the names of each of the candidates running for office into Chinese and Korean on the official ballot, the sample ballot, and any other election material that the City provides that contains such names in English. The City shall consult with the Advisory Groups, discussed below, when creating such translations.
5. The City shall adopt a checklist identifying each written item that is provided in at least Chinese and Korean and that the City makes available to the public at each precinct. The checklist shall include with respect to each item an attestation that the poll workers at the precinct posted or made available to voters these materials in Chinese and Korean, or a detailed written explanation of why individual items had not been posted or were not available. The inspector for each precinct must complete and sign this document before he/she receives payment for work in the election, subject to applicable state and federal law. The City shall maintain a record of any such failure to complete and sign the checklist.
Dissemination of Minority Language Information
6. The City shall ensure that all Chinese, Korean and English language election related information, materials, and announcements issued by the City are made equally available. Chinese and Korean language information shall be distributed through newspapers, radio and/or other media that exclusively or regularly publish or broadcast information in the relevant minority language to the local population. Dissemination of these minority 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.
7. Any voting system used by the City shall be multilingual, as described below. If the City uses electronic voting machines, such machines shall offer the readily apparent option of using at least an English, Korean, and Chinese ballot, and any audio version of the ballot on such machines shall be available at least in English, Korean, and Chinese. Any paper ballots used by the City, including all official ballots, absentee ballots, and provisional ballots, shall be printed in, at least, English, Korean, and Chinese. If it is not mechanically feasible to have at least English, Chinese, and Korean on one ballot, subject to the provisions of the next Paragraph of this Agreement, all paper ballots shall at least be bilingual. With respect to paper ballots, the principal bilingual ballot shall be in English and the predominant minority language in the City (e.g., currently Chinese), and the City shall also provide separate bilingual ballots in each of the other covered minority languages where there is a need among voters in the City (e.g., Korean).
8. If the City elects to have a bilingual ballot in English and the predominant minority language, and separate bilingual ballots in the other covered minority languages, the ballots shall be clearly labeled so that poll workers can know the languages represented on the ballot. The City shall ensure that all ballots are made visible and available on an equal basis with the principal ballots, and designated poll workers shall let each voter know the language choices of ballots available.
9. To the extent the City posts instructions on casting a ballot or other election related information inside the voting booth, the City shall also provide and post that same information in at least Chinese and Korean.
10. Sample ballots and other written election related materials mailed to voters shall be provided in at least Chinese and Korean to at least those voters who have requested or may request materials be mailed to them in the relevant minority language. The translated materials mailed to voters must include all of the information provided in the English language materials, and the minority language materials must be mailed out at the same time as the English language materials.
11. Nothing in this Agreement prevents the City from adopting a multilingual sample ballot booklet that provides all information in the City's covered languages.
Minority Language Assistance
12. The City shall provide, during normal business hours, trained bilingual personnel who speak Chinese and Korean for citizens who contact the City by telephone three weeks before, during, and three weeks after an election with questions regarding the election process. The City may coordinate the provision of such services with other governmental or non-governmental entities that conduct elections.
13. The City shall recruit, hire, and assign bilingual poll workers, who are able to understand, speak, read, and write Chinese and English fluently and Korean and English fluently, to provide assistance to limited-English proficient Chinese-speaking and Korean-speaking voters at the polls on election days.
14. In determining the threshold for assigning bilingual poll workers in Walnut's municipal elections, the following factors are relevant: the historically lower voter turn-out rate for municipal elections in Walnut as compared to County-wide elections, the need for Walnut to serve multiple minority language groups, the extent to which Asian surname analyses of registered voters (using the Lauderdale and Kestenbaum lists of Asian surnames) undercount the true number of voters in a particular community, and the higher number of Chinese-surnamed registered voters than Korean-surnamed registered voters in Walnut. In light of these factors, the City and any entity conducting elections on its behalf, in addition to satisfying all requirements of California state law and the recommended guidelines provided by the Los Angeles County Registrar-Recorder/County Clerk, shall meet the following standards for assigning bilingual workers in Walnut's municipal elections:
- The City shall provide at least one Chinese-speaking poll worker for each consolidated precinct that has 35 to 249 Chinese-surnamed voters; and
- The City shall provide at least two Chinese-speaking poll workers for each consolidated precinct that has 250 or more Chinese-surnamed voters.
- The City shall provide at least one Korean-speaking poll worker for each consolidated precinct that has 35 or more Korean-surnamed voters.
- The parties may by written agreement adjust this requirement in light of confirmed information that the actual language need in a particular precinct is less or greater than this standard.
- The Chinese-speaking poll workers shall speak the relevant dialect for their assigned precinct, to be determined in consultation with the Advisory Group (discussed below). In addition, after each election, the City shall require each Chinese-speaking poll worker to fill out a survey indicating which Chinese dialects were most commonly spoken by Chinese-speaking voters at the precinct where he/she worked. The City shall use the information from such surveys to help determine which dialect future Chinese-speaking poll workers assigned to the precinct should speak.
15. To avoid last-minute gaps in Chinese and Korean language coverage at the polls on election day due to bilingual poll workers who fail to report to the polling place, the City shall employ bilingual personnel trained in Chinese and Korean election terminology who shall be on call and available to travel to a polling place not staffed by a bilingual poll worker to provide any necessary assistance to a limited-English proficient Chinese-speaking or Korean-speaking voter.
16.The City shall post signs prominently in English, Chinese, and Korean stating that minority language assistance is available. Bilingual personnel shall be identified as such by wearing bilingual badges.
Assistance in Other Minority Languages
17. As a political unit within the County of Los Angeles, the City contends that it has adequately provided election materials in English, Spanish, and Tagalog. In order to ensure future compliance with Section 203, the City shall develop plans to provide election materials and assistance to such other language groups as the need for such language assistance arises. Any language assistance and materials provided to these additional minority language groups shall be provided in a manner that is consistent with the requirements of this Agreement.
Poll Worker Training
18.Prior to each election, the City shall train all poll workers and other election personnel present at the polls on the following topics: (1) the provisions of Section 203, including the legal obligation to make language assistance and materials available to minority language voters and to be respectful and courteous to all voters regardless of race, color, language abilities, or national origin; and (2) the requirements of Section 208 of the Voting Rights Act, 42 U.S.C. § 1973aa-6, regarding the rights of limited-English proficient voters to the assistor of their choice. The City shall also train Chinese-speaking and Korean-speaking poll workers on election terminology in the relevant minority language and how to interpret the ballot, voting instructions, and other election related information. The City shall maintain a record of which poll workers attend training sessions, including the time, location, and training personnel involved.
Response to Complaints about Poll Workers
19. Upon receipt of complaints, whether oral or written, the City shall investigate expeditiously any allegations of poll worker hostility toward minority language voters or poll workers in any election. The City shall report the results of each investigation to the United States in writing within thirty days of receiving the complaint. Where there is credible evidence that a poll worker has engaged in inappropriate treatment of minority language voters or poll workers, the City shall remove the poll worker.
20. The City shall retain or designate a Program Coordinator to coordinate the City's Chinese language election program and a Program Coordinator to coordinate the City's Korean language election program. The Program Coordinator(s) shall be able to understand, speak, write, and read fluently both in English and in the language of the minority language group for which he/she is coordinating election related assistance and materials. The City may retain or designate one Program Coordinator for both the Chinese language election program and the Korean language election program provided that such person can understand, speak, write, and read fluently in English, Chinese, and Korean. For Chinese, the Program Coordinator shall be able to speak the appropriate dialect(s).
21. The Program Coordinator(s) shall work under the supervision of the City Clerk and their responsibilities shall include coordinating and reviewing the translation of ballots and other election information; developing and overseeing publicity in the minority language, including selecting appropriate minority language media for notices and announcements; recruiting bilingual poll workers; and assessing the language proficiency of poll workers.
22. The City shall form a Korean Language Advisory Group and a Chinese Language Advisory Group to provide the City with information and assistance regarding how best to provide election related materials and assistance to the Chinese-speaking and Korean-speaking communities. The Advisory Groups shall be established and chaired by the Program Coordinator who is assigned to the same minority language group. The Program Coordinator(s) shall invite participation from interested individuals and organizations who work with or serve the relevant minority language community to determine how most effectively to provide election materials, information, and assistance to minority language voters. The Program Coordinator(s) shall provide notice of all planned meetings to each member, including the date, time, location, and meeting agenda at least 14 days in advance, although members of the Advisory Groups may agree to waive or shorten this time period as necessary. The Groups shall meet at least once per month beginning six months before every election and continuing until one month after the election.
23. Within five days after each meeting, the Program Coordinator(s) shall provide a written summary of the discussion and any decisions reached at the meeting to all Advisory Group members and to the City Clerk. If the City Clerk decides not to implement an Advisory Group's suggestion or a consensus cannot be reached respecting such suggestion, the City Clerk shall provide to the Advisory Group through the Program Coordinator, and maintain on file, a written statement of the reasons for rejecting such suggestion.
24. The City Clerk shall transmit to all interested members of the Advisory Group copies, in English and the relevant minority language, 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.
Evaluation of the Program
25. The parties recognize that regular and ongoing reassessment may be necessary in order to provide the most effective and efficient minority language program. The City Clerk and the City Manager shall evaluate the minority language election program after each election cycle to determine which aspects of the program are functioning well, whether any aspects need improvement, and how to make any needed improvements. The program may be adjusted at any time upon written agreement of the parties.
26. The appointment of federal observers is authorized for the City of Walnut, and the City agrees that, pursuant to Section 3(a) of the Voting Rights Act, 42 U.S.C. § 1973a(a), federal observers shall be permitted to observe all aspects of voting conducted in the polls on election day, including the authority to view City poll workers providing assistance to voters during voting, except where the voter objects. In the event of full compliance with this Agreement for any election, the United States may reduce or adjust the assignment of federal observers, as appropriate.
Retention of Documents and Reporting Requirements
27. Throughout the duration of this Agreement, the City shall make and maintain written records of all actions taken pursuant to this Agreement. Such documents, lists, and records shall be made available, upon reasonable notice, to the United States for inspection and copying.
28. Throughout the duration of this Agreement, at least twenty-one (21) days before each City-administered election, the City Clerk shall provide to the United States, via facsimile or e-mail, the following information: (a) the name, address, and precinct designation of each polling place; (b) the name and title of each poll worker appointed and assigned to serve at each precinct; (c) a designation of whether each poll worker is fluent in English and a foreign language, and an indication of what foreign languages are spoken by each poll worker; and (d) copies of any signs or other written information provided at polling places. Within thirty (30) days after each such election, the City of Walnut shall provide to counsel for the United States a report that includes any changes in these items as well as information about all complaints the City received at the election regarding language or assistance issues.
29. 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 Section 203.
30. This Agreement is final and binding between the parties and their successors in office regarding the claims raised in this action and the claims raised in the City's Counterclaim. This Agreement shall remain in effect through December 31, 2010.
AGREED AND CONSENTED TO:
Dated:____September 20______, 2007.
FOR PLAINTIFF: FOR DEFENDANTS:
RENA J. COMISAC MICHAEL MONTGOMERY
Acting Assistant Attorney General City Attorney
2627 Mission Street, Suite 1
San Marino, CA 91108
GEORGE S. CARDONA
United States Attorney
MICHELE C. MARCHAND
Assistant United States Attorney
JOHN K. TANNER
Special Litigation Counsel
VERONICA SEUNGWON JUNG
Civil Rights Division - NWB
U.S. Department of Justice
950 Pennsylvania Ave.,N.W.
Washington, D.C. 20530
This three-judge Court, having been properly empaneled under 28 U.S.C. § 2284 and 42 U.S.C. § 1973aa-2 to consider the United States' claim under Section 203 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973aa-1a, and Defendants' Counterclaim under the Act, and having determined that it has jurisdiction over these claims, has considered the terms of the Agreement and [proposed] Order, and hereby enters and incorporates herein the relief set forth above in this Order.
Hon. Mary M. Schroeder
United States Circuit Judge
Hon. Percy Anderson
United States District Judge
Hon. S. James Otero
United States District Judge