IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
Plaintiff,
v.
CIVIL ACTION NO. CV 04 2698
BERKS COUNTY, PENNSYLVANIA;
BERKS COUNTY COMMISSION;
BERKS COUNTY BOARD OF
ELECTIONS; TIMOTHY REIVER,
MARK SCOTT, and JUDITH
SCHWENK, in their
official capacities
as County Commissioners and
Members of the Board of
Elections; and KURT BELLMAN,
in his official capacity as
Director of Elections,
Defendants.
________________________________________
COMPLAINT
The United States of America, Plaintiff herein, alleges:
1. The Attorney General files this action seeking
injunctive and declaratory relief pursuant to Sections 2, 3(a),
4(e), 11(a), 12(d), and 208 of the Voting Rights Act of 1965, as
amended, 42 U.S.C. 1973, 42 U.S.C. 1973a(a), 42 U.S.C. 1973b(e),
42 U.S.C. 1973i(a), 42 U.S.C. 1973j(d), 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.
2. This Court has jurisdiction of this action pursuant to
28 U.S.C. 1345 and 42 U.S.C. 1973j(f).
3. Defendant Berks County is a county within the State of
Pennsylvania and is governed by the laws of that State.
4. Defendant Berks County Commission is the governing body
of Berks County with statutory powers, duties, and
responsibilities to effect local governmental functions,
including the capacity to make contracts for carrying into
execution the laws relating to counties and for all lawful
purposes, and to make appropriations for any purpose authorized
by Act of the General Assembly, including the conduct of elections.
Defendant Berks County Board of
Elections has statutory powers, duties, and responsibilities
concerning the conduct of elections in Berks County and Reading
City, Pennsylvania. Its members consist of the Berks County
Commissioners, Timothy Reiver, Mark Scott, and Judith Schwenk.
Defendants Reiver, Scott and Schwenk reside in Berks County and
are sued in their official capacities.
5. Defendant Kurt Bellman is the Director of Elections,
with duties, powers, and responsibilities concerning the
administration of elections held in Berks County. Defendant
Bellman is a resident of Berks County and is sued in his official
capacity.
6. According to the 2000 Census, Reading City has a total
population of 81,207 persons and a voting-age population of
56,913 persons. Reading City has a total Hispanic population of
30,302, representing 37.3% of the City's total population. There
are 17,278 Hispanic persons of voting age, representing 30.4% of
the City's voting age population (hereafter referred to as
"VAP"). The number and proportion of Hispanic persons in the
City have doubled since 1990, when Hispanic persons comprised
14,486 (18.5%) of the total population and 7,988 (13.7%) of the
voting age population.
7. The 2000 Census reports that of Reading City's Hispanic
population, 19,054 are of Puerto Rican descent, an increase of
over 60% compared to 1990 Census data, which reported that 11,705
residents of Reading City were Hispanic of Puerto Rican descent.
8. Of the 19,054 Hispanic persons of Puerto Rican descent
residing in Reading City, a significant number were educated in
American flag schools in which the predominant classroom language
was other than English.
9. The 2000 Census reported that Reading City had a total
of 10,929 Spanish-speaking residents over age five who were
limited English proficient, constituting 14.7 percent of Reading
City persons over age five. This represents an increase of 84%
over the number of limited English proficient persons reported by
the 1990 Census, which was 5,936 Spanish-speaking residents over
age five who were limited English proficient, or 8.3 percent of
Reading City residents over age five.
10. Hispanic persons residing in Reading City have suffered
and continue to suffer discrimination, including a history of
discrimination and neglect in voting-related activities, and bear
the effects of that discrimination today.
11. Defendants Berks County election officials have
knowledge of the need for Spanish language assistance among
Reading citizens of Puerto Rican descent.
12. Reading City has a total of 48 election districts. Of
these 48, 40 contain a minimum of 10% Spanish-surname registered
voters, 18 contain a minimum of 30% Spanish-surname registered
voters, and 12 contain a minimum of 40% Spanish-surname
registered voters.
13. In conducting elections in Reading City, Berks County
Defendants have denied Hispanic citizens with limited English
proficiency an equal opportunity to participate in the political
process and to elect the representatives of their choice. The
actions that contributed to this denial include, but are not
limited to, the following:
a. Poll officials have directed hostile remarks at,
and have otherwise acted in a hostile manner toward, Hispanic
voters, to deter them from voting and to make them feel unwelcome
at the polls; and
b. Poll officials have engaged in election practices
including, but not limited to, failing to communicate effectively
with Spanish-speaking voters regarding necessary information
about their eligibility to vote, voter registration status,
identification requirements, and polling place changes and
assignments, and turning away Hispanic voters and not allowing
them to cast a ballot at the 2001 and 2002 elections.
14. Moreover, Hispanic voters in Reading City, Berks County
have also been deterred or prevented from voting by the following practices:
a. Defendants have failed to recruit, appoint, train,
and maintain an adequate pool of Hispanic and bilingual poll
officials, despite their knowledge of the needs of limited
English proficient Hispanic voters. For example, defendants have
maintained a pool of poll workers that contains, on average, only
3 percent with Spanish surnames, even though Hispanics comprise
approximately 35 percent of registered voters in Reading. As a
result, some Hispanic voters with limited English proficiency are
unable to obtain effective assistance at certain polling places
because most polling places are not staffed with bilingual
polling officials; and
b. Defendants have failed to provide adequate
notification to the Spanish-speaking population of the
availability of bilingual assistance at the few sites where it
has been available; and
c. Defendants have failed to translate into Spanish
election materials including the ballot, instructions for casting
a ballot on election day, general election notices concerning
participation in the political and electoral process, polling
place changes, letters to voters regarding registration and
election-day issues, voter assistance information, and
information on Berks County's elections internet site, despite
their knowledge of the needs of limited English proficient
voters. As a result, some Hispanic voters with limited English
proficiency have had difficulty voting because election materials
have been provided in English only.
15. Some Hispanic voters with limited English proficiency
have requested that other persons of their choice, including
family members, friends, or poll watchers, assist them in casting
their ballots because they were illiterate in English. Berks
County Defendants would not permit these persons to assist
Hispanic voters, and the voters did not receive such assistance
from other persons.
16. Poll workers are trained that if questions arise at the
polls on election day, they must follow the Election Procedures
Guide, which provides in relevant part: "Voter may select a voter
from his or her own district to assist." Poll workers are
further instructed that a voter qualifies to receive assistance
only if the need is documented on the voter's registration card.
FIRST CAUSE OF ACTION
17. Plaintiff hereby realleges and incorporates by
reference ¶¶ 1 - 16 above.
18. 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 to vote on account of race or color, or
membership in a language minority. 42 U.S.C. 1973(a).
19. The "totality of circumstances" of Defendants' actions,
as described in ¶¶ 10-14, has resulted in Hispanic voters having
"less opportunity than other members of the electorate to
participate in the political process and to elect the
representatives of their choice." 42 U.S.C. 1973.
20. Unless enjoined by this Court, Defendants will continue
to violate Section 2 of the Voting Rights Act, 42 U.S.C. 1973, by
enforcing standards, practices, or procedures that deny limited
English proficient Hispanic voters an opportunity to participate
effectively in the political process on an equal basis with other
members of the electorate.
SECOND CAUSE OF ACTION
21. Plaintiff hereby realleges and incorporates by
reference ¶¶ 1 - 20 above.
22. 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.
23. Defendants' actions described above in ¶¶ 15-16
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.
24. Unless enjoined by this Court, Defendants will continue
to violate Section 208 of the Voting Rights Act, 42 U.S.C.
1973aa-6, by failing to ensure that voters are permitted to
receive assistance from the person of their choice.
THIRD CAUSE OF ACTION
25. Plaintiff hereby realleges and incorporates by
reference ¶¶ 1 - 24 above.
26. Section 4(e)(1) prohibits Defendants from "conditioning
the right to vote . . . on the ability to read, write,
understand, or interpret" the English language by persons
educated in American Flag classrooms, including the Commonwealth
of Puerto Rico, where the predominant language is not English.
42 U.S.C. 1973b(e)(1).
27. Defendants knowingly conduct English-only elections as
described in ¶¶ 10-16, and the failure to provide Reading's
Puerto Rican citizens with limited English proficiency with the
election information and assistance necessary for their effective
political participation constitutes a violation of Section 4(e)
of the Voting Rights Act, 42 U.S.C. 1973b.
28. Unless enjoined by this Court, Defendants will continue
to violate Section 4(e) of the Voting Rights Act, 42 U.S.C.
1973b(e), by failing to provide election information and
assistance necessary to effectively participate in the political
process to Spanish-language minority citizens educated in
American flag schools and currently residing in Reading City.
WHEREFORE, the Plaintiff, United States, prays for an order:
(1) With respect to Plaintiff's First Cause of Action:
(a) Declaring that Defendants have violated Section 2
of the Voting Rights Act, 42 U.S.C. 1973 because
they have provided Hispanic and Spanish-language
minority citizens with less opportunity than other
members of the electorate to participate in the
political process and to elect the representatives
of their choice;
(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
Hispanic and 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 program that provides Reading City's
Hispanic and Spanish-language minority citizens
the opportunity to participate in the political
process on an equal basis with other members of
the electorate consistent with Section 2 of the
Voting Rights Act, 42 U.S.C. 1973;
(2) With respect to Plaintiff's Second Cause of Action:
(a) Declaring that Defendants have violated Section
208 of the Voting Rights Act, 42 U.S.C. 1973aa-6
by failing to ensure that Reading City 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;
(b) Preliminarily and permanently enjoining
Defendants, their agents and successors in office,
and all persons acting in concert with them, from
not allowing Reading City voters 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 Reading City voters are permitted to
have the person of their choice assist them at the
polls, consistent 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 violated Section
4(e) of the Voting Rights Act, 42 U.S.C. 1973b(e)
by failing to provide election information and
assistance necessary to effectively participate in
the political process to Spanish-language minority
citizens educated in Puerto Rico and currently
residing in Reading City;
(b) Preliminarily and permanently enjoining
Defendants, their agents and successors in office,
and all persons acting in concert with them, from
failing to provide election information and
assistance to Spanish-language minority citizens
educated in Puerto Rico and currently residing in
Reading City, in violation of Section 4(e) of the
Voting Rights Act, 42 U.S.C. 1973b(e); and
(c) Requiring Defendants to devise and implement a remedial
plan to ensure that Spanish-language minority citizens
educated in Puerto Rico and currently residing in
Reading City are provided election information and
assistance consistent with Section 4(e) of the Voting
Rights Act, 42 U.S.C. 1973b(e).
Plaintiff further requests that this Court:
- Authorize the Director of the Office of Personnel
Management to appoint federal examiners for Berks
County pursuant to Section 3(a) of the Voting Rights
Act, 42 U.S.C. 1973a(a), and the guarantees of the
Fourteenth and Fifteenth Amendments to the United
States Constitution;
- Award Plaintiff the costs and disbursements associated
with the filing and maintenance of this action;
- Award such other equitable and further relief as the
Court deems just and proper.
JOHN ASHCROFT
Attorney General
__/s/ Ralph F. Boyd, Jr.__
RALPH F. BOYD, JR.
Assistant Attorney General
United States Attorney
__/s/ Patrick L. Meehan___
PATRICK L. MEEHAN
United State Attorney
__/s/ Joseph D. Rich__
JOSEPH D. RICH
Chief, Voting Section
__/s/ Amy Nemko__
GILDA R. DANIELS
AMY H. NEMKO
KAREN L. DITZLER
Attorneys, Voting Section
Civil Rights Division - NWB
U.S. Department of Justice
950 Pennsylvania Ave. NW
Washington, D.C. 20530
(202) 514-3232
