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
Updated July 25, 2008
