United States v. Salem County and the Borough of Penns Grove, NJ Complaint

GRACE CHUNG BECKER

Acting Assistant Attorney General

CHRISTOPHER J. CHRISTIE, United States Attorney

SUSAN STEELE, Chief, Civil Division

Peter Rodino Federal Building

970 Broad Street, Suite 700

Newark, New Jersey 07102

Telephone: (973) 645-2700

Facsimile: (973) 645-2702

CHRISTOPHER COATES, Chief

SUSANA LORENZO-GIGUERE, Special Litigation Counsel

KATHERINE CULLITON, Trial Attorney

JOSHUA L. ROGERS, 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) 305-1840

Facsimile: (202) 307-3961

Counsel for Plaintiff

United States of America

SALEM COUNTY, NEW JERSEY

SALEM COUNTY BOARD OF ELECTIONS

JOHNBURKE

FLORENCE BUTLER

MICHAEL FACEMYER

CAROL WADDINGTON

MARGARET BUTLER

ANDREA McLAUGHLIN SOSNOWIK

94 Market Street

Salem, New Jersey 09079

GILDA T. GILL

Salem County Clerk

92 Market Street

Salem, New Jersey 08079

BOROUGH OF PENNS GROVE

1 State Street

Penns Grove, New Jersey 08069

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SHARON WILLIAMS

Penns Grove Municipal Clerk & Deputy Registrar

I State Street

Penns Grove, New Jersey 08069

Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

THE UNITED STATES OF AMERICA,

Plaintiff,

v.

SALEM COUNTY, New Jersey; the SALEM

COUNTY BOARD OF ELECTIONS; SALEM

COUNTY BOARD MEMBERS FLORENCE

BUTLER, JOHN BURKE, MICHAEL FACEMYER,

CAROL WADDINGTON, in their official capacities;

SALEM COUNTY REGISTRARS MARGARET

BUTLER AND ANDREA McLAUGHLIN

SOSNOWIK, in their official capacities; GILDA T.

GILL, County Clerk, in her official capacity;

BOROUGH OF PENNS GROVE, NEW JERSEY;

JOHN WASHINGTON, Mayor and Borough Council

member, in his official capacity; CLIFTON

POINDEXTER, Borough Council President and all

members of the council (Tami Baytops, Carol

Mincey, Anthony Crescenzi, Janet M. Bercute, and

Thomas R. Ownsby), in their official capacities; and

SHARON WILLIAMS, Municipal Clerk and Deputy

Registrar, in her official capacity;

Defendants.

Plaintiff, the United States of America, alleges:

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1. The Attorney General of the United States hereby files this action to enforce the

provisions of:

a. Section 4(e) of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973b(e),

with respect to the conduct of elections in Penns Grove and Salem County;

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b. Section 208 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973aa-6,

with respect to the conduct of elections in Penns Grove and Salem County; and

c. Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973, with

respect to the conduct of elections in Penns Grove and Salem County.

JURISDICTION

2. This Court has jurisdiction over this action pursuant to 28 U.S.c. §§ 1331 and

1345, and 42 U.S.C. § 1973j(d) & (t). The events relevant to this action occurred in the Borough

of Penns Grove, located within Salem County, which is located within the United States District

Court for the District of New Jersey.

PARTIES

3. Defendant SALEM COUNTY, NEW JERSEY, is a political and geographic

subdivision of the State of New Jersey.

4. Defendant SALEM COUNTY BOARD OF ELECTIONS is governed by the

County's Board of Elections Commission and has statutory powers, duties, and responsibilities

concerning the conduct of elections and creation of election districts in Salem County, including

elections within the Borough of Penns Grove. Defendant Chairperson CAROL

WADDINGTON, Secretary MICHAEL FACEMYER, Salem County Board Members JOHN

BURKE and FLORENCE BUTLER, and Salem County Registrars MARGARET BUTLER and

ANDREA MCLAUGHLIN SOSNOWIK, are members of the Salern County Board of Elections.

Each is sued in his or her official capacity.

5. Defendant Salem County Clerk, the Honorable GILDA T. GILL, has statutory

powers, duties, and responsibilities concerning the conduct of elections held in Salem County

including elections within the Borough of Penns Grove. She is sued in her official capacity.

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6. Defendant BOROUGH OF PENNS GROVE is a political and geographic

subdivision of the State of New Jersey.

7. Defendant Penns Grove Municipal Clerk and Deputy Registrar, SHARON

WILLIAMS, has statutory powers, duties, and responsibilities concerning the conduct of

elections held in Penns Grove. She is sued in her official capacity.

ALLEGATIONS

8. According to the 2000 Census, Salem County had a total population of 64,285, of

whom 2,360 (3.67%)were Hispanic and 1,433 (2.29%) were persons of Puerto Rican descent.

Of the Salem's Hispanic population, 57.36% were persons of Puerto Rican descent.

9. The 2000 Census reported that Penns Grove had a total population of 4,886, of

whom 845 (17.29%) were Hispanic and 580 (11.9%) were persons of Puerto Rican descent. Of

Penns Grove's Hispanic population, 68.63% were persons of Puerto Rican descent.

10. Of the approximately 580 Hispanic persons of Puerto Rican descent residing in

Penns Grove, a significant number were educated in American flag schools in which the

predominant classroom language was Spanish.

II. The 2000 Census reported that 465 of the 1,210 (38.45%) Hispanic voting age

citizens in Salem County, and 364 of the 825 (44.12%) Puerto Rican voting age citizens in

Salem County were limited English proficient. In Penns Grove, 190 of the 349 (54.44%) voting

age Puerto Ricans were limited English proficient. These percentages were significantly higher

than the national average of 27.2 percent.

12. Hispanics in Salem County 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.

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13. The 2000 Census also showed that Hispanics in Salem County and

Penns Grove suffer from depressed socioeconomic conditions, including less access to

education.

14. Defendants have unfairly conditioned the voting rights of citizens of Puerto Rican

descent, educated in American-flag schools in Puerto Rico in which the predominant classroom

language was Spanish, on the ability to speak English through the following:

a. Defendants have never translated the actual ballot to Spanish in any

election held in Penns Grove, and numerous voters of Puerto Rican

descent who cannot understand the ballot in English have been unable to

fully exercise their voting rights. Defendants have also failed to translate

into Spanish most other election materials, including general election

notices concerning participation in the political and electoral processes,

polling place information, letters to voters regarding registration and

election-day issues, voter assistance information, and most electionrelated

information on Salem County's internet site. As a result, citizens

of Puerto Rican descent with limited English proficiency have had

difficulty voting because most election materials have been provided in

English only; and

b. Historically, defendants have failed to recruit, appoint, train and maintain

an adequate pool of bilingual poll workers, and voters of Puerto Rican

descent have been unable to obtain effective assistance and have had

difficulty voting at the Penns Grove polling place over the years because it

was not consistently and adequately staffed with bilingual polling

officials.

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15. Defendants and their employees and agents have failed to consistently allow

voters their assistors of choice by:

a. Prohibiting family members, friends, and other assistors of choice from

providing assistance to limited English proficient Hispanic voters;

b. Failing to instruct poll workers accurately and adequately on their duty to

permit eligible voters to receive assistance from any person of their

choice, other than their employers or union officials; and

c. In instances when Spanish-language assistance by Hispanic voters'

assistors of choice was permitted, interfering with such assistance and in

particular, not permitting translation of the ballot.

16. In conducting elections in Penns Grove, Defendants have engaged in election

practices including, but not limited to:

a. Directing hostile or discriminatory remarks at, or otherwise acting in a

hostile manner toward, Hispanic voters, which in many instances made

them feel unwelcome at the polls;

b. Failing to communicate effectively with Hispanic voters regarding

necessary information about their eligibility to vote, voter registration

status, and identification requirements;

c. Requiring more identification from, and turning away Hispanic voters;

d. Failing to protect Hispanic voters from unfounded or discriminatory

challenges;

e. Refusing to permit, or interfering with the right of Hispanic voters who

need assistance in voting to be assisted by an assistor of their choice; and

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f. Failing to consistently make bilingual personnel available to provide

effective assistance and information required by Hispanic voters with

limited English proficiency.

17. Political campaigns in Penns Grove, including 2006 and 2007 campaigns for

mayor and city council, have been characterized by racial appeals as well as attempts to

intimidate Hispanic voters.

FIRST CAUSE OF ACTION

18. Plaintiff hereby alleges and incorporates by reference ~~ 1-17 of this Complaint.

19. Section 4(e)(I) of the Voting Rights Act prohibits Defendants from "conditioning

the right to vote ... on ability to read, write, understand, or interpret any matter in the English

language" by persons educated in American-flag schools, including the Commonwealth of

Puerto Rico, where the predominant classroom language is Spanish. See 42 U.S.C. §

1973b( e)(1).

20. Defendants conduct elections mostly in English, as described above, and the

failure to consistently provide Puerto Rican citizens with limited English proficiency with all of

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(e).

21. 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 consistently provide all of the election

information and assistance necessary to effectively participate in the political process to citizens

of Puerto Rican descent educated in American-flag schools where the predominant classroom

language was Spanish.

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SECOND CAUSE OF ACTION

22. Plaintiff hereby alleges and incorporates by reference mr 1-21 of this Complaint.

23. 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.

24. Defendants' actions described in ~ 17 above constitute a failure to ensure that

voters who are unable to read the ballot and who need voting assistance in Spanish 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.

25. 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

26. Plaintiff hereby alleges and incorporates by reference mr 1-25 of this Complaint.

27. Section 2 of the Voting Rights Act prohibits Defendants from applying or

imposing any "voting qualification or prerequisite to voting or standard, practice, or procedure"

which results in denial or abridgement of the right to vote on account of race or color, or

membership in a language minority group, including citizens of Spanish heritage. 42 U.S.C.

§ 1973(a}.

28. The "totality of circumstances" of Defendants' actions, as described in mr 8-17,

has resulted in Hispanic voters having "less opportunity than other members of the electorate to

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participate in the political process and to elect the representatives of their choice." 42 U.S.C.

§ 1973.

29. 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 Hispanic voters opportunity to participate effectively in the political process on an equal

basis with other members of the electorate.

WHEREFORE, Plaintiff United States of America prays that this Court:

1. With respect to Plaintiff's First Cause of Action:

a. Declare 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

citizens educated in Puerto Rico;

b. Preliminarily and permanently enjoin the Defendants, their agents and

successors in office, and all persons acting in concert with them, from

failing to provide election information and assistance to citizens educated

in Puerto Rico, in violation of Section 4(e), 42 U.S.C. § 1973b(e); and

c. Requiring Defendants to devise and implement a remedial plan to ensure

that citizens educated in Puerto Rico are provided bilingual election

information and assistance consistent with Section 4(e), 42 U.S.C. §

I 973b(e).

2. With respect to Plaintiff's Second Cause of Action:

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a. Declare that Defendants have violated Section 208 of the Voting Rights

Act, 42 U.S.C. § 1973aa-6;

b. Preliminarily and permanently enjoin Defendants, their agents and

successors in office, and all persons acting in concert with them, from

engaging in any act or practice that has the effect of denying or limiting

the rights secured by Section 208 of the Voting Rights Act, 42 U.S.C.

§ 1973aa-6; and

c. Require Defendants to develop a remedial plan to ensure that voters are

permitted to have the person of their choice assist them at the polls,

without any interference or undue limitations, 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. Declare that Defendants have violated Section 2 of the Voting Rights Act,

42 U.S.C. § 1973(a), because their actions have resulted in the denial or

abridgement of the rights of Hispanic and Spanish-speaking voters;

b. Enjoin Defendants, their agents and successors in office, and all persons

acting in concert with them, from implementing or applying practices and

procedures that deny or abridge the rights of Hispanic and Spanishspeaking

voters in violation of Section 2 of the Voting Rights Act, 42

U.S.C. § 1973(a); and

c. Require Defendants to develop and implement a remedial plan that

provides Hispanic and Spanish-speaking voters the opportunity to fully

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participate in the political process consistent with Section 2 of the Voting

Rights Act, 42 U.S.C. § 1973(a).

4. Plaintiff further requests that this Court:

a. Authorize the Director of the Office of Personnel Management to appoint

federal observers for Penns Grove and Salem County pursuant to Section

3(a) of the Voting Rights Act, 42 U.S.C. § 1973a(a);

b. Award Plaintiff the costs and disbursements associated with the filing and

maintenance of this action; and

c. Award such other equitable and further relief as the interests of justice

may require, together with the costs and disbursements in maintaining this

action.

Case 1:08-cv-03726-JHR-AMD Document 1 Filed 07/28/2008 Page 11 of 12

Date: ,2.,1l~y of ~ , 2008

MICHAEL B. MUKASEY

Attorney General

Acting Assistant Attorney General

Civil Rights Division

United States AuOl6.

SUSAN STEELE

Chief, Civil Division

C

S~SANA LORENZO-GIGUERE

Special Litigation Counsel

KATHERINE CULLITON

JOSHUA L. ROGERS

Trial Attorneys

United States Department of Justice

Civil Rights Division

Voting Section

950 Pennsylvania Avenue NW

Room NWB-7254

Washington, D.C. 20530

Telephone: (202) 305-0827

Facsimile: (202) 307-3961

susana.lorenzo-giguere@usdoj.gov

katherine.culliton@usdoj.gov

joshua.rogers@usdoj.gov

Attorneys for the United States of America

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