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
JOSEPH D. RICH, Chief
JOHN TANNER, Special Counsel
JOHN "BERT" RUSS, Trial Attorney (#192471)
ABEL GOMEZ, Trial Attorney
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
UNITED STATES OF AMERICA, ) CIVIL ACTION NO.
v. ) CONSENT DECREE, JUDGMENT,
) and ORDER
SAN BENITO COUNTY, CALIFORNIA; )
JOHN R. HODGES, the COUNTY )
CLERK, AUDITOR, & RECORDER, )
in his official capacity; and )
the SAN BENITO COUNTY BOARD )
OF SUPERVISORS, )
Defendants. ) ___________________________________)
The United States of America filed 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, over violations of Section 203 of the Voting Rights Act arising from San Benito's election practices and procedures as they affect Spanish-speaking citizens of the County, and violations of Section 302 of HAVA arising from Defendants' failure to provide and post required information at San Benito County's polling places during the March 2, 2004 primary election for Federal office.
The Complaint's first cause of action under Section 203 of the Voting Rights Act, 42 U.S.C. 1973aa-1a, must be heard and determined by a court of three judges pursuant to 42 U.S.C. 1973aa-2 and 28 U.S.C. 2284. The second cause of action, under Section 302 of HAVA, may be heard and determined by one judge.
San Benito County has been subject to the requirements of Section 203 of the Voting Rights Act, 42 U.S.C. 1973aa-1a, with respect to Spanish language since 1975. See 40 Fed. Reg. 41,827 (Sept. 9, 1975). The county has been continuously covered under Section 203 for Spanish until the present. See, e.g., 49 Fed. Reg. 25,887 (Jun. 25, 1984); 57 Fed. Reg. 43,213 (Sept. 18, 1992). In the most recent determination of coverage in 2002, the county's coverage was based on a determination by the Director of the Census that more than 5 percent of the citizens in the County are members of a single language minority group (Spanish heritage or Hispanic) who do not speak English well enough to participate effectively in the English-language election process, and the illiteracy rate of these persons as a group is higher than the national illiteracy rate. See 67 Fed. Reg. 48,871 (July 26, 2002). Since 1992, the Department has sent San Benito County and other jurisdictions covered under Section 203 information regarding Section 203's requirements.
San Benito County has been subject to the requirements of Section 302 of HAVA since January 1, 2004. These requirements applied to the county's March 2, 2004 primary election for Federal office.
Defendants have failed to comply with the requirements of Section 203 for Spanish-speaking citizens residing in San Benito County, California. The Defendants have violated Section 203 requirements by failing to provide for an adequate number of bilingual poll workers trained to assist Spanish-speaking voters on election day, and by failing to translate written election materials and information into Spanish, including the official ballot.
Defendants have also failed to comply with Section 302 of HAVA during its March 2, 2004 election, by not providing written information to voters as required by 42 U.S.C. 15482(a)(5)(A); by not posting all information required by 42 U.S.C. 15482(b); and by not informing voters who cast a rejected provisional ballot the reason their vote was not counted, as required by 42 U.S.C. 15482(a)(5)(B).
To avoid protracted and costly litigation, the parties have agreed that this lawsuit should be resolved through the terms of this Consent Decree (hereinafter, the "Decree"). Accordingly, the United States and Defendants hereby consent to the entry of this Decree, 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.
Defendants do not contest that they have failed to provide limited English proficient ("LEP") Hispanic citizens in San Benito County with Spanish-language election information and assistance as required by Section 203, and they do not contest that they failed to provide the information required by Section 302 of HAVA during their March 2, 2004 primary election for Federal office.
Accordingly, it is hereby ORDERED, ADJUDGED, AND DECREED that:
1. Defendants, their agents, employees, contractors, successors, and all other persons representing the interests of the Defendants are hereby PERMANENTLY ENJOINED from failing to provide in Spanish any "registration or voting notices, forms, instructions, assistance or other materials or information relating to the electoral process, including ballots" that they provide in English, as required by Section 203 of the Voting Rights Act, as amended. 42 U.S.C. 1973aa-1a(c). With the exception of Paragraphs two and eight regarding HAVA requirements, the terms of this Decree apply to all federal, state, and local elections administered by the county, including county-run elections for city, school district, and other political subdivisions of the county. Whenever Defendants enter into an election services contract with any other entity, political subdivision, or political party to conduct an election on behalf of that entity, Defendants shall require such other entity to agree to abide by the terms of this Decree as if such entity were a party to this Decree with the United States, and consistent with the responsibility of each such entity to comply fully with Section 203.
2. Defendants, their agents, employees, contractors, successors, and all other persons representing the interests of the Defendants are hereby PERMANENTLY ENJOINED from failing to provide the information required under Section 302 of HAVA, including written information to voters who cast provisional ballots, the posted information required by Section 302(b), and information on Defendants' free access system for voters who cast provisional ballots regarding whether their ballots were counted, and if not, the reasons their ballots were rejected. 42 U.S.C. 15482. Paragraphs two and eight of this Consent Decree apply to all elections for Federal office.
Translation of Election-Related Materials
3. All information that is disseminated by San Benito County in English about "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 the Spanish language. Defendants shall ensure that both English and Spanish language election information, materials, and announcements provided by San Benito County are made equally available.
4. Defendants shall employ trained and/or certified translators who are familiar with Spanish-language election terminology to produce all written translations, clearly and accurately. The county shall develop and maintain a glossary of Spanish election terminology in consultation with bilingual members of local Hispanic community, who will review the accuracy and accessibility of the translations.
5. Defendants shall adopt a checklist identifying each Spanish-language and bilingual material that the county makes available to the public at each polling place. The checklist shall include with respect to each item an attestation that the poll workers at the polling place posted or made available to voters these Spanish-language or bilingual materials, or a detailed written explanation of why individual items had not been posted or were not available. The inspectors for each polling place must complete and sign this document before the inspector receives payment for work in the election, subject to applicable state and federal law. Defendants shall maintain a record of each such failure to complete and sign the checklist.
Dissemination of Spanish-Language Information
6. Defendants shall ensure that Spanish-language election information, materials, and announcements are provided to the same extent as they are provided in English. Spanish-language information shall be distributed in newspapers, radio, and/or other media that exclusively or regularly publish or broadcast information in Spanish. These announcements need not be identical in all respect to English-language announcements, but 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. The official ballot and absentee ballots shall be translated bilingually into both English and Spanish. Any new voting system adopted by the county shall offer a bilingual ballot or offer Spanish-speaking voters the readily apparent option of a Spanish ballot, and any audio version of the ballot on such machines shall be available in English and Spanish.
Information Required Under the Help America Vote Act
8. San Benito County shall comply will all applicable provisions of the Help America Vote Act of 2002 (hereinafter, "HAVA"). All information required to be posted in polling sites by Section 302 of the Help America Vote Act of 2002 (hereinafter, "HAVA"), 42 U.S.C. 15482, et seq., shall be posted at all polling sites and shall be in English and Spanish. This information includes, but is not limited to, written information given to the voter casting a provisional ballot on how they may ascertain if their provisional ballot was counted, and if not, the reason the ballot was not counted, see 42 U.S.C. 15482(a)(5)(A), and the six categories of information required to be posted under 42 U.S.C. 15482(b). For example, Defendants must post a sample version of the ballot that will be used for that election, in English and Spanish, in each polling location. See 42 U.S.C. 15482(b)(2)(A). Defendants shall provide a free access system for informing voters about whether their provisional ballot has been counted, and if it has been rejected, the reason for the rejection. The information on this system shall be available to each provisional voter in both English and Spanish. See 42 U.S.C. 15482(a)(5)(B).
9. Spanish-language assistance shall be available at all locations where election-related transactions are conducted. Trained bilingual (Spanish/English) election personnel shall be available to answer voting-related questions by telephone without cost and during normal business hours and while the polls are open on election days.
10. Defendants shall recruit, hire, and assign election officials able to understand, speak, read, and write Spanish fluently to provide assistance to Spanish-speaking voters at the polls on election days. The County shall survey its employees to identify personnel who speak Spanish fluently and, to the extent such employees can be made available to provide assistance, allow and encourage such employees to serve at the polls on election day. As part of its obligation to ensure that entities on whose behalf the County conducts elections are fully compliant with Section 203 in their elections, the County shall request that each entity for which it conducts elections perform similar surveys of its employees; the County shall request that each school district or other educational entity with which the County contracts implements a program that allows and encourages selected bilingual students (as allowed by state law and as part of an educational program devised by such district) to serve as poll officials on election day for all county elections, including election days that fall on school days, with such students receiving academic credit appropriate to their service as well as all pay and benefits of poll officials; and the County shall request from such entities and maintain copies of all election-related materials and information created or disseminated by such entities for each election. The County shall advise counsel for the United States of any entity that does not participate fully. The county shall also invite eligible members of the Advisory Group, discussed below, to serve as poll officials and to encourage other bilingual voters to do so.
11. Any polling place in which there are 100-249 registered voters with Spanish surnames shall be staffed by at least one bilingual election official. Any polling place in which there are 250-499 registered voters with Spanish surnames shall be staffed by at least two bilingual election officials. Any polling place in which there are 500 or more registered voters with Spanish surnames shall be staffed by at least three bilingual election officials. Defendants shall employ bilingual personnel, trained in Spanish-language 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 any Spanish-speaking voter.
12. Signs in both English and Spanish shall be posted prominently at polling places stating that Spanish-language assistance is available. At sites without bilingual staff, signs in both English and Spanish shall be posted that explain how voters can obtain Spanish-language assistance.
Election official training
13. Prior to each election, in addition to any required state or county training, the county shall train all poll officials and other election personnel present at the polls regarding the following: The provisions of Section 203 of the Voting Rights Act, including the legal obligation and means to make Spanish-language assistance and materials available to voters; the requirement that poll officials be respectful and courteous to all voters regardless of race, ethnicity, color, or language abilities and to avoid inappropriate comments; and the provisions of Section 302 of the Help America Vote Act, as they apply to elections for Federal office. In addition to the general training for poll officials, the county shall train all bilingual poll officials on Spanish-language election terminology, voting instructions, and other election-related issues. The county shall maintain a record of which poll officials attend training sessions, including the time, location, and training personnel involved.
Response to Complaints About Poll Workers
14. Defendants, upon receipt of complaints by voters, whether oral or written, shall investigate expeditiously any allegations of poll worker hostility toward Spanish-speaking and/or Hispanic voters in any election. The results of the investigation(s) conducted by the Defendants shall be reported to the United States. Where there is credible evidence that poll workers have engaged in inappropriate treatment of Spanish-speaking and/or Hispanic voters, Defendants shall remove the poll workers.
15. The county shall employ an individual to coordinate the County's bilingual election Program ("the Coordinator") for all elections within the county. The county shall provide that individual with transportation and other support sufficient to meet the goals of the Program. The Coordinator shall be able to understand, speak, write, and read fluently both Spanish and English. The Coordinator shall work under the supervision of the County Clerk, Auditor, & Recorder. The Coordinator's responsibilities shall include coordination of translation of ballots and other election information; development of a Spanish election glossary to ensure uniform use of election terminology in Spanish; development and oversight of Spanish publicity programs, including selection of appropriate Spanish-language media for notices and announcements; recruitment and assessment of Spanish-language proficiency of bilingual poll officials and interpreters; and managing other aspects of the Program.
16. The Coordinator shall establish and chair an Advisory Group to assist and inform the bilingual Program. The Coordinator shall invite participation from all interested individuals and organizations that work with or serve the Spanish-speaking community in San Benito County, to determine how most effectively to provide election materials, information, and assistance to Spanish-speaking voters, and to fill any gaps in public awareness about the county's bilingual election program due to past failures to provide accessible election-related information to Spanish-speaking voters. The Advisory Group shall meet at least once a month in 2004, and as the group determines in 2005-2006. The Coordinator shall provide notice of all planned meetings to each member, including the time, location, and agenda for the meeting, at least 14 days in advance. Within five days following each meeting, the Coordinator shall provide a written summary to all members and to the County Clerk, Auditor, & Recorder of the discussion and any decisions reached at the meeting. If the County Clerk, Auditor, & Recorder decides not to implement an Advisory Group suggestion or a consensus cannot be reach respecting such suggestion, he or she shall provide to the group through the Coordinator and maintain on file a written statement of the reasons for rejecting such suggestion.
17. The County shall transmit to all interested members of the Advisory Group copies, in English and Spanish, of all election information, announcements, and notices that are provided to the electorate and general public and request that they share with their members.
Federal Examiners and Observers
18. To monitor compliance with and ensure effectiveness of this Decree, and to protect the Fourteenth Amendment rights of the citizens of San Benito County, the appointment of a federal examiner is authorized for San Benito County pursuant to Section 3(a) of the Voting Rights Act, 42 U.S.C. 1973a(a), through December 31, 2006.
19. Defendants shall recognize the authority of federal observers to observe all aspects of voting conducted in the polls on election day, including the authority to view county personnel providing assistance to voters during voting, except where the voter objects.
Evaluation of plan
20. The parties recognize that regular and ongoing reassessment may be necessary to provide the most effective and efficient Spanish-language Program. Defendants shall evaluate the bilingual Program after each election (e.g., following 2004 elections) to determine which aspects of the bilingual Program are functioning well; whether any aspects need improvement; and how to affect needed improvements. The Program may be adjusted at any time upon joint written agreement of the parties.
Retention of Documents and Reporting Requirements
21. During the duration of this Decree, the county shall make and maintain as public documents written records of all actions taken pursuant to this Decree.
22. During the duration of this Decree, at least ten (10) days before each County-administered election held in the County, Defendants shall provide to counsel for the United States, (a) the name, address, and precinct designation of each polling place; (b) the name and title of each poll official appointed and assigned to serve at each polling place; (c) a designation of whether each poll official is bilingual in English and Spanish; (d) copies of any signs or other written information provided at polling places or given to voters to comply with Section 302 of HAVA; and (e) an electronic copy of the voter registration list to be used in such elections. Within thirty (30) days after each election, Defendants shall provide to counsel for the United States any updated report regarding changes in items (a)-(d) above that occurred at the election, and provide information about all complaints the county received at the election regarding language or assistance issues.
23. This Decree is final and binding between the parties and their successors in office regarding the claims raised in this action. This Decree shall remain in effect through December 31, 2006, and the United States may within 90 days of that date move to extend the Decree for good cause shown, in the event of a violation of any provision contained herein by the county.
24. 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 of the Voting Rights Act and Section 302 of HAVA.
25. Each party shall bear its own costs and fees.
Agreed to this _25_ day of ___May____, 2004.
AGREED AND CONSENTED TO:
For Plaintiff: For Defendants:
UNITED STATES OF AMERICA
KEVIN V. RYAN ____/s/ Karen R. Forcum________
United States Attorney KAREN FORCUM
R. ALEXANDER ACOSTA 481 Fourth Street, 2nd floor
Assistant Attorney General Hollister, CA 95023
Civil Rights Division
___/s/ John Bert Russ__________
JOSEPH D. RICH, Section Chief
JOHN TANNER, Special Litigation Counsel
JOHN "BERT" RUSS, Trial Attorney
ABEL GOMEZ, Trial Attorney
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Ave., N.W. - NWB-7254
Washington, D.C. 20530
JUDGMENT AND ORDER
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 having determined that it has jurisdiction over this claim, has considered the terms of the Consent Decree, hereby enters the relief set forth above and incorporates those terms herein. The Court hereby enters the relief set forth in this Decree, with the exception of paragraphs two and eight, which addresses only the United States' second cause of action under Section 302 of the Help America Vote Act.
ENTERED and ORDERED this _1st_ day of ___October_____, 2004.
___/s/ Carlos Bea______________________
UNITED STATES CIRCUIT JUDGE
___/s/ Jeremy Fogel_____________________
UNITED STATES DISTRICT JUDGE
___/s/ James Ware_______________________
UNITED STATES DISTRICT JUDGE
JUDGMENT AND ORDER
The Court, having jurisdiction over plaintiff's claims under Section 302 of the Help America Vote Act of 2002, 42 U.S.C. 15482 (plaintiff's Second Cause of Action), has considered the terms of the Consent Decree set forth above and incorporates those terms herein. The Court hereby enters the relief set forth in paragraphs 2, 8, 13, 18, 19, 21, 22, 23, 24, and 25.
ENTERED and ORDERED this __1st_ day of ___October_____, 2004.
____/s/ James Ware_________________________
UNITED STATES DISTRICT JUDGE