Voting Rights Act Section 203 Cases

\ ' var WPFootnote2 = '

On July 27, 2006, the President signed a law extending Section 203 of the Voting\ Rights Act until 2032. See Public Law 109-246, 120 Stat. 577, 581.

\
' var WPFootnote3 = '

The 10,575 include a relatively small number of individuals who do not self-identify as Hispanic on the Census, but who speak Spanish and are limited in their ability to\ speak English.

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David R. Ely is a senior analyst for the consulting firm Pactech Data and\ Research, Inc., where he routinely works with large databases and performs statistical analysis. \ Mr. Ely has served as an expert and filed reports in numerous voting rights cases involving\ analysis of voting behavior and demographic analysis. Ely Decl. at ¶¶ 1-10. In his work for this\ case he has employed the same sources and methodology he routinely employs in his work for\ Pactech and in previous expert testimony.

\
' var WPFootnote5 = '

The ward lines for Ward 1 and the bloc groups used by the Census match up to\ allow our expert, David Ely, to make a reliable estimate of those Spanish-speaking voting-age\ persons who are LEP inside of Ward 1. It also provides a reliable estimate of those Spanish-speaking voting-age persons who are LEP and live in Wards 2 through 8. Ely Decl. at ¶ 19-20.

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This data is only available at the city-level.

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See also Rivera, C. Decl. at ¶¶ 5-7 (state representative noting that Spanish\ speaking voters have moved to wards throughout the City); Torres, M. Decl. at ¶ 9 (professor\ who has seen the number of Hispanic voters who do not speak English spread throughout the\ City over the past 15 years).

\
' var WPFootnote8 = '

Specifically, in November 2004, the City placed a bilingual worker in only two\ precincts (3B and 6G) out of the 56 precincts outside of Ward 1. In November 2005, the City\ only placed a bilingual worker in three precincts (5C, 8C, and 8G) of those same 56 precincts. \ Bonilla Decl. at ¶ 4, Ex. A7, A8.

\

Tables attached to the Bonilla Declaration list the precinct numbers, the polling places,\ and the number of bilinguals workers assigned in November 2004 and November 2005, based on\ the data provided by the City to the United States. Bonilla Decl. at ¶ 5, Ex. A9, A10.

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' var WPFootnote9 = '

 See, e.g., Almena Decl. at ¶¶ 3-6 (Ward 3); Benitez, D. Decl. at ¶¶ 5-6 (Ward 4);\ Castro Decl. at ¶ 4-5 (Ward 6); Figueroa, F. Decl. at ¶ 7-10 (Ward 4); Figueroa, M. Decl. at ¶¶ 4-6 (Ward 4); Garcia, Y. Decl. at ¶¶ 4-6 (Ward 3); Lopez, M. Decl. at ¶¶ 4-6 (Ward 3); Martinez,\ A. Decl. at ¶ 5 (Ward Two); Martinez, J. Decl. at ¶¶ 4-6 (Ward 7); Martinez, M. Decl. at ¶¶ 2-8\ (Ward 2); Melendez, M. Decl. at ¶ 3 (Ward 4); Natal, C. Decl. at ¶ 5 (Ward 6); Pena Decl. at ¶ 4\ (Ward 5); Perez, E. Decl. at ¶¶ 4-7 (Ward 8); Rivera, A. Decl. at ¶¶ 5, 9 (Ward 4); Rodriguez\ Toledo Decl. at ¶¶ 5-6(Ward 6);Rodriguez, R. Decl. at ¶¶ 4-6 (Ward 8); Sanchez, R. Decl. at ¶\ 5 (Ward 2); Santos, J. Decl. at ¶¶ 4-5 (Ward 4); Sornoza, G. Decl. at ¶¶ 5-6 (Ward 3); Sornoza,\ R., Decl. at ¶ 5 (Ward 3). The Ward designations for the polling places listed in the declarations\ above can be found in the City’s list of bilingual workers for November 2005.Bonilla Decl., Ex.\ A8.

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' var WPFootnote10 = '

See also Cardona, E. Decl. at ¶¶ 5-8 (LEP voter struggling to communicate with\ English-speaking worker in Ward 4; poll worker raising her voice and pacing back and forth as\ voter repeated self in broken English; Ms. Cardona intervened to translate, but voter was\ ultimately turned away, frustrated and upset); Gonzalez, C. Decl. at ¶¶ 2-8 (regularly receives\ requests to translate for LEP voters in Ward 2 and 3, because no bilingual poll workers\ available); Concepcion, C. Decl. at ¶¶ 5-9 (met LEP couple in Ward 5 leaving the polls; couple\ was visibly upset because they were not allowed to vote at a site that had no bilingual worker).See also Almena Decl. at ¶¶ 5-6 (Ward 3); Gutierrez, M. Decl. at ¶¶ 4-5 (Ward 6); Jusino,\ L. Decl. at ¶¶ 5-6 (Ward 6); Rivera, A. Decl. at ¶ 5; Rodriguez, A. Decl. at ¶ 9 (Ward 6);\ Rodriguez, M. Decl. at ¶ 2 (Ward 2); Rosa, C. Decl. at ¶ 4 (Ward 2); Sanchez, R. Decl. at ¶ 5\ (Ward 2).

\
' var WPFootnote11 = '

See also Almena, Decl. at ¶¶ 3-6; Benitez Decl. at ¶¶ 4-9; Garcia, Y. Decl. at ¶ 5;\ Lopez, M. Decl. at ¶¶ 4-6; Martinez, J. Decl. at ¶¶ 4-6; Melendez, M. Decl. at ¶¶ 3-6; Pena, M.\ Decl. at ¶¶ 4-6; Perez, E. Decl. at ¶¶ 4-7; Rivera, A. at ¶¶ 3-5; Sanchez, R. Decl. at ¶¶ 3-6; Santos\ Decl. at ¶¶ 4-5; Sornoza, R. Decl. at ¶¶ 3-5.

\
' var WPFootnote12 = '

See Rivera, A. Decl. at ¶¶ 3-5 (speaks broken English; registered in September\ 2005; his wife and he bounced from polling places in Ward 8 to Ward 4 in November 2005\ election; ultimately not permitted to vote and not offered provisional ballots; witnessed other\ Hispanic voters leaving in confusion); Molina, Jose Decl. at ¶ 7 (bilingual poll worker observed\ voters being bounced around by the other workers like “ping pong” between polling places).

\
' var WPFootnote13 = '

See Garcia, Y. Decl. at ¶ 5 (asked in broken English for someone who speaks\ Spanish and told “not now,” filled out the ballot “blindly” without knowing what she was doing);\ Perez, E. Decl. at ¶¶ 4-7 (asked for help in Spanish, but no one available; found voting process\ confusing); Lopez, M. Decl. at ¶¶ 4-6 (no bilingual worker; voter marked the first name that she\ saw because she did not know what she was doing); Pena Decl. at ¶¶ 4-6 (no bilingual poll\ worker; LEP voter had doubts about what she was doing); Santos, M. Decl. at ¶¶ 4-5 (no\ bilingual worker, despite need).

\
' var WPFootnote14 = '

See, e.g., Castro Decl. at ¶ 5 (“I have to wait until my family members have to\ time to go to the polls” because there are no bilingual workers at her precinct); Rodriguez, R.\ Decl. at ¶ 7 (same); Hernandez, J. Decl. at ¶ 11 (assistor did not fully understand election\ process); Figueroa, F. Decl. at ¶ 7 (same); Martinez, M. Decl. at ¶ 6 (same).

\

See also Figueroa, M. Decl. at ¶¶ 4-5; Hernandez, H. Decl. at ¶¶ 5-6; Hernandez, R. Decl.\ at ¶ 5; Martinez, J. Decl. at ¶¶ 5-6; Natal Decl. at ¶¶ 4-6; Rodriguez, A. Decl. at ¶ 8; Rodriguez\ Toledo Decl. at ¶ 7.

\
' var WPFootnote15 = '

Figueroa, F. Decl. at ¶¶ 2, 6-7; Figueroa, M. Decl. at ¶ 5 (relies completely on\ husband); Martinez, A. Decl. at ¶ 6 (relies on daughter); Martinez, M. Decl. at ¶¶ 2, 5-8.

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' var WPFootnote16 = '

See also Bonilla Decl., Ex. A7, A8.

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' var WPFootnote17 = '

See Molina, E. Decl. at ¶¶ 3-6; Molina, J. Decl. at ¶¶ 3-5. See also Hernandez, H.\ Decl. at ¶¶ 5-6; Hernandez, R. Decl. at ¶ 5 (no workers offered help in Spanish in Ward 1G in\ 2000, even though couple communicating with each other in Spanish. Wife did not complete\ ballot, even with help from her husband, because she did not understand it).

\
\
' var WPFootnote18 = '

  See, e.g., Rivera, C. Decl. at ¶ 19 (state representative has received complaints\ from minority voters that they “continue to experience rude, hostile, and unwelcome treatment at\ the polls”); Hernandez, J. Decl. at ¶¶ 2-5 (observing that the poll workers do not try and help her\ or her family members, do not make them feel welcome, and generally ignore them); Rodriguez,\ A. Decl. at ¶ 6 (experienced an “intimidating coldness” and strange looks from poll workers\ whenever she attempted to assist LEP voters, other than her parents, in Spanish).

\
' var WPFootnote19 = '

See, e.g., Benitez Decl. at ¶ 9; Hernandez, H. Decl. at ¶¶ 7-8 (has not voted since\ 2000 and would be more motivated with bilingual worker); Sornoza, R. Decl. at ¶ 7 (did not vote\ in 2005 because of 2004 experience); Martinez, M. Decl. at ¶ 10 (relatives would vote if\ bilingual workers were available to help them). See also Cardona, E. Decl. at ¶ 9; Hernandez, J.\ Decl. at ¶ 12; Gonzalez, C. Dec. at ¶ 15; Martinez, J. Decl. at ¶ 8; Perez, E. Decl. at ¶ 8; Rivera,\ A. Decl. at ¶ 8; Sanchez, R. Decl. at ¶ 7.

\
' var WPFootnote20 = '

 See Almena Decl. at ¶ 5; Gutierrez, M. Decl. at ¶ 4; Hernandez, H. Decl. at ¶ 5;\ Hernandez, J. at ¶ 8; Hernandez, R. Decl. at ¶ 6; Melendez, M. Decl. at ¶ 3; Rivera, A. Decl. at ¶\ 6; Rodriguez, A. Decl. at ¶ 9; Sanchez, R. Decl. at ¶ 5. See also Concepcion Decl. at ¶ 6;\ Densmore Decl. at ¶ 7; Torres, M. Decl. at ¶ 6.

\
' var WPFootnote21 = '

See, e.g., Cardona, E. Decl. at ¶ 11; Figueroa, F. Decl. at ¶ 11; Perez, E. Decl. at ¶\ 9; Rivera, A. Decl. at ¶¶ 7-8; Rodriguez, A. Decl. at ¶ 10; Rosa, C. Decl. at ¶ 6; Sanchez, R.\ Decl. at ¶ 9; Torres Decl. at ¶ 7.

\
' var WPFootnote22 = '

See footnotes 9 and 10, supra.

\
' var WPFootnote23 = '

See Gonzalez, C. Decl. at ¶¶ 11-13; Rivera, C. Decl. at ¶¶ 10-11, 14-17.

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' var WPFootnote24 = '

See footnote 11, supra.

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' var WPFootnote25 = '

See footnote 20, supra.

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' var WPFootnote26 = '

See footnote 21, supra.

\
' var WPFootnote27 = '

See, e.g., Benitez, D. Decl. at ¶ 9 (“I did not vote in the 2005 city elections\ because my last voting experience was not pleasant at all.”); Hernandez, J. Decl. at

\

¶ 12; Hernandez, H. Decl. at ¶¶ 7-8; Martinez, J. Decl. at ¶ 8; Martinez, M. Decl. at ¶ 10;\ Melendez, M. Decl. at ¶ 4; Perez, E. Decl. at ¶ 8; Rivera, A. Decl. at ¶¶ 8-9.

\
' var WPFootnote28 = '

Our proposed relief would seek a Spanish-surname analysis of the City’s most\ recent voter registration list to determine the assignment of bilingual workers. Census data from\ 2000 is now six years old, and the data from the more recent 2005 American Communities\ Service is not available below the City level. In light of the tremendous growth in the Hispanic\ population since 2000, and in light of the very high (42.1%) limited English proficiency rate\ among Hispanic citizens in Springfield, Spanish-surname analysis will allow for a reliable and\ accepted way to determine where likely Spanish-speaking registered voters are by precinct. Ely\ Decl. at ¶¶ 21-23.

\
' var WPFootnote29 = '

See, e.g., Consent Decree, Order, and Judgement, United States v. Ector Co., TX,\ 05-CV-131 (Aug. 26, 2005 W.D. Tex.). This and other consent decrees that the United States\ has entered with jurisdictions regarding the minority language requirements of the Voting Rights\ Act can be found on our website at /crt/about/vot/litigation/caselist.htm.

\

See also Berks County, 250 F. Supp. 2nd at 542-43; PROPA, 350 F. Supp. at 611-12;\ Arroyo, 372 F. Supp. at 767-68; Torres, 381 F. Supp. at 313; Harris, 593 F. Supp. at 137-39\ (ordering relief in light of “gross underrepresentation of black persons among poll officials\ across the state”).

\
' var WPFootnote30 = '

A list of 19 jurisdictions still under court order can be found on the Voting\ Section’s website at /crt/about/vot/examine/activ_exam.htm#examiners.

\
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IN THE UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

WESTERN DIVISION


UNITED STATES OF AMERICA; )

)CIVIL ACTION No. 06-30123-MAP

  Plaintiff,)

)THREE JUDGE COURT

     v.)

)

CITY OF SPRINGFIELD, MASSACHUSETTS; )REQUEST FOR ORAL

et al. ) ARGUMENT

)

Defendants. )

)


MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF UNITED STATES’ MOTION FOR A TEMPORARY RESTRAINING ORDER, OR IN THE ALTERNATIVE, A PRELIMINARY INJUNCTION

AND REQUEST FOR ORAL ARGUMENT


The United States hereby moves for a temporary restraining order, or in the alternative, a preliminary injunction, to prevent Defendants from continuing to violate Sections 203 and 208 of the Voting Rights Act, as amended, during the September 19, 2006 primary and November 7, 2006 general Federal elections. The United States seeks expedited consideration of its motion to ensure relief can be granted in time for the September 19, 2006 primary.

I.INTRODUCTION

For jurisdictions covered by the Voting Rights Act to assist Spanish-speaking voters, “[s]imple logic . . . requires that assistance given to [Spanish-speaking voters] at the polls on election day by trained representatives of the Board of Elections be in a language they understand, in order that their vote will be more than a mere physical act void of any meaningful choice.” Torres v. Sachs, 381 F. Supp. 309, 312 (S.D. N.Y. 1974). “The right to vote means the right to effectively register the voter’s political choice, not merely the right to move levers on a voting machine or to mark a ballot.” PROPA v. Kusper, 350 F. Supp. 606, 610 (N.D. Ill. 1972), aff’d, 490 F.2d 575, 580 (7th Cir. 1973) (“We agree . . . that ‘the right to vote’ encompasses the right to an effective vote.”).

Under the Voting Rights Act, limited English-proficient (“LEP”) Spanish-speaking voters in the City of Springfield (“the City”) have had the right to receive effective, bilingual assistance and information during the entire elections process since 1992, and they have the right to choose someone to assist them at the polls if they need help with the ballot. Footnote

The City has denied Spanish-speaking voters the right to an effective vote, by failing to provide required Spanish language assistance at the vast majority of polling places that serve Spanish-speaking voters. As a result, Spanish-speaking voters (1) left their polling places without casting a ballot, (2) became confused while completing their ballot and did not accurately record their preferred choices, or (3) were forced to rely on translation by family members who were themselves confused about the voting process or unable to communicate in English well with poll workers. In addition, poll officials employed by the City even prevented voters from receiving assistance in Spanish from family members and friends.

In the November 2004 presidential election, the City assigned a meager 17 bilingual workers to serve a City with 10,575 Spanish-speaking residents who are LEP (as of 2000), and all but two of those workers were assigned to Ward 1. In the November 2005 mayoral election, the City assigned all but three of its 37 bilingual workers to Ward 1. The City made these assignments even though, according to the 2000 Census, 6,630 (63%) of the City’s LEP Spanish speaking voting-age population live outside of Ward 1, in a City where 96 percent of Hispanics are U.S. citizens. The City has ignored the needs of thousands of Spanish-speaking LEP voters who live outside Ward 1 and who require assistance from poll workers in Spanish.

The United States therefore seeks a temporary restraining order, or in the alternative, a preliminary injunction, to ensure that Spanish-speaking voters receive the assistance they need and as required by law for the September 19, 2006 primary and the November 7, 2006 general elections. The United States seeks expedited consideration of its motion. In light of the short period of time before the September 19th primary election, the relief sought by the United States includes an interim program for the September primary and full compliance for the November general election. As discussed further below, the United States is likely to succeed on the merits of its claims, Spanish-speaking LEP voters will be irreparably harmed if the injunction is denied, the public interest will be served by granting the relief sought, and the benefits of implementing a compliant bilingual program far outweigh any administrative costs placed on the City.

II. BACKGROUND

This action, filed on August 2, 2006, stems from the election practices and procedures in the City of Springfield, Massachusetts that violate Sections 203 and 208 of the Voting Rights Act of 1965 (VRA), as amended, 42 U.S.C. §§ 1973aa1-a and 1973aa-6. Footnote

Section 203 requires jurisdictions that surpass set population thresholdsof language minority voting-age citizens who are LEP to provide voting information, assistance, and materials in the language of the covered language minority group. See 42 U.S.C. § 1973aa-1a(b)(3)(A) (requiring all “registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots” to be providedin the covered language)(emphasis added).The Director of the Census designates which jurisdictions are covered to provide minority language assistance, using a formula created by Congress. These determinations of coverage are effective upon publication in the Federal Register “and shall not be subject to review in any court.” See 42 U.S.C. § 1973aa-1a(b)(2)(A) & (b)(4).

Section 208, which applies across the country, provides that “[a]ny voter who requiresassistance 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.”

The City first became covered under Section 203 to provide bilingual assistance in Spanish in 1992. See 57 Fed. Reg. 43,213. The United States contacted the City regarding the requirements of Section 203 in letters dated September 21, 1992; July, 26, 2002; and August 31, 2004. Bonilla Decl. at ¶ 3, Ex. A1, A2, & A3. In the August 2004 letter, then Assistant Attorney General for Civil Rights R. Alexander Acosta wrote that, “In those precincts where there are voters who rely on Spanish, you should be prepared to provide election information and assistance in that language, just as it is provided in English. To this end, the jurisdiction should ascertain which polling places have such voters and the language skills of its poll officials to assure that the language need is being met in the polling place.” Id., Ex. A3.

The United States requested bilingual poll worker data from the City on December 17, 2004 and December 22, 2005 to assess the City’s compliance with federal law. Bonilla Decl. at ¶ 3, Ex. A4, A5. On February 16, 2006, attorneys for the United States met with Elections Commission Office Manager Kathy Fleury and Wayman Lee of the City Law Department to gather additional information regarding the City’s election program.On July 18, the United States contacted the City to inform it that the Assistant Attorney General for Civil Rights had authorized the filing of a lawsuit against the City for violations of Sections 203 and 208 of the Voting Rights Act, and on July 19, delivered a letter noticing the same. Bonilla Decl., Ex. A6. On August 2, the United States filed its Complaint in the present action. Since July 19, the United States has met with the City on numerous occasions to discuss a resolution of this matter, but to date we have been unsuccessful.

III.STATEMENT OF FACTS

A.Demographic Data

According to the 2000 Census, Springfield had a total population of 152,082 persons, of whom 41,343 were Hispanic (27.2%). The City’s total voting age population (“VAP”) was 108,055, with 23,675 Hispanic voting-age persons and 10,575 voting-age Spanish-speakers who were LEP. Footnote Ely Decl. ¶¶ 14-15, 18. Footnote The City had a citizen VAP of 102,490, of whom 22,720 were Hispanic (22.2%). Out of the 22,720, there were 9,560 Hispanic, voting-age citizens who were LEP. The LEP rate for Springfield Hispanic voting-age citizens (42.1%) was far higher than the national 27.4 percent rate for Hispanic voting age citizens. Ely Decl. at ¶ 15. The citizenship rate among the Hispanic VAP in Springfield is very high, 96.0 percent— largely because 85.3 percent of the City’s Hispanic population are Puerto Rican, who are U.S. citizens at birth. ElyDecl. ¶¶ 14-15; see also 8 U.S.C. § 1402 (U.S. citizenship for Puerto Ricans).The Census provides data on Springfield’s Hispanic voting-age citizens who are LEP only at the City level. Data are available for Spanish-speaking voting-age persons who are LEP at the Census bloc group level, a much smaller geographic area than the City. In light of the very high citizenship rate among Hispanics (96.0%), estimating where Spanish-speaking voting-age persons who are LEP live provides a strong indication of where Spanish-speaking voting-age citizens reside. Ely Decl. at ¶ 18.

The relevant dividing line in this case is the population in Ward 1 (where the City places almost all of its bilingual workers) and the other seven wards of the City (which must share two or three bilingual individuals to serve on Election Day). As of 2000, the City had an estimated 6,630 Spanish-speaking voting-age persons who are LEP living in Wards 2 through 8 (63%), while an estimated 3,945 live in Ward 1 (37%). A map attached to the Ely Declaration shows the distribution of Spanish-speaking voting-age persons who are LEP by Census bloc group, with the City’s ward lines overlaid. Footnote Ely Decl. at ¶ 20 & Ex. B6. As of 2000, each Ward in the City had hundreds and even thousands of Spanish-speaking voting-age persons who are LEP. Wards 1, 2, 3, 4, 6, and 8 had individual bloc groups (representing only a small portion of each respective ward) that by themselves had hundreds of Spanish-speaking LEP voting-age persons residing in them. Ely Decl., Ex. B6.

 Since 2000, Hispanic and Spanish-speaking residents in the City has grown sharply. According to the Census’ 2005 American Community Survey, the Hispanic population for the City of Springfield has grown to an estimated 52,571, from 27 percent of the total population to approximately 36 percent. Ely Decl. at ¶¶ 14, 16. The Hispanic citizen VAP is an estimated 29,776, with a citizenship rate of 92 percent. Spanish-speaking voting-age persons who are LEP rose to an estimated 13,403—an estimated increase of almost 3,000. Footnote Ely Decl. at ¶ 15-16. Footnote

In short, the Census data confirms that 63 percent of the City’s Spanish-speaking population live outside of Ward 1, and that population is growing rapidly. The City, however, has assigned only two or three bilingual poll workers to serve the 6,630 Spanish-speaking residents of in Wards 2, 3, 4, 5, 6, 7, and 8 on Election Day.

B.The City Limits Almost All of Its Bilingual Poll Workers to Ward 1, to the Neglect of Spanish-Speaking Voters in All Other Wards of the City.


Limited-English proficient voters require assistance in Spanish even before they ever receive a ballot or attempt to operate voting equipment. These voters often need assistance from poll workers in finding their name in the poll books, determining if they are in the correct polling place, obtaining instructions on how to use the voting equipment, obtaining instructions on the use of provisional ballots, and obtaining answers to other voting related questions.

For the November 2004 presidential election, the City of Springfield only assigned 17 bilingual workers to serve the City’s entire Spanish-speaking population. All but two of these workers were assigned to Ward 1. For the November 2005 mayoral election, the City increased the total number of bilingual workers hired to 37, but assigned only three bilingual workers outside of Ward 1. Footnote Bonilla Decl. at ¶ 4, Ex. A7, A8.

The City has 64 precincts divided evenly among eight Wards. In November 2004, the City’s failure to hire bilingual poll workers in most precincts outside of Ward 1 meant that the City had no bilingual workers at all in the 40 precincts in Wards 2, 4, 5, 7 and 8; it had only one bilingual worker for the eight precincts in Ward 3; and it had only one bilingual worker for the eight precincts in Ward 6. Even in Ward 1, the City had only 15 bilingual poll workers to serve the 3,945 Spanish-speaking LEP voting-age persons living there (as of the 2000 Census). Bonilla Decl. at ¶ 4, Ex. A7(Nov. 2004 list of bilingual poll workers).

In November 2005, the City increased to 34 the number of bilingual workers in Ward 1, but it still only had three bilingual workers in the rest of the City (56 precincts). In that election, Wards 2, 3, 4, 6, and 7 had no bilingual workers at 40 precincts. The City hired two bilingual workers at two of the eight precincts in Ward 8, and one bilingual worker for one precinct out of eight in Ward 5. Bonilla Decl. at ¶ 4, Ex. A8 (Nov. 2005 list of bilingual poll workers).

In short, the City had only two or three bilingual workers in November 2004 and November 2005 to serve thousands of Spanish speakers at the 56 precincts outside of Ward 1. As of 2000, these 56 precincts represented 62.7 percent of the City’s Spanish-speaking voting-age LEP population, and the City has gained approximately 3,000 new Spanish-speaking voting-age persons who are LEP since that time. The City has failed to hire bilingual workers in 53 out of 56 precincts (94.6%) precincts outside of Ward 1, despite thousands of LEP Spanish-speaking VAP living in those wards.

C.The City Has Been on Notice to the Bilingual Requirements of the Voting Rights Act.


As discussed above, the United States has formally advised the City of its obligations under Section 203 repeatedly since 1992 to provide Spanish language assistance at the polls and how best to target the assignment of bilingual poll workers. Bonilla Decl. at ¶ 3, Ex. A1, A2, A3. The City has also been specifically warned by its own citizens that it was not providing enough bilingual workers. For example, Carlos Gonzalez, Assistant Chief of Staff in the mayor’s office from 1996 to 2002, annually received complaints from Spanish-speaking voters who had not received assistance in Spanish at the polls. He alerted the City’s Election Commission, but he continued receiving complaints after every election. Gonzalez, C. Decl. at ¶¶ 11-13. Since 1999, State House Representative Cheryl Rivera has also received numerous complaints from voters that they had trouble at the polls because there were no bilingual workers. LEP voters also told her that they would not go to vote because they had no assurances that there would be any poll workers to answer their questions in Spanish. Ms. Rivera has brought these issues to the attention of city officials, including members of the elections office and the mayor’s office, yet the City has not increased the number of bilingual workers throughout the City. According to Ms. Rivera, “up until the last few weeks,” when the United States provided notice of its lawsuit, “the City has never made any effort to recruit bilingual poll officials.” Ms. Rivera credited a community advocacy group, the New North Citizen’s Council, for actually recruiting the bilingual poll workers who served in Ward 1 on Election Day, rather than any efforts made by the City itself. Rivera, C. Decl. at ¶¶ 10-11, 14-17.

D.The City’s Failure to Assign Bilingual Poll Workers Where They Are Needed in Precincts Across the City Results in Spanish-Speaking Voters Being Unable to Cast an Informed and Effective Ballot.


The failure to assign bilingual workers in 94.6 percent of the precincts outside Ward 1 has had real-life consequences for voters. Across the City, many Spanish-speaking voters who are LEP can testify that they wanted and needed bilingual assistance at the polls, but that the City failed to provide bilingual poll workers in their precincts in Wards 2 through 7. Footnote Other witnesses have seen voters who needed Spanish language assistance at polling places, but the City failed to hire the bilingual poll workers necessary to serve them. Footnote See, e.g., Torres, M. Decl. at ¶¶ 3, 5, 8 (professor has never seen bilingual workers at her polling place, even though Spanish-speaking voters there need assistance; she has seen delays at the polls because English-speaking poll workers cannot find Spanish surnames or communicatewith Spanish-speaking voters).

1.The City’s Failure to Provide Bilingual Assistance Where Needed Results in Voters Being Turned Away or Casting An Ineffective Ballot

The absence of bilingual workers results in Spanish-speaking voters leaving in confusion, or attempting to cast a ballot but not being sure whether they actually voted for the candidates they preferred. Footnote As one voter put it, “Spanish speakers are lost inside a polling place unless they have a poll worker there who speaks Spanish.” Figueroa, F. Decl. at ¶ 10.

For example, Ramon Sornoza, an LEP voter, attempted to cast a ballot in November 2004 at the Springfield Wesleyan Church (Precinct 3H), but was ultimately turned away without being permitted to vote. He had registered to vote as soon as he became a citizen that year, but the English-speaking poll worker told him that he was not on the list and that he could not vote. He was not offered a provisional ballot. He did not see or hear any poll worker who could speak Spanish and who could help explain what he needed to do. Sornoza R., Decl. at ¶¶ 3-6.

Jaime Dominguez Almena, who has trouble with more complicated English, spent three hours searching for a polling place in November 2004 because poll workers could not correctly determine where he was supposed to vote, and bounced him from polling place to polling place. He was not offered assistance in Spanish. Almena Decl. at ¶¶ 3-6. Other voters have had similar experiences. Footnote

Too many Spanish-speaking voters are unable to cast a fully informed and effective ballot because the City fails to provide bilingual assistance. For example, in November 2004, Delia Benitez asked for bilingual assistance at the Mason Square Fire Station in Ward 4, but an English-speaking poll worker told her, “not right now.” The worker pointed to the presidential candidates on the sample ballot and told her, “here and here,” but then left before explaining more. Ms. Benitez had wanted to vote the entire ballot, but because she did not understand, she did not complete it. Ms. Benitez was discouraged by this experience, which she described as rushed, uncomfortable, and unpleasant. As a result, she did not vote in the November 2005 election. Benitez Decl. at ¶¶ 4-9.

Maria Melendez, an LEP voter who had a seventh grade education in Puerto Rico, went to vote for the first time in the 2004 presidential election. There was no one to assist her at the Independence House polling place, and she filled out her ballot without knowing which candidate she was marking. The experience was so discouraging that she said, “I won’t ever vote again.” Melendez, M. Decl. at ¶¶ 3-4.

Juana Martinez, who can speak only the most basic English, has asked poll workers for help but has never received it. Six years ago, she went to vote at the Independence House precinct in Ward 4, but the poll worker was unable to find her name on the list and told her to go to another polling place. Maria Hernandez, a health care aide who was with Ms. Martinez, insisted that the workers keep looking, and they eventually found her name. If Ms. Hernandez had not been there to intervene and to translate, Ms. Martinez would have been turned away and directed to the wrong polling place. Even with help from Ms. Hernandez, or in other cases from Ms. Martinez’s daughter, Ms. Martinez has not been able to understand all of the options for which she was voting, because her assistors do not fully understand the election process and cannot explain everything to her. Martinez Decl. at ¶¶ 4-6.

Other voters have had similar experiences to Ms. Benitez, Ms. Melendez, and Ms. Martinez. Footnote

2.Friends and Family Members Who Attempt to Help Spanish-Speaking Voters in the Absence of Assistance from the City Are Often Confused About the Process Themselves.


Many Spanish-speaking voters must wait for friends and family to be available to go with them the polls to translate, because they know from past experience that bilingual assistance from the City will not be available. They do not have the option of going independently to the polls. In some cases, the assistors speak limited English themselves, and/or do not fully understand the information they are attempting to explain. Footnote

For example, Maida Martinez in Ward Two and Francisco Figueroa in Ward Four attempted to help family members (Maida’s father and Francisco’s wife, respectively), but they themselves do not speak English very well. Both said that they struggle to understand poll workers’ instructions, and in both cases their LEP relatives are dependent on them to translate because there is no bilingual worker available. Footnote See also Hernandez, J. Decl. at ¶¶ 2-8 (assistor who helps her LEP mother vote in Ward 7 in the absence of bilingual workers could benefit herself from assistance in Spanish); Sanchez, R. Decl. at ¶¶ 3-6 (assistor approached by other Spanish-speaking voters in Ward 2 for help because no bilingual workers; poll workers prevented him from helping an LEP voter).

3.Even at Precincts with a Bilingual Worker Assigned, Voters Have Not Received the Assistance They Require.


At some polling place with bilingual assistance, the bilingual workers have not offered assistance to Spanish-speaking voters clearly needing language assistance. For example, Elvira and Juan Molina vote at the Central High School at Precinct 8C and were not offered any help in Spanish from poll workers in either November 2004 (when the City had no bilingual worker assigned) or November 2005 (when the City said it had one bilingual worker). Footnote The Molinas did not see or hear anything that would indicate that Spanish language assistance was available, and both wanted a bilingual poll worker available to answer questions. Footnote

E.The Election Monitoring Group MassVote Documented Problems Experienced by Voters on Election Day in November 2004, Including the Failure to Provide Assistance to Spanish-Speaking Voters.


In November 2004, an election monitoring group, MassVote, had observers in place at some polling places on Election Day. Dangleben, A. Decl. at ¶¶ 9-14. Although some of the monitors were only stationed at a polling sites for a few hours, they observed Hispanic voters experiencing problems at the polls. See, e.g., Malone, K. Decl. at ¶ 6, 12, 15-16 (poll monitor in Ward 3 witnessed Hispanic voters turned away; observed no Hispanic workers at the polls; poll workers confused as to whether to permit Hispanic daughter to help her mother; white voters appeared to have experienced fewer problems than minorities).

Christina Densmore, a monitor stationed at the Brookings School polling site in Ward 3, described her short time there to be “shocking” because a high number of voters, who were mostly Hispanic, left without voting because of language communication problems, the failure to have identification, or the inability of poll workers to find the voters’ names on the poll list. One Hispanic voter was sent away only to return to the same polling place, because the poll workers had misdirected him. Ms. Densmore witnessed English-speaking poll workers and Spanish-speaking voters who could not understand one another; the polling place had no bilingual assistance, despite a large Spanish-speaking population in the area. Densmore Decl. at ¶¶ 6-9;see also Dangleben Decl. at ¶ 14, Ex. C1.

F.Spanish-Speaking Voters Have Faced Rudeness, Hostility, and Indifference From Poll Workers on Election Day .


Spanish-speaking voters in Springfield not only must contend with a lack of assistance at the polls, but also must face hostility, rudeness, or indifference. Maria Idali Torres witnessed a group of Hispanic voters in November 2004 speaking to each other in Spanish at Our Lady of Hope polling place (Wards 2B/2C). The voters were visibly confused, but rather than getting assistance in Spanish from poll workers (which was not available), a white poll worker told them in a loud and hostile voice, “We are in America.” Torres Decl. at ¶ 5. In the late 1990s, Carlos Gonzalez was translating for an elderly Hispanic man, when an older white female poll worker overheard them speaking Spanish and said, in a rude and degrading way to the voter, “You can’t speak English!” Gonzalez, C. Decl. at ¶ 9. Jose Molina, a bilingual poll worker in Ward 1, witnessed a police officer stationed at the polling place and the lead worker say that “we are in America and you should speak English” in front of the Spanish-speaking workers. The police officer also became “furious” with Hispanic voters who spoiled their ballot and requested a new one. Molina, Jose Decl. at ¶¶ 6, 8. Other Hispanic voters have had similar negative experiences interacting with poll workers. Footnote

G.The City’s Failure to Hire Enough Bilingual Workers Discourages Spanish Speakers from Voting.


Because of the City’s failure to hire bilingual workers for most precincts outside of Ward 1, Spanish-speaking voters have difficult and even miserable experiences attempting a cast a ballot at the polls. Many become discouraged about voting in the future. Footnote See, e.g., Melendez, M. at ¶ 4 (her first time voting, without bilingual assistance, was so discouraging that she said she would never vote again).

LEP voter Delia Benitez, for example, said that she did not vote in the November 2005 mayoral election following her experiences in the November 2004 election, because it had been so difficult to vote without Spanish language assistance. Benitez Decl. at ¶ 9. Carlos Gonzalez witnessed a Spanish-speaking voter become frustrated when a police officer prevented him from receiving help from Mr. Gonzalez. The LEP voter shouted in Spanish, “I’m leaving and I’m never voting again.” Gonzalez, C. Dec. at ¶ 15. See also Rivera, C. Decl. at ¶ 11 (state representative has spoken to many LEP registered voter who do not turn out to vote “because there is no assurance that there will be anyone available at the polls to help them in their native Spanish language should they not understand the process or have trouble with the ballot.”).

H.The City Fails to Distribute Spanish Language Information in an Effective Manner and Has Failed to Translate All Election Information.


Although the City translates several written election documents into Spanish, poll workers have not been consistent in posting the Spanish-language materials at the polls. Voters who speak Spanish report that they have not seen Spanish-language materials to assist them when they went to the polls. Footnote

The City makes election information available on its website, but only in English.  The English-only materials include such helpful voter information as an election calendar, including deadlines to register to vote; election-related documents that are available from the City; a web page for voters to check their registration status on-line; a list of all precincts by neighborhood; information on the Election Office’s hours; a description of the Election Commission and its Office; an absentee ballot application form; an absentee ballot application by a family member form; and a mail-in voter registration form. Bonilla Decl. at ¶ 6, Ex. A11.

The failure to translate the website into Spanish impedes the access of Spanish-speaking voters to election information. For example, Ms. Torres went on the website to print out registration forms for LEP citizens, but the materials were not available in Spanish on-line, and the voters would not have understood the English only version. Torres Decl. at ¶ 7.

Other City election information simply does not reach Spanish-speaking voters. Many City Spanish-speaking voters can testify that they have not heard any Spanish-language announcements about elections, only advertisements urging support for particular candidates. Footnote State Representative Rivera, and private citizens Elizabeth Cardona and Maria Idali Torres, regularly read the Spanish-language newspaper El Pueblo Latino and listen to Spanish-language radio stations in Springfield, and they have never seen or heard any Spanish-language City election announcements in these media, just candidate advertisements. Rivera, C. Decl. at ¶ 12; Cardona, E. Decl. at ¶ 11; Torres, M. Decl. at ¶ 7.

I.Poll Workers Have Interfered With the Ability of Voters to Receive Assistance From Persons of Their Choice.


Poll workers have interfered with voters’ ability to receive assistance from persons of their choice. In November 2005, Reinaldo Sanchez was prevented by a poll worker from assisting a voter in Ward 2, and he witnessed a Spanish-speaking voter being prevented from taking a teenager to assist him in the booth. Sanchez Decl. at ¶ 6.In November 2004, Milagros “Terry” Rodriguez tried to help her brother’s mother-in-law, who does not read or write in English, but a poll worker in Ward 1 told Ms. Rodriguez in an heated manner to stop providing assistance. Ms. Rodriguez showed the poll worker a copy of a state law providing for assistance by individuals of the voter’s choice, but the poll worker insisted that she could not help. Only when a police officer who knew Ms. Rodriguez intervened was she allowed to help.When Ms. Rodriguez returned later in the day with another relative, the poll workers said “Here comes trouble,” and again attempted to prevent her from assisting the voter. Rodriguez, M. Decl. at ¶¶ 2-7.

In or about1999, a police officer in Ward One attempted to prevent Carlos Gonzalez from assisting a Spanish speaking LEP voter, even though the voter said in Spanish that she wanted his help. The police officer insisted that Mr. Gonzalez could not help her, and the voter had to cast her ballot without his assistance. He subsequently informed the Election Commission about this problem. Gonzalez Decl. at ¶ 14.Around the same time, Mr. Gonzalez was prevented by another police officer from helping a voter in Spanish, and the voter left without casting a ballot because he could not get help. Mr. Gonzalez reported this incident to the Election Commission, as well. Gonzalez Decl. at ¶ 15. See also Malone, K. Decl. at ¶ 12 (poll workers confused in November 2004 as to whether to permit Hispanic daughter to help her mother).

IV.LEGAL DISCUSSION

The standard for determining whether a temporary restraining order should be granted is similar to the standard for a preliminary injunction. United States v. Metropolitan Dade County, 815 F. Supp. 1475, 1477 (S.D. Fla. 1993) (granting in part a temporary restraining order sought by the United States under Section 203 with only three days before the election). The appropriateness of a preliminary injunction is dependent upon consideration of four factors: (1) whether the moving party has a likelihood of success on the merits; (2) whether there is potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions on all parties; and (4) whether injunctive relief is in the public interest. Air Line Pilots Ass'n, Int'l v. Guilford Transp. Indus., Inc., 399 F.3d 89, 95 (1st Cir. 2005). "[L]ikelihood of success is the sine qua non of preliminary injunctive relief." McGuire v. Reilly, 260 F.3d 36, 51 (1st Cir. 2001). The United States is authorized by statute to seek preliminary relief for Voting Rights Act violations. See 42 U.S.C. §§ 1973j(d) & 1973aa-2. A preliminary injunction is justified in this case because all four prongs of the analysis weigh in favor of injunctive relief.

A.The United States Is Likely to Succeed on the Merits of the Action

1.Section 203 of the Voting Rights Act

The United States is likely to succeed on the merits of its claim under Section 203 of the Voting Rights Act because Section 203 requires the City to provide written and oral voting information and assistance in Spanish, and the City has failed to do so for most of its Spanish-speaking voters. 42 U.S.C. § 1973aa-1a. On September 18, 1992, the Director of the Census designated the City of Springfield for coverage under Section 203, see 57 Fed. Reg. 43,213, having determined that more than five-percent of the City’s voting-age citizens were of Hispanic heritage and were limited English-proficient. 42 U.S.C. § 1973aa-1a(b)(2)(A)(i)(I). Once designated, the City of Springfield was required to “provide[] any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots” in Spanish. Id. § 1973aa-1a(c).

The language of Section 203 does not include a requirement to show intentional discrimination, but rather requires that any voting information and assistance provided in English shall also be provided in the “language of the applicable minority group.” 42 U.S.C. § 1973aa-1a. “Good faith” efforts that provide only limited minority language assistance to a fraction of the voters who need it is not a defense against full compliance with Section 203. See Chinese for Affirmative Action v. Leguennec, 580 F.2d 1006, 1009 (9th Cir. 1978) (rejecting jurisdiction’s defense of “good faith” efforts against Section 203 claim). Nor are belated and incomplete efforts to increase bilingual assistance begun after the commencement of litigation sufficient to prevent a preliminary injunction from being issued. See PROPA v. Kusper, 350 F. Supp. 606, 611 (N.D. Ill. 1972) (“The defendants’ announcement of an intention originating after the commencement of the suit to do what the requested preliminary injunction would require is not a ground for denial of the injunction.”); see also Feliciano v. Barcelo, 497 F. Supp. 14, 19 (D. P.R. 1979) ( “The Court cannot, in view of the evidence, and the fact that half-hearted attempts to correct anything have only been made at the eleventh hour, . . . stay its hand or defer to the local authorities.”).

The Attorney General has issued Language Minority Guidelines to assist jurisdictions in complying with Section 203. See 28 C.F.R. pt 55. A copy of these guidelines was included in the September 1992 and July 2002 letters to the City. Bonilla Decl., Ex. A1, A2. Regarding oral assistance, the Guidelines provide that “[i]n evaluating the provision of assistance, the Attorney General will consider such facts as the number of a precinct’s registered voters who are members of the applicable language minority group, the number of such persons who are not proficient in English, and the ability of a voter to be assisted by a person of his or her choice. The basic standard is effectiveness.” See 28 C.F.R. § 55.20.

As the Southern District Court of New York found, “[s]imple logic also requires that assistance given to the plaintiff class of voters [i.e., Puerto Rican voters] at the polls on election day by trained representatives of the Board of Elections be in the language they understand, in order that their vote will be more than a mere physical act void of any meaningful choice.” Torres v. Cunningham, 381 F. Supp. 309, 312 (S.D. N.Y. 1974). Likewise in the City of Springfield, Spanish-speaking citizens are entitled under the Voting Rights Act to receive assistance in a language they understand, to ensure that the vote they cast actually represents the choices they sought to make.

The facts show a persistent and appalling failure of the City to meet this straightforward obligation. The City has failed utterly to serve well over 60 percent of its Spanish-speaking, LEP voting-age population, in a City where 96 percent of Hispanics are citizens. It has not had more than three bilingual workers in seven of its eight wards. Over 6,000 LEP voting-age Spanish speakers (as of 2000) have gone unserved in 53 out of 56 precincts that are in Wards 2 through 7. The City has maintained this situation even as the Spanish-speaking voting-age persons who are LEP has increased by thousands since the last Census. Ely Decl. ¶ 18; see also Rivera, C. Decl. at ¶¶ 5-7; Torres Decl. at ¶ 9.

Spanish-speaking voters in Wards 2 through 7 have had to contend with no bilingual worker to assist them on Election Day. Footnote The City has failed to rectify this situation even as Spanish-speaking voters residing in areas with high concentrations of Hispanic voters complained to and through high-level officials about voting at polling places without any bilingual poll workers in past elections. Footnote The lack of bilingual workers resulted in voters leaving the polling place in confusion without casting a ballot, or attempting to vote but not sure whether they actually succeeded in voting for their preferred choices. Footnote

As the District Court in the Eastern District of Pennsylvania observed in the case United States v. Berks County, PA, 250 F. Supp. 2d 525, 527 (E.D. Pa. 2003), “[v]oting officials who cannot communicate with Spanish-speaking voters cannot discharge their duties.” See also Arroyo v. Tucker, 372 F. Supp. 764, 767 (E.D. Pa. 1974) (The right to vote “is not merely the right to gain physical access to a voting booth.”).

The City has also persisted in its failure to translate election information into Spanish. The City maintains an English-only website of its election information. Bonilla Decl., Ex. A11; see also Torres Decl. at ¶¶ 7, 9. The City has failed to post Spanish language materials in a consistent manner in its polling sites, and Spanish-speaking voters cannot find materials and instructions in a language they understand. Footnote In addition, the City’s efforts to publicize information in Spanish is at best haphazard, and is not reaching the Spanish-speaking voters who need the information. Footnote

2.Section 208 of the Voting Rights Act

Section 208 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. Massachusetts state law contains a similar provision, permitting assistance “by any person” designated by the voter if the voter is unable to prepare the ballot due to an “inability to read in the English language.” Mass. Gen. Laws Ann. ch. 54 § 79. “When voters are denied the right to bring their assistor of choice into the voting booth, they feel uncomfortable with the process, do not understand the ballot, and cannot cast a meaningful vote.” See Berks County, 250 F. Supp. at 538.

In light of the absence of City-provided bilingual assistance at most polling places, some LEP voters bring friends or family members to assist them at the polls. Too often City poll workers try to prevent the voters from getting the Spanish-language help they need. The voter is placed in an untenable position: most of the polling places outside of Ward 1 do not provide bilingual assistance, and yet the English-speaking poll workers who are there interfere or attempt to prevent the voters from being helped in Spanish.

B.Limited-English Proficient Voters Will Be Irreparably Harmed Absent Entry of a Preliminary Injunction


“Federal courts have recognized that the holding of an upcoming election in a manner

that will violate the Voting Rights Act constitutes irreparable harm to voters.” See, e.g.,

United States v. Berks County, PA, 250 F. Supp. 2nd 525, 540 (E.D. Pa. 2003) (granting preliminary injunction to require bilingual elections in Spanish); Metropolitan Dade Co., 815 F. Supp. at 1478 (granting temporary restraining order to prevent violation of § 203 of the VRA); Dillard v. Crenshaw Co., 640 F. Supp. 1347, 1363 (M.D. Ala. 1986) (granting preliminary injunction to prevent violation of § 2 of the VRA); PROPA v. Kusper, 350 F. Supp. 606 (N.D. Ill. 1972) (granting preliminary injunction to prevent violation of § 4(e) of the VRA). The Supreme Court in Reynolds v. Sims held that the "any restrictions on that right [to vote] strike at the heart of representative government." 377 U.S. 533, 555 (1964). Denial of the right to participate in an election is by its nature an irreparable injury. See id., 377 U.S. at 585 (with a finding of a constitutional violation in the legislative apportionment context, "it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan").

Moreover, Congress' specific provision for injunctive relief in the Voting Rights Act supports a finding of irreparable harm. The Voting Rights Act authorizes the Attorney General to seek "preventative relief, including an application for a temporary or permanent injunction" whenever any person has engaged or there are reasonable grounds to believe that a person is about to engage in a violation of the Voting Rights Act. 42 U.S.C. § 1973j(d); see also 42 U.S.C. § 1973aa-2. “[C]ourts have found that when Congress decides to make available the remedy of injunction for violations of a statute's substantive provisions, irreparable injury is presumed to flow from such violations.” United States v. Mass. Water Res. Auth., 256 F.3d 36, 50 n.15 (1st Cir. 2001) (citing United States v. City of Painesville, 644 F.2d 1186, 1194 (6th Cir. 1981)); see also Instant Air Freight Co. v. C.F. Air Freight, 882 F.2d 797, 803 (3d Cir. 1989).

A plaintiff generally proves irreparable harm by demonstrating a potential injury that cannot be redressed by post-trial remedy. See Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005). The right to participate in the electoral process is invaluable and irreplaceable. Language-minority citizens unable to cast informed votes in the elections this fall will not be made whole by monetary damages or by ex-post recognition of their harm. In short, without preliminary relief, these citizens "might triumph at trial but be left holding an empty bag." CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 620 (1st Cir. 1995).

The United States has established that Defendants have failed to meet Springfield's obligation under Section 203 to provide voting assistance in Spanish. The harm suffered by Springfield's LEP Spanish-speaking voters in past elections will recur during the September 19, 2006 and November 7, 2006 Federal elections if Defendants are left free to follow their long-standing policies and practices. An injunction must issue as soon as possible to redress that harm before these elections. LEP Spanish-speaking voters denied equal access to the electoral process cannot be made whole by money damages after trial for the denial of the right to vote. See Casarez v. Val Verde County, 957 F. Supp. 847, 864-65 (W.D. Tex. 1997) (granting injunction because monetary damages could not redress Voting Rights Act violation). Denial of equal access to the electoral process also discourages future participation by voters, as we have found among LEP voters in the City of Springfield. Footnote See, e.g., Gomez v. City of Watsonville, 863 F.2d 1407, 1416 n.4 (9th Cir. 1988) (noting how voting discrimination can result in depressed participation in the electoral process). The tremendous impact of a City government's discouragement of equal participation in our democratic system cannot be redressed by money, or any other remedy, following trial. Thus, the irreparable nature of the harm to Springfield's LEP voters necessitates preliminary relief.

C. Preliminary Relief Poses Little Hardship to Defendants

The United States asks only that Defendants undertake the reforms necessary to comply with federal law and provide equal access to the voting process for the City's Spanish-speaking voters with limited-English proficiency. Any added administrative expense to Defendants is likely to be minimal. The employment of Spanish-speaking poll workers would not result in new expense to Defendants beyond the cost of recruitment because these bilingual poll workers could take the place of non-bilingual poll workers. See, e.g., Harris v. Graddick, 593 F. Supp. 128, 136 (M.D. Ala. 1984) ("[T]he solid empirical evidence is that substantial increases in [minority] poll officials may be achieved easily and quickly, if there is a will to do so.").

The United States also asks that Defendants train and supervise all poll workers to ensure that they do not treat minority-language voters in a discriminatory manner. Proper training would emphasize each voter's right to an assistor of his or her choice and the importance of treating all voters, whether fluent in English or not, equally and with respect and courtesy.

Moreover, while the upcoming September 19 election is only a few weeks away, any "shortage of time will not necessarily shield election officials" from compliance with the Voting Rights Act. Chinese for Affirmative Action v. Leguennec, 580 F.2d 1006, 1008 (9th Cir. 1978). In Chinese for Affirmative Action, the Court imposed relief under Section 203 even though “[t]he determination, in early September, that the city was subject to [Section 203] left the city only a few days in which to make the contracts [for printing materials in Chinese and Spanish] and accomplish the changes necessary to modify its election procedures to comply with the Act before the November elections.” See id. Here, the City of Springfield has been required to provide Spanish-language assistance to its voters since 1992, yet the City has almost completely ignored the needs the vast majority of its Spanish-speaking citizens when they attempted to vote at the polls on Election Day.

In light of the City’s long coverage under Section 203 since 1992 and the United States’ notification of the City of its federal obligations under Section 203, and in light of the importance of full compliance with Section 203 for the rights of Spanish-speaking voters, the relief sought by the United States is reasonable and can be accomplished in time for September 19, 2006 primary and the November 7, 2006 election. Courts have ordered relief similar to that sought here with about the same or less time available for compliance. See, e.g., Berks County, 250 F. Supp. 2d at 527 (two months); Arroyo, 372 F. Supp. at 765 (one month); PROPA, 350 F. Supp. at 611-12 (eight days), aff'd, 490 F.2d 575 (7th Cir. 1973); Metropolitan Dade County, 815 F. Supp. at 1476 (three days, with March 13th ruling to translate and publicize information for a March 16th election).

D. Entry of a Preliminary Injunction Serves the Public Interest

There is no question that ordering Defendants to conduct elections in compliance with the Voting Rights Act serves the public interest. Defendants' continued administration of an electoral process not equally accessible to all citizens of Springfield harms not only those who are disenfranchised, but also the electorate as a whole. See, e.g., Metropolitan Dade County, 815 F. Supp. at 1478 (finding injunction under Section 203 was in the public interest); Harris, 593 F. Supp. at 135 ("[W]hen § 2 [of the Voting Rights Act] is violated the public as a whole suffers irreparable injury."). In the absence of injunctive relief, LEP Spanish-speaking voters will continue to struggle to exercise the franchise in Springfield. In these circumstances, a preliminary injunction clearly serves the public interest and would be appropriately issued.

V.RELIEF SOUGHT

As set forth in the attached Proposed Temporary Restraining Order (as well as the Proposed Order Granting the United States’ Motion for a Preliminary Injunction), the United States respectfully requests that this Court enjoin Defendants from failing to comply with Sections 203 and 208 of the Voting Rights Act, and to order Defendants to take affirmative steps to address the violations of these provisions, including requiring the City to appoint, recruit, and train additional bilingual poll workers at precincts across the City; Footnote to translate the City’s election website into Spanish; to conduct Spanish-language publicity as effectively as the City’s conducts its English-language publicity; to designate a bilingual coordinator to ensure that the City complies with the provisions of Section 203; and establishing an advisory group of individuals and organizations that work with or serve the Spanish-speaking community and that can provide advice and information to the City. These provisions of the proposed order(s) are reasonable and very similar to relief ordered in similar minority language cases under the Voting Rights Act. Footnote

The proposed orders also seek Court authorization for the Director of the Office of Personnel Management to appoint federal observers pursuant to Section 3(a) of the Voting Rights Act of 1965, 42 U.S.C. § 1973a(a), as amended by Public Law 109-246, 120 Stat. 577, 578-80, § 3. See also Section 8 of the Voting Rights Act, 42 U.S.C. § 1973f.

 The appointment of federal observers through an interlocutory order is expressly permitted by the Voting Rights Act:

Whenever the Attorney General or an aggrieved person institutes a proceeding under any statute to enforce the voting guarantees of the fourteenth or fifteen amendment, ... the court shall authorize the appointment of Federal observers ... to serve for such period of time ... as the court shall determine is appropriate to enforce the voting guarantees of the fourteenth or fifteenth amendment ... as part of any interlocutory order if the court determines that the appointment of such observers is necessary to enforce such voting guarantees . . . .


42 U.S.C. § 1973a(a), as amended by Pub. Law 109-246, 120 Stat. 577, 580 (replacing the term “examiners” with “observers”).

Congress considered the appointment of federal observers an appropriate and important tool to enforce the guarantees of the Fifteenth Amendment. H.R. Rep. No. 89-439 (1965), reprinted in 1965 U.S.C.C.A.N. 2,437, 2,437. Federal observers are a cornerstone of the Voting Rights Act. They have been authorized by judicial order or consent decree in 36 jurisdictions throughout the country. Footnote The persistent violation of federal law and the concomitant direct effect on the ability of Hispanic citizens to vote effectively provides a clear and compelling basis for Section 3(a) relief.Interlocutory authorization is necessary for federal observers to be present during the upcoming city elections this fall.

VI.CONCLUSION

For the foregoing reasons, the United States respectfully requests that the Court enter the accompanying proposed temporary restraining order, or in the alternative, a proposed preliminary injunction, to ensure that Defendants comply with the requirements of Sections 203 and 208 of the Voting Rights Act, and authorizing the appointment of federal observers to monitor Election Day activities in the City of Springfield.


Date: 21st day of August, 2006


Respectfully submitted,

                                

WAN J. KIM

Assistant Attorney General

MICHAEL J. SULLIVAN

United States Attorney

KAREN GOODWIN

Assistant United States Attorney

1550 Main Street

Springfield, MA 01103

/s/ Veronica Seungwon Jung

JOHN TANNER

Chief, Voting Section

SUSANA LORENZO-GIGUERE

Special Counsel

JOHN “BERT” RUSS

VERONICA SEUNGWON JUNG

Trial Attorneys

United States Department of Justice

Civil Rights Division , Voting Section

950 Pennsylvania Ave., NW

Room NWB-7254

Washington, D.C. 20530

Phone: (202) 305-0688

Fax:(202) 307-3961

john.russ@usdoj.gov

veronica.jung@usdoj.gov

Certificate of Service

I hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants.

August 21, 2006/s/ Veronica Seungwon Jung

VERONICA SEUNGWON JUNG

Voting Section Trial Attorney

>
Updated August 6, 2015

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