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Los Angeles�Jim Tirey, an attorney for sparsely populated Hale County in the Texas Panhandle, said he was concerned when the Justice Department filed a lawsuit against local election officials in February. Among other things, the suit claimed that Hale County regularly failed to provide Spanish-speaking poll workers and certain election materials in Spanish, violating a section of the Voting Rights Act of 1965. Since the county didn’t want to pay the legal expenses to fight the case, it signed a consent decree on April 28. Hale County officials agreed to hire a coordinator to help increase the number of its bilingual poll workers and translate election materials into Spanish. The suit is the latest in a string of cases filed over violations of Section 203 of the Voting Rights Act, which mandates that jurisdictions with more than 5% of their voting population, or 10,000 residents, who speak a language other than English are required to provide election materials in that language. Since launching a major initiative in 2002, the Justice Department has filed similar suits in Florida, Massachusetts, New York, Texas, Washington and California. Emboldened by the Justice Department’s actions, civil rights groups have intervened or filed suits of their own. A critical moment The suits come at a critical time for the Voting Rights Act, as well as Section 203. While some members of Congress introduced legislation earlier this month that would renew Section 203, which expires next year, another faction opposes it. Meanwhile, lawyers in the West recently have filed a separate series of lawsuits following a ruling in the 9th U.S. Circuit Court of Appeals that expands the Voting Rights Act minority-language provisions to include recall petitions-not just election ballots. Opponents of upcoming recall petitions, ballot initiatives and referenda have filed subsequent lawsuits, claiming that the English-only ballot measures are illegal. Many of the suits are on hold pending a rehearing by an en banc 9th Circuit panel. Voting rights among non-English speakers “has moved to the forefront,” said Steven Reiss, chairman of the pro bono committee and a partner in the New York office of Weil, Gotshal & Manges, which is co-counsel in a suit filed against the city of New York by the Asian American Legal Defense and Education Fund (AALDEF). “There is an increasing empowerment on behalf of the groups that are trying to press these things,” Reiss said. Section 203 mandates that jurisdictions covered under the Voting Rights Act provide “any registration or voting notice, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots” in that language. Since Section 203 was added in 1975, the Department of Justice has filed 28 lawsuits against cities and counties nationwide to enforce the minority-language law-but more than half were filed in the past four years, according to Department of Justice spokesman Eric Holland. The DOJ declined further comment on the actions. In addition to Texas’ Hale County, the cases have hit big voting jurisdictions, such as San Diego County. Most of the cases have been resolved through consent decrees. In one of its biggest, the Justice Department filed suit in July 2005 against the city of Boston, alleging that election officials had failed for years to provide Spanish-speaking poll workers or translate election materials. The suit also alleged that poll workers harassed Asian-American voters and poll workers. United States of America v. City of Boston, No. 05-11598 (D. Mass.). “They had encountered voter discrimination, with segregated voting lines and rude, hostile workers,” said Glenn Magpantay, a staff attorney in New York for AALDEF, which intervened in the Justice Department’s suit against Boston. In October, a three-judge panel approved a settlement in which city officials agreed to provide translated voting materials and poll workers who spoke Spanish, Chinese and Vietnamese. In February, AALDEF filed a separate lawsuit against the city of New York’s Board of Elections. The suit, on behalf of four Asian voting groups, alleges that election officials had failed in the past eight years to provide sufficient election materials in Chinese and Korean. Magpantay said that they also mistranslated candidate’s names and allowed poll workers to make racist remarks to Asian-American voters. “We have documented an array of violations under Section 203 for nearly a decade, and it is only now that we are litigating,” Magpantay said, noting that several more regions could get sued. The organization, which is working with Weil Gotshal on the case, has asked for improvements in New York’s minority-language assistance program, compliance with the laws and attorney fees, he said. Steven Richman, general counsel for New York’s Election Board, did not return calls seeking comment. A ‘linguistic divide?’ The Justice Department’s suits have been building as Congress debates whether to renew several sections of the Voting Rights Act, including Section 203. On May 2, Representative F. James Sensenbrenner, R-Wis., chairman of the House Judiciary Committee, along with several Senate leaders, introduced a bi-partisan bill that would retain and renew most of the Voting Rights Act for the next 25 years. But some members of Congress want the Voting Rights Act to stay in the past. Dozens of legislators, mostly Republicans, who have joined in opposing renewal of Section 203. Representatives Steve King, R-Iowa, and Representative Peter King, R-New York, who is chairman of the Homeland Security Committee, have spearheaded a group of 26 organizations expressing concerns that multilingual ballots are contrary to the nation’s requirement that immigrants must learn English to become U.S. citizens. These ballots also increase the risk that errors occur, they say. “Multilingual ballots encourage a linguistic divide in our nation and discourage law-abiding immigrants from learning English to naturalize and assimilate into our society,” said King in a March 31 press release. Others oppose renewal of the act’s Section 5, which forces jurisdictions with a history of discrimination-most of them in the South-to pre-clear any changes to their voting procedures with the U.S. government. Critics say Section 5 creates a constitutional burden on those jurisdictions. Western drive to expand As debate swirls in Washington over whether to renew Section 203, lawyers and judges in the West are seeking to broaden the Voting Rights Act’s provisions. A November 2005 decision by a three-judge panel of the 9th Circuit has said that Section 203 applies to recall petitions, ballot initiatives and referendum, not just ballots. Padilla v. Lever, 429 F.3d 910. In that case, a group of Spanish-speaking voters in Santa Ana, Calif., filed a lawsuit in December 2002 to ensure that an upcoming petition to recall a local school board member was provided in Spanish and English. One month before the February 2003 recall, a judge in U.S. District Court for the Central District of California dismissed the lawsuit. In a 2-1 ruling, the 9th Circuit held that the recall materials should have been in Spanish and English. “Holding that those bilingual provisions do not apply to recall petitions would deny minority language speakers the right to fully participate in the electoral process by depriving them of the ability to consider the written arguments for and against a particular recall target,” the ruling states. “Such a result runs counter to the very purpose of Congress in remedying minority language discrimination in voting.” In a dissenting opinion, Judge William Canby Jr. called the application of the Voting Rights Act to initiatives and recall petitions “inherently perverse.” The 9th Circuit’s ruling conflicts with two 1988 decisions in which separate appeals panels held that initiatives did not fall under the requirements of Section 203 of the Voting Rights Act. Montero v. Meyer, 861 F.2d 603 (10th Cir.), and Delgado v. Smith, 861 F.2d 1489 (11th Cir.). Judges use ‘Padilla’ In a series of quick decisions, federal judges have used the Padilla ruling to broaden the use of Section 203. In a March 23 injunction, U.S. District Court Judge James Ware of the Northern District of California cited materials that were not printed in Spanish as reasons to pull an upcoming ballot initiative designed to amend the development plan in Monterey County. In re County of Monterey Initiative Matter, No. 06-01407 (N.D. Calif.). The case is pending appeal in the 9th Circuit. “That was a really revolutionary decision because initiatives were not addressed in the Padilla decision at all,” said Sarah Peters Gorman, a partner at Los Angeles-based Burke, Williams & Sorensen. Gorman represents the authors of two referenda and a ballot initiative in Loma Linda, Calif., where real estate developers of local projects attempted to use the same Padilla argument to throw out the referenda. Daniel Chinchay v. Kari Verjil, No. 06cv01637 (C.D. Calif.). Last month, U.S. District Judge Audrey Collins of the Central District of California ruled that the initiative, but not the referenda, should have been in Spanish and English. Secretaries of state in Arizona, Nevada and Washington state have filed briefs seeking an en banc ruling in the Padilla case. “It’s got huge, huge, huge ramifications, depending on how it boils down,” said Ellick Hsu, deputy secretary of state for elections in Nevada. “Litigation would increase in every state, not just California and Nevada. Ultimately, other circuits will look at the 9th Circuit, and it would be persuasive at the very least.” Joaquin Avila, assistant professor at the Seattle University School of Law, called the states’ briefs a “knee-jerk reaction.” “Clearly, the circulation of initiatives is an integral part of the political process,” said Avila, who represents voters in the Padilla case. Last month, an en banc panel of the 9th Circuit agreed to rehear the Padilla case. Oral arguments are scheduled for June 22.

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