UPDATE ON STATUS OF VOTING RIGHTS ACT LITIGATION
September 11, 2018
By Jeffrey D. Slanker, Esq., Sniffen and Spellman, PA, Tallahassee, FL
The following is the second of a periodic digest concerning the status of the litigation styled MARTA VALENTINA RIVERA MADERA, et al., v. KEN DETZNER, et al., filed in the Northern District of Florida, Gainesville, case no. 1:18-cv-00152, filed in the United States District Court in the Northern District of Florida, Gainesville division. US District Judge Mark E. Walker is presiding over the case. This digest primarily focuses on the preliminary injunction hearing held on September 5, 2018, and the subsequent order granting that preliminary injunction request in part.
Background Leading to the Preliminary Injunction Hearing
The plaintiffs filed their complaint on August 16, 2018 alleging violations of the Voting Rights Act of 1965 and Section 1983 of the Civil Rights Act. The complaint’s allegations focus on section 4(e) of the Voting Rights Act. The complaint alleges that 4(e) of the Voting Rights Act requires that Spanish language materials, including ballots, be made available for the upcoming fall 2018 general elections in counties where there was a Puerto Rican population that did not speak English well. The complaint was brought against Ken Detzner, Florida’s Secretary of State in his official capacity, and Kim Barton, in her official capacity as Alachua County Supervisor of Elections, on behalf of herself and similarly-situated County Supervisors of Elections. In total, 32 supervisors of elections throughout the state of Florida are subject of the suit. The remaining counties either already provide Spanish language ballots, or the plaintiffs did not identify the county as one with a significant Puerto Rican population which did not speak English well.
Shortly after the complaint was filed, the plaintiffs filed a motion for preliminary injunction seeking certain relief in advance of the fall elections and prior to a trial on the merits. The standard for a preliminary injunction is not recounted in great detail here given that the readers of this digest are assumed to be familiar with it. After a scheduling conference, the Court set the preliminary injunction hearing for September 5, 2018.
The Preliminary Injunction Hearing
The hearing on the preliminary injunction motion was held over the course of the day. The hearing involved oral argument from counsel for the plaintiffs and defendants. A portion of the hearing, and portion of the Court’s order, focuses on arguments made by the Secretary of State that are not relevant to counties. Alachua County, in attendance at the hearing as the named county defendant, represented to the Court that many of the items requested by the plaintiffs were already implemented or in the process of being implemented. A good portion of the hearing focused on remedies available, especially given the short time frame before the general election.
The Court’s Order Granting the Preliminary Injunction, In Part
The Court ultimately entered an order later that week granting the preliminary injunction in part. The Court explains in its order that Section 4(e) of the Voting Rights Act provides protection to Puerto Rican citizens educated in so called “American-flag” schools, in which the predominant language in the classroom is not English. That provision further requires that such citizens not be denied the “the right to vote in any Federal, State, or local election because of his inability to read, write, understand, or interpret any matter in the English language.”
This provision of the Voting Rights Act, the Court explained, has been interpreted time and time again by courts throughout the country to require the provision of Spanish-language voting ballots to Spanish-speaking Puerto Ricans that do not speak English sufficiently well to be able to effectively vote. As the Court noted, the right to vote does not only include the right to actually go to polls and vote, but also the right to comprehend the information needed to be able to effectively vote.
Indeed, the plaintiffs are suing to enforce that provision of the Voting Rights Act in 32 counties that contain Puerto Rican populations but currently conduct English-only elections. The counties subject to the suit were selected by an analysis of 2015 census data and includes counties that contain Puerto Rican populations who were either born in Puerto Rico or speak English less than “very well.” The Court surmised that those counties not a part of the suit and which do conduct English-only elections, have a de minimis Puerto Rican population, if any.
It is important to note though, that the Court held that there is no number requirement in Section 4(e). It presumably applies to a county with even one Puerto Rican voter. It is also important to note, as the Court noted, that the data examined by the plaintiffs in bringing this suit, likely did not account for all of the migration of Puerto Ricans to Florida that were displaced by Hurricane Maria.
Plaintiffs sought the following relief; bilingual ballots, sample ballots, absentee and early voting applications and ballots, provisional ballots, voter registration forms, voting instructions, voter information, polling place notifications, and polling place signage, to all be created by a certified translator, and to ensure that all election information is digitally available in Spanish.
The Court did not order, as a part of the preliminary injunctive relief, that bilingual ballots be provided for the upcoming election. The Court noted and considered practical and financial constraints of the defendants in doing so for this upcoming election. Considering the equities of all parties, the Court ordered the following (language taken directly from the order), with respect to the counties. The language in bold is mandatory and the language italicized is permissive:
- The Supervisor of Election shall make available a facsimile sample ballot in Spanish to voters who fall within the ambit of Section 4(e) of the Voting Rights Act. The sample ballots shall have matching size, information, layout, placement, and fonts as an official ballot does. The sample ballots need not be completely identical; for example, the sample ballot need not contain bar codes or other markings that official ballots may have or be printed on the same stock, etc.
- As to render the above a meaningful remedy, the Supervisor of Election shall publish the same facsimile sample ballot on their website with Spanish-language directions. To the extent English-language sample ballots are mailed, published, or advertised, such sample ballots must also include the sample Spanish-language ballot. The Supervisor of Election shall also provide signage in Spanish at polling places making voters aware of such sample ballots.
- This Order does not preclude additional measures to provide assistance, as is currently being implemented under Supervisor Barton, such as hiring additional bilingual poll workers, creating or staffing a bilingual voter assistance hotline, offering bilingual assistance to disabled Spanish voters, or publishing bilingual voter guides.
It should be noted that the Court’s ruling certainly indicates that it contemplates that bilingual ballots must be provided for elections after the immediate next election for the counties to be in compliance with 4(e), but that such relief was not being order for this fall’s elections due to practical restraints due to timing. The Court noted that it would not be inclined to hold this way if only costs to implement were a factor.