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Asian Americans Advancing Justice-Los Angeles v. Padilla

California Court of Appeals, First District, First Division

November 4, 2019

ASIAN AMERICANS ADVANCING JUSTICE-LOS ANGELES et al., Plaintiffs and Appellants,
v.
ALEX PADILLA, as Secretary of State, etc., Defendant and Respondent.

          San Francisco City and County Superior Court No. CPF-18-516155 Hon. Richard B. Ulmer, Judge

          Wilson, Sonsini, Goodrich & Rosati, Steven Mark Schatz, Deanna Kitamura, Nicole G. Ochi, Jonathan T. Stein, Winifred V. Kao, Raul Macias, William S. Freeman, David Joel Berger, Dylan Grace Savage, and Linda Lye for Plaintiffs and Appellants.

          Xavier Becerra, Attorney General, Anthony P. O'Brien, Deputy Attorney General for Defendant and Respondent.

          Banke, J.

         I. Introduction

         Plaintiffs and appellants Asian Americans Advancing Justice-Los Angeles, Asian Americans Advancing Justice-Asian Law Caucus, and the American Civil Liberties Union of Northern California (collectively plaintiffs) appeal from a judgment denying their petition for writ of mandate. Plaintiffs claim defendant and respondent Alex Padilla, the California Secretary of State, has misinterpreted, and thus failed to properly enforce, Elections Code section 14201, which requires the posting and availability of facsimile ballot materials printed in languages other than English at certain polling places.[1]

         We conclude the Secretary has properly assessed the need for language assistance on a precinct, rather than county-wide, basis and has also acted within his discretion in looking to the Voting Rights Act of 1965 (52 U.S.C. § 10101 et seq.) to inform his interpretation of “single language minority, ” terminology used in both section 14201 and the Voting Rights Act, but as to which definitional assistance and regulatory guidance is provided only in connection with the federal Act. We further conclude, however, that in tying his language assistance determinations to the list of jurisdictions determined by the Director of the Census and Attorney General to be subject to the requirements of the Voting Rights Act, the Secretary has erroneously imported into state law the federal Act's higher percentage threshold of voting age citizens who are members of a single language minority group (five percent, rather than three percent as specified by state law). We therefore affirm in part and reverse in part.

         II. Background

         A. Overview of Federal and California Voting Rights Statutes

         Before turning to the particulars of plaintiffs' claims, we provide a rudimentary overview of the relevant provisions of the Voting Rights Act and section 14201.

         1. Federal Voting Rights Act

         “The Voting Rights Act of 1965 reflects Congress' firm intention to rid the country of racial discrimination in voting. The heart of the Act is a complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant.” (South Carolina v. Katzenbach (1996) 383 U.S. 301, 315, fn. omitted.)

         “The remedial provisions of the Act [citation] were extended by the Voting Rights Act Amendments of 1970, 1975, 1982, and 2006.... The Voting Rights Act Amendments of 1975 extended the protections of the Act to ‘language minorities.' ” (7 Witkin, Summary of Cal. Law (11th Ed. 2017');">2017');">2017');">2017');">2017');">2017');">2017');">2017) § 257, p. 413; Sen. Com. on Judiciary, Voting Rights Act Extension, Rep. No. 94-295, p. 2');">p. 24.) Congress recognized that “many Americans rely heavily on languages other than English, and that they require information in minority languages in order to be informed voters and participate effectively in our representative democracy.” (The United States Department of Justice, Language Minority Citizens (Feb. 26, 2018) <https:www.justice.gov/crt/language-minority-citizens> [as of Nov. 4, 2019].) Thus, as enacted in 1975 and amended “in 1982 and 2006, Section 203(b) of the Voting Rights Act of 1965 requires that a State or political subdivision in certain circumstances must provide language assistance during elections for groups of citizens who are unable to speak or understand English well enough to participate in the electoral process.” (Slud et al., Statistical Methodology(2016) for Voting Rights Action, Section 203 Determinations (Dec. 13, 2018), p. iii, U.S. Census Bureau, Center for Statistical Research & Methodology, Research Reports and Studies, Research Report Series-Statistics (Research Rep. Series) <https://www.census.gov/srd/papers/pdf/RRS2018-12.pdf> [as of Nov. 4, 2019]; 28 C.F.R. §§ 55.2(a) & (b), 55.4.[2])

         The Voting Rights Act expressly defines “language minorities” and/or “language minority group[s]” as persons who are of Asian American, American Indian, Alaskan Natives, or Spanish heritage. (52 U.S.C. § 10503(e); 28 C.F.R. § 55.1.) “Congress selected these language minority groups because of substantial evidence that many of these groups suffered from voting discrimination or other forms of discrimination that limited their ability to participate in the political process, suffered from severe language barriers, and had depressed voter registration and turnout.” (Tucker, Enfranchising Language Minority Citizens: The Bilingual Election Provisions of the Voting Rights Act (2006) 10 N.Y.U. J. Legis. & Pub. Pol. 195, 209, citing Sen. Com. on Judiciary, Voting Rights Act Extension, Rep. No. 94-295, pp. 30-31.) In contrast, “[n]o evidence was received concerning the voting difficulties of other language groups. Indeed, the voter registration statistics for the 1972 Presidential election showed a high degree of participation by other language groups: German, 79 percent; Italian, 77.5 percent; French, 72.7 percent; Polish, 79.8 percent; and Russian, 85.7 percent.” (Sen. Com. on Judiciary, Voting Rights Act Extension, Rep. No. 94-295, p. 31.)

         To secure the voting rights of the defined “language minorities” or “language minority group[s], ” Congress implemented “Bilingual election requirements” applicable to jurisdictions that are subject to the remedial provisions of the federal law. (52 U.S.C. § 10503; 28 C.F.R. § 55.3.)

         As relevant to this case, a State or political subdivision, [3] must provide language assistance under the Voting Rights Act if, according to data from the most recent census, “(i)(I) more than 5 percent of the citizens of voting age of such State or political subdivision are members of a single language minority and are limited-English proficient;[4] [¶] (II) more than 10, 000 of the citizens of voting age of such political subdivision are members of a single language minority and are limited-English proficient; or [¶] (III) in the case of a political subdivision that contains all or any part of an Indian reservation, more than 5 percent of the American Indian or Alaska Native citizens of voting age within the Indian reservation are members of a single language minority and are limited-English proficient; and [¶] (ii) the illiteracy rate of the citizens in the language minority as a group is higher than the national illiteracy rate.” (52 U.S.C. § 10503(b)(2)(A)(i)(I)-(III), (ii), italics added; 28 C.F.R. §§ 55.4(a)(2), (b), 55.6(a).)

         Thus, “[d]eterminations of coverage under section 203(c) [of the Voting Rights Act] are made with regard to specific language groups of the language minorities listed in section 203(e) [of the Act].” (28 C.F.R. § 55.6(c).)

         As for the terminology “single language minority, ” the implementing regulations supplement the statutory definitional language (52 U.S.C. § 10503(b)(2)(A)(i)(I)-(III), (e)) by providing assistance in identifying “[l]anguage minority groups” and such groups that “have more than one language.” (28 C.F.R. §§ 55.11, 55.12.) The regulations explain, in part: “Some language minority groups, for example, Filipino Americans, have more than one language other than English. A jurisdiction required to provide election materials in the language of such a group need not provide materials in more than one language other than English. The Attorney General will consider whether the language that is used for election materials is the one most widely used by the jurisdiction's voting-age citizens who are members of the language minority group.” (28 C.F.R. § 55.12(a).)

         Determinations of coverage under the Voting Rights Act are made by the Director of the Census and the Attorney General. (28 C.F.R. § 55.4(a).) These determinations are “not reviewable in any court, ” and the bilingual requirements of the Act become operative on publication of the determinations in the Federal Register. (Ibid.) Once published, the coverage determinations are also reprinted as an appendix to the regulations. (28 C.F.R. 55 Appendix, “APPENDIX TO PART 55-JURISDICTIONS COVERED UNDER SECTIONS 4(f)(4) AND 203(c) OF THE VOTING RIGHTS ACT OF 1965, AS AMENDED [¶] [Applicable language minority group(s)].”) “It is the responsibility of covered jurisdictions to determine what languages, forms of languages, or dialects will be effective” to provide the assistance mandated by the Voting Rights Act. (28 C.F.R. § 55.11.)

         The Census bureau issued its most recent coverage determinations for California and California counties on December 5, 2016.[5] (81 Fed.Reg. 87532-87533; see 28 C.F.R. § 55.4(a), (b).)

         This census information established that, under section 203 of the Voting Rights Act, language assistance is mandated in California for languages spoken by the following seven language groups within the four statutorily specified “language minority” groups (Asian American, American Indian, Alaskan Natives, or Spanish heritage; 52 U.S.C. § 10503(e)): Hispanic (statewide assistance), Chinese, Vietnamese, Filipino, Cambodian, Korean and American Indian. (81 Fed.Reg. 87533.)

         2. California Law (Section 14201)

         a. The Relevant Statutory Provisions

         In 1976, one year after Congress amended the Voting Rights Act to extend its protections to “language minorities, ” the California Legislature enacted former section 14203 requiring the state-wide posting of facsimile ballots in Spanish. The statute provided specifically that: “The precinct board shall post in a conspicuous location in the polling place, at least one facsimile copy of the ballot with the ballot measures and ballot instructions printed in Spanish. Facsimile ballots shall also be printed in other languages and posted in the same manner if a significant and substantial need is found by the clerk. In those counties which are required under the provisions of the Voting Rights Act of 1965 as extended by Public Law 94-73 to furnish ballots in other than the English language, the posting of the facsimile ballot in that particular language shall not be required.” (Stats. 1976, ch. 220, § 6, p. 408.) The state law facsimile posting requirement was thus an adjunct to the Voting Rights Act's mandate to furnish bilingual election materials in Spanish in counties subject to the federal Act. (Ibid.)

         Six years later, in 1982, the Legislature amended former section 14203. (Stats. 1982, ch. 373, § 1, p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1691.) These amendments made several significant changes, including eliminating statewide posting of Spanish language facsimile voting materials and requiring, instead, that the need for posting be determined on a precinct basis by the Secretary of State. (Assem. Com. on Elections and Reapportionment, analysis on Assem. Bill No. 742 (1981');">1981-1982 Reg. Sess.) as amended Jan. 4, 1982, pp. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1-2.)

         The amendments also outlined the general methodology the Secretary was to use in determining language assistance needs. Specifically, “[i]n determining whether it is appropriate to post the election materials in Spanish or other languages, the Secretary of State shall determine the number of residents of voting age in each county and precinct who are members of a single language minority, and who lack sufficient skills in English to vote without assistance. If the number of these residents equals 3 percent or more of the voting age residents of a particular county or precinct, or in the event that interested citizens or organizations provide the Secretary of State with information which gives the Secretary of State sufficient reason to believe a need for the furnishing of facsimile ballots, the Secretary of State shall find a need to post at least one facsimile copy of the ballot with the ballot measures and ballot instructions printed in Spanish or other applicable language in the affected polling places.” (Former § 14203, subd. (b), added by Stats. 1982, ch. 373, § 1, p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1691, italics added.) The parties, thus, characterize this methodology as having a “mandatory” component based on the three percent threshold and a “discretionary” component based on information showing need for language assistance. The amendments did not, however, define “language minority” or provide any guidance as to the terminology “single language minority.” (Ibid.)

         As to languages for which bilingual voting materials were required under the Voting Rights Act, the statute continued to exempt counties from facsimile posting requirements. (Former § 14203, subd. (a).)

         In 1994, the substance of former section 14203 was relocated into section 14201. (Stats. 1994, ch. 920, § 2; California Voting for All Act, Assem. Bill No. 918 (2017');">2017');">2017');">2017');">2017');">2017');">2017');">2017-2018 Reg. Sess.) § 9.) No changes were made to the substantive provisions at issue here.

         In 2017');">2017');">2017');">2017');">2017');">2017');">2017');">2017, the Legislature amended section 14201 to require not only that facsimile ballot materials be posted “in a conspicuous location in the polling place, ” but also that at least one facsimile ballot “be made available for voters at the polling place to use as a reference when casting a private ballot.”[6] (§ 14201, subd. (a).) Additional copies must be available in precincts in which single language minority voting age residents who lack sufficient English proficiency exceed 20 percent of the voting age residents. (§ 14201, subd. (b)(2).) No substantive change was made to the methodology the Secretary is to employ in determining language assistance needs, or the frequency with which these determinations must be made. (§ 14201, subds. (b)(1) & (f).) The legislation also continued to exempt counties from state facsimile ballot posting and availability requirements to the extent they are required to provide bilingual election materials under the Voting Rights Act. (Compare former § 14203, subd. (a) with § 14201, subd. (g).)

         b. Implementation by the Secretary of State

         In order to make the language assistance determinations required by state law, the Secretary “contracted with the California Statewide Database... to evaluate whether publicly available census data as well as the Census Bureau's American Community Survey... data set was sufficient” to implement the statute. The Secretary concluded the publicly-available data was not sufficient.

         The statewide database therefore requested a special tabulation from the U.S. Census Bureau[7] of the state population estimates of persons that: (1) were 18 years of age or older (voting age); (2) spoke English less than very well; and (3) were from the following language group categories: Latino, American Indian/Alaska Native, Asian, Middle Eastern and North African language group summary categories as well as the languages available in the American Community Survey table subject to certain restrictions (e.g., if the language had less than 10, 000 (weighted) respondents, then the entire language was not released, etc.). The record contains no information explaining why these particular “language groups” were identified.

         The special tabulation data set identified over 50 languages pertaining to the identified “language groups, ” 43 of which met a three percent threshold in at least one precinct somewhere in the state.

         In utilizing this data for purposes of making the language assistance determinations required by state law (§ 14201, subds. (a) & (f)), the Secretary has consistently followed the practice of interpreting “single language minority” to include the specific language groups identified under the federal Voting Rights Act by the Director of the Census and published in the Federal Register. Thus, in making his most recent language assistance determinations, the Secretary used the 2016 section 203 language access determinations.

         Of the 43 languages identified by the special tabulation data, 10 are associated with the seven language groups designated as “language minority” groups under the Voting Rights Act for California-Spanish, Chinese, Cantonese, Mandarin, Formosan, Vietnamese, Tagalog, Ilocano, Khmer, and Korean. (81 Fed.Reg. 87533-87534.) Accordingly, the Secretary identified these 10 languages as within “mandatory” coverage under state law. In addition, pursuant to his “discretionary” authority, the Secretary identified six more languages for which assistance is to be provided under state law: Arabic, Armenian, Persian, Hmong, Punjabi, and Syriac.

         On December 29, 2017');">2017');">2017');">2017');">2017');">2017');">2017');">2017, the Secretary issued memorandum No. 17148 to all county clerks and registrars of voters identifying the “precincts throughout the state that qualify for mandatory language assistance” in connection with the 16 languages the Secretary identified.

         3. The Dispute Between the Parties

         Four months after the Secretary issued memorandum No. 17148, plaintiffs filed the instant writ proceeding and action for declaratory and injunctive relief, challenging the Secretary's interpretation and implementation of section 14201.

         Specifically, plaintiffs claimed the Secretary (1) “improperly required language assistance only in the precincts where the three percent trigger was met, ” rather than county-wide and (2) “improperly confined the universe of languages covered by statelaw to the small group of languages ...


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