Asian Ams. Advancing Justice-L.A. v. Padilla

Decision Date04 November 2019
Docket NumberA155392
CourtCalifornia Court of Appeals Court of Appeals
Parties ASIAN AMERICANS ADVANCING JUSTICE-LOS ANGELES et al., Plaintiffs and Appellants, v. Alex PADILLA, as Secretary of State, etc., Defendant and Respondent.

Wilson, Sonsini, Goodrich & Rosati, Steven Mark Schatz, Palo Alto, Deanna Kitamura, Nicole G. Ochi, Jonathan T. Stein, Winifred V. Kao, San Francisco, Raul Macias, William S. Freeman, David Joel Berger, Dylan Grace Savage, Palo Alto, and Linda Lye, Richmond, 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, 86 S.Ct. 803, 15 L.Ed.2d 769, 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) § 257, p. 413; Sen. Com. on Judiciary, Voting Rights Act Extension, Rep. No. 94-295, 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) [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) [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...

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