U.S. v. Berks County, Pa.

• Decision Date: 18 March 2003
• Docket Number: No. 03-1030.,03-1030.
• Citation: 250 F.Supp.2d 525
• Parties: The UNITED STATES of America, Plaintiff, v. BERKS COUNTY, PENNSYLVANIA; Berks County Commission; Berks County Board of Elections; Timothy Reiver; Mark Scott; Judith Schwank, in their official capacities as members of the Board of Elections; Kurt Bellman, in his official capacity as Director of Elections, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

250 F.Supp.2d 525

The UNITED STATES of America, Plaintiff, v. BERKS COUNTY, PENNSYLVANIA; Berks County Commission; Berks County Board of Elections; Timothy Reiver; Mark Scott; Judith Schwank, in their official capacities as members of the Board of Elections; Kurt Bellman, in his official capacity as Director of Elections, Defendants.

Civil Action No. 03-1030.

United States District Court, E.D. Pennsylvania.

March 18, 2003.

Amy H. Nemko, Joseph D. Rich, Ralph F. Boyd, Jr., United States Department of Justice, Washington, DC, Patrick L. Meehan, United States Attorney Office, Philadelphia, PA, for Plaintiff.

Gregory M. Harvey, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, for Defendant

MEMORANDUM

BAYLSON, District Judge.

I. Introduction

This action arises from the election practices and procedures of Berks County, Pennsylvania, that plaintiff the United States of America ("Plaintiff or "the Government") alleges violate the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 et seq., and the guarantees of the Fourteenth and Fifteenth Amendments to the United States Constitution. For the reasons that follow, Plaintiffs Motion for Preliminary Injunction will be granted.

Expansion of the right to vote has been steady: today it often falls upon the courts to enforce the will of Congress. As Alexis de Tocqueville perceptively wrote in the 1830s, when the right to vote was highly restricted:

There is no more invariable rule in the history of society: the further electoral rights are extended, the greater is the need of extending them; for after each concession the strength of the democracy increases, and its demands increase with its strength.

1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 59 (1835).

At the heart of this case is Section 4(e) of the Voting Rights Act of 1965, 42 U.S.C. § 1973b(e), an act of Congress which mandates protection of the voting rights of non-English speaking United States citizens. A substantial portion of the citizens of Berks County, particularly the City of Reading, were born in Puerto Rico and educated in Spanish-speaking schools. Anyone born in Puerto Rico is automatically a United States citizen, and has unrestricted migration rights within the entire United States. Congress mandated protection of their right to vote in a language other than English if they are illiterate in English.s.

Although there have been three prior judicial decisions enforcing this law in cases brought by private parties, the United States acknowledges that this is the first case it has filed under Section 4(e). However, that fact is legally irrelevant. This Court has the obligation to follow Congress' mandates if the facts warrant granting the relief which the Government seeks.

Voting without understanding the ballot is like attending a concert without being able to hear. Even if the voter, illiterate in English, may be able to distinguish one candidate's last name from another, the voter illiterate in English may not understand the office for which the various candidates are running, and surely cannot understand the various propositions, ranging from bond authorizations to constitutional amendments. But the meaningful right to vote extends beyond the immediate four corners of the voting machine. Advertisements of the location of polling places and sample official ballots are meaningless if a large segment of the voters in a particular precinct cannot read the material. Voting officials who cannot communicate with Spanish-speaking voters cannot discharge their duties. The voters themselves may have difficulty establishing their right to vote and to exercise their right to special assistance at the polling place under Section 208 of the Voting Rights Act, 42 U.S.C. § 1973aa-6.

II. Background

On February 25, 2003, the Government filed a Complaint seeking declaratory and injunctive relief against defendants Berks County, Pennsylvania; Berks County Commission; Berks County Board of Elections; Timothy Reiver; Mark Scott; Judith Schwank, in their official capacities as members of the Board of Elections; and Kurt Bellman, in his official capacity as Director of Elections (collectively "Defendants"). The filing of the Complaint was prompted by a two-year investigation conducted by the Department of Justice ("Department") during which Department employees monitored elections in Berks County. Based on this investigation, the Government found evidence of hostile and unequal treatment of Hispanic and Spanish-speaking voters by poll workers in the City of Reading.

The United States filed its Motion for Preliminary Injunction on March 10, 2003, and Defendants filed a verified response on March 11, 2003. The Court held a hearing on March 13, 2003 and has expedited the issuance of this Memorandum and Order so as to give the parties as much time as possible to prepare for the May 20, 2003 primary election. Counsel are to be commended for their diligence and cooperation in this process.

Defendants, who conduct elections in the City of Reading, have a municipal primary election scheduled for May 20, 2003, and the Government alleges that Defendants will continue to violate federal law unless enjoined by the Court. The Government requests that the Court preliminarily enjoin Defendants from conducting further elections in a manner that violates the Voting Rights Act until the Court issues a final determination and order.

The following facts are taken from exhibits entered into evidence by the Government without objection by Defendants for the purposes of this Motion, a Joint Stipulation of Facts, and the facts stated in Defendants' verified response.

A. Hispanic Population and Language Ability

In the last ten years, the Hispanic population in Berks County has more than doubled.¹ The vast majority of Hispanic citizens reside within the city limits of Reading. (Tables QT-PL (Reading City, PA), QT-PL (Berks Co., PA) (U.S. Census 2000), Pl.'s Mot. Prelim. Inj., Exs. 1-2). Reading's Hispanic population in 2000 was 30,302 persons, constituting 37.3 percent of the total population. Id. Ex. 1. The majority of the Hispanic population, 63 percent, or 19,054 persons, are United States citizens of Puerto Rican descent. (Table PCT011005 (Reading City, PA) (U.S. Census 2000), Pl's Mot. Prelim. Inj., Ex. 3).

The 2000 Census also indicates that about half of Reading's Puerto Rican population is first generation, born in Puerto Rico. (Table PCT63H (Reading City, PA) (U.S. Census 2000), Pl's Mot. Prelim. Inj., Ex. 4). Many of these persons were educated in Puerto Rico, where the primary language of classroom instruction is Spanish. The Puerto Rico Department of Education has promulgated regulations that specify that the language of classroom instruction will be Spanish, the vernacular language of the Commonwealth of Puerto Rico. (Dept. of Educ. of Puerto Rico, General Regulations of Students, Art. Ill, § 3.2, Pl's Mot. Prelim. Inj., Ex. 5).

Almost one-third of Reading's Hispanic citizens do not speak English sufficiently well to participate in the electoral process. The 2000 Census indicates that 23,214 Reading residents over age five speak Spanish at home, and of those, 10,929 speak English "less than very well." (Table DP-2 (Reading City, PA) (U.S. Census 2000), Pl's Mot. Prelim. Inj., Ex. 6). This limited-English proficient group constitutes nearly 15 percent of the total Reading population of persons over age five. Id.

The Government has analyzed registered voter lists for persons with Spanish surnames for the year 2001 for precincts in the City of Reading. Based on this analysis, the Government has determined that 45 of 48 polling places in Reading contain more than five percent Hispanic registered voters. (Joint Stipulation of Facts ¶ 21). In addition, 18 polling places contain at least 30 percent Hispanic registered voters, and 12 contain over 40 percent Hispanic registered voters. Id.

Finally, substantial evidence exists to demonstrate that Hispanics in Reading suffer from significant socioeconomic inequality, which is ordinarily linked to lower literacy rates, unequal educational opportunities, and depressed participation in the political process. In 1999 dollars, Hispanics in Reading had a per capita income of only $8,077; less than half the per capita income of whites, who earned $17,317. (Tables PL157H, PL157I (U.S. Census 2000), Pl's Mot. Prelim. Inj., Exs. 7-8). According to the 2000 Census, a very high level, 40.6 percent, of Reading's Hispanic citizens live below the poverty line, compared to 13.9 percent of whites. (Table PL159H, PL159I (U.S. Census 2000), Pl's Mot. Prelim. Inj., Exs. 9-10). With regard to education, the Census indicates that 58 percent of Hispanics in Reading age 25 or older have not graduated from high school, while only 29 percent of whites have failed to achieve this level of education. (Table PL148H, PL148I (U.S. Census 2000), Pl's Mot. Prelim. Inj., Exs. 11-12). Finally, the Census indicates that Hispanics in Reading suffer unemployment at twice the rate of whites (7.8 percent compared to 3.4 percent). (Table PL150H, PL150I (U.S. Census 2000), Pl's Mot. Prelim. Inj., Exs. 13-14).

B. Berks County Election Practices

1. Hostile and Disparate Treatment of Hispanic and Spanish-Speaking Voters

In the course of monitoring elections in Berks County over the past two years, the Government found substantial evidence of hostile and unequal treatment of Hispanic and Spanish-speaking voters by poll workers in Reading. Poll workers turned away Hispanic voters because they could not understand their names, or refused to "deal" with Hispanic surnames. (Lee Decl. ¶ 7para; 9-10; Negron Decl. ¶¶ 10-11, 14-15, Pl's Mot. Prelim. Inj., Exs. 15-16). Poll workers made hostile statements about Hispanic voters attempting to exercise their right to vote in the presence of other voters, such as "This is the U.S.A.-Hispanics should not be allowed to have two last names. They should learn to...