Petition — Leguennec v. Chinese for Affirmative Action

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Supreme Court, U.S. \ }

FILED

In the Supreme Court

United States

OcToBER TERM, 1978

No.

LAWRENCE J. LEGUENNEC, individually and in his )

official capacity as Registrar of Voters, City and

County of San Francisco; THomas J. MELLON, indi-

vidually and in his official capacity as Chief Admin-

istrative Officer, City and County of San Francisco;

City AND COUNTY OF SAN FRANCISCO, a municipal

corporation, Petitioners,

vs.

CHINESE FOR AFFIRMATIVE ACTION; SAN FRANCISCO

CounciL, LEAGUE oF UNITED LaTIN AMERICAN CITI-

ZENS; LUE SHE Tom; Tak LAN CHAN Huey; Rose

Yuen; Nitsa M. Matos, and Maria DEL CARMEN

MarRRERO, on behalf of themselves and those similarly

situated,

GEORGE AGNOST

City Attorney

Burk E. DELVENTHAL

Deputy City Attorney

JupitH L. TEICHMAN

Deputy City Attorney

206 City Hall

San Francisco, California 94102

Telephone: (415) 558-3731

Attorneys for Petitioners

Respondents. |

78-839

PETITION

FOR WRIT OF

CERTIORARI

TO THE

UNITED

STATES

COURT OF

APPEALS FOR

THE NINTH

CIRCUIT

THE JAMES H. BARRY CO.. 170 SOUTH VAN NESS. SAN FRANCI®©cO CA. 94103

Table of Authorities ..........---seeeeeeeeeeeeeeee

Opinion and Judgment Below .....-....++seessrrres

Jurisdiction .......-.. cc cccccccccecereceseccccees

Questions Presented .......-----eeseeeeeererreeees

Constitutional and Statutory Provisions Involved .....

Statement of the Case

II.

Ill.

The Law And Its Applicability To San Francisco

San Francisco’s Efforts To Comply With The

New Law In Time For The November 4, 1975

ast wi ciccceccctavescsndavneveuteses

Summary Of Proceedings In This Action ......

Argument

II.

Congress Does Not Have The Power Under Sec-

tion 5 Of The Fourteenth Amendment To Require

A State Or Its Political Subdivisions To Conduct

Multilingual Elections Without A Finding Of In-

tentional Voting Discrimination And Solely To

Remedy The Effects Of Unequal Educational Op-

portunities Not Found To Have Been Intention-

ally Imposed ........-- es ceeeereeeeerencers

Even If The Fourteenth Amendment Empowers

Congress To Require States And Political Subdi-

visions To Provide Multilingual Assistance To

Voters, It Must Exercise This Power So As Not

To Interfere Unreasonably With The Powers Re-

served To The States By The Tenth Amendment

And The Substantial Interest A State May Have

In Setting Policy Regarding The Number Of Lan-

guages In Which State And Local E!actions Are

ong ois kids dep dcdensasteecusenees®

III. Even If The Fourteenth Amendment Empowers

Congress To Require States And Political Subdi-

visions To Provide Multilingual Assistance To

Voters, Congress Acted Arbitrarily And Thus

Unlawfully When It Adopted Legislation Requir-

ing A Local Jurisdiction To Provide Written Elec-

tion Materials In, A Foreign Language I[n the

Event That The Illiteracy Rate Of Persons

Deemed To Be Members Of That Language Mi-

nority Group (As A Group) Is Higher Than The

National Illiteracy Rate ..........cceeeeeeees

IV. Congress Did Not Intend That A Jurisdiction

Should Be Deemed To Have Violated The New

Voting Rights Amendments When The Local

Officials Were Acting In Good Faith But Had Not

Had A Reasonable Time To Comply Fully With

ee eh oa Sen en eee eerecee ees

a i hae a 6 eke aes

TABLE OF AUTHORITIES

Cases Page

Carmona v. Sheffield, 475 F.2d 738 (9th Cir. 1978 .... 80

Castro v. State, 2 Cal.8d 228 (1970) .....-seeeeeeeee 28, 29

Chinese for Affirmative Action v. Leguennec, 549 F2d

97 (Oth Cir. 1978) ...... cece cece eeeereeneverees 1, 33

Frontera v. Sindell, 422 F.2d 1215 (6th Cir. 1975) .... 80

Katzenbach v. Morgan, 384 U.S. 641 (1966) .......--- 22

Lassiter v. Northampton County Board of Election, 860

U.S. 4B (1950) oc cccrcccccvcccsccccccncccscscess 21

Lau v. Nichols, 414 U.S. 563 (1974) .....--+55: 6, 19, 20, 29

Mayor of City of Phila. v. Educational Equality League,

415 U.S. G05 (1974) .... cece rere e cee ereceeeeeees 34

Millikin v. Bradley, 418 U.S. 717 (1975) ....----.+00s 34

National League of Cities v. Ussery, 426 U.S. 833

CROTE) nn cccicccccvvissveceetedsstvccccccccsens 30

Oregon v. Mitchell, 400 U.S. 112 (1970) .......s0eees 22, 26

Rizzo v. Goode, 428 U.S. 362 (1976) .....-. see eeeeees 34

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ... 22

United States of America v. City and County of San

Francisco, et al., U.S. D.C., N.D. Cal., No. C-78-3521-

ee SACs RARSNAR EOD E SUPE EO ENED SOs 25

University of California Regents v. Bakke, 98 S.Ct.

QTBB (1978) ...ccccccccvecccervcsevsveseesesess 19, 20

Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977) ....... 16, 19, 20

Washington v. Davis, 426 U.S. 229 (1976) ........ 16, 19, 20

United States Constitution

Fifteenth Amendment ........:seceeereerenvees 17, 21, 22

Fourteenth Amendment .......... 2, 16, 18, 19, 20, 21, 27, 31

Equal Protection Clause ......-.-+seeees 16, 21, 22, 27, 28

ee S| IEC ERT TTC EAT LAE 2, 16, 17, 20, 22, 30, 34

Tenth Amendment ........--eeseeereereerees 2, 3, 21, 26, 30

Federal Statutes Page

OU Se OS oie oe es 2

PU IO oo nin cece ibe ekecdtouss be, 7

ae OG Bee ii epee, ees. 2

| Oe iss ae eee. 2

SMe bee se eee re 2

BEE a caaes nececl cones tLe ee 2

RE etek cide la eon ce ee 2

Be SorsaGytesacectcr i ee 15

Ge OE OU 6. bb cc wales nuh cede 3, 4, 5

Le a PaaS RS a ee MRS PUY, 14, 21

er ae 5, 17, 31

5 SPN 5% chica (aad ble oe 6

FIM «Wass vs mackie + oa Wiccaddc oun 5, 6

Title VI of the Civil Rights Act of 1964............ 6, 19, 29

Voting Rights Act of 1965 .................. 2, 4, 17, 21, 25

Voting Rights Act Amendments of 1975 ...... 2, 3, 4, 7, 8,14

WEDD bc vnnecons eukuwcimicens sateen 4

CM, TR, so nobis oa chaanneee te ee 4,17

WOE Ee ha kha cease 4, 15, 17, 18, 20, 21, 22, 29, 31, 34

California Constitution and Statutes

Constitution

ee FS tt ir niin +s 6

Education Code SP tn sac on gucneueeeneonde eens 6,7

Se isaccikbaeounvous ee 6

mesctions Code § SURG). te a ee 16

DOOD ko 00inerinscsdees Cee 16

DBO 65-004 08 suc eee 16

BO oe 11, 16

2 ROME. 6 ob id nknns ne 16

Shatahen: ef 107K, CR. FOR 5 kc cs kceek cee 12

Federal Regulations and Notices _ Page

ee ON i ene nideks dh va ccecnds cnebocin 22, 30

a Sind id tes Met led aed baie tic Ade . 24

| Be ee are ea ee toy eee 23

he a Er nn pe eer er 24

Re Sates o's he « ic ae 6 SU 8 bbe 0 Wakes abet 23

whi as bh alad 6 hae 0 i nie bw clowns 6

ote REIRSON SES | 1 ERG Ae ane ae een a 30

Court Rules

Supreme Court Rule 19.1(b) ...........ccccccccccce 2

Other Authorities

H.REP. No. 94-196, 94th Cong., 1st Sess. } oo) |) 4,18

U.S. Department of Commerce, Current Population Re-

ee, I La kee ce en 5, 6

U.S. Department of Commerce, General Social and Eco-

nomic Characteristics California, Table 81 ......... 7

U.S. Department of Commerce, Subject Report P.C.

(2)-1G, “Japanese, Chinese and Filipino in the United

MEE URW Eis oils ak. cei is tiene ene 5

INDEX TO APPENDICES

Appendix A. Chinese for Affirmative Action, et al. v.

Leguennec, et al., 549 F.2d 97 (9th Cir.

pa Rae ef at Sa a eae ee A—1l

Appendix B. Chinese for Affirmative Action, et al., v.

Leguennec, et al., U.S.D.C., N.D. Cal. De-

Te? Sian) coer ee ceu rt B—1

Appendix C. Complaint, United States of America v.

City and County of San Francisco, et al.,

U.S.D.C., N.D. Cal., No. C-78-8512-CFP . C—1

. |

In the Supreme Court of the

United States

OcToser TERM, 1978

No.

LAWRENCE J. LEGUENNEC, ET AL., Petitioners

vs.

CHINESE For AFFIRMATIVE ACTION, ET AL., Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners pray that a writ of certiorari issue to re-

view the judgment of the United States Court of Ap-

peals for the Ninth Circuit entered in this proceeding

on August 23, 1978.

OPINION AND JUDGMENT BELOW

The Opinion of the United States Court of Appeals

for the Ninth Circuit is reported at 549 F.2d 97 (9th

Cir. 1978) and is printed as Appendix A hereto. The

Order and Findings of the District Court (CT 212)

were unreported, but are printed as Appendix B here-

to.

JURISDICTION

The Opinion and Judgment of the United States

Court of Appeals was entered on August 23, 1978.

Jurisdiction of the District Court was alleged under

28 U.S.C. §§ 1331, 1343, 1857, 1361, and 5 U.S.C.

§§ 701 et seg. (CT 2)

This Court’s jurisdiction is based on 28 U.S.C.

§ 1254 (1) and Rule 19.1(b).

QUESTIONS PRESENTED

1. Does Congress have the power under Section 5 of

the Fourteenth Amendment to require a State or its

political subdivisions to conduct multilingual elections

without a finding of intentional discrimination and

solely to remedy the effects of unequal educational op-

portunities not found to have been intentionally im-

posed.

9. Even if the Fourteenth Amendment empowers

Congress to require States and political subdivisions

to provide multilingual assistance to voters, can Con-

gress exercise this power so as to unreasonably inter-

fere with the powers reserved to the States by the Tenth

Amendment and the substantial interest a State may

have in setting policy regarding the number of lan-

guages in which State and local elections shall be con-

ducted.

3. Did Congress act arbitrarily and thus unlawfully

when it adopted legislation requiring a local jurisdic-

tion to provide written election materials in a foreign

language in the event that the illiteracy rate of persons

deemed to be members of that language group (as a

group) is higher than the national illiteracy rate.

4. Did Congress intend that a jurisdiction should be

deemed to have violated the 1975 Voting Rights Act

Amendments when the local officials were acting in

good faith but had not had a reasonable time to comply

fully with the new law.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

1. The Tenth Amendment to the United States Con-

stitution provides:

The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or

to the people.

2. The Voting Rights Act Amendments of 1975,

Title 42 U.S.C. §§ 1973 et seq.’ The particular section

involved here is Title 42 U.S.C. § 1978aa-la(a) and

(b) which provides:

(a) The Congress finds that, through the use of

various practices and procedures, citizens of lan-

guage minorities have been effectively excluded

rom participation in the electoral process. Amon

other factors, the denial of the right to vote of suc

minority group citizens is ordinarily directly re-

lated to the unequal educational opportunities af-

forded them, resulting in high illiteracy and low

voting participation. The Congress declares that,

in order to enforce the guarantees of the four-

teenth and fifteenth amendments to the United

States Constitution, it is necessary to eliminate

such discrimination by prohibiting these prac-

tices, and by prescribing other remedial devices.

(b) Prior to August 6, 1985, no State or politi-

cal subdivision shall provide registration or vot-

ing notices, forms, instructions, assistance, or

other materials or information relating to the elec-

toral process, including ballots, only in the Eng-

lish pg if the Director of the Census deter-

mines (i) that more than 5 percent of the citizens

of voting age of such State or political subdivision

are members of a single language minority and

(ii) that the illiteracy rate of such persons as a

group is higher than the national illiteracy rate:

1. Pub. L. 89-110, Title II, § 203 as added Pub. L. 94-78, Title III, § 301,

August 6, 1975, 89 Stat. 402.

Provided, That the prohibitions of this subsection

shall not apply in any political subdivision which

has less than five percent voting age citizens of

each language minority which comprises over five

percent of the statewide population of voting age

citizens. For purposes of this subsection, illiteracy

means the failure to complete the fifth primary

= The determinations of the Director of the

ensus under this subsection shall be effective up-

on publication in the Federal Register and shall

not be subject to review in any court.

STATEMENT OF THE CASE

I. The Law And Its Applicability To San Francisco.

On August 6, 1975, President Nixon signed into law

amendments to the Voting Rights Act of 1965 which

mandate multilingual elections under specified cireum-

stances.’ As amended the Act provides in pertinent

part:

“Prior to *, jane 6, 1985, no State or political

subdivision shall provide registration or voting no-

tices, forms, instructions, assistance, or other ma-

terials or information relating to the electoral pro-

cess, including ballots, only in the English lan-

guage if the Director of the Census determines (i)

that more than 5 percent of the citizens of voting

age of such State or political subdivision are mem-

bers of a single language minority and (ii) that

the illiteracy rate of such —— as a group is

higher than the national illiteracy rate. * * * ”

42 U.S.C. §1973aa-la(b).

2. Title I of the Voting Rights Act Amendments of 1975 extended the

Voting Rights Act of 1965, Titles II and III expand the Act to require for-

eign language materials and assistance for covered Vie dry.» minority

citizens.” The primary distinction between Titles II and III is that Title II

applies to those jurisdictions where less than 50% of the electors registered

or voted in the most recent presidential election. A jurisdiction covered

under Title II is required to preclear all voting changes with the Depart-

ment of Justice and Federal examiners and observers may be designated to

serve in the covered areas. The premise on which the additional Title II

requirements are based is that the low participation in the election process

is due to discrimination in the election system. H.REP. No. 94-196, 94th

Cong., 1st Sess. (1975), p. 30.

A “language minority group” is defined to include

any persons who are “American Indian, Asian Ameri-

ean, Alaskan Natives, or of Spanish heritage.” 42

U.S.C. §1978aa-la(e). “Illiteracy” means the failure

to complete the fifth primary grade in any school. 42

U.S.C. §1973aa-1a(b). The national illiteracy rate for

voting age citizens is 4.6%.’

For purposes of these multilingual voting rights re-

quirements, the Director of the Census has determined

that a person is deemed to be Chinese and a member of

the Chinese language minority group if the person

identified himself or herself as Chinese in the 1970

census.’ The Director of the Census deems a person to

be of Spanish heritage and thus a member of the Span-

ish language minority group if in the 1970 census the

person was recorded as having Spanish as a mother

tongue, or as living in a family in which the head or

wife was reported as having Spanish as a mother

tongue, or as having a Spanish surname.’ The deter-

minations of the Director of the Census “shall not be

subject to review in any court.’’ 42 U.S.C.

§ 1973-aa-la(b).

The amendments became effective as to San Fran-

cisco on September 9, 1975, when the Director of Cen-

sus published his determination that San Francisco is

covered by the multilingual requirements for Spanish

and Chinese minority language persons." This deter-

3. U.S. Department of Commerce, Current Population Reports, Series

P.25, No. 627, p. 1.

4. According to U.S. Department of Commerce, Subject Report P.C.(2)-

1G, “Japanese, Chinese and Filipino in the United States,” App. 5-6, for

purposes of the 1970 Census, persons were determined to be Chinese lan-

guage minority persons if they identified themselves as being Chinese in

answering a question which asked the respondent to circle the appropriate

racial description.

5. Current Population Reports, supra. pp. 1-2.

6. In its opinion in this case the Ninth Circuit stated that, “[O]n Sep-

tember 3, 1975, the Director of the Census designated San Francisco as a

political subdivision covered by § 1973aa-la(b).” Opinion, p. 2, Appendix

inination was based on the fact that of the 495,519 citi-

zens 18 years old and over residing in San Francisco at

the time of the 1970 census, 5.07% (25,038) were Chi-

nese and 8.9% (43,859) were of Spanish heritage. Of

the Chinese, 15.7% (3,941) had failed to complete the

fifth primary grade, and of the Spanish, 6.7% (2,920)

had failed to complete the fifth primary grade."

In order to vote in California a person must be “a

United States citizen, 18 years of age and resident in

this state.” California Constitution, Article 2, Section 1.

There are very few voting age citizens who do not

have at least a minimal ability to read and speak Eng-

lish since almost all United States citizens have either

been subject to compulsory education in schools where

the basic language of instruction is English, or they

have been required to demonstrate literacy in English

to qualify for citizenship.

In California, full-time education is compulsory for

children between the ages of six and sixteen. Cal. Edu-

cation Code § 48200. English is the basic language of

instruction for children in California schools.* Cal. Ed-

A. In fact, the determination by the Director of the Bureau of the Census

was dated September 3, 1975, but was not actually published in the Federal

aap ev tag “The determinations of the Director of the Census .. . shall

aa upon publication in the Federal Register. . . .” [Emphasis

7. Current Population Reports, supra, p .5.

8. In Lau v. Nichols, 414 U.S. 569 (1974), an HEW condition on federal

financial assistance which required that San Francisco provide English

wenguage = mtn bh rey tery oan wes upheld as within

ope of power gran under Title of the Civil Rights Act

of 1964. Writing for the Court, Mr. Justice Douglas opined hate

: . . those ba not ee En a ose — to find their

classroom ex ences wholly incomprehensible and i -

ingful.” 414 Os. at 566. . oe

Surely this is an overstatement. Some English would be learned in the

educational process even if the process was not as meaningful as it might

have been had the child been fluent in English. In a concurring opinion

Mr. Justice Blackmun, who was joined by the Chief Justice, cautions

— oe the — too _— ly and notes that “earlier gen-

erations of American ethnic groups have overcome th -

rier....” 414 U.S, at 572. rt cao ction

OOOO ooo

ucation Code § 30. These requirements are typical

throughout the United States.*

In order to become a naturalized citizen, under Fed-

eral naturalization law one must “demonstrate an un-

derstanding of the English language, including an abil-

ity to read, write, and speak words in ordinary usage

in the English language.” 8 U.S.C. § 1428. The only

relevant exception contained in this section is for any

person who, on the effective date of this chapter, is over

fifty years of age and has been living in the United

States for periods totaling at least twenty years. This

English literacy provision was enacted on June 27,

1952. Thus the only naturalized citizens affected by

the Voting Rights Act Amendments who have not de-

monstrated literacy in English are the handful who

lived in this country for at least twenty years prior to

mid-1952. These citizens are now at least 76 years of

uge.

Il. San Francisco’s Efforts To Comply With The New Law In

Time For The November 4, 1975 Election.

The President signed the Voting Rights Act Amend-

ments on August 6, 1975; the Director of the Census

designated San Francisco as being covered by the

amendments for both the Chinese and Spanish lan-

guages on September 9; and San Francisco held a ma-

jor municipal election on November 4. During a sub-

stantial portion of this period, from August 18 to Sep-

tember 21, the City was attempting to exist with and

settle a strike of police officers and firefighters. The

November election was important in that the Mayor

and six of the eleven members of the Board of Super-

9. The only significant exception is Puerto Rico where people of voting

age today may have been instructed in Spanish rather than English. In

the 1970 Census, however, out of a total San Francisco population of

715,673, there were only 3,667 (0.5%) persons of an.’ age of Puerto Rican

birth or parentage. U.S. Department of Commerce, General Social and

Economic Characteristics California, Table 81.

risors were running for election. There were also 19

ropositions on the ballot.

On August 6, the day the President signed the

amendments, the Mayor assigned his Economic Analy-

sis Unit to provide assistance to the Registrar of Voters

{Registrar} in developing a plan for complying with

the multilingual voting requirements. The task in-

cluded studying precisely how election material in

Spanish and Chinese could be provided for the Novem-

ber 1975 election and preparing cost estimates and sug-

gested procedures for providing it."

The Chief Administrative officer announced the

City’s plan for a multilingual November election on

September 2, 1975—irthe middle of the police and fire

strike, less than a month after the Voting Rights Act

Amendments were signed by the President, and a week

before the Director of Census published his September

9 determination that San Francisco was covered for

the Spanish and Chinese languages. The plan was pre-

pared and released in the context of both adverse public

reaction to the multilingual election requirements

based at least in part on anticipated cost, and concern

by the language minority community that the City

would not comply fully with the new law. One of the

purposes in releasing the plan was to defuse the con-

controversy over the multilingual election requirement

by settling unfounded rumors." This action is a prime

example of the City’s good faith in attempting to com-

ply fully with the law at the earliest date possible.

Prior to a multi-issue election the San F i

rancisco

Registrar of Voters mails to registered voters a sample

—_ --——

10. Affidavit of R. Dan Gardner, Director, Economic Analysis Unit,

aragraph 1,

oor ito for summary judgment noted at CT 113,

11, See paragraph 2 of Mellon’s lette

mitting the plan, dated September 2, 8 ped orn Lag oy. 7 ts

ballot which is a facsimile of the ballot as it appears

on the voting machine and a voter information hand-

book containing arguments and statements. On about

September 3, 1975, the City let contracts for the very

delicate job of translating and printing the sample

ballot and the voter information handbook for the No-

vember election. San Francisco’s voter information

handbook and sample ballot for the November election

consisted of 184 pages in English, 168 pages in Chinese

and 249 in Spanish.’* The City’s goal was to have the

handbooks and sample ballots available for the October

6 opening of absentee balloting.’* Absentee ballots and

voting instructions were also available in Spanish, Chi-

nese and English for the November election.”

The Registrar made extensive efforts to recruit per-

sons bilingual in English and Spanish, Cantonese or

Mandarin to serve as election officials for the Novem-

ber election. As part of a “notice of inquiry” which will

be described below, the Registrar mailed to all regis-

tered voters a notice in September which, among other

things, asked bilingual voters to call or come by the

Registrar of Voter’s office if they were willing and able

to serve as election officials. In addition, the need for

bilingual election officials was publicized through sev-

eral press releases in English, Spanish and Chinese and

members of the Human Rights Commission staff also

publicized the need among both public and private com-

munity organizations. Over 175 additional bilingual

election workers were recruited as a result of these ef-

forts. Those who spoke Cantonese, Mandarin or

12. Copies of the sample ballot and handbooks in these three languages

ae as Exhibit 3 to City defendants’ memorandum in opposition to aw

tiffs’ motion for an order shortening time for discovery, noted at CT 31

but transmitted separately.

13. See the Affidavit of Quinn, paragraph 3, noted at CT 113 but trans-

mitted separately.

14. Affidavit of Quinn, paragraph 23, noted at CT 113 but transmitted

separately.

Spanish were assigned to precincts in which there were

concentrations of persons of Spanish or Chinese origin.”

The Registrar attempted to reach the minority lan-

guage community with information relating to voter

registration and the availability of election materials

and assistance at the polling places through English,

Spanish and Chinese language press releases distrib-

uted to the minority language media and néighborhood

newspapers as well as to the dominant English-speak-

ing radio and television stations and newspapers.”

Instructions in the use of the voting machines were

placed on each machine used in the November election

in English, Spanish and Chinese. There was no space

for translations of the labels identifying the items to

be voted upon, however, so the labels used on the vot-

ing machines contained the given name of candidates

for office and English words were used to describe the

candidate’s occupation and the titles of the proposi-

tions. The voter unable to read English was permitted

to take up to two persons with him into the voting

booth. In addition, voters were allowed to take into the

voting booth a sample ballot which was a facsimile of

the machine face with its labels but written in Spanish

and Chinese, and a w2lector card which was available

in Spanish and Chinese as well as English. The selector

card was mailed with the sample ballot and voter hand-

book and summarized the ballot choices. The card was

to be marked in advance and taken into the voting

booth to enable the voter to match given names of can-

didates for office and the letter designations for the

propositions appearing on the machine. In view of the

15. See Affidavit of Quinn, paragraphs 11 and 12 and Affidavit of

Mickins, noted at CT 113 but transmitted separately. ave of Coant

16. See the Affidavit of Quinn, paragraphs 21 and 22 and the A

Grant Mickins, noted at CT 113 but transmitted separately. vigor

——

typically long ballot in San Francisco, many English-

speaking voters cast their ballot using the selector card

as a guide.”

In planning for multilingual elections in San Fran-

cisco, the City officials decided to identify the persons

who desired either oral assistance in Spanish, Canto-

nese, Mandarin, or Tagalog (a Filipino dialect) or

written assistance in Spanish or Chinese, and to serve

these people specifically while avoiding the enormous

cost and waste of providing trilingual election mate- —

rials and information to all persons registered to vote.

To this end a “notice of inquiry” written in four lan-

guages was mailed to all registered voters asking those

who desired bilingual assistance or information to

make a check mark in the appropriate box and to re-

turn the enclosed self-addressed, postage-paid post-

card.” The notice of inquiry generated a return of

about 1400 requests for Chinese or Spanish election

materials.”

The City made other efforts to reach persons who

needed election materials in Spanish or Chinese. Sam-

ple ballots were mailed to all voters in English, Chinese

and Spanish. The English version of the voter infor-

17. Affidavit of Quinn, paragraphs 13 and 14, noted at CT 31 but trans-

mitted separately.

18. Oral assistance in Tagalog was included to comply with a State law

requiring “appropriate efforts . . . to minimize obstacles to voting by citi-

zens who lack sufficient skill in English to vote without assistance.” Cal.

Elections Code § 1635(c).

19. This correspondence a ry as Exhibit 2 to Defendants’ opposition

to shortening time, noted at $1 but transmitted separately; see also the

ae of Quinn, paragraphs 4 and 5, noted at CT 113 but transmitted

separately.

20. There were 783 requests for written information in Chinese and 580

in Spanish. The requests for oral assistance were: Cantonese, 362; Man-

darin, 34; Spanish, 208; and Tagalog, 70. CT 186-187. The difference in

the cost between sending 600 pages of voter handbooks in three languages

to all of San Francisco’s registered voters, and sending a handbook in

English to all with one in Spanish or one in Chinese to the persons who

requested it is obvious. The cost of compliance for the November election

was estimated at $125,000. (CT 51)

12 ©

mation handbook contained on the inside cover a note

in Spanish, Chinese and English indicating that the

handbook was available at the Registrar’s Office. Hand-

books in Chinese and Spanish were distributed in the

neighborhoods having concentrations of Spanish and

Chinese origin persons. And, finally, the sample ballot

in all three languages was posted at the polling places

and there was a poster at the polling places indicating

that written materials (referring to the ballots and

handbooks) were available in English, Spanish and

Chinese.”

Voter registration for the November 4, 1975 election

closed on October 5, 1975. No effort was made to pro-

vide multilingual registration materials for the elec-

tion since, as a practical matter, there was simply not

enough time between the effective date of the 1975

Amendments, September 9 and October 5, when reg-

istration closed, to get the voter registration forms

printed in Spanish and Chinese and distributed to the

volunteers (primarily from interest groups) who tra-

ditionally conduct most of the voter registration effort

in San Francisco. Futhermore, after mid-September it

became an administrative necessity to delay purchas-

ing trilingual registration affidavits because a statute

authorizing postcard registration for Californians be-

ginning July 1, 1976 was enacted.”

There were additional administrative reasons for

not providing a trilingual version of the registration

affidavit then in use. The print on the present affidavit

was so crowded that the affidavit could not be published

in two or three languages without either eliminating

some of the questions (most of which were required by

21. Affidavit of Quinn, paragraphs 7 and 9 and Affid

paragraph 7, noted at CT 113 but transmitted separately. ee

22. Ch. 704 of the California Statute

ernor on September 15, 1976. utes of 1975 was signed by the Gov-

State law), reducing the size of the print to an unread-

able size, or changing the size of the form.”

Since it was not an acceptable adjustment to reduce

the size of the print on the current affidavit, or to leave

off items required by State law, or to convert to a dif-

ferent size form until the State converted to a postcard

registration form, or to have affidavits solely in Span-

ish or Chinese, it was decided to wait and adopt new

registration affidavits in Chinese and Spanish on a

form identical to the one which it was anticipated

would be adopted early in 1976 by the Secretary of

State for postcard registration. It was anticipated that

adoption of the form would be in sufficient time to al-

low for purchase of trilingual registration forms for

the voter registration activity that would pecede the

June 1976 primary.”

Ill. Summary Of The Proceedings In This Action,

The complaint in this case was filed on October 21,

1975, six weeks after the effective date of the multi-

lingual voting requirements. (CT 1) The Chinese and

Spanish American plaintiffs sought declaratory and

injunctive relief against both the City defendants and

the United States Attorney General and the Assistant

Attorney General for Civil Rights for alleged violations

of their rights under the Voting Rights Act Amend-

ments. (CT 1-31)

On November 17, 1975, the City defendants filed a

motion to dismiss the action pursuant to Rule 12(b)

(6) of the Federal Rules of Civil Procedure. (CT 75)

24. A copy of the registration affidavit appears as Exhibit 5 to de-

fendants’ opposition to shortening time, noted at CT 31 but transmitted

separately.

24, Affidavit of Leguennec, page 3, noted at CT 31 but transmitted sepa-

rately. Affidavit of Quinn, paragraph 19, noted at CT 113 but transmitted

separately and Supplementary Affidavit of Quinn, page 2, CT 183.

Subsequently, on November 26, the City defendants

also filed a motion for summary judgment.” Following

extensive briefing and oral argument the District

Court dismissed the action in its entirety as “prema-

ture,” but without prejudice. (CT 212) Although there

was no motion to dismiss by the Federal defendants on

file, an oral motion made at the hearing on the City de-

fendants’ motion was also granted by the District

Court. That order provides in relevant part:

“The Court now fina. as follows:

“1. There has been no indication that defend-

ants are acting in other than good faith; and

“2 The public interest requires that defendants

be given a reasonable period of time to meet the

requirements of the law in a reasonable fashion

... » Appendix B

Thereafter the plaintiffs filed their notice of appeal.

(CT 216)

On appeal the case was briefed and argued primar-

ily on the opposing claims of the plaintiffs and the City

defendants over whether the action was premature and

whether the City was in compliance with the Voting

Rights Act Amendments. The appeal was not perfected

as against the Federal defendants.

The Ninth Circuit vacated the District Court order

and remanded the case for further proceedings. It ob-

served in its opinion that:

“The determination, in early September, that

the city was subject to § 1973aa-la(b) left the city

a a few days in which to make the contracts

and accomplish the changes necessary to modify

its election procedures to hg with the Act be-

fore the November elections. However, shortage

of time will not necessarily shield election officials

25. Non-reproducible document, see CT 113,

from the diligent assertion of rights under the

Act. It is Congress’s intention to eradicate voting

discrimination with all possible speed. Briscoe v.

Bell, 432 U.S. 404, 410 (1977). The law imposes a

duty on parties having grievances based on dis-

eriminatory practices to bring their complaints

forward for preelection adjudication. Toney v.

White 488 F.2d 310, 314 (5th Cir. 1973). There-

fore, the complaint was not ‘premature,’ even

though it may have been highly inconvenient. The

city could have been protected by the conditions of

any injunction from unreasonable or impossible

burdens.”’ Appendix A, p. 2.

The constitutionality of the multilingual election re-

quirements is being raised for the first time in this

Petition for a Writ of Certiorari. As evidenced by the

very significant efforts the City made to comply with

the requirements when first enacted, the City chose

initially to comply with the new law rather than chal-

lenge its legality. However, passage of “Proposition

13” and the movement for tax reform which began in

California and is now being considered across the na-

tion have placed local governments in a very difficult

situation. Every expenditure of public funds not ab-

solutely mandated by law is being re-examined and

evaluated in terms of its social utility. Where the City

is considering the closure of hospitals and fire stations

and cutting back on other public services essential to

the health, welfare and safety of its residents it needs

to know whether it must expend money to conduct mul-

tilingual elections or whether this item of expense may

be weighed against others.

Because the constitutionality of Title III of the Vot-

ing Rights Act Amendments of 1975 are in issue the

provisions of 28 U.S.C § 2403 may be applicable. No

court has certified to the Attorney General the fact

that the constitutionality of an Act of Congress has

been drawn into question in this case. The Attorney

General has participated in the case, however, as a de-

fendant in the District Court and as an Amicus Curiae

in the Ninth Circuit.

AR\>UMENT

i, Congress Does Not Have The Power Under Section 5 Of The

Fourteenth Amendment To Require A State Or Ite Political

Subdivisions To Conduct Multilingual Elections Without A

Finding Of Intentional Voting Discrimination And Solely To

Remedy The Effects Of Unequal Educational Opportunities

Not Found To Have Been Intentionally Imposed.

The instant case presents the issue of whether Con-

gress has the power under Section 5 of the Fourteenth

Amendment to require a state or political subdivision

to conduct multilingual elections where there has been

no finding of intentional voting discrimination” and

where the sole reason given is the need to remedy the

effects of unequal educational opportunities for lan-

guage minorities which also were not found to have

been intentionally imposed,

It is now well established that the Equal Protection

Clause of the Fourteenth Amendment proscribes only

invidious, intentional discrimination. Washington vy.

Davis, 426 U.S, 229, at 288-48 (1976) (employment

tests which had a disparate racial impact did not estab-

lish a violation of the Equal Protection Clause absent

a racially discriminatory purpose) ; Village of Arling-

ton Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252 (1977) (same as to the denial of a

zoning variance to permit a low and moderate income

oe ee

26. In fact, in California there are statutes which require the counties

to make efforts to provide bilingual assistance in regiatration and votin

to persons who lack sufficient akilla in English to register or vote withou

nm 7 Smaaiaais Elections Code § 802(c¢) and (d) and § 1686(b),

c) an :

housing project). Therefore, Congress in enacting leg-

islation to remedy Fourteenth Amendment violations

pursuant to its power under Section 5 of the Four-

teenth Amendment must be acting on the basis of a

finding, either express or capable of being inferred,

that the jurisdictions subject to its regulation have, in

fact, committed intentional and therefor unconstitu-

tional discrimination,

In enacting Title III of the 1975 Amendments to the

Voting Rights Act Congress made no finding that the

legislation was necessary to eliminate or to prevent in-

tentional discrimination in the election system, Con-

gress’s findings are set forth in 42 U.S.C,

§ 1978aa-la(a) which provides:

“The Congress finds that, through the use of vari-

ous practices and procedures, citizens of language

minorities have been effectively excluded from

yarticipation in the electoral ‘cop aps Among other

factors, the denial of the right to vote of such mi-

nority group citizens is ordinarily directly related

to the unequal educational opportunities afforded

them, bak, in high illiteracy and low voting

articipation. The Congress declares that, in or-

oe to enforce the guarantees of the fourteenth and

fifteenth amendments to the United States Con-

stitution, it is necessary to eliminate such dis-

crimination by prohibiting these practices and by

prescribing other remedial devices.” (Emphasis

added),

The distinction between Title II with its more exact-

ing requirement (not applicable to San Francisco) that

the Department of Justice preclear any change in the

election system of a covered jurisdiction and Title IIT

is described in the House Committee on the Judiciary

Report on the legislation ;"

27. The various titles in the Voting Righta Act Amendments of 1975 are

described in footnote 2 on p, 4,

“Title III of H.R. 6219, like Title II, seeks to en-

franchise citizens of four language minority

groups (persons of Spanish heritage, Asian Amer-

icans, American Indians, and Alaskan natives)

which have been excluded from the elecioral pro-

cess because of their inability to speak, write, or

understand English, The line between Title II and

Title III is based on the severity of voting discrim-

ination a such language minorities, The evi-

re be ore the or penn por re he that the

voting problems of language minority groups are

not uniform in all parts oft the country. That evi-

dentiary record is reflected in the different find-

ings made under the two titles, 7'he less stringent

provisions of Title III are based largely on the un-

equal educational opportunities which language

minorities have suffered at the hands of state and

local officials. In contrast, the more severe reme-

dies of Title I] are premised not only on education-

al disparities, but also on evidence that language

minorities have been subjected to ‘physical, eco-

nomical, and political intimidation’ when the

seek to participate in the electoral process.” H.

REP, No, 94-196, 94th Cong., Ist Sess. (1975) pp.

29-30. [Emphasis added.)

Thus the Legislative findings on which the statute

is based make it clear that in adopting Title III Con-

gress was imposing a duty on jurisdictions which had

not been found by Congress to have intentionally

denied the right to vote to any racial or other group.

Rather, Congress sought to remedy unequal education-

al opportunities which language-minority children

have experienced in the educational process due to the

school’s failure to provide bilingual education, H.REP.

No, 94-196, supra, pp. 25-26, And even the educational

deprivation was not treated as intentional and thus

could not have been a violation of the Fourteenth

Amendment. The central issue then is under which

—

circumstances may Congress, pursuant to its Four-

teenth Amendment enforcement powers, impose affirm-

ative obligations on the state’s administration of their

elections to remedy unequal educational opportunities

which themselves were not violations of the Fourteenth

Amendment.

Although Congress may legislate on the basis of less

than conclusive proof of intentional, invidious discrim-

ination, it is not free to enact measures under the Four-

teenth Amendment which are merely desirable, They

must be aimed at eliminating or preventing intention-

al, invidious discrimination, This conclusion is based

on this Court’s holdings in Washington v. Davis and

in Arlington Heights, discussed above, that a state does

not violate the equal protection rights of its citizens

merely because a state law or procedure fairly and ra-

tionally conceived adversely affects some identifiable

minority.

In University of California Regents v. Bakke, 98

S.Ct. 2788 (1978), Mr. Justice Powell commented as

follows on the scope of Title VI of the Civil Rights Act

of 1964:

“In view of the clear legislative intent, Title VI

must be held to proscribe only those racial classi-

fications that would violate the Equal Protection

Clause of the Fifth Amendment.” 98 S, Ct. at 2747,

Lau v. Nichols, 414 U.S. 568 (1974), does not re-

quire a different result. Lau upheld a requirement un-

der Title VI of the Civil Rights Act of 1964 that a local

jurisdiction provide materials or instructions in other

than English where necessary to assure more equal op-

portunities for language minority children, There was

no finding of intentional deprivation.

Writing for himself and three other members of the

Bakke Court, Mr. Justice Brennan discussed this theme

further and in doing so he cast doubts on the continu-

ing vitality of the Lau analysis and result:

“We recognize that Lo», especially when read in

light of our subsequent decision in Washington v.

Davis, 426 U.S. 229 (1976), which rejected the

general proposition that governmental action is

unconstitutional solely because it has a racially

disproportionate impact, may be read as being

predicated upon the view that, at least under some

circumstances, Title VI proscribes conduct which

might not be prohibited by the Constitution. Since

we are now of the opinion, for the reasons set forth

above, that Title VI’s standard, applicable alike

to public and private recipients of federal funds, is

no broader than the Constitution’s we have serious

doubts concerning the correctness of what appears

to be the premise of that decision... .” [Emphasis

added.} 98 S.Ct. at 2780.

Implicit in this comment is the proposition that Con-

gress’ power is limited to prohibiting and prescribing

under Section 5 of the Fourteenth Amendment reme-

dies for intentional discrimination prohibited by the

Fourteenth Amendment.

In the instant case the only justification for enact-

ment of the requirements in Title III suggested by

either the legislation or the legislative history was a

history of unequal educational opportunities not invi-

dious by or intentionally imposed. In view of Wash-

ington v. Davis, and Arlington Heights, supra, it is

now clear that Congress was acting in excess of its au-

thority in enacting Title III of the Voting Rights Act

Amendments of 1975.

II. Even If The Fourteenth Amendment Empowers Congress

To Require States And Political Subdivisions To Provide

Multilingual Assistance To Voters, It Must Exercise This

Power So As Not To Interfere Unreasonably With The Pow-

ers Reserved To The States By The Tenth Amendment And

The Substantial Interest A State May Have In Setting Policy

Regarding The Number Of Languages In Which State And

Local Elections Are Conducted.

The City believes that a line must be drawn between

the powers of Congress under the Fourteenth Amend-

ment and the powers reserved to the states under the

Tenth Amendment; and that even if Congress had

authority to enact bilingual voting requirements, Title

III of the Voting Rights Amendments and the inter-

pretive guidelines under it interfere unnecessarily

with the rights of a state to regulate its own elections

and to chose the primary language in which they are

conducted.

Congress’ attempt to require multilingual elections

arises as an extension of the ban on literacy tests. In

Lassiter v. Northampton County Board of Election,

360 U.S. 45 (1950), the Court held that in the absence

of proof that it was being used for discriminatory pur-

poses or being applied in a discriminatory fashion, the

State of North Carolina did not violate the Fourteenth

Amendment in imposing a literacy test which was fair

on its face. Literacy tests were subsequently banned

through provisions in the original Voting Rights Act

of 1965 and amendments thereto. In each instance the

Court upheld the ban on the basis of either Congres-

sional power to enact legislation under the Fifteenth

Amendment, which prohibits racial discrimination in

voting, or under the Equal Protection Clause of the

Fourteenth Amendment.”

28. The Tenth Amendment provides: “The powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.”

29. The original Voting Rights Act of 1965 suspended literacy and other

voting tests in states and political subdivisions where less than 50% of the

voting-age residents were registered to vote or voted in the residential

election of 1964. 42 U.S.C. § 1973b. This ban was upheld under the Fif-

It does not follow from the fact that Congress has the

power to ban literacy tests, however, that Congress

also has the power to require the conduct of all aspects

of elections in multiple languages. An election con-

ducted solely in English may make it more difficult for

persons who are not fluent in English to vote, but it

does not operate as an absolute bar to their voting as

does a literacy test. The more narrow question then is

whether Congress may, consistent with the powers re-

served to the States, require State and local jurisdic-

tions to conduct multilingual elections to the extent

required by Title III and the Department of Justice

guidelines adopted under it.

Title III and the interpretive guidelines promulgated

by the Department of Justice” illustrate the complex-

ity of running an election, the degree to which the De-

partment of Justice as the policing organ for the Fed-

eral government must necessarily get involved in de-

cisions affecting the running of the election in deter-

mining what is compliance with the multilingual elec-

tion requirements, and the degree to which the multi-

lingual requirements affect the conduct of an election.

The Act itself provides that the multilingual re-

quirements apply to the provision of

“registration or voting notices, forms, instruc-

teenth Amendment in South Carolina v. Katzenbach, 383 U.S. 301 (1966).

The 1965 legislation also provided that no person who had successfully

yr eye the sixth primary grade in a school within the territorial juris-

diction of the United States in which the ——— of instruction was other

than English, i.e., what are commonly erred to as “American flag

schools” in Puerto Rico, could be denied the right to vote because of his

inability to read or write English. In Katzenbach v. Morgan 384 U.S. 641

(1966), this provision was upheld as within Congress’ enforcement power

under Section 5 of the Fourteenth Amendment on, among other unds

the need to remedy the effects of past discrimination. In 1970 Gunquess

amended the Act and suspended for 5 years all literacy tests everywhere

in the United States. This action was upheld by the Court in Oregon v.

Mitchell, 400 U.S. 112 (1970), under the Equal Protection Clause of the

Fourteenth Amendment and the Fifteenth Amendment.

30. They appear at 41 F.R. 29998, 28 C.F.R. § 55.1 et seq.

tions, assistance, or other materials or informa-

tion relating to the electoral process, including bal-

lots.” 42 U.S.C. § 1973aa-la(b).

In its interpretive guidelines the Department of Jus-

tice warns with reference to this language that it

“should be broadly construed to apply to all

stages of the electoral process, from voter regis-

tration through activities related to conducting

elections, including, for example the issuance, at

any time during the year, of notifications, an-

nouncements, or other informational materials

concerning the opportunity to register, the dead-

line for voter registration, the time, places and

subject matters of elections, and the absentee vot-

ing process.” 28 C.F.R. § 55.15.

Application of these multilingual election require-

ments is particularly complex in San Francisco where

the statute requires assistance to Chinese speaking cit-

izens. Although there is only one written language,

there are a number of dialects. Most San Franciscans

who speak Chinese either speak Cantonese or Man-

darin. In this connection the Department of Juctice

warns that it is the obligation of the local jurisdiction

“to ascertain the dialects that are commonly

used by members of the applicable language mi-

nority group in the jurisdiction and to provide

oral assistance in such dialects.” 28 C.F.R. § 55.20.

Section 55.20(c) goes into detail regarding the use of

interpreters, or “helpers” as they are called :

“With respect to the conduct of elections, the lo-

cal jurisdiction will need to determine the number

of helpers (i.e., persons to provide oral assistance

in the minority language) that must be provided.

In evaluating the provision of assistance, the At-

torney General will consider such facts as the

number of a precinct’s registered voters who are

members of the applicable language minority

group, the number of such persons who are not

apne in English, and the ability of a voter to

assisted by a person of his own choice. The basic

standard is one of effectiveness.”

Written election materials raise translation prob-

lems. Since there is often a difference between the

language in common use and the formal language, and

because words cannot always be translated on a one

for one basis, questions of the accuracy and complete-

ness and the effectiveness of a translation may arise.

In 28 C.F.R. § 55.2(b), the Department of Justice

states that one of the two basic standards which will

be applied by the Attorney General in measuring com-

pliance with the multilingual voting requirement is

“that materials and assistance should be pro-

vided in a way designed to allow members of ap-

plicable language minority groups to be effectively

informed f and participate effectively in voting-

connected activities. ...’’ [Emphasis added.]

In the provisions relating specifically to the accur-

acy and completeness of written materials the guide-

lines provide that

“the Attorney General will consider whether the

jurisdiction has consulted with members of the

applicable language minority group with respect

to the translation of materials.” 28 C.F.R.

§ 55.19(b).

The problems arising from differences within a

single language are often impossible to resolve very

satisfactorily. In San Francisco there is a diverse,

heterogeneous Spanish speaking population with peo-

ple coming from all countries in Latin America, from

Mexico to the Tierra de] Fuego. Each has its own polit-

ical system and institutions. How, for example, does a

translator render in Spanish the office of the “City At-

torney” when such an office simply does not exist in

most Latin-American (civil law) countries, and where

there is some equivalent it inevitably has six different

names in six different countries.

The interest of a State and its political subdivisions

in limiting the multilingual aspects of the election sys-

tem is evident from even this incomplete review of the

problems inherent in a multilingual election system.

The most eloquent description of the level of involve-

ment in local affairs by the federal government which

may flow from the multilingual voting requirements

appears in paragraph “b” of the prayer for relief in

a new suit against San Francisco under the Voting

Rights Act Amendments filed by the Attorney General

on October 27, 1978. United States of America v. City

and County of San Francisco, et al., U.S. D.C., N.D.

Cal., No. C-78-3521-CFP.” It includes everything

from requiring the City to develop a glossary of key

election-related words in English and applicable mi-

nority languages for election officials (sub-para. 4),

to establishing a “cooperative working relationship

between the office of the Registrar and community

groups in language minority communities” (sub-para.

7), and to providing “community groups interested in

voter registration, access to addressees of all wnreg-

istered residences” (suv-para. 8, emphasis added).

What is most significant about this prayer is that it

does not depart in substantial degree from what Title

III and the interpretive guidelines purport to require.

This federal involvement in the conduct of elections

constitutes a serious displacement by the federal gov-

ernment of a state’s power to order its own affairs and

set priorities for the allocation of limited human and

fiscal resources to deal with an infinite number of prob-

31. A copy of the complaint appears as Appendix C hereto. Paragraph

(b) begins on p. 6.

lems. A state’s decision to conduct its elections pri-

marily in English must be recognized as a considered

judgment by the people of that state through their

elected and appointed officials of how best to admin-

ister a basic institution in a democratic society, the

electoral process.

The most analagous attempt by Congress to regu-

late the conduct of elections in recent years was the

attempt to lower the minimum voting age in state and

local elections from,21 to 18. This legislation was

struck down in Oregon v. Mitchell, 400 U.S. 112

(1970). The plurality opinion upheld the power of Con-

gress to lower the voting age in federal elections while

overruling the attempted exercise by Congress of the

power to regulate age limits in state elections. In con-

cluding that it was beyond the reach of Congress to

impose a lower minimum voting age on state and local

elections Mr. Justice Black observed in a separate

opinion:

“rT jhe Constitution was also intended to preserve

to the States the power that even the Colonies had

to establish and maintain their own separate and

independent governments, except insofar as the

Constitution itself commands otherwise. My

Brother Harlan has persuasively demonstrated

that the framers of the Constitution intended the

States to keep for themselves, as provided in the

Tenth Amendment, the power to regulate elec-

tions. 400 U.S. at 124-25; [footnote Omitted)

* * * *

‘No function is more essential to the separate and

independent existence of the States and their gov-

ernments than the power to determine within the

limits of the Constitution the qualifications of

their own voters for state, county, and municipal

offices, and the nature of their own machinery for

filling local public offices. [400 U.S. at 125; empha-

sis added, citations omitted]

» * * *

“In interpreting what the Fourteenth Amendment

means, the Equal Protection Clause should not be

stretched to nullify the States’ powers over elec-

tions which they had before the Constitution was

adopted and which they have retained throughout

our history. [400 U.S. at 126)

+ * + *

“While this Court has recognized that the Equal

Protection Clause of the Fourteenth Amendment

in some instances protects against discriminations

other than those on account of race, {footnote and

citations omitted] it cannot be successfully argued

that the Fourteenth Amendment was intended to

strip the States of their power, retain preserved

in the original Constitution, to govern t emselves.”’

400 U.S. at 127-8.

In another separate opinion Mr. Justice Harlan dis-

sented from the result of the decision that Congress

could reduce the minimum age for voting in federal

elections stating that:

“It is difficult to see how words could be clearer

in stating what Congress can control and what it

cannot control. Surely nothing in these provisions

lends itself to the view that voting qualifications in

federal elections are to be set by Congress. The

reason for the scheme is not hard to find. In the

Constitutional Convention, Madison expressed the

view that: ‘The qualifications of electors and

elected were fundamental articles in a Republican

Govt and ought to be fixed by the Constitution. If

the Legislature could regulate those of either, it

ean by — subvert the Constitution.’ 2 M.

Farrand. Records of the Federal Convention of

1787, pp. 249-250 (1911).” 400 U.S. at 210-11.

In short, it is one thing for Congress acting under

the Equal Protection Clause of the Fourteenth Amend-

ment to prohibit the imposition of a literacy require-

ment which absolutely precludes a person who has re-

ceived an inferior education because of an inadequate

educational system from exercising his or her funda-

mental right to vote, It is an entirely different thing

for Congress to attempt to burden the electoral system

with the conduct of totally multilingual elections in

order to compensate for disabilities which do not pre-

clude participation in the election process and which

are not imposed for discriminatory reasons.

An English literacy requirement in California was

struck down in 1970 by the California Supreme Court

in Castro v. State, 2 Cal.8d 223 (1970). The California

Supreme Court upheld the constitutionality of English-

only elections, however. The California Court con-

cluded, as should this Court:

“It is clear that the goal of efficient and inexpen-

sive administration, while F oven tata cannot

Ts depriving citizens of fundamental rights.

ut this does not imply that the state must not

only provide all qualified citizens with an equiva-

lent ss Magpiaeon 4 to exercise their right to vote, but

must also provide perfect conditions under which

such right is exercised. The equal protection clause

does not require, for example, that California pro-

vide explanatory material (see Elec. Code § 3566)

of varying degrees of complexity and sophistica-

tion even though the ability to comprehend an anal-

ysis of a technical ballot measure may vary widely

among voters. Similarly, California is not required

to adopt a bilingual electoral apparatus as a result

of our decision today that it may no longer exclude

Spanish literates from the polls. T'he state interest

in maintaining a single language system is sub-

stantial and the provision of ballots, notices, ballot

mphlets, etc., in Spanish is not necessary either

to the formation of intelligent opinions on election

issues or to the implementation of those opimons

through the mechanics of balloting. It reasonably

may be assumed that newly enfranchised voters

who are literate in Spanish can pecan themselves

to vote through advance study of the sample ballots

with the assistance of others capable of reading

and translating them... .” 2 Cal.3d at 242. (Em-

phasis added.}

As mentioned previously, the only instance in which

this Court has upheld a requirement that a iocal juris-

diction provide instruction in other than English is Lau

v. Nichols, 414 U.S. 563 (1974), where the Court up-

held U.S. Department of Health, Education and Wel-

fare regulations issued pursuant to Title VI of the Civil

Rights Act of 1964, requiring a school district receiving

federal financial assistance to provide bilingual educa-

tional opportunities to minority language school chil-

dren. Even if Lau continues to have vitality, it is not

authority for the degree of intrusion into local elec-

tions called for by Title III and its interpretive guide-

lines. As Mr. Justice Douglas noted, the federal gov-

ernment was not attempting to dictate a particular

remedy for this disadvantage :

“No specific remedy is urged upon us. Teaching

English to the students of Chinese ancestry who do

not speak the language is one choice. Giving in-

structions to this group in Chinese is another.

There may be others. Petitioners ask only that the

Board of Education be directed to apply its ex-

pertise to the problem and rectify the situation.

414 U.S. at 564-5. ;

The general requirement that San Francisco “apply

its expertise” to remedying the disadvantage of non-

English speaking children in the educational process

is in stark contrast to the detailed requirements which

Congress has imposed through the 1975 Voting Rights

Act Amendments. See the discussion at pp. 22-24,

supra,

Elections, furthermore, do not involve young chil-

dren. They do not involve persons who are the intended

beneficiaries of federal financial assistance. Elections

are infrequent. The contact of the minority language

adult with the election system is not of long duration.

It may not always be convenient, but it is not a great

hardship for the elector to seek out his English-speak-

ing contacts and support groups for assistance in reg-

istering or in casting his ballot.

These facts coupled with the fact that there are very

few minority language citizens of voting age who do

not have some ability in English, see the discussion at

pp. 6-7, supra, make it clear that the line between what

Congress can require of the elective process pursuant

to Section 5 of the Fourteenth Amendment, and what

is reserved to the States pursuant to the Tenth Amend-

ment, should be drawn far short of permitting Con-

gress to require the states and their political subdivi-

sions to conduct totally multilingual elections,

For a recent affirmation of the principle that the

Tenth Amendment articulates a constitutional limita-

tion on Congress’ power, see National League of Cities

v. Ussery, 426 U.S. 8338, 845-6 (1976). For federal

appellate decisions rejecting the notion that the Equal

Protection Clause requires states to administer their

affairs bilingually, see Frontera v. Sindell, 422 F.2d

1215 (6th Cir. 1975) (civil service exam does not have

to be conducted in Spanish for Spanish-speaking appli-

cant); and Carmona v. Sheffield, 475 F.2d 788 (9th

Cir. 1978) (California is not required to provide no-

tices of rights under the unemployment laws in other

than English).

ama a

For these reasons we respectfully contend that even

if Congress has authority to require electoral aid for

language minorities, it has far overstepped that au-

thority in enacting Title III of the Voting Rights

Amendment of 1975,

Ill. Even If The Fourteenth Amendment Empowers Congress

To Require States And Political Subdivisions To Provide

Multilingual Assistance To Voters, Congress Acted Arbi-

trarily And Thus Unlawfully When It Adopted Legislation

Requiring A Local Jurisdiction To Provide Written Elee-

tion Materials In A Foreign Language In The Event That

The Iliteracy Rate Of Persons Deemed To Be Members

Of That Language Minority Group (As A Group) Is Higher

Than The National Illiteracy Rate.

Under 42 U.S.C. Section 1978aa-1la, a State or politi-

cal subdivision must provide materials and information

relating to the election process in a foreign language if

more than 5% of its voting age citizens are members

of that “language minority” and “if the illiteracy rate

of such persons as a group is higher than the national!

illiteracy rate... .” “Tlliteracy”’ is defined as the failure

to complete the fifth primary grade in any school any-

where.

The method used by the Census Bureau to identify

who is Chinese or Spanish is such that Chinese or Span-

ish-heritage persons are included in the count if they

have a Spanish surname or believe themselves to be

members of the Chinese race regardless of what lan-

guage they speak.” It is a commonly known fact that

in California there are substantial numbers of Chinese

and Spanish heritage persons who can trace their fam-

ilies back in California for well over a century. Thus,

the Census Bureau identification of persons as Chinese

or of Spanish heritage includes an unknown but sub-

82, See footnote 4, supra, page 5.

stantial number of persons who do not need foreign

language assistance to participate effectively in the

electoral process,

Even more significant, the statutory measure of per-

sons who are illiterate (i.e., have not completed the

fifth grade in any school) as a device to trigger the re-

quirement that written election materials be provided

in another language is absurd. It is obvious that the

person who has failed to complete the fifth primary

grade in avy school is not likely to find election ma-

terials in ayy language to be of much assistance.

As 4 matter of law, therefore, the failure to complete

the fifth primary grade in any school coupled with a

Spanish surname or the identification of oneself as

Chinese is not a rational basis for requiring a local

jurisdiction to provide written materials in Spanish or

Chinese. The only sound conclusion is that even if the

Fourteenth Amendment empowers Congress to require

State and political subdivisions to provide multilingual

assistance to voters, Congress acted arbitrarily and

thus in excess of its authority when it adoped legisla-

tion requiring the States and political subdivisions to

provide multilingual written election materials on the

basis of these criteria,

For the reasons stated, even if the Court concludes

that Congress had the power to require States and their

political subdivisions to provide multilingual assist-

ance orally, the requirement that they provide written

materals on a finding that the illiteracy rate of the par-

ticular language minority is higher than the national

illiteracy rate should be declared unconstitutional.

IV. Congress Did Not Intend That.A Jurisdiction Should Be

Deemed To Have Violated The New Voting Rights Amend-

ments When The Local Officials Were Acting In Good

Faith But Had Not Had A Reasonable Time To Comply

Fully With The New Law.

The District Court dismissed the complaint as ‘“‘pre-

mature” because of its finding that the City was acting

in good faith and was entitled to a reasonable time to

come into compliance with the new multilingual re-

quirements. In vacating this decision and remanding

the case the Ninth Circuit reasoned as follows:

“Shortage of time will not corgeqersh shield elec-

tion officials from the diligent assertion of rights

under the Act. It is Congress’s intention to eradi-

cate voting discrimination with all as speed.

Briscoe v. Bell, 432 U.S. 404, 410 (1977). The law

imposes a duty on parties having grievances based

on discriminatory practices to bring their com-

laints forward for “peagiry, adjudication,

—_ v. White, 488 F.2d 310, 314 (5th Cir, 1973).

Therefore, the complaint was not ‘premature,’ even

though it may have been po a age The

city could have been protected by the conditions of

any injunction from unreasonable or impossible

burdens. pier We Ss

“Because a federal claim based on a denial of vot-

ing rights has no deep common law roots, there is

no well-defined common law defense of good faith

to such a claim. Since good faith is not a defense

to the violations alleged in this case, dismissal of

the complaint on the ground of good faith was

error.” Appendix A, p. 2.

In stating that “{t)he city could have been protected

by the conditions of any injunction from unreasonable

or impossible burdens,” the Ninth Circuit clearly as-

sumed that the City had violated the new Voting Rights

Amendments and that an injunction to direct the City

officials in complying wih the amendments would be

appropriate notwithstanding the fact that the City was

acting in good faith and had not had a reasonable time

to comply fuliy with the recently imposed requirements.

As described fully in the Statement of the Case, supra,

the record in the instant case documents in exhaustive

detail the procedures adopted on very short notice by

the City and the many actions taken to bring the City

into compliance with the multilingual election require-

ments at the earliest practicable time.

The ruling by the Ninth Circuit apparently assumes

that Congress intended that, upon designation by the

Director of the Census, a jurisdiction must comply

immediately with the new multilingual requirements.

Logically this would appear to be true even as to an

election occurring the day after designation. This anal-

ysis assumes an irrational Congress, paints the City as

a law violator even though it could not possibly have

complied fully with the new law and leads to judicial

control over the City’s elections for no sound reason.

We contend that Congress intended no more than

prompt, good faith and reasonable compliance with the

new law, and that if it intended more than this it acted

arbitrarily and in excess of its authority under Section

5 of the Fourteenth Amendment. If allowed to stand

the Ninth Circuit decision will necessarily involve the

federal courts in decisions very similar to those which

have been recognized as beyond the purview of the fed-

eral courts unless discrimination in violation of the

Fourteenth Amendment is established. See Rizzo v.

Goode, 423 U.S. 362, at 648 (1976) ; Millikin v. Brad-

ley, 418 U.S. 717 at 744 et seg. (1975) ; and Mayor of

City of Phila. v. Educational Equality League, 415 U.S.

605, at 614 et seq. (1974).

Therefore, even if the constitutionality of Title III

of the Voting Rights Act Amendments of 1975 is up-

held, we urge the Court to reverse the decision of the

Ninth Circuit and recognize, as did the District Court,

that Congress intended that jurisdictions making a

good faith attempt to comply with the law be given a

reasonable time to come into compilance with it.

CONCLUSION

for the reasons set forth above, it is respectfully

urged that this Court should grant the Petition for a

Writ of Certiorari and set aside the decision of the

Ninth Circuit Court of Appeals.

Dated : November 20, 1978.

Respectfully submitted,

GEORGE AGNOST

City Attorney

BuRK E. DELVENTHAL

Deputy City Attorney

JUDITH L, TEICHMAN

Deputy City Attorney

Attorneys for Petitioners

APPENDIX A

A—1

United States Court of Appeals

For the Ninth Circuit

CHINESE FOR AFFIRMATIVE ACTION; SAN)

FRANCISCO CoUNCIL, LEAGUE OF UNITED LaTIN

AMERICAN CITIZENS; LuE SHE Tom, Tak LAN

Cuan Huey, Rost Yuen, Nivsa M. Matos, and

of themselves and those similarly situated, No. 76-1517

Appellants, ¢

v. OPINION

LAWRENCE J. LEGUENNEC, individually and in

his official capacity as Registrar of Voters,

et al.,

Appellees. |

Appeal from the United States District Court

for the Northern District of California

Before: GOODWIN and HUG, Circuit Judges, and

PALMIERI, * District Judge.

GOODWIN, Circuit Judge:

Chinese and Spanish American minority plaintiffs

appeal the dismissal without prejudice of their com-

plaint seeking declaratory and injunctive relief for

alleged violations of their rights under the Voting

Rights Act Amendments of 1975, 42 U.S.C. § 1973

et seq.

The complaint alleged that the City of San Francisco

failed to meet the requirements of the Act in city elec-

tions in November and December of 1975. Plaintiffs

assert: (1) no action had been taken to provide voter

*The Honorable Edmund L, Palmieri, United States District Judge for the

Southern District of New York, sitting by designation.

A—2

registration materials and voter affidavits in any lan-

guage other than English; (2) no multilingual ballots

or voting machines were provided; (3) an unequal

burden was placed on language-minority voters who

desired election information.

The Act, iu pertinent part, provides:

“Prior to August 6, 1985, no State or political

subdivision shall provide registration or voting

notices, forms, instructions, assistance, or other

materials or information relating to the electoral

process, including ballots, only in the English lan-

guage if the Director of the Census determines (i)

that more than 5 percent of the citizens of voting

age of such State or political subdivision are mem-

bers of a single language minority and (ii) that

the illiteracy rate of such persons as a group is

higher than the national illiteracy rate. * * * ”

42 U.S.C. § 1973aa-la(b).

On September 3, 1975, the Director of the Census

designated San Francisco as a political subdivision

covered by § 1973aa-la(b). On October 21, 1975, ap-

pellants filed their complaint.

The district court dismissed the action from the

bench “as premature,” adding that there was “no indi-

cation that the defendants are acting other than in

good faith.” The dismissal was based on the court’s

belief that the city was entitled to reasonable time to

meet the requirements of the newly-enacted amend-

ments.

The determination, in early September, that the city

was subject to § 1973aa-la(b) left the city only a few

days in which to make the contracts and accomplish

the changes necessary to modify its election procedures

to comply with the Act before the November elections.

However, shortage of time will not necessarily shield

election officials from the diligent assertion of rights

A—3

under the Act. It is Congress’s intention to eradicate

voting discrimination with all possible speed. Briscoe

v. Bell, 482 U.S. 404, 410 (1977 ). The law imposes a

duty on parties having grievances based on discrimina-

tory practices to bring their complaints forward for

pre-election adjudication. Toney v. White, 488 F.2d

310, 314 (5th Cir. 1973). Therefore, the complaint was

not “premature,” even though it may have been highly

inconvenient. The city could have been protected by

the conditions of any injunction from unreasonable or

impossible burdens.

The city describes the district court’s dismisses] of

the complaint on the grounds of good faith as “emi-

nently reasonable.” While good faith has an abstract

element of equity about it, and may be a defense under

some circumstances to an action brought under civil

rights acts for damages, it is not a bar to an action for

injunctive and declaratory relief. Eslinger v. Thomas,

476 F.2d 225 (4th Cir. 1973). Moreover, the good-

faith defense is available only to the extent that the

common law action based on the parallel tort so pro-

vides. Williams v. Gould, 486 F.2d 547 (9th Cir. 1973).

Because a federal claim based on a denial of voting

rights has no deep common law roots, there is no well-

defined common law defense of good faith to such a

claim. Since good faith is not a defense to the viola-

tions alleged in this case, dismissal of the complaint on

the ground of good faith was error.

The city now asserts that actions taken since 1975

in regard to election procedures have rendered the case

moot or “about to become moot.” This action might

indeed be considered moot if subsequent events have

made it clear that the alleged violations could not rea-

sonably be expected to recur. But the record before us

sheds no light on the problem, and the city’s own state-

A—A

ment of mootness cannot support an affirmance on that

ground. United States v. Concentrated Phosphate Ex-

port Association, Inc., 393 U.S. 199 (1968). The dis-

pute over the elections of November and December 1975

is now moot, but the sufficiency of the city’s current

compliance with the Act is, or may be, a live, justiciable

controversy “capable of repetition, yet evading re-

view.” Southern Pacific Terminal Co. v. ICC, 219 USS.

498, 515 (1911), quoted in Moore v. Ogilvie, 394 U.S.

814, 816 (1969). Only a trial court can answer the

relevant questions.

Finally, both parties seek attorneys’ fees. Title 42

U.S.C. § 19731(e) permits this court, in its discretion,

to allow attorneys’ fees to the “prevailing party” in

“any action to enforce the voting guarantees of the

fourteenth and fifteenth amendment.”

No issue on the merits has been finally determined

in favor of any party. Any award of attorneys’ fees

can await the outcome of the action in the district

court. When the prevailing party has been determined,

the district court may consider in any award of attor-

neys’ fees the effort expended in the appeal by the at-

torneys for the party that ultimately prevails.

Vacated and remanded.

APPENDIX B

B—1

United States District Court

Northern District of California

CHINESE FOR AFFIRMATIVE ACTION, ET =

Plaintiffs, No. C75 2211

™ LHB

LAWRENCE J. LEGUENNEC, individually; f | ORDER

FRANK R. Quinn, in his official capacity as Act-| | Dismissinc

ing Registrar of Voters; Ciry anp CouNTY oF ACTION

SAN FRANCISCO, ET AL., Defendants

The Order of this Court of January 5, 1976, dis-

missing this action is hereby rescinded.

This action having come regularly on for hearing on

December 19, 1975 before the Court on the San Fran-

cisco Defendants’ motions to dismiss and for summary

judgment; and

The attorneys for all parties having been heard, the

Court having been fully informed on the issues, and

the motions submitted :

The Court now finds as follows:

1. There has been no indication that defendants are

acting in other than good faith; and

2. The public interest requires that defendants be

given a reasonable period of time to meet the require-

ments of the law in a reasonable fashion; therefore,

IT Is HEREBY ORDERED that the complaint and the

B—2

action be and are hereby dismissed in their entirety

without. prejudice as to all defendants. ;

Dated: January 7, 1976.

LLoyD H. BURKE

UNITED STATES DISTRICT JUDGE

APPENDIX C

C—1

G. Wi.uiaM HuNTER

United States Attorney

AMANDA METCALF

Assistant United States Attorney

P.O, Box 36055

450 Golden Gate Avenue

San Francisco, California 94102

Telephone: (415) 556-6430

Attorneys for the Plaintiff

United States District Court

Northern District of California

Unitep STATES OF AMERICA, og ) C-78-2521-CFP

Plaintiff Crvit ACTION

No.

Vv.

COMPLAINT

City aND County OF SAN FRANCISCO, a munici- FOR

pal corporation; Boarp oF Supervisors or | !NJUNCTIVE

THE City AND County oF SAN FRANCISCO; AND

Grorce R. Moscone, in his official capacity as r DECLARATORY

Mayor of the City and County of San Francisco, Rewer (Crvit

RocER Boas, in his official capacity as Chief} _Ricuts—

Executive Officer of the City and County of San | __ VOTING 42

Francisco; THomas P. KEARNEY, in his official U.S.C. §1973)

capacity as the Registrar of Voters of the City

and County of San Francisco, THREE JUDGE

Defendants.) COURT

The United States of America alleges:

1. The Attorney General brings this action for

declaratory and injunctive relief on behalf of the

United States of America pursuant to 42 U.S.C. §$§

C—2

1978a, 1978aa-la, 1978aa-2, 28 U.S.C. §2201, and the

Fourteenth and Fifteenth Amendments to the Consti-

tution of the United States.

2. Jurisdiction is conferred by 28 U.S.C. 1845, and

2201 and 42 U.S.C. §1978aa-2. Venue is proper under

28 U.S.C. §1391(b).

8. This action requires the empanelling of a three-

judge court to hear and determine the issues presented

herein as provided by 42 U.S.C. §1973aa-2 and 28

U.S.C. §2284.

4. Defendant CITY AND COUNTY OF SAN

FRANCISCO is a political subdivision of the State of

California and is subject to the minority language pro-

visions of the Voting Rights Act of 1965, as amended,

42 U.S.C. §1973aa-la.

5. Defendant BOARD OF SUPERVISORS OF THE

CITY AND COUNTY OF SAN FRANCISCO is the

governing board of the City and County of San Fran-

cisco.

6. Defendant GEORGE R. MOSCONE is the Mayor

of the City and County of San Francisco and as Chief

Executive Officer of the City and County of San Fran-

cisco has supervisory authority over the Registrar of

Voters and those matters within the purview of the

Registrar.

7. Defendant ROGER BOAS is the Chief Adminis-

trative Officer of the City and County of San Francisco

and has supervisory authority over the Registrar of

Voters and those matters within the purview of the

Registrar.

8. Defendant THOMAS P. KEARNEY is the Regis-

trar of Voters for the City and County of San Fran-

cisco. Pursuant to the Charter of the City and County

of San Francisco, Section 9.102, defendant KEARNEY

is charged with:

C—3

The conduct, management and control of the regis-

tration of voters, and of the holding of elections

and of all matters pertaining to elections in the

city and county....

9. On August 6, 1975, the United States Congress

enacted Public Law 94-73 (now codified as 42 U.S.C.

§1978aa-la, et seq.) as an amendment to the Voting

Rights Act of 1965, 42 U.S.C. §1973. This amendment

explicitly recognized, and sought to eliminate forth-

with, the existence of pervasive discrimination suffered

in the United States by citizens who, as members of.

“language minority groups,” were deprived of their

right to vote.

10. 42 U.S.C. §1978aa-la(b) prohibits the use of

“English language only” voting and registration no-

tices, forms, instructions, assistance, ballots, and other

related materials in jurisdictions targeted by the Di-

rector of the United States Census Bureau as having

the statutorily specified percentage of voting age, lan-

guage minority citizens. 42 U.S.C. §1973aa-la(b) pro-

vides that targeted jurisdiction shall be those states

and political subdivisions which the Director of the

United States Census Bureau determines to have more

than five percent of their voting age citizens as mem-

bers of a single language minority and that the illiter-

acy rate of such persons as a group is higher than the

national illiteracy rate.

11. 42 U.S.C. §1978aa-la(c) provides, inter alia,

that any registration and voting notices, forms, in-

structions, assistance, ballots and other materials re-

lating to the electoral process provided in English by a

state or political subdivision targeted by the Director

of the United States Census and subject to the prohibi-

tion specified in 42 U.S.C. §1978aa-la(b) must also be

provided in the language of the applicable minority

group.

C—4

12. The standards of compliance for jurisdictions

subject to the statutory requirements of 42 U.S.C.

§1973aa-la in providing registration and voting ma-

terials and assistance for language minority citizens

are set forth in 28 C.F.R. §55.1 et seq. The two basic

standards are:

(1) That materials and assistance should be pro-

vided in a way designed to allow members of appli-

cable minority groups to be effectively informed of

and participate effectively in voting-connected ac-

tivities; and

« (2) That an affected jurisdiction should take all

‘\, reasonable steps to achieve that goal.

28 C.F.R. §55.2(b) (emphasis added).

13. On September 9, 1975, the City and County of

San Francisco became subject to the minority language

provisions of the Act by virture of a determination by

the Director of the United States Census Bureau, pur-

suant to 42 U.S.C. §1973aa-la(b), that more than five

percent of San Francisco’s citizen population were

members of language minorities, specifically Chinese

and Spanish, and that the illiteracy rate for each group

was greater than the national rate.

14. Defendants have failed to conduct voter regis-

tration efforts in such a way as to provide language

minority citizens an effective opportunity to register,

and have thereby deprived language minority citizens

in the City and County of San Francisco of their right

to effective access to and use of minority language reg-

istration materials and assistance in violation of 42

U.S.C. §1978aa-la. Defendants have failed to comply

with the requirements of said voting provisions for the

general election of November 7, 1978 and all electoral

processes thereafter.

15. Defendants have failed to recruit, hire and train

ne RES ne rene ere >

~~ eee a eee

C—5

an adequate number of bilingual personnel in the office

of the San Francisco Registrar of Voters to provide

language minority citizens residing in San Francisco

with effective oral assistance in the registration process

and have thereby deprived langage minority citizens

of an effective opportunity to register to vote in viola-

tion of 42 U.S.C. §1973aa-la for the general election of

November 7, 1978 and all electoral processes thereafter.

16. Defendants have failed to recruit, hire and train

an adequate number of bilingual poll officials to provide

language minority citizens with effective access to and

use of minority language voting materials and assist-

ance and have thereby deprived language minority citi-

zens of their right to effective access to and use of such

materials and assistance for the general election of

November 7, 1978 and all elections thereafter in viola-

tion of 42 U.S.C. §1973aa-la.

17. Defendants have failed to effectively inform lan-

guage minority citizens residing in the City and County

of San Francisco of the availability of and have failed

to provide effective access to minority language regis-

tration and voting materials and assistance, including

but not limited to, ballots, for the general election of

November 7, 1978, thereby depriving language minor-

ity citizens of their right to effective access to such ma-

terials and assistance in violation of 42 U.S.C.

§1973aa-la.

WHEREFORE, the United States of America prays

that this Court:

a. Enter a judgment declaring that defendants have

failed to take reasonable measures to provide minority

language voting and registration materials and assist-

ance in such a way as to allow language minority citi-

zens residing in the City and County of San Francisco

C—6

to be effectively informed of and effectively participate

in the voting process for the general election of Novem-

ber 1, 1978 and all electoral processes thereafter, and

have thereby violated the provisions of 42 U.S.C.

§1973aa-la.

b. Issue a preliminary and permanent injunction re-

quiring defendants to take any and all action necessary

or appropriate to eliminate discrimination against lan-

guage minority citizens residing in the City and County

of San Francisco in the exercise of their right to vote,

and to assure the full and fair exercise of their right to

vote as required by the Constitution and statutes of the

United States, such action to include, but not be limited

to:

1. Recruitment of bilingual poll officials on a year-

round basis through assignment of regular staff in

the office of the San Francisco Registrar of Voters.

Said recruitment efforts to be conducted through

and with the cooperation and assistance of com-

munity groups in language minority communities,

and to include development and publication of pub-

lic service messages via English and minority lan-

guage press, radio and television for the recruit-

ment of such bilingual poll officials;

2. Development of a training program to instruct

oll officials, both bilingual and monolingual, in the

ilingual voting requirements of federal law, bi-

lingual registration and voting — under-

taken by the City and County of San Francisco in

compliance with federal law, and approved meth-

ods of rendering effective assistance to language

minority voters;

3. Establishment and use of accurate assessment

procedures to measure bilingual language ability

of bilingual poll officials and of minimal standards

of speaking in the relevant minority language for

such officiais;

4. Development of a glossary of key election-re-

ae ee

masini

C—7

lated words in both English and the applicable mi-

nority languages and publication and distribution

¢ said glossary to election officials prior to each

election ;

5. Establishment and advertisement of a telephone

hotline for language minority citizens to provide

information necessary to assist language minority

citziens in registering and in exercising their right

to vote; |

6. Development of a voter registration outreach

plan to actively register language minority voters

which plan shall include: (1) establishment of a

timetable for distribution and collection of regis-

tration forms, and related material, and (2) a

procedure for identifying specific places in the

community where registration forms should be dis-

tributed to effectuate said plan;

7. Establishment of a cooperative working rela-

tionship between the office of the Registrar and

community groups in language minority communi-

ties for the development and implementation of

voter outreach programs;

8. Provide community groups interested in voter

registration, access to addresses of all unregistered

residences ;

9. Development of a comprehensive media cam-

paign directed to language minority citizens to ad-

vertise all aspects of the voting process from regis-

tration to the casting of ballots which program em-

phasizes both the right to vote and the importance

of voting;

10. Establishment of a task force under the super-

vision of the Chief Administrative Officer of the

City and County of San Francisco to advise and

assist the Registrar of Voters in complying with

federal voting laws;

11. Establishment of effective measures for dis-

tribution of bilingual voting and registration ma-

C—

terials to all language minority citizens of voting

age;

12. Assignment of regular staff of the office of the

Registrar of Voters to manage the development

and implementation of tasks necessary to bring the

City and County of San Francisco into compliance

with 42 U.S.C. §1973aa-la;

13. Establishment of effective procedures to deter-

mine in advance of election day those language mi-

nority voters who require minority language as-

sistance at polling > arggon and establishment of pro-

cedures to insure that such assistance will be avail-

able when and where needed.

c. Authorize the appointment of Federal examiners

pursuant to 42 U.S.C. 1973a(a) and 1973d to enforce

the voting guarantees of the United States Constitu-

tion and Federal statutes in the City and County of

San Francisco.

d. Grant such other and further relief as the Court

deems appropriate together with the cost and disburse-

ments of this action.

Dated: October 27, 1978.

GRIFFIN B. BELL

Attorney General

By: Drew S. Days III

Assistant Attorney General

G. WILLIAM HUNTER

United States Attorney

GERALD W. JONES J

Attorney, Civil Rights Division

Department of Justice

Washington, D.C. 20530

AMANDA METCALF

Assistant United States Attorney

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.