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11th Circuit hears civil rights groups’ bid for bilingual voting materials in a Georgia county

Voting rights advocates sparred with Georgia’s Secretary of State and Gwinnett County over their alleged failure to provide Spanish speakers with bilingual election materials.

ATLANTA (CN) — The Eleventh Circuit heard arguments Friday in a case brought by several civil rights groups that seek to require Georgia officials to send absentee ballot applications in Spanish to residents of the state’s second-most populous county.

A group of voters in Gwinnett County, Georgia, who speak Spanish as their first language, say they are wrongfully receiving key election materials in English. In addition, they argue that the Gwinnett County elections board’s website has poor access for voters who don’t speak English.

In a lawsuit brought by voting rights advocates on their behalf last year, they say they have a right to receive voting materials in Spanish because the county is covered by Section 203 of the Voting Rights Act.   

“Whenever any state or political subdivision [covered by the section] provides registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, it shall provide them in the language of the applicable minority group as well as in the English language,” reads the law.

John Powers, an attorney with the Lawyers’ Committee for Civil Rights Under Law, issued a statement in support of his clients’ case.

“The right of Gwinnett County’s Spanish-speaking U.S. citizens to vote is protected by federal law and they deserve an equal opportunity to participate in our democracy. Election officials cannot deny access to bilingual election materials to these citizens,” Powers said.

The lawsuit was filed by his organization alongside the Georgia Association of Latino Elected Officials, Georgia Coalition for the People’s Agenda, Asian Americans Advancing Justice, New Georgia Project and Common Cause.

It partially stems from a decision by Georgia Secretary of State Brad Raffenspeger in 2020.

To encourage residents to vote by mail amid the Covid-19 pandemic in the state’s upcoming primary election, the secretary used CARES Act funds to mail absentee ballot applications to Georgia’s 6.9 million active voters.

But all of these applications were in English. 

Attorney Brian Sells, who led the appeal and represented the voters during Friday’s oral arguments, said Congress enacted the language minority provisions of the Voting Rights Act in order to “protect citizens who are of limited English proficiency.”

“And, yet, the district court dismissed their claims, concluding among other things that they lack standing and failed to state a claim,” he said, urging the 11th Circuit to rule against a decision made by federal Judge William M. Ray II in October 2020. 

Judge Ray ordered that the secretary of state’s office and the Gwinnett County elections board did not violate the federal Voting Rights Act, since people who did not receive the Spanish ballot applications still were able to get them from the county.

U.S. Circuit Judge William Pryor interjected to express his opinion that the district court erred when ruling that the plaintiffs had no standing.

“That’s at least my perspective about standing, but I think you’ve got much bigger problems when it comes to the merits,” the George W. Bush nominee said. 

Sells said he agreed with Pryor’s standing-related interpretation, adding that his clients have standing because they alleged difficulty understanding the election materials.

These clients were educated in non-English-speaking classrooms in Puerto Rico, he said. 

Sells turned to the question of merits.

“The meat of this case is the district court’s ruling that the plaintiffs have failed to state a claim for relief under sections 203 and 4e,” he said.

U.S. Circuit Judge Barbara Lagoa, a Donald Trump nominee, jumped in to ask how the state of Georgia is covered under Section 203.

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“I understand the county is a political subdivision that is covered,” Lagoa said, pointing out that Georgia, as a whole, is not.

Judge Pryor asserted to Sells, “Your reading would bootstrap political subdivision coverage to apply to non-covered states in a way that Congress did not make explicit in the act.” 

Senior U.S. District Judge Harvey Schlesinger, a George H.W. Bush appointee visiting from Florida, also seemed initially skeptical of the attorney’s argument. 

“Why do you think Congress went through all of this and made all of these exceptions and different definitions for covered and uncovered if they wanted everybody to be covered?” Schlesinger pressed. 

The state is not covered by this provision, Sells answered, because it provides exceptions for smaller counties with fewer language minorities. 

Gwinnett County is covered, meaning it is required to provide access to bilingual election materials, noted the attorney.

According to the U.S. Department of Justice, Section 203 covers localities where there are more than 10,000 citizens in a single political subdivision who are members of a single language minority group, have depressed literacy rates and are not proficient in English.

“I wanted to be very clear at the outset that Gwinnett County takes great pride in its efforts to ensure language access for its diverse population. The record in this case reflects the efforts Gwinnett made when it first became covered by section 203 to try to go as much as they could beyond the requirements to ensure language access,” said Bryan Tyson, who represented the Gwinnett County Board of Registration and Elections during Friday’s arguments. 

Tyson, of the firm Taylor English Duma LLP, contended that the individual plaintiffs in the case did not allege that Gwinnett planned to continue sending them English-only materials. 

As Elizabeth Young representing Raffensperger later pointed out, the secretary’s emergency mail-in application project was temporary.  

“Their main quibble is with the secretary’s office and what he provides. So in terms of an injury from Gwinnett to the individual plaintiffs, we don’t see that is there,” Tyson said.

He urged the three-judge panel to affirm the district court decision.

Lagoa stopped Tyson to ask him to “talk about the website.”

The advocates’ complaint states that, although there is a “poorly translated Spanish language version of the absentee ballot application available on the Gwinnett County’s website,” Spanish-speaking voters can only access it by navigating an English-only website and clicking on a small box in the bottom right-hand corner of the page labeled “English >” to be taken to a link to the Spanish language form.

Tyson explained that this is a function of the County’s website as a whole, and not just the website for the elections board. 

“Can I ask you a practical question? Why doesn’t the website just say Español where you click?,” Pryor asked candidly. 

“Your honor, I’ve looked at that too and I think the answer is that it displays whatever language the website is currently displayed in,” the attorney said.

Pryor looked intensely into his webcam and demanded, “Change it.”

“I don’t understand why y’all don’t change that. I mean anyone who sees it knows that it's in English, that’s not the point. Wouldn’t it be more effective if the click was to a different language so that you know, ‘Oh, so if I want to see Español, I can go here,’” Pryor added. 

Tyson said that this was also a function of the entire county website.

“The attempt to bootstrap Georgia in by suggesting that anytime you have a political subdivision within a state, would basically require that every state that has at least one political subdivision would become covered simply if they put English language content on any of their websites,” Young told the panel. 

The judges went on to question whether or not Sells’ clients were actually denied the right to vote by Gwinnett County’s lack of multilingual options. 

“Next year, let’s say the 2022 election, an LEP [limited-English proficient] voter in Gwinnett County can go to the Gwinnett County website, print out the form on paper and mail it in. Everyone else in Gwinnett County can go to the Secretary of State’s website, do it online. They don’t have to print out anything, and it’s all automatic. That’s unequal access,” Sells concluded. 

Follow Erika Williams on Twitter.

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