SAN FRANCISCO (CN) – An appellate court ruling issued Monday will expand ballot translation assistance at the polls to 60,000 more Californians.
In an order Monday, three justices of the First Appellate District sided with a coalition of civil rights groups in finding that California Secretary of State Alex Padilla’s 2017 language decree improperly adopted a restrictive federal Voting Rights Act standard for providing translation assistance to non-English speakers.
The federal threshold requires the state to provide translation assistance if more than five percent of citizens of voting age in a jurisdiction are “members of a single language minority” with limited proficiency in English, as opposed to the three percent of county or precinct residents outlined in the California Elections Code.
Asian Americans Advancing Justice and the Northern California chapter of the American Civil Liberties Union sued Padilla in 2018, claiming his directive to county election officials would deprive some 80,000 Californians of language assistance.
In addition to the five percent federal threshold, the groups took issue with Padilla’s decision that language assistance should be determined by precinct, rather than countywide, and given only where three percent of a precinct’s voting-age residents lack sufficient English skills.
They also claimed the directive violated the Elections Code by limiting mandatory assistance to languages spoken by only seven ethnicities considered California language minorities under the federal Voting Rights Act – American Indian, Cambodian, Chinese, Filipino, Hispanic, Korean and Vietnamese.
Though Padilla added six more languages to the coverage list – Arabic, Armenian, Persian, Hmong, Punjabi, and Syriac – the ACLU and AAAJ said in their lawsuit that 34 language groups were still excluded. They asked a state judge to apply language assistance coverage countywide, even if only certain precincts met the three percent requirement, and to force Padilla to define a “language minority” as “anyone who speaks a language other than English at home.”
Judge Richard Ulmer denied their petition earlier this year.
On Monday, an appellate panel said the Legislature clearly intended to set a three percent threshold for mandatory language assistance and that Padilla “has not followed the clear directive of the statute.”
“For over 40 years California has provided voting assistance to limited English proficient voters above and beyond what is required by the federal Voting Rights Act,” said William S. Freeman, senior counsel with the ACLU of Northern California, in an interview Monday. “The decision will make it possible for about 60,000 Californians to participate more fully in our democratic process because the state will be required to offer them facsimile ballots when they cast their votes.”
A facsimile ballot is a translated ballot sheet that non-English speakers use as a guide for filling out English ballots and is usually posted at polling places.
The justices backed Padilla on other key points of the lawsuit, finding that, if the California Legislature had wanted language assistance determinations to made on a countywide basis, it would have changed the Elections Code to reflect this desire. It has not.
“Plaintiffs point out precinct-by-precinct application results in some limited English proficient voters not receiving assistance. However, the Legislature did not enact a statutory scheme that applies to every voter with limited English proficiency,” Justice Kathleen Banke wrote. “For example, the three percent ‘mandatory’ threshold, while lower than the federal five percent threshold, necessarily means some language minority voters with limited English proficiency will not come within the state law. Similarly, while a precinct focus may exclude some language minority voters, it is solely within the Legislature’s prerogative to balance the policy considerations bearing on the scope and reach of this statute.”
Banke was joined by Justice Sandra Margulies and Presiding Justice David Humes.
She also wrote that the panel would not be changing the definition of “language minority,” finding Padilla was not wrong in using the definition provided by the Voting Rights Act.
The decision was still a win for language access advocates, as it will increase the number of languages covered.
“By our calculation that’s about 17 languages and 60,000 voters and that’s pretty important,” Freeman said. “We believe that California should be at the forefront of encouraging voter participation.”