Philadelphia, PA -- The City of Philadelphia, represented by Flaster/Greenberg shareholder Abbe F. Fletman was handed a significant decision on Friday, Nov. 3rd by a three-judge federal panel in a potentially landmark case that pitted the City against the United States Department of Justice ("DOJ") which claimed the City was in violation of the minority language compliance provisions of the Voting Rights Act, sections 203 and 208. As a result, there will be no federal observers at polling places throughout the City of Philadelphia on Election Day this year.
In United States of America v. City of Philadelphia; and Philadelphia County Board of Elections, at stake was whether the DOJ could force federal observers into polling areas to ensure that Spanish-speaking citizens were able to understand and cast their votes according to their wishes. This action was taken despite the fact that the City already had a comprehensive program in place addressing just such issues. The DOJ filed their motion 13 days before a major election, presenting a time factor that the City found a significant obstacle should they be forced to make additional provisions.
The DOJ moved for a temporary restraining order, or in the alternative, a preliminary injunction requiring the City of Philadelphia and the Philadelphia County Board of Elections to: 1) recruit additional Spanish-speaking interpreters from among City employees; 2) make "best efforts" to recruit bilingual poll workers in certain districts -- without regard to the English proficiency of the voters in those districts; 3) "ensure" in an unspecified way that "all voters who are either blind, disabled, or cannot read or write English" are permitted an assistor of their choice in the voting booth; and 4) allow federal observers whose authority admittedly includes following voters into the voting booth and intruding upon the sanctity of the secret ballot.
The motion brought by the DOJ, argued the City, significantly failed to provide any opportunity for the City to improve its current system. The motion was brought despite the fact that neither the Committee of Seventy -- a non-partisan election watchdog -- nor any Latino or Hispanic group had raised a concern to the City with respect to these issues. The City noted that the very communities in question had frequently expressed more concern with respect to the interference of the federal government in terms of their voting rights.
Wilfredo Rojas, president and co-founder of the Delaware Valley Voter Registration Education Project, said that the presence of federal observers inside the voting booth, "would have an intimidating effect on voters who are usually very leery about law enforcement because of the outright discrimination against language minorities, including Latinos."
Patricia DeCarlo, a Latino community activist noted that during one election in Vineland, N.J., rumors spread that public assistance would be discontinued for Latinos if they voted against a provision. Thus, the City argued that even if completely benign in application, the appearance of federal officials has the potential to have a chilling effect on voter turnout.
The City of Philadelphia has provided Spanish-English interpreters for many years. For the upcoming election, the City used Census data to identify locations where interpreters are needed. As a result of these efforts, the City has some 183 English-Spanish speakers covering 209 voting divisions. The City also will be providing telephone assistance in 120 languages on Election Day and has placed numerous notices in both Spanish and English city publications addressing the availability of interpreters and the existence of the telephone hotline. Additionally, Spanish-language ads regarding how to vote have also been placed on the voting machines themselves.
The data that the DOJ used to build its case was faulty, argued the City. The City deemed much of the statistical data that the DOJ used as over-inclusive and inaccurate. Part of this determination was based on the fact that DOJ statistician David Ely lumped people who spoke Spanish, but responded as speaking English "well" into the same category as people whose proficiency was poor The City contends that when that statistical group is factored out, there are far fewer voting districts in need of assistance than the DOJ claims. David Ely also, erroneously in the City's estimation, concluded that having a Spanish surname was an automatic correlation to an inability to speak English.
One of the central thrusts of Fletman and the City's arguments was that the DOJ spent nearly two years gathering evidence, only to wait until very near the last minute to file its motion. The DOJ filed its motion virtually on the eve of the election despite the fact that United States Supreme Court precedent set forth in Purcell v. Gonzalez warns strongly against issuing injunctive relief when an election is imminent. United States Court of Appeals Judge D. Brooks Smith noted in this case that time was, "a relevant factor to consider," and "a personal concern of (his.)"
"How as a practical matter would the city hire interpreters four days out?" U.S. District Judge Harvey Bartle asked. The City notes that all members of the Election Board were already assigned to critical election functions and that by diverting resources the very process and validity of this critical election could be put in doubt.
The City contended that the DOJ had refused to provide any information that identified particular concerns and desired remedies such that the city might be able to quickly resolve such problems. The City also claimed that the DOJ had not provided enough time to remedy accused deficiencies.
Contact Attorney Abbe Fletman of Flaster/Greenberg at 215-279-9388 (Office) / 215-287-6675 (Cell Phone)