Asian Americans Advancing Justice-L.A. v. PadillaAsian Americans Advancing Justice-L.A. v. Padilla
Plaintiffs and appellants Asian Americans Advancing Justice—Los Angeles, Asian Americans Advancing Justice—Asian Law Caucus, and the American Civil Liberties Union of Northern California (collectively plaintiffs) appeal from a judgment denying their petition for writ of mandate. Plaintiffs claim defendant and respondent Alex Padilla, the California Secretary of State, has misinterpreted, and thus failed to properly enforce,
We conclude the Secretary has properly assessed the need for language assistance on a precinct, rather than county-wide, basis and has also acted within his discretion in looking to the
II. BACKGROUND
A. Overview of Federal and California Voting Rights Statutes
Before turning to the particulars of plaintiffs’ claims, we provide a rudimentary overview of the relevant provisions of the Voting Rights Act and
1. Federal Voting Rights Act
“The
“The remedial provisions of the Act [citation] were extended by the Voting Rights Act Amendments of 1970, 1975, 1982, and 2006. . . . The Voting Rights Act Amendments of 1975 extended the protections of the Act to ‘language minorities.’ ” (7 Witkin, Summary of Cal. Law (11th Ed. 2017) § 257, p. 413; Sen. Com. on Judiciary, Voting Rights Act Extension, Rep. No. 94-295, p. 24.) Congress recognized that “many Americans rely heavily on languages other than English, and that they require information in minority languages in order to be informed voters and participate effectively in our representative democracy.” (The United States Department of Justice, Language Minority Citizens (Feb. 26, 2018) <https:www.justice.gov/crt/language-minority-citizens> [as of Nov. 4, 2019].) Thus, as enacted in 1975 and amended “in 1982 and 2006, Section 203(b) of the
The Voting Rights Act expressly defines “language minorities” and/or “language minority group[s]” as persons who are of Asian American, American Indian, Alaskan Natives, or Spanish heritage. (
To secure the voting rights of the defined “language minorities” or “language minority group[s],” Congress implemented “Bilingual election requirements” applicable to jurisdictions that are subject to the remedial provisions of the federal law. (
As relevant to this case, a State or political subdivision,3 must provide language assistance under the Voting Rights Act if, according to data from the most recent census, “(i)(I) more than 5 percent of the citizens of voting age of such State or political subdivision are members of a single language minority and are limited-English proficient;4 [¶] (II) more than 10,000 of the citizens of voting age of such political subdivision are members of a
Thus, “[d]eterminations of coverage under section 203(c) [of the Voting Rights Act] are made with regard to specific language groups of the language minorities listed in section 203(e) [of the Act].” (
As for the terminology “single language minority,” the implementing regulations supplement the statutory definitional language (
Determinations of coverage under the Voting Rights Act are made by the Director of the Census and the Attorney General. (
The
This census information established that, under section 203 of the Voting Rights Act, language assistance is mandated in California for languages spoken by the following seven language groups within the four statutorily specified “language minority” groups (Asian American, American Indian, Alaskan Natives, or Spanish heritage;
2. California Law (Section 14201)
a. The Relevant Statutory Provisions
In 1976, one year after Congress amended the Voting Rights Act to extend its protections to “language minorities,” the California Legislature enacted former section 14203 requiring the state-wide posting of facsimile ballots in Spanish. The statute provided specifically that: “The precinct board shall post in a conspicuous location in the polling place, at least one facsimile copy of the ballot with the ballot measures and ballot instructions printed in Spanish. Facsimile ballots shall also be printed in other languages and posted in the same manner if a significant and substantial need is found by the clerk. In those counties which are required under the provisions of the Voting Rights Act of 1965 as extended by Public Law 94-73 to furnish ballots in other than the English language, the posting of the facsimile ballot in that particular language shall not be required.” (Stats. 1976, ch. 220, § 6, p. 408.) The state law facsimile posting requirement was thus an adjunct to the Voting Rights Act‘s mandate to furnish bilingual election materials in Spanish in counties subject to the federal Act. (Ibid.)
Six years later, in 1982, the Legislature amended former section 14203. (Stats. 1982, ch. 373, § 1, p. 1691.) These amendments made several significant changes, including eliminating statewide posting of Spanish language facsimile voting materials and requiring, instead, that the need for posting be determined on a precinct basis by the Secretary of State. (Assem. Com. on Elections and Reapportionment, analysis on Assem. Bill No. 742 (1981–1982 Reg. Sess.) as amended Jan. 4, 1982, pp. 1–2.)
The amendments also outlined the general methodology the Secretary was to use in determining language assistance needs. Specifically, “[i]n determining whether it is appropriate to post the election materials in Spanish or other
As to languages for which bilingual voting materials were required under the Voting Rights Act, the statute continued to exempt counties from facsimile posting requirements. (Former § 14203, subd. (a).)
In 1994, the substance of former section 14203 was relocated into
In 2017, the Legislature amended
In order to make the language assistance determinations required by state law, the Secretary “contracted with the California Statewide Database . . . to evaluate whether publicly available census data as well as the Census Bureau‘s American Community Survey . . . data set was sufficient” to implement the statute. The Secretary concluded the publicly-available data was not sufficient.
The statewide database therefore requested a special tabulation from the U.S. Census Bureau7 of the state population estimates of persons that: (1) were 18 years of age or older (voting age); (2) spoke English less than very well; and (3) were from the following language group categories: Latino, American Indian/Alaska Native, Asian, Middle Eastern and North African language group summary categories as well as the languages available in the American Community Survey table subject to certain restrictions (e.g., if the language had less than 10,000 (weighted) respondents, then the entire language was not released, etc.). The record contains no information explaining why these particular “language groups” were identified.
The special tabulation data set identified over 50 languages pertaining to the identified “language groups,” 43 of which met a three percent threshold in at least one precinct somewhere in the state.
In utilizing this data for purposes of making the language assistance determinations required by state law (
Of the 43 languages identified by the special tabulation data, 10 are associated with the seven language groups designated as “language minority” groups under the Voting Rights Act for California—Spanish, Chinese, Cantonese, Mandarin, Formosan, Vietnamese, Tagalog, Ilocano, Khmer, and Korean. (81 Fed.Reg. 87533–87534.) Accordingly, the Secretary identified these 10 languages as within “mandatory” coverage under
On December 29, 2017, the Secretary issued memorandum No. 17148 to all county clerks and registrars of voters identifying the “precincts throughout the state that qualify for mandatory language assistance” in connection with the 16 languages the Secretary identified.
3. The Dispute Between the Parties
Four months after the Secretary issued memorandum No. 17148, plaintiffs filed the instant writ proceeding and action for declaratory and injunctive relief, challenging the Secretary‘s interpretation and implementation of
Specifically, plaintiffs claimed the Secretary (1) “improperly required language assistance only in the precincts where the three percent trigger was met,” rather than county-wide and (2) “improperly confined the universe of languages covered by state law to the small group of languages covered under a more restrictive and inapplicable federal statute.” (Italics omitted.)
As to their claim that language assistance must be provided county-wide even if only certain precincts meet the three percent requirement, plaintiffs maintained “[t]he decision to not make coverage determinations at the county level has an enormous impact on the number of voters who will get language assistance.” Plaintiffs alleged, for example, that “18 counties” meet the three percent threshold for Spanish, “but the Secretary only required coverage in Spanish in particular precincts within those counties that also hit the three percent threshold,” thus “depriv[ing] nearly 6,400 Spanish . . . speaking Californians of the language assistance to which they are entitled under state law.” All told, plaintiffs claimed the Secretary‘s precinct focus had resulted in “the denial of language assistance to an estimated 80,141 Californians,” who allegedly are “entitled to receive such assistance” under state law.
As to their claim that the Secretary has improperly referred to the Voting Rights Act‘s definition of ” ‘language minorit[ies]’ ” and “language minority groups,” plaintiffs maintained that given the “diversity of California‘s population,” Californians who speak “such languages . . . [as] Arabic, Farsi, Russian, Ukrainian, Syriac, and Amharic . . . have been automatically and improperly excluded from the . . . mandatory coverage determination[s].” Plaintiffs assert the federal definition of ” ‘language minorit[ies]’ ” “makes no sense, as it is both over- and under-inclusive,” since it excludes persons of “African, Middle Eastern and Eastern European descent,” but includes “persons with (at best) a minimal presence in California, such as Alaskan
After the trial court overruled a demurrer by the Secretary, plaintiffs moved for issuance of a writ of mandate.
The Secretary took the position plaintiffs could point to no mandatory ministerial duty with which he had failed to comply. The Secretary maintained precinct-level language assistance determinations are consistent with both the language of
At the hearing on plaintiffs’ motion for issuance of a writ, the trial court provided a detailed recitation of its tentative ruling.
The court first addressed plaintiffs’ claim that
The court next discussed the legislative history of the relevant statutory provisions.9 The court concluded this history supported the Secretary‘s reading of the statute, the 1982 legislative history being particularly persuasive. The court observed this history is replete with statements that “the language assistance requirements . . . ‘serve no useful purpose in those areas where there‘s no demonstrable need’ ” and one of the principle purposes of the 1982 amendments was to replace the state-wide Spanish facsimile posting requirement with a precinct-focused assessment of language assistance need.
The court then considered the reasonableness of the parties’ varying views of the scope of the statute, and concluded the Secretary also had the stronger case in this regard. Using El Dorado County as an example, the court observed “petitioner‘s proposed construction would have the county bear cost to provide Spanish language materials in 464 precincts where nobody needs them” because even though the “three percent threshold of Spanish speakers is met county-wide,” only “282 of the county‘s 746 precincts have any Spanish-speaking voting-aged residents with limited English proficiency.”10
The court next addressed plaintiffs’ claim that the Secretary had improperly looked to the Voting Rights Act in interpreting and applying the terminology “single language minority.” The court again concluded the language of the
After hearing argument and taking the matter under submission, the trial court issued an order memorializing its tentative rulings and denying plaintiffs’ request for issuance of a peremptory writ. The court entered judgment two weeks later.
III. DISCUSSION
A. Standard of Review
Our standard of review in this appeal from the denial of a writ of ordinary mandamus (Code Civ. Proc., § 1085) challenging the Secretary‘s interpretation of
B. Principles of Statutory Construction
” ‘Under well-established rules of statutory construction, we must ascertain the intent of the drafters so as to effectuate the purpose of the law. [Citation.] Because the statutory language is generally the most reliable indicator of legislative intent, we first examine the words themselves, giving them their usual and ordinary meaning and construing them in context. [Citation.] When statutory language is clear and unambiguous, ” ‘there is no need for construction and courts should not indulge in it.’ ” ’ ” (Bernard v. City of Oakland (2012) 202 Cal.App.4th 1553, 1560–1561.)
“If the meaning of the statute remains unclear after examination of both the statute‘s plain language and its legislative history, then we proceed cautiously to the third and final step of the interpretive process. [Citation.] At this final stage of the process, we apply ‘reason, practicality, and common sense to the language at hand.’ [Citation.] The words of the statute should be interpreted ‘to make them workable and reasonable.’ [Citation.] We will also consider the consequences that will flow from a particular statutory interpretation. [Citation.] ‘In determining what the Legislature intended we are bound to consider not only the words used, but also other matters, “such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy and contemporaneous construction.” ’ ” (Ailanto Properties, supra, 142 Cal.App.4th at p. 583.)
C. Interpretation and Application of Section 14201
1. Precinct-Focused Application
Plaintiffs maintain, as they did in the trial court, that the Secretary has erred in making his language assistance determinations on a precinct basis, rather than a county-wide basis. They contend, specifically, that the Secretary‘s precinct focus renders the word “county” in the statute surplusage, and as a matter of statutory construction, such an interpretation must be avoided. They further maintain the Secretary‘s precinct focus undermines the remedial purpose of the statute.
“In determining if it is appropriate to provide the election materials in Spanish or other languages, the Secretary of State shall determine the number of residents of voting age in each county and precinct who are members of a single language minority, and who lack sufficient skills in English to vote without assistance. If the number of these residents equals 3 percent or more of the voting-age residents of a particular county or precinct, or if interested citizens or organizations provide the Secretary of State with information that gives the Secretary of State sufficient reason to believe a need for the furnishing of facsimile ballots, the
Secretary of State shall find a need to provide at least two facsimile copies with the ballot measures and ballot instructions printed in Spanish or other applicable language in the affected polling places.” ( § 14201, subd. (b)(1) , italics added.)
We agree with the trial court that
While as a general matter, any interpretation that renders statutory language surplusage is to be avoided, this is simply one of numerous aides in construction, and it does not override the primary objective of statutory construction, which is to effectuate the Legislature‘s intent. (People v. Townsend (1998) 62 Cal.App.4th 1390, 1399 [“[A]voidance of surplusage, while an important principle of statutory construction, is nonetheless subordinate to the overriding purpose of effectuating legislative intent.“].) We therefore turn, as did the trial court, to the relevant legislative history.
Prior to the 1982 amendments to then section 14203 (now
Numerous committee reports and bill analyses set forth the Legislature‘s stated purpose in this regard. For example, the Assembly Office of Research report on the concurrence in Senate amendments explained: “Under current California law and under the federal Voting Rights Act of 1965 (as extended by Public Law 94-73), certain California counties are not required to provide bilingual voting materials. However, under current California law, those counties not required to provide bilingual voting materials are required to post in each precinct specified language minority election materials. This bill would allow those counties which do not have sufficient language minority populations, as determined by the Secretary of State, to avoid the cost of preparing and posting language minority election materials. The Secretary of State would be required to make an initial determination by December 31, 1983. Thereafter, she would be required to make such determinations by January 1 of those years in which the Governor is elected.” (Assem. Off. of Research, Conc. of Sen. Amend., Assem. Bill No. 742 (1981–1982 Reg. Sess.) as amended May 5, 1982, p. 2.)
It is also significant that by the time of the 1982 amendments, the Secretary had begun to identify specific precincts as to which there was no need for language assistance. (See Assem. Com. on Elections & Reapportionment, Assem. Bill. No. 742, supra, as amended May 13, 1981, p. 2 [As to some counties, Secretary of State has determined “no reasonable need exists for covering the entire county with bilingual sample ballots, etc., and has so advised these counties. This determination has resulted in cost savings in these counties as well as relieving county elections officials of the onerous duty of defending mandated practices that appear to have no basis in common sense.“].)
Not only did the Legislature not criticize these efforts, it endorsed them.13
As amended, section
“(b) . . . In counties where the Secretary of State has determined that it is appropriate, each precinct board shall post, in a conspicuous location in the polling place, at least one facsimile copy of the ballot with the ballot measures and ballot instructions printed in Spanish. If the Secretary of State determines that it is appropriate to post the election materials in Spanish in only certain precincts in the county, the material shall be posted in the polling places situated in those precincts. Facsimile ballots shall also be printed in other languages and posted in the same manner if a significant and substantial need is found by the Secretary of State.
“In determining whether it is appropriate to post the election materials in Spanish or other languages, the Secretary of State shall determine the number of residents of voting age in each county and precinct who are members of a single language minority, and who lack sufficient skills in English to vote without assistance. If the number of these residents equals 3 percent or more of the voting age residents of a particular county or precinct, or in the event that interested citizens or organizations provide the Secretary of State with information which gives the Secretary of State sufficient reason to believe a need for the furnishing of facsimile ballots, the Secretary of State shall find a need to post at least one facsimile copy of the ballot with the ballot measures and ballot instructions printed in Spanish or other applicable language in the affected polling places.” (Former § 14203, subd. (b), added by Stats. 1982, ch. 373, § 1, p. 1691, italics added.)
When the Legislature amended the statute in 2017, it altered this language in three pertinent respects: It revised the language of the first paragraph (which at that point was set forth in section 14201, subdivision (a)). (Legis. Counsel‘s Dig., Assem. Bill No. 918 (2017–2018 Reg. Sess.) introduced Feb. 16, 2017, § 6.) It retained the methodology language of the second paragraph (which at that point was set forth in section 14201, subdivision (b)) (Legis. Counsel‘s Dig., Assem. Bill No. 918, supra, introduced Feb. 16, 2017, § 6), as subdivision (b)(1). And it added a new mandate that four facsimile ballots be provided in precincts where a single language minority exceeds 20 percent of the voting age residents as subdivision (b)(2).
Thus, the statute now reads in pertinent part:
“(a) In counties and precincts where the Secretary of state has determined that it is appropriate, the county elections official shall provide facsimile copies of the ballot, as described in subdivision (b), with the ballot measures and ballot instructions printed in Spanish, one of which shall be posted in a conspicuous location in the polling place and at least one of which shall be made available for voters at the polling place to use as a reference when casting a private ballot. . . . “(b)(1) In determining if it is appropriate to provide the election materials in Spanish or other languages, the Secretary of State shall determine the number of residents of voting age in each county and precinct who are members of a single language minority, and who lack sufficient skills in English to vote without assistance. If the number of these residents equals 3 percent or more of the voting-age residents of a particular county or precinct, or if interested citizens or organizations provide the Secretary of State with information that gives the Secretary of State sufficient reason to believe a need for the furnishing of facsimile ballots, the Secretary of State shall find a need to provide at least two facsimile copies with the ballot measures and ballot instructions printed in Spanish or other applicable language in the affected polling places.
“(2) If the Secretary of State determines that the number of voting-age residents in a precinct who are members of a single language minority and who lack sufficient skills in English to vote without assistance exceeds 20 percent of the voting-age residents in that precinct, the county elections official shall provide at least four facsimile copies of the ballot in the language of that language minority, one of which shall be posted in a conspicuous location in the polling place and at least three of which shall be made available for voters at the polling place to use as a reference when casting a private ballot.” (
§ 14201, subds. (a) ,(b)(1) –(2) .)
While the language of section 14201 subdivisions (a) and (b)(1) remains largely the same as that added by the 1982 amendments, it no longer includes the sentence in former subdivision (a) of section 14201 and before that, in the first paragraph of former section 14203, subdivision (b) that expressly stated, “If the Secretary of State determines that it is appropriate to post the election materials in Spanish in only certain precincts in the county, the material shall be posted in the polling places situated in those precincts.” (Italics added.) At oral argument, plaintiffs asserted this omission reflected an intent by the Legislature in 2017 to repudiate the precinct-based focus it had adopted in 1982, and therefore the Secretary must once again make county-wide, rather than precinct focused, language assistance determinations.
More significantly, the committee reports on the proposed 2017 legislation made repeated reference to the Secretary‘s precinct-based application of the statute. For example, the Assembly Committee on Elections and Redistricting report described “existing law,” in relevant part, as follows:
“Requires the SOS, by January 1 of each year in which the Governor is elected, to determine the precincts where three percent of more of the voting age residents are members of a single language minority and lack sufficient skills in English to vote without assistance. Requires county elections officials, for each specified precinct in their county, to do the following:
“a) Translate a facsimile ballot and related instructions in the specified language(s); and,
“b) Post the translation(s) in a conspicuous location in the appropriate polling place. [¶] . . . [¶]
“Provides that in determining whether it is appropriate to require a county to post a copy of the ballot at the precinct in a language other than English, the SOS shall find a need to post such translated copies of the ballot if the number of residents of voting age in the precinct who are members of a single language minority and who lack sufficient skills in English to vote without assistance equals three percent or more of the voting age residents in the precinct.” (Assem. Com. on Elections & Redistricting, Assem. Bill No. 918, supra, as amended Mar. 29, 2017, p. 4, italics added.)
(See Assem. Com. on Appropriations, Assem. Bill No. 918 (2017–2018 Reg. Sess.) as amended Mar. 29, 2017, p. 2 [same]; Sen. Com. on Elections & Constitutional Amends., Assem. Bill No. 918 (2017–2018 Reg. Sess.) as amended July 6, 2017, p. 2, 5 [same]; Sen. Com. on Appropriations, Assem. Bill No. 918, supra, as amended Aug. 21, 2017, p. 1 [same]; Sen Rules Com., 3d Reading, Assem. Bill No. 918 (2017–2018 Reg. Sess.) as amended Aug.
Had the Legislature been dissatisfied in this regard, it could have, and undoubtedly would have, said so and amended the statute to eliminate any reference to “precinct.” (See People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 520 [had the Legislature “wanted to authorize a motion to dismiss . . . without invoking” a specified statue “it could have easily done so by simply deleting” reference to that statute].) Indeed, the Legislature has been particularly active in this area of the law and has not hesitated to amend the statute to ensure that it effectuates its intent.
Furthermore, since the 1982 amendments, the Secretary has consistently made language assistance determinations on a precinct basis. The Legislature is not only deemed to be aware, but the legislative history demonstrates it has been fully aware of the Secretary‘s precinct-focused application of the law. (E.g., Assem. Com. on Elections & Redistricting, Assem. Bill No. 918, supra, as amended Mar. 29, 2017, p. 4.) That the Legislature has never taken any action to change the Secretary‘s implementation is “a strong factor indicating that the administrative practice was consistent with the Legislature‘s intent.” (El Dorado Oil Works v. McColgan (1950) 34 Cal.2d 731, 739 (El Dorado Oil Works).)
We therefore conclude, as did the trial court, that the Secretary‘s precinct-based focus is consistent with both the language of
2. “Single Language Minority”
Plaintiffs also maintain, as they did in the trial court, that the Secretary has erroneously referred to the Voting Rights Act in construing and applying the terminology “single language minority.” At oral argument it became evident plaintiffs’ challenge to the Secretary‘s reference to federal law is two-pronged. They first assert the Secretary‘s reference to the Voting Rights Act‘s
a. Reliance on the Voting Rights Act Definitional Language and Implementing Regulatory Provisions
As we have discussed, both
Plaintiffs claim this cannot be what the Legislature intends, pointing to the remedial nature of the legislation and asserting the federal definitional language “is both over- and under-inclusive,” since it excludes persons of “African, Middle Eastern and Eastern European descent,” many of whom reside in California, but includes “persons with (at best) a minimal presence in California, such as Alaskan Natives.” Plaintiffs maintain “single language minority” must, under state law, mean that assistance is required “[w]henever limited English proficient, voting-age residents who use any one language (‘a single language’) meet the three percent threshold.”
The Secretary disagrees, pointing out
We again agree with the trial court that the meaning of “single language minority” is not self-evident from the plain language of the statute, and therefore turn to the legislative history for assistance in determining whether the Secretary has appropriately referred to the Voting Rights Act‘s definitional language and regulatory guidance.
As we have recited, the terminology “single language minority” was added to the state statute in 1982, when the Legislature first included the provisions setting forth the general methodology the Secretary is to use in making the “mandatory” language assistance determinations (based on the three percent threshold). The legislative history of the 1982 amendments makes clear not only that the Legislature was focused on replacing the all-county mandate to post facsimile ballots in Spanish with a precinct-based focus, but also that the Legislature was well aware of the requirements of the Voting Rights Act, including the Act‘s specific reference to “language minorities.” (E.g., Assem. Off. of Research Report, Sen. Conc. Amends. to Assem. Bill No. 742 (1981–1982 Reg. Sess.) as amended May 5, 1982, p. 2; Assem. Com. on Elections & Reapportionment, Assem. Bill No. 742, supra, as amended Jan. 4, 1982, p. 1 [acknowledging Secretary of State “has had considerable experience with implementation of both federal and state statutes relating to language minorities” and had “conducted extensive studies in 46 counties to determine the need for minority language assistance” (italics added)].)
Had the Legislature intended this terminology to have a different meaning under state law it could have, and undoubtedly would have, said so. (See Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974, 977 [concluding Legislature must have intended the same meaning as used in federal statute when it adopted “almost verbatim the federal statutory definition” and “could have expressly provided” for a “contrary” meaning but did not do so].) This is underscored by the fact the Legislature did not adopt the Voting Rights Act‘s five percent threshold, but, instead, expressly adopted a lower, three percent, threshold for “mandatory”
The legislative history of the 2017 amendments is also telling. As we have discussed, this legislation enhanced facsimile requirements to require not only the posting of such voting materials, but also to provide facsimile ballots for use in the voting booth. (
The legislative history of the 2017 amendments discussed the Voting Rights Act in some detail, including specifically pointing out the Act‘s definition of “language minorities” and “language minority groups.” (E.g. Sen. Com. on Elections & Constitutional Amends., Assem. Bill No. 918, supra, as amended July 6, 2017, p. 1 [summarizing existing federal law, including pointing out it “[d]efines language minorities or language minority groups, for the purposes [of that law], to mean persons who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage”]; Assem. Com. on Elections & Redistricting, Assem. Bill No. 918, supra, as amended Mar. 29, 2017, p. 3 [same], p. 5 [“In 1975, Congress adopted the language minority provisions of . . . the VRA. Congress extended these provisions in 1982, 1992, and 2006. [These sections] of the VRA require certain jurisdictions with significant populations of voting age citizens who belong to a language minority community to provide voting materials in a language other than English. These determinations are based on data from the most recent Census.”].)
This history also specifically discussed the 2016 Census data. The Assembly Committee on Elections and Redistricting report stated: “On December 5, 2016, the U.S. Census Bureau released its most recent determination of minority language requirements under Section 203 of the VRA. Pursuant to Section 203, the State of California is required to provide bilingual voting assistance to Spanish speakers. Additionally, pursuant to Section 203, 26 of California‘s 58 counties are individually required to provide bilingual voting assistance to Spanish speakers, and 10 counties . . . are required to provide voting materials in at least one language other than English and Spanish. [¶] In addition, existing state law requires the SOS, in each gubernatorial election
Additionally, this legislative history reflects that the legislation was focused on assisting limited English proficient voters not assisted under the Voting Rights Act, to ensure that these voters, like voters protected by the federal Act, receive meaningful access to election materials. As the Assembly Committee on Elections and Redistricting report explained: “California is home to 6.8 million individuals who are limited-English proficient (LEP). While Section 203 of the Federal Voting Rights Act guarantees language access protections for many limited-English proficient voters, roughly 550,000 Latinos and Asian Americans who are limited-English proficient live in counties not covered by Section 203, and thus rely on state law for language access in voting. However, California‘s current language access requirements are not sufficient to provide meaningful language assistance to limited-English proficient in-person voters, provide zero assistance for many limited-English proficient vote-by-mail voters, and lack any reporting or oversight mechanisms.” (Assem. Com. on Elections & Redistricting, Assem. Bill No. 918, supra, hearing date Apr. 5, 2017, as amended Mar. 29, 2017, pp. 4–5, italics added; see id., at pp. 8–9 [“The vast majority of Californians who need language assistance when voting receive it under Section 203 of the federal Voting Rights Act. However, California currently fails the hundreds of thousands of limited-English proficient residents who live in counties not covered by Section 203, and who instead receive language access protections under the terms of state law, which only requires the posting of a facsimile ballot and encourages the recruitment of bilingual poll workers. These requirements are not sufficient. . . .”].)
Thus, there is no indication in the legislative history of
Moreover, since the 1982 amendments adding the general methodology for language assistance determinations and the specific terminology “single language minority,” the Secretary has consistently referred to the Voting Rights Act‘s definition of “language minorities” and “language minority groups” to aid in the implementation of the statute. While the Legislature has since amended the statute several times, it has made no change to its terminology or to the provisions outlining the methodology the Secretary is to use in making language assistance determinations—a strong indication the Legislature believes the Secretary‘s reference to the federal definitional language in implementing state law is consistent with the language and purpose of the statute. (See El Dorado Oil Works, supra, 34 Cal.2d at p. 739.)
While plaintiffs maintain it is “illogical” to refer to the Voting Rights Act‘s definition of “language minorities” and “language minority groups” because, given California‘s current population, it is both over- and under-inclusive (e.g., because it includes Alaskan Natives, who have little presence in California, but excludes those of African and Middle Eastern heritage, who have a greater presence in the state), this is a matter plaintiffs must put before the Legislature. We are not at liberty to disregard the Legislature‘s chosen and unique terminology, the compelling legislative history pertaining to this issue, or the Legislature‘s knowing acquiescence to the Secretary‘s decades-long practice of referring to the Voting Rights Act‘s definitional language and regulatory guidance.
Furthermore, as the Secretary points out, in addition to the “mandatory” language assistance determinations required under
We therefore conclude, as did the trial court, that the Secretary did not err or abuse his discretion in referring to the Voting Rights Act‘s definitional language and regulatory guidance in making the “mandatory” language assistance determinations required under
In addition to claiming the Secretary has improperly referred to the Voting Rights Act‘s definitional language in interpreting and applying the terminology “single language minority,” plaintiffs claim the Secretary has gone farther than that and improperly imported the federal Act‘s five percent threshold into his “mandatory” language assistance need determinations under state law. On this point, we agree with plaintiffs.
At oral argument, the Secretary acknowledged his language assistance need determinations are grounded on the Voting Rights Act coverage determinations of the Director of the Census and the Attorney General published in the Federal Register and appended to the implementing regulations. (
However, the Secretary has confused the Voting Rights Act‘s definitional language (and corresponding regulatory guidance) (
Accordingly, by grounding his language assistance determinations on this federal list, the Secretary necessarily imports some vestige of the Voting
In sum, while the Secretary has not erred or abused his discretion in referring to the Voting Rights Act‘s definitional language and the correlating regulatory provisions in construing the terminology “single language minority,” he has erred as a matter of law in deeming the coverage determinations of the Director of the Census and the Attorney Generals as to the “specific language groups of the language minorities” covered by the federal Act and published in the Federal Register (and included as an appendix to the implementing federal regulations), as being the operative embodiment of that definition.
3. Summary
To ensure that our conclusions in this case are clear, we offer the following summation:
(1) In any precinct in a county not subject to the Voting Rights Act, the state law facsimile posting and availability requirements apply if there are three percent or more of voting age residents in the precinct who are part of a “language minority group” within the broader categories of “American Indian, Asian American, Alaskan Natives, or of Spanish heritage” and of limited English proficiency. Accordingly, if, for example, voting age residents of Korean or Filipino heritage with limited English proficiency equal or exceed three percent of the voting age residents in the precinct, the state law facsimile posting and availability requirements apply, and language assistance must be provided. In other words, the Secretary must make the state law equivalent of the coverage determinations made by the Director of the Census and the Attorney General and published in the Federal Register.
(2) In any precinct in a county that is subject to the Voting Rights Act, the state posting and availability requirements do not apply as to any language minority group for which bilingual election materials must be provided under the federal Act. However, state posting and facsimile availability requirements will apply as to any other language minority group if three percent or more of voting age residents in the precinct are part of such a group within the broader categories of “American Indian, Asian American, Alaskan Natives, or of Spanish heritage” and are of limited English proficiency. Accordingly, if, for example, a county is required to provide election materials in Spanish under the Voting Rights Act, the state facsimile posting
DISPOSITION
The judgment is affirmed in part and reversed in part, with directions to enter judgment in accordance with this opinion. Parties to bear their own costs on appeal.
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Banke, J.
We concur:
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Humes, P. J.
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Margulies, J.
A155392, Asian American Advancing Justice v. Padilla
Trial Court: San Francisco City and County Superior Court
Trial Judge: Hon. Richard B. Ulmer
Counsel:
Wilson, Sonsini, Goodrich & Rosati, Steven Mark Schatz, Deanna Kitamura, Nicole G. Ochi, Jonathan T. Stein, Winifred V. Kao, Raul Macias, William S. Freeman, David Joel Berger, Dylan Grace Savage, and Linda Lye for Plaintiffs and Appellants.
Xavier Becerra, Attorney General, Anthony P. O‘Brien, Deputy Attorney General for Defendant and Respondent.