As you may be aware, the United States Department of Justice (“DOJ”) commenced a review of school district compliance with Section 203 of the Voting Rights Act (“VRA”), 52 U.S.C. § 10503 last summer. At the time, DOJ representatives indicated that the intent of the review was not to take punitive action for non-compliance, but rather to assure compliance would be achieved for future elections.
We have not had any further contact from DOJ regarding the status of the review. However, we have had several inquiries regarding the steps school districts should take at this time for compliance with the VRA, and wanted to provide guidance based upon the available information.
The purpose of Section 203 is to prohibit discrimination against citizens of language minorities in the electoral process. 52 U.S.C. §10503(a). To that end, the VRA requires that “voting materials”, defined as “registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots,” be provided in the language of the applicable minority group or groups in covered states or political subdivisions. 52 U.S.C. §§ 10503(b)(3) & 10503(c). The law applies to all elections within the bounds of the covered jurisdictions, including school district elections. Within New York, several counties are covered jurisdictions under the law. Westchester, Nassau and Suffolk Counties are all covered jurisdictions with regard to Hispanic minority populations. The requirements of the VRA must be met even if a particular school district within these counties has few eligible Spanish-speaking voters.
As noted above, we have not had any further contact from DOJ regarding the status of the review, and thus, no definitive guidelines from the agency charged with enforcing the statute. Neither is there a significant body of law that is helpful in delineating what materials are “voting materials” for purposes of New York school district elections. At this time, construing the statutory language broadly, we suggest that the following election materials and information, to the extent they are provided in English, should also be provided in Spanish:
- voter registration information
- eligibility requirements
- registration times/locations
- voter eligibility challenge form
- candidate information
- candidate qualifications
- nominating petitions
- expenditure statements/instructions
- information regarding “Meet the Candidate” events
- polling place notices
- legal notices
- 45-day legal notice (annual election/budget vote notice, bond vote notice)
- 6-day budget notice
- final annual budget adopted by Board
- property tax report card
- instructional forms and materials
- absentee ballot instructions
- regular ballot instructions
- affidavit ballot instructions
- instructions at the polling site
- voter information pamphlets
- budget brochures
- information about candidates
- information about ballot propositions
- sample ballots
- regular ballots
- affidavit ballots
- absentee ballots/envelopes
In short, all materials and information published by the District that are directly related to the electoral process, from details about voter registration through the actual casting of the ballot, should be available in Spanish as well as English. The requirement to provide Spanish language election materials and information is equally applicable whether printed on paper, published on a District website, posted on signs at polling locations (including polling place distance markers), or posted on electronic signs.
If the District’s designated newspapers for publication of legal notices do not publish in Spanish, the District must locate and designate a newspaper with general circulation that does so. If the Board of Elections does not have the capacity to print ballots with both English and Spanish on the same ballot, the number of separate Spanish language ballots printed may be based on the District’s demographics.
Where the District is producing separate English and Spanish language materials rather than a single document with both languages, the separate versions should be distributed/published in the same manner, whether it is printed for Board meetings, mailed to the community, or posted on the District’s website. For example, a brochure mailed to residents in English should also be mailed in Spanish, not merely made available at District offices. Additionally, if your District includes election information in its annual school district calendar, going forward, that information should be included in both English and Spanish.
Districts are responsible to ensure that translations are accurate. Although machine translations, such as Google Translate and Microsoft Translate, may be adequate for some purposes, Districts should be aware that they may not be fully accurate.
In addition to providing materials in print, Districts must also provide oral language assistance. This includes being able to address questions that come up in the polling place. Bilingual poll workers or other trained personnel, who can understand, speak, read and write Spanish, should be available at the polling site to answer questions, just as they do for English-speaking voters. It also would be prudent to have signs that Spanish language assistance is available.
If you have any questions or concerns regarding this topic, feel free to contact one of our Education Law attorneys.