Section 4(e) was enacted to protect their right to vote without regard to the language they speak.
In 1970, Congress amended the Voting Rights Act to prohibit all states from using any literacy tests for a period of five years. 42 U.S.C. § 1973a(a). The 1970 provision was upheld in Oregon v. Mitchell, 400 U.S. 112, 91 S. Ct. 260, 27 L. Ed. 2d 272 (1970). As a result of the 1970 amendment, the sixth grade education requirement in Section 4(e) was eliminated. Propa v. Kusper, supra.
The controlling issue presented here is whether Philadelphia's English-only election system constitutes a condition on the plaintiffs' right to vote as prescribed in Section 4(e). Although the issue is novel for us, identical issues were presented to a district court in New York in Torres v. Sachs, supra, and to the Seventh Circuit Court of Appeals in Propa v. Kusper, supra. In Torres, Judge Stewart determined that "The conduct of an election in English only violates plaintiffs' rights under the Voting Rights Amendments of 1970 which enforce the Fourteenth Amendment to the Constitution of the United States and the Civil Rights Act of 1871."
In Propa, supra, the court held that the Voting Rights Act mandated that "a Spanish-speaking Puerto Rican is entitled to assistance in the language he can read or understand."
The "right to vote" as contained in the Voting Rights Act has been interpreted broadly. It is not merely the right to gain physical access to a voting booth. In Garza v. Smith, 320 F. Supp. 131 (W.D. Tex. 1970), vacated and remanded for appeal to the Fifth Circuit, 401 U.S. 1006, 91 S. Ct. 1257, 28 L. Ed. 2d 542, appeal dismissed for lack of jurisdiction, 450 F.2d 790 (C.A. 5, 1971) the court held that the right to vote included the "right to be informed" and found a Texas statute violated the equal protection clause by permitting assistance to blind voters but not to illiterate voters. A narrow construction of the "right to vote" was similarly rejected in United States v. Louisiana, 265 F. Supp. 703 (E.D. La. 1966), aff'd without opinion, 386 U.S. 270, 87 S. Ct. 1023, 18 L. Ed. 2d 39 (1967); United States v. Mississippi, 256 F. Supp. 344 (S.D. Miss. 1966); and United States v. Post, 297 F. Supp. 46 (W.D. La. 1969). In relying on this line of cases, the court in Propa concluded that the "right to vote" encompasses the right to an "effective vote."
We agree that the "right to vote" means more than the mechanics of marking a ballot or pulling a lever. Here, plaintiffs cannot cast an "informed" or "effective" vote without demonstrating an ability to comprehend the registration and election forms and the ballot itself.
The English-only election materials therefore constitute a device "conditioning the right to vote" of plaintiffs on their ability to "read, write, understand, or interpret any matter in the English language." Such an election process cannot withstand scrutiny under the Voting Rights Act. Accordingly, plaintiffs' motion for summary judgment is granted, and an appropriate Order will be entered.
Whereas, the Plaintiffs have moved this court for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and based upon the motion, the affidavits in support thereof and the opinion of this court filed herewith.
It is hereby ordered adjudged and decreed that the motion is granted and judgment shall be entered as follows:
1. Pursuant to 28 U.S.C. Sections 2201 and 2202, defendants' practices and procedures of conducting elections in English only are declared in violation of plaintiffs' rights under the Voting Rights Act of 1965, 42 U.S.C. Section 1973 et seq. and the Voting Rights Amendments of 1970, 42 U.S.C. Section 1973aa et seq. which enforce the Fourteenth Amendment of the Constitution of the United States and the Civil Rights Act of 1871, 42 U.S.C. Section 1983.
2. Defendants, their agents, employees, representatives and all those acting in concert with them are permanently enjoined from conducting elections and registration in English only and are required to (i) provide all written materials which are directly connected with the registration of and election by voters in both Spanish and English, including, but not limited to, sample ballots, voter's certificates, registration certificate and all instructions to voters; (ii) provide an unofficial Spanish translation of all propositions, questions, and amendments which will be affixed to the right inside of each voting booth; (iii) provide ballot labels which list office titles in both Spanish and English insofar as such bilingual listing is consistent with mechanical possibility and readability, provided that if the above criteria prevent such bilingual listing then sample ballots of a reduced size in Spanish will be provided to the voters for use in the polling booths; (iv) provide a sufficient number of individuals who speak, read, write, and understand both Spanish and English at Philadelphia City Hall where registration and voting occurs, and at all polling places and places of registration in the City of Philadelphia falling in whole or in part, in a census tract containing 5 percent or more persons of Puerto Rican birth or extraction pursuant to the most recent census report reflecting such information; (v) provide appropriate and conspicuous signs at all polling places and places of registration described in subparagraph 2(iv) indicating, in Spanish, that individuals are available to assist Spanish-speaking voters or registrants, and that bilingual written materials are available; (vi) publicize elections in all media proportionately in a way that reflects the language characteristics of plaintiffs, and (vii) communicate the contents of the Court's order to all agents, employees and representatives of the defendants involved in the registration and voting process.