Judge orders state to remedy Native language assistance

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A federal judge has scolded the state Division of Elections over the state’s poor assistance to voters who speak Native languages. The state has promised to better in the upcoming November general election to comply with her order.

Yup’ik and Gwich’in-speaking Alaskans sued the state over inadequate translation efforts. The two languages are historically unwritten, so the majority of the assistance in those two languages is oral.

Alaska U.S. District Court Judge Sharon Gleason issued an order Sept. 22 for the state to provide oral translations to be available in audio as well written translations. She ordered the Division of Elections to retain Native language experts to affirm the accuracy of the translations, and by Sept. 26 to distribute a pre-election announcement to be read by local outreach workers over village VHF radios.

By Oct. 3, the division will have new translated public service announcements on the elections as well as a pre-election poster advertising the availability of language assistance and “Can I Help?” buttons in the local languages to be worn by poll workers.

By Oct. 10, audio translations of ballot information including the neutral summaries of ballot measures, pro/con statements and candidate statements, are to be available.

All of the materials will be provided to the plaintiffs’ attorney, also by Oct. 10, and the division will incorporate their feedback to the maximum extent possible, Gleason ordered.

The judge also ordered that training sessions for poll workers be held and that the division will file a report with the court by Oct. 28 detailing its compliance.

Voting rights have long been a sensitive issue in Alaska. The U.S. Department of Justice monitored Alaska elections for several years because the state constitution originally had an English-language test for voters (it was taken out of the constitution in 1970) and because primary elections held in early fall created barriers in voting in many villages where many people are out doing subsistence harvesting at that time.

The lawsuit in Gleason’s court was filed over the state’s methods of providing language assistance, however. The Native American Rights Fund and two national law firms filed suit in the Alaska U.S. District Court in 2013 on behalf of four tribal councils and two individuals, arguing that the state’s efforts to provide language assistance in several villages violated the language assistance provisions of the federal Voting Rights Act and voting guarantees of the 14th and 15th Amendments to the U.S. Constitution. 

On Sept. 3, Gleason agreed that the state had violated the Voting Rights Act and ordered that the situation be remedied, but reserved judgment on the constitutional claims. Gleason said she will rule on those later, after the November elections.

The violations noted by Gleason fell into three categories: that the state had failed to adequately inform voters that language assistance is available; a failure to adequately prepare outreach workers to provide language assistance to voters, and a failure to address dialect differences.

In 2010, the state settled a similar lawsuit filed by voters in the Bethel region (Nick, et al. v. Bethel, et al.)

Despite that settlement, the evidence presented during a nine-day trial in June and July 2014 showed that the state had made a decision to provide only limited language assistance to Native voters in three regions immediately adjacent to Bethel, according to a statement issued Sept. 3 by the Native American Rights Fund.

In her September ruling, Gleason found the state had failed to provide limited-English proficient Alaska Native voters with voting information substantially equivalent to what voters receive in English, which was a violation of the Voting Rights Act, she said.

In her Sept. 3 hearing, Gleason said, “I do find that the plaintiffs have demonstrated by a preponderance of the evidence that the Division’s (Division of Elections) standards, practices and procedures that are in place for the three census areas (involved in the lawsuit) are not designed to transmit substantially equivalent information in the applicable minority language,” to Alaska Natives in the three census areas.

During the hearing, Gleason explained Section 203 of the federal Voting Rights Act that, “requires that in certain designated areas of the country that have a high percentage of limited English proficient voters, that whenever the state provides any registration or voting information in English, the state must also provide the same information in the language of the applicable minority group to voters in those areas.”

Gleason’s remarks are in the transcript of the proceeding. 

In cases where the minority language is written this requirement can met by having a written translation, but Gleason also noted the so-called “Stevens Proviso,” inserted in the act by Alaska’s former Sen. Ted Stevens, that provides in the case of Alaska Native languages that are unwritten the state is only required to provide oral instructions or assistance.

“That’s the provisio that has caused considerable litigation here,” Gleason said, because while it is clear that written materials in the minority language would satisfy the law, “the provision is far less clear for the languages at issue here.”

The state had been relying on “outreach workers” but this was insufficient, the judge said, because these workers were asked only to provide limited information and not to translate what is in the official election pamphlet the state sends out to voters, which is in English.

In Dillingham, the judge said, the outreach worker was “on call” but not physically present at the polling stations, while the public service announcement that had been broadcast said the workers would be present to provide language assistance.

Gleason found that except in 2008, when the state translated two of four ballot questions, no Gwich’in translations have been provided in the Yukon-Koyukuk region beyond what individual translators might communicate. Also, no Gwich’in audio translations were provided on touch-screen voting units.

The judge did credit the division for efforts to translate the complex Ballot Measure 1 voted on this past Aug. 19 regarding the effort to repeal oil tax reform.

The state is attempting to remedy this, at Gleason’s order, by providing bilingual outreach and poll workers in a number of named villages in the Dillingham and Wade Hampton census areas (in Bristol Bay and the Yukon Kuskowkim regions) where different dialects of Yup’ik are spoken, and the Gwich’in speaking villages of Arctic Village and Venetie of Interior Alaska.

In addition, the U.S. Justice Department has identified 16 additional villages in the Yukon-Koyukuk area that meet the criteria for language-assistance in the Voting Rights Act.

Previously, the state had also provided bilingual assistance only in the Central Yup’ik dialect. The court has now ordered service to be provided in separate Yup’ik dialect spoken in Dillingham and Togiak.

Besides having one or two people available to provide assistance, depending on the size of the community, the state will require public service announcements through the local VHF radio in the village’s language and dialect.

Section 203 of the Voting Rights Act makes it clear that assistance in the polls must be available in the covered language, and that just having a person available in the community is not enough.

Bilingual assistance will also be provided in very small communities that have no polling places but where absentee voting locations are provided.

The translating can be time-consuming, so having more people available to provide assistance is important. It can be challenging for voters, even English language speakers, to understand complex issues that are often on the ballot.

At the trial in the lawsuit last summer, there was testimony that it took as long as 20 minutes for a Native language-speaking voter to listen to one ballot measure being explained and more than 30 minutes to complete the ballot on a touch-screen voting unit.

One particularly difficult provision on the Aug. 19 primary election ballot was Ballot Measure 1, a complex proposal which dealt with a possible repeal of a state oil and gas tax law. The ballot information had three pages of text.

Lt. Gov. Mead Treadwell, who is in charge of the Division of Elections, said the state will expand language assistance to comply with Gleason’s order.

“I know the Division of Elections worked to comply with federal laws on language assistance as we understood them,” Treadwell said a statement after Gleason handed down her order in early September.

“We will work expeditiously to comply (with the order) and any additional measures that may be forthcoming in the court’s written opinion. In the meantime, Alaska’s Native and non-Native voters need to know that the Division of Elections is committed to ballot access. We will continue to work with Alaska Native leaders and others to improve, and I view the (judge’s) decision as an opportunity to expand our efforts.”

Treadwell also pointed out that the plaintiffs in the case never contacted the division to indicate any problems with the language assistance being provided.

Also, despite having observed elections in Alaska, the U.S. Department of Justice never contacted the state with its interpretation of the law, nor did they institute their own action or intervene in the proceedings, Treadwell said.

The Elections Division had made a number of improvements since the 2012 elections, the lieutenant governor said. These include adding 128 new absentee voting locations statewide, more than doubling the locations available in 2012.

Absentee voting by online ballot delivery, fax and mail is available statewide for all voters. More than 7,000 Alaska voters used the online absentee delivery and voting system in 2012, and more are expected to use it in 2014.

Updated: 
11/23/2016 - 2:33pm

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