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THE CAMPAIGN FOR A PROGRESSIVE BRONX v. BLACK

March 11, 1986

THE CAMPAIGN FOR A PROGRESSIVE BRONX and JANET VILLAFANE, individually and on behalf of others similarly situated, Plaintiffs,
v.
ROBERT S. BLACK, MATTEO LUMETTA, MARTIN RICHARDS, JAMES F. BASS, ROSEMARY A. MILLUS, NORMAN GEORGE, FERDINAND C. MARCHI and ORLANDO VELEZ, Commissioners of Elections, as members of and constituting the Board of Elections of the City of New York, and KAY AMER, as chief clerk of the Bronx Borough Office of said Board of Elections, Defendants



The opinion of the court was delivered by: KNAPP

MEMORANDUM & ORDER

 WHITMAN KNAPP, U.S.D.J.

 Plaintiffs have moved for an award of attorneys' fees and litigation expenses pursuant to 42 U.S.C. § 1973(l)(e). Defendants oppose the motion.

 FACTS

 The complaint in this action was filed on August 27, 1985 seeking immediate injunctive relief under the Voting Rights Act of 1965 and its amendments, 42 U.S.C. § 1973 et seq. Plaintiffs alleged, inter alia, that a confluence of factors, including acts and omissions by the defendants, threatened to deny the franchise to thousands of duly registered Hispanic voters in Bronx County in the Democratic primary election which was to be held on September 10, 1985.

 Plaintiff Campaign for a Progressive Bronx ("Campaign") is the duly authorized political committee of New York State Assemblyman Jose Serrano, who was an unsuccessful candidate for Bronx Borough President in the 1985 Democratic Primary. *fn1" Serrano is of Hispanic origin. Plaintiff Janet Villafane is an American citizen of Puerto Rican descent who is a registered voter in Bronx County. Plaintiffs brought this lawsuit individually and as a class action pursuant to F.R. Civ. P., Rules 23(a) and (b)(2). (Complaint at Paras. 6, 7 & 8)

 Defendants (collectively, "Board") are all members of the New York City Board of Elections, except for defendant Kay Amer who is chief clerk of the Board's Bronx Borough Office. (Complaint at Para. 9)

 Defendants are responsible, pursuant to Articles 3, 4, 5, 6, 7, 8, and 9 of the New York State Election Law for registering voters and maintaining accurate records of duly registered voters, notifying voters of changes in their registration status, hiring and training election inspectors and poll clerks, and conducting primary and general elections for the City of New York. (Complaint at Para. 9)

 Bronx County is a covered jurisdiction under Section V of the Voting Rights Act of 1965. This imposes upon the defendant Board an affirmative continuing duty to ensure that qualified minority voters are afforded equal access to the ballot. In recent elections Democratic voter turnout in the Bronx has fallen, despite a simultaneous increase in the number of registered Democratic voters and in particular an increase in the number of registered Democratic voters who are Hispanic. (Complaint at Paras. 3, 4, 12, 13 & 14)

 In the November, 1984 general election there had been allegedly "massive confusion" in polling places in the Bronx, purportedly caused by the lack of adequate Spanish language assistance for voters in predominantly Hispanic election districts. Specifically plaintiffs allege that election inspectors and polling clerks had not received adequate training under section 3-412 of the New York State Election Law, had not been familiar with the procedures for voting by affidavit ballot when no registration card could be found for would-be voters, and that too few of them had been bi-lingual. (Complaint at Para. 22)

 Plaintiffs allege, inter alia that the effect of these irregularities had been to prevent or discourage many Hispanic voters from exercising the franchise, which explains how, despite an increase in the number of registered voters in Bronx County in 1984, the number of voters actually casting ballots decreased. Between the 1984 elections and the filing of this lawsuit, defendant Board had allegedly taken no steps to increase the availability of suitably trained Spanish speaking inspectors or to provide updated training to all inspectors. (Complaint at Para. 23)

 Section 3-404 of the New York State Election Law provides that "the board of elections of each county shall on or before the fifteenth day of July of each year select and appoint election inspectors and poll clerks for each election district therein and may thereafter designate election inspectors and poll clerks to fill any vacancy for an unexpired term."

 A report commissioned by the Mayor of New York City reached the conclusion on July 30, 1985 that "the system of registration and elections in New York City is highly inefficient, operates poorly, and does not meet the modern day needs of the voters." The report went on to describe the registration process as "largely a manual one that is inefficient in terms of process, form, and execution," and chronicle the long-term decline in the quality of election inspectors. There is no evidence of any measures having been taken to remedy these problems between the publication of that report and the filing of this lawsuit. (Complaint at Para. 24)

 In Puerto Rico voters need voter identification cards to vote. In New York City the Board normally sends registered voters identification cards, but these cards are not needed to vote. (Complaint at Paras. 16 and 17). Some Hispanic voters in Bronx County, including plaintiff Villafane, did not receive voter identification cards prior to the September 10 primary, creating the misimpression that they were therefore not entitled to vote in that primary. (Complaint at Para. 18)

 Plaintiff Campaign for a Progressive Bronx and other groups undertook to register new Hispanic voters in the Bronx during the Summer of 1985. A random check on August 23, 1985 of approximately 75 names of such newly registered voters revealed no record of the registration of six of these voters. (Complaint at Para. 21)

 On August 23, 1985, four days before filing the complaint in this action, Serrano sent a letter to defendant Amer, the Board's chief clerk, requesting that the Board conduct a voter education campaign in the Spanish and English media informing voters of their right to vote without an identification card and upon affidavit ballot or court orders, and to take certain other steps to protect the rights of minority voters. Amer responded to Serrano's letter on August 26, 1985, the day this lawsuit was filed. In her letter she stated that she could not order the airing of any advertisements or public service announcements because only the main office of the Board in Manhattan had the authority to undertake such activities. She then offered "to assist and be available to help in any way that I can." Amer also informed Serano that she was unaware of any irregularities during the November, 1984 election or of any problems regarding voter identification cards or election inspectors, and that training sessions for election inspectors would occur on August 27 and 28th at 3 p.m. and 7 p.m. at Roosevelt High School in the Bronx.

 Also on August 26, 1985, the Board issued a press release informing the public of the existence of the Board's telephone bank set up exclusively to inform voters of their polling places. This press release also stated: "Important!! You do not need your voter identification card to vote."

 In the complaint filed on August 26, 1985, plaintiffs sought declaratory and injunctive relief. They sought a declaration that defendants' administration of the registration and election system was unlawfully diluting Hispanic voting strength and was denying plaintiff class rights secured under Section 2 of the Voting Rights Act of 1965. (Complaint at Para. 29(a))

 Plaintiffs also sought an injunction directing the defendants to do the following:

 
1) Undertake a publicity campaign through Spanish language radio, television and newspapers advising Bronx voters that they do not need voter identification cards to vote and that if no record of their registration can be found at the polling place on election day, they can still vote by affidavit ballot (Complaint at Para. 29(c)), and to prepare leaflets and large signs, in English and Spanish, for use on September 10, 1985, advising voters of the above. (Complaint at Para. 29(e))
 
2) Establish one or more bilingual telephone hotlines which voters can call to find out the location of their polling place. (Complaint at Para. 29(d))
 
3) Assign sufficient numbers of, and in no case less than one, adequately trained Spanish speaking election inspectors to each election district where Hispanic voters are expected to ...

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