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October 30, 1972


The opinion of the court was delivered by: Tone, District Judge.


Plaintiffs bring this action to compel the defendant election commissioners to provide voting assistance in the Spanish language to United States citizens of Puerto Rican birth who are unable to use the English language. Plaintiffs rely upon the Voting Rights Act (42 U.S.C. § 1971 et seq.), the Civil Rights Act of 1871 (42 U.S.C. § 1983), and the Fourteenth and Fifteenth Amendments. Jurisdiction is based on 28 U.S.C. § 1343 and 42 U.S.C. § 1971(d). With their complaint, plaintiffs filed a motion for preliminary injunctive relief in connection with the General Election to be held November 7, 1972.

The four individual plaintiffs allege that they were born and educated in Puerto Rico, are citizens of the United States by virtue of their birth, are residents of Illinois registered and entitled to vote, and are literate in Spanish but not proficient enough in English to exercise their right to vote effectively unless given assistance in Spanish. The corporate plaintiff is a not-for-profit organization, among whose objectives are to further the participation of Puerto Rican and other Spanish speaking Illinois residents in the political process. Plaintiffs allege they represent a class consisting of all other eligible voters of Puerto Rican birth in Chicago "who, like them, use and understand the Spanish language but are unable to read or understand English." The defendants are the three members of the Board of Election Commissioners of the City of Chicago. The Puerto Rican United Front and several other community organizations have appeared, with leave of Court, as amici curiae.

The defendants have filed a verified answer, challenging plaintiffs' claim on several grounds and denying, for lack of knowledge or information, that the individual plaintiffs or persons they seek to represent are unable to use the English language or unable to vote knowledgeably without the relief sought in the complaint.

For several weeks after the filing of the action, the Court and counsel for plaintiffs, defendants and amici curiae held a series of conferences to discuss what kinds of assistance to Spanish speaking voters could be provided in the time available before the November 7, 1972 General Election. Defendants' counsel have made it clear that their participation in these conferences does not constitute any concession on their part that the Court has jurisdiction or that the complaint has merit. During the period the conferences were going on, the defendants determined that it was practicable to take certain action to assist Spanish-speaking voters before November 7 and advised the Court and counsel for the plaintiffs and amici curiae that they intended to take this action regardless of whether plaintiffs persisted in their motion for preliminary injunction or withdrew the motion in view of defendants' announced intentions. Plaintiffs appear to be satisfied that the steps defendants have said they intend to take are all that they reasonably could be asked or ordered to do in the time available between the date the case was commenced and the November 7 election, but they have persisted in their motion for preliminary injunction because defendants refuse to enter into an agreement that they will do as they have said they intend to do. Accordingly, an evidentiary hearing was held on the motion for preliminary injunction.

The four individual plaintiffs are all citizens of the United States of voting age who were born in Puerto Rico, were educated in primary schools there in which the predominate language was Spanish, have moved to Chicago and are presently registered to vote here. It appears from their affidavits and from the testimony of two of them, given through an interpreter, that they cannot read, write or, except for a few words, understand English. Plaintiffs have submitted numerous affidavits of class members, each stating that the affiant is a United States citizen born in Puerto Rico, resides in Chicago, and is registered to vote but does not understand sufficient English to be able to vote effectively unless election instructions and assistance are provided in the Spanish language. Two members of the class testified through an interpreter. I am satisfied from the affidavits and testimony just described and from the testimony of other witnesses that plaintiffs and many thousands of other United States citizens of Puerto Rican birth residing in Chicago and registered to vote there will be unable to vote effectively in the November 7, 1972 General Election unless they are provided with instructions and assistance in the Spanish language.

The individual plaintiffs raise claims which are identical to the claims of the class and which are based on identical issues of law and fact. They allege that the defendants have acted on grounds generally applicable to the class and appropriately seek declaratory and injunctive relief with respect to the class as a whole. There is no reason to doubt that plaintiffs and their counsel will fairly and adequately protect the interests of the class. The cause is therefore confirmed as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure.

As to the corporate plaintiff, there is enough doubt about its standing to sue (compare Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) with NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)) to persuade me to defer ruling on this issue at this time. The action may be maintained by the individual plaintiffs and that is enough for now.

Puerto Rico is bilingual, but the primary language of its people and the predominate language in the classrooms of its schools is Spanish. While typically instruction in English as a second language is given beginning with the fourth grade, and in some instances the first grade, in Puerto Rican schools, this instruction usually does not prepare pupils to communicate effectively in English. Therefore, many persons born and educated in Puerto Rico are unable to speak, understand or read English.

Immigrants to the United States from non-English speaking foreign countries are required to learn English as a condition to becoming United States citizens. 8 U.S.C. § 1423. Persons born in Puerto Rico after April 10, 1899 are, ipso jure, citizens of the United States. 8 U.S.C. § 1101(a)(38), 1401(a), 1402. Being citizens from birth, they are not required to learn English.

Section 4(e) of the Voting Rights Act of 1965 (42 U.S.C. § 1973b(e)), read with the Voting Rights Amendments of 1970 (42 U.S.C. § 1973aa), establishes and protects the voting rights of persons educated in Puerto Rican schools*fn1 by prohibiting the states "from conditioning the right to vote of such persons on ability to read, write, understand, or interpret any matter in the English language" (42 U.S.C. § 1973b(e)(1)).*fn2 Designed originally to aid the Puerto Rican population of New York (Katzenbach v. Morgan, 384 U.S. 641, 645, 86 S.Ct. 1717, 16 L.Ed.2d 828, n. 3 (1966)) without disturbing the minimum education requirements of that state's election law, Section 4(e) specifically enfranchised those who had successfully completed the sixth grade in an American-flag school in which the predominant classroom language was other than English. (42 U.S.C. § 1973b(e)(2).) Congress' intent to place the voting rights of Puerto Rican educated citizens on a parity with those of English speaking citizens was evidenced by an "except" clause which governed when the applicable state election law contained a lower education requirement than completion of the sixth grade.*fn3 (Ibid.)

When Congress abolished all state minimum education and literacy requirements for a period of five years in the Voting Rights Amendments of 1970 (42 U.S.C. § 1973aa(a) and (b)), what was left of Section 4(e) was its prohibition against denying any person educated in Puerto Rico, whatever the extent of his education, "the right to vote in any Federal, State, or local election because of . . . inability to read, write, understand, or interpret any matter in the English language." That prohibition protects the voting rights of the plaintiff class in this case.

The right to vote means the right to effectively register the voter's political choice, not merely the right to move levers on a voting machine or to mark a ballot. In deciding that a state could not, consistent with the Equal Protection Clause, provide for voting assistance to physically infirm voters while denying it to illiterate voters, the three-judge court in Garza v. Smith, 320 F. Supp. 131, 136 (W.D.Tex. 1970), said:

    "If the `right to vote' consists only of the right
  to enter the voting booth without hindrance or
  discrimination, perform the physical act of voting,
  and have the vote so recorded counted in the total of
  like votes cast, we cannot say that the challenged
  provisions have an impact on the illiterate voter's
  ability to exercise the right. Except for physically
  disabled or blind illiterates, as to whom the issue
  is moot, an illiterate voter is capable of performing
  each element of the `right to vote', as defined
  above, without hindrance from the statutes in
  question. We decide, however, that the `right to
  vote' ...

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