Lost In Translation: Local Public Agencies and Translating Official Documents
Benjamin D. Winig is an associate with the law firm of McDonough Holland & Allen PC (MHA) and currently serves as assistant city attorney for the cities of Rohnert Park and Calistoga and the Town of Moraga. He can be reached at firstname.lastname@example.org. Megan Burke, a 2008 summer associate with MHA, provided research assistance for this article.
About Legal Notes
This column is provided as general information and not as legal advice. The law is constantly evolving, and attorneys can and do disagree about what the law requires. Local agencies interested in determining how the law applies in a particular situation should consult their local agency attorneys.
This article originally appeared in the November 2008 issue of Western City magazine.
"¡Ya Voté!" said the sticker that I proudly displayed on my lapel after voting in San Francisco in the June 2008 election. The sticker also declared its message in Chinese and English: "I voted!" The ballot I marked was also printed in three languages, which may not be surprising given that the top five languages other than English most widely spoken by Californians are Spanish, Chinese, Tagalog, Vietnamese and Korean.1 Approximately 83 percent of Californians who speak a language other than English at home speak one of these languages.2
But why did the City and County of San Francisco choose to display only Spanish and Chinese on its election materials? And perhaps more importantly, why did San Francisco translate these documents in the first place? The answers lie in a complex layer of federal, state and local laws and policies that address the need to translate official documents.
The Voting Rights Act
The 1975 amendments to the federal Voting Rights Act of 1965 (VRA) marked the first time that Congress addressed the issue of translation. In declaring that "citizens of language minorities have been effectively excluded from participation in the electoral process," Congress required that any covered jurisdiction providing materials or information related to an election must make such materials available "in the language of the applicable minority group" so that all citizens have an effective opportunity to engage in the political process.3
The VRA governs numerous state and local jurisdictions, and a local agency is considered covered under the act if:
- More than 5 percent of its voting-age citizens are members of a single-language minority and have limited English proficiency;
- More than 10,000 of its voting-age citizens are members of a single-language minority and have limited English proficiency; or
- It contains all or any part of an American Indian reservation and more than 5 percent of the voting-age American Indian or Alaska Native citizens within the reservation are members of a single-language minority and have limited English proficiency.
In addition, the illiteracy rate of the citizens in the language minority must be higher than the national illiteracy rate.4
Perhaps not surprisingly, many agencies find it difficult to determine whether they are deemed "covered jurisdictions." The Civil Rights Division of the Department of Justice presumably is charged with aiding in this determination, but local agencies should take the lead in figuring out whether the VRA applies to them. Moreover, although the Civil Rights Division engages in outreach to inform jurisdictions of their obligations under the VRA,5 local agencies should be aware that the division has resorted to litigation as an enforcement mechanism. Last year, the division filed a complaint against the City of Walnut alleging that it failed to translate election materials and provide assistance for Chinese- and Korean-American voters with limited English proficiency. The court eventually entered a consent decree to ensure proper translation and further ordered the appointment of federal observers until Dec. 31, 2010. To avoid a similar enforcement action, local agencies should ensure that they are translating the appropriate election-related materials "in the language of the applicable minority group" prior to dissemination.
Disgruntled Citizens May File Claims
Some 35 years after the passage of the federal VRA, President Clinton signed Executive Order 13166 titled "Improving Access to Services for Persons with Limited English Proficiency." The order was created to "improve access to federally conducted and federal assisted programs and activities for persons who, as a result of national origin, are limited in their English proficiency (LEP)."6 Although the order did not create any private right of action, affected persons may file complaints with the Department of Justice. And they do. In 1999, a non-English-speaking resident of the City of Roseville filed a claim alleging that the city’s Police Department violated the order because the arresting officer did not translate his directives during an arrest. The claim is still pending, and the city has been forced to endure multiple investigations and settlement demands for nearly a decade.
The California Voting Rights Act
The year after President Clinton issued Executive Order 13166, California passed its own Voting Rights Act.7 The California Voting Rights Act of 2001 prohibits "at-large" elections that prevent protected class members, including members of a "language-minority group," from electing candidates of their choice or that impair their ability to influence the outcome of an election.8 Arguably the failure to translate election-related materials could result in a violation of the California Voting Rights Act, and although there is a dearth of reported cases concerning language-minority groups, remedies can be severe.9 Aside from a prevailing plaintiff being entitled to reasonable attorneys’ fees and litigation costs, the court must also implement "appropriate remedies, including the imposition of district-based elections that are tailored to remedy the violation."10
Additional State Requirements for Non-Election Materials
While there are a variety of other federal and state regulations that concern translation of election-related materials, California has its own requirements for non-election related materials.11 Perhaps most relevant for local public agencies is the Dymally-Alatorre Bilingual Services Act.12 In adopting this statutory scheme, the Legislature declared that "the effective maintenance and development of a free and democratic society depends on the right and ability of its citizens and residents to communicate with their government and the right and ability of the government to communicate with them."13 Importantly, the act’s provisions need only be implemented "to the extent that local ? funds are available."14 But if such funds exist, the act requires a number of practices, the most pertinent of which are summarized below:
- Local agencies serving a substantial number of non-English-speaking people must employ a sufficient number of bilingual persons in public contact positions or as interpreters to assist them.15 The determination of what constitutes a substantial number of non-English-speaking people and a sufficient number of qualified bilingual persons rests with the local agency, but the act provides some guidance.16
- Local agencies must translate materials explaining services that are available to the public into any non-English language "spoken by a substantial number of the public served by the agency."17 As with the act’s other mandates, the determination of when these materials are necessary is left to the discretion of the local agency.18
Although this legislation does not contain enforcement or penalty provisions, any local agency that is serious about reaching out to language-minority populations should adhere to its provisions.
Translation and Civic Participation
According to the 2000 U.S. Census, language acts as a barrier to meaningful civic participation and access to services for approximately 7.7 percent of the total U.S. population age five years and older.19 Although most local public agencies have not adopted formal translation policies to assist in overcoming this obstacle, many agencies throughout the state are nonetheless translating what they consider to be important documents. For example, during the course of its recent General Plan update, the City of Livingston disseminated all notices in both Spanish and Punjabi. Likewise, the County of Merced uses Google Translate on its General Plan update homepage to translate basic information into nine different languages. And numerous other agencies routinely translate material related to rate increases.
So what should you do now? First, determine whether your agency is a covered jurisdiction under the federal Voting Rights Act. Second, review the requirements outlined in Executive Order 13166 to ensure your agency is in compliance. And third, should funding be available, implement the most salient provisions of the Dymally-Alatorre Bilingual Services Act. Responding to the genuine needs of your language-minority populations will undoubtedly lead to greater civic participation and may even keep your agency out of legal trouble.
And what about my experience is San Francisco? Well, the City and County of San Francisco is a jurisdiction covered under the federal Voting Rights Act and is therefore required to translate election materials into both Chinese and Spanish. Muy bien, San Francisco.
1 Civ. Code § 1632(a)(3).
3 42 U.S.C. § 1973aa-1a(c); "Language minorities" refers to those persons who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage. 42 U.S.C. § 1973aa-1a(e).
4 42 U.S.C. § 1973aa-1a(b)(2).
5 See, for example, http://www.usdoj.gov/crt/voting/28cfr/55/28cfr55.htm to review the Attorney General’s Language Minority Guidelines.
6 See Executive Order 13166, signed August 11, 2000 by President William J. Clinton.
7 See Cal. Elec. Code §§ 14025, et seq.
8 Cal. Elec. Code § 14027.
9 See Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660 for an interesting discussion on "language minority groups" as protected class members.
10 Cal. Elec. Code §§ 14028, 14030.
11 See, for example, Civil Code section 2924.8 requiring trustees or authorized agents to notice foreclosure sales in Spanish, Chinese, Tagalog, Vietnamese, and Korean; See Health & Safety Code section 124300 requiring, under certain circumstances, County health departments to translate family planning informational materials.
12 See Cal. Gov’t. Code § 7290 et seq.
13 Cal. Gov’t. Code § 7291
14 Cal. Gov’t. Code § 7299
15 Cal. Gov’t. Code § 7292
16 Cal. Gov’t. Code §§ 7293, 7296.2, 7294.
17 Cal. Gov’t. Code § 7295
19 2000 Census, Profile of Selected Social Characteristics, Supplementary Survey Table (Table QT-02).