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United States District Court
for the District of Massachusetts
FIRST AMENDED Complaint, AND REQUEST FOR INJUNCTIVE RELIEF
Preliminary Statement
Plaintiffs ¿OISTE? Inc., Barbara Gonzalez, and Carlos Matos (collectively “Plaintiffs”) bring this action under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983. As a result of certain actions by the defendants City of Lawrence, Massachusetts (“Lawrence” or the “City”), and William Maloney, the Clerk of the City of Lawrence (collectively “Defendants”), Plaintiffs and numerous citizens of the City of Lawrence, including citizens of Latino descent, were disenfranchised and deprived of their right to vote in connection with the mayoral and city council elections held on Tuesday, November 8, 2005, and in the preliminary elections held on September 27, 2005. Among other things, the City did not follow the state-mandated procedures for dealing with the results of its city census and compiling its voter registration lists. Additionally, when the City belatedly attempted to give notice to a large number of potential voters that they had been placed on the “inactive” list, the notice issued by Defendants was confusing and would have discouraged certain potential voters from exercising their right to vote in the final election on November 8th As a result of this conduct, and other conduct described below, Defendants precluded numerous voters in Lawrence from exercising their right to vote, and Defendants' actions deprived Plaintiffs and other citizens of their constitutionally protected right to vote and to a full and fair elections, and violated Plaintiffs' due process rights under the Fourteenth Amendment. Plaintiffs seek declaratory and injunctive relief as appropriate to remedy the Defendants' unlawful acts as outlined below.
Parties
1. Plaintiff Barbara Gonzalez resides in Lawrence, Massachusetts, and is a duly-registered voter in Lawrence. She was a candidate for a Lawrence City Council seat in District C during the elections held in the City of Lawrence on November 8, 2005, and in the preliminary elections held on September 27, 2005.
2. Plaintiff Carlos Matos resides in Lawrence, Massachusetts, and is a duly-registered voter in Lawrence, and was a candidate for Mayor of the City of Lawrence in the preliminary elections held on September 27, 2005.
2. Plaintiff ¿OISTE?, Inc., is a Massachusetts non-profit corporation organized to promote the social, political, and economic standing of Latinas and Latinos in Massachusetts, with a principal place of business at 59 Temple Street, Boston, Massachusetts. Its members include Latino citizens of Massachusetts who reside in Lawrence and other cities and are otherwise eligible to vote.
3. Defendant City of Lawrence is a duly established and incorporated municipality within the Commonwealth of Massachusetts.
4. Defendant William Maloney is the clerk of the City of Lawrence. He is sued in his official capacity. On information and belief, the Election Division of the City of Lawrence is under the direction and control of Defendant Maloney.
Jurisdiction
5. Plaintiffs invoke the jurisdiction of this Court under 28 U.S.C. §§ 1331, 42 U.S.C. §§ 1983 and 1988. Because the Defendants reside in this district and a substantial part of the events or omissions giving rise to the claims herein occurred in this district, venue in this district is proper under 28 U.S.C. § 1391(b).
Facts
A. Background of Voting Rights Violations in Lawrence
6. The City of Lawrence, Massachusetts has had a long history of voting irregularities and disenfranchisement of minority voters. In 1998, the United States government brought a lawsuit against the City for violations of Section 2 and Section 203 of the Voting Rights Act. After a few years of litigation, in 1999 the United States District Court for the District of Massachusetts (Young, J.) entered an Order in United States v. City of Lawrence, Civ. A. No. 98-CV-122256-WGY, approving a Settlement Agreement that had been agreed to by the United States and the City (the “1999 Consent Decree”).
7. This 1999 Consent Decree provided, in relevant part, that “it is the intent of the City of Lawrence to provide Spanish-language minority citizens full and complete information about all stages of the electoral process, `including, for example, the issuance, at any time during the year, of notifications, announcements, or other informational materials concerning the opportunity to register, the deadline for voter registration, the time, places and subject matters of elections, and the absentee voting process,' …, and that all information that is generated by [the City of] Lawrence in English about `registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots … shall also be provided in the Spanish language.”
8. The 1999 Consent Decree further provided that as part of an effort to “make the election process equally accessible to Spanish-language minority voters” “community election liaisons” will serve as liaisons between the City of Lawrence and the City's Latino community. The Consent Decree further provided that “[c]ity election officials shall inform each liaison about all aspects of the election process, including the schedule of elections, election-related deadlines, absentee voting, the voter registration processes, procedures for responding to an returning annual street listing forms.”
9. Following this agreement, the United States and the City continued to litigate two of the Section 2 claims. On February 25, 2003, the United States District Court for the District of Massachusetts (Young J.) entered an Order approving a Settlement Agreement that had been agreed to by the United States and the City. This Settlement Agreement provided that the next regularly scheduled preliminary and final municipal elections for district seats on the Lawrence School Committee and the Lawrence City Council through the year 2010 were to utilize six specifically drawn districts, and that no changes to the City's charter could be made regarding the election of members to the Lawrence City Council and/or the Lawrence School Committee. On July 2, 2003, this Settlement Agreement was amended to change the redistricting plan in some minor respects in voting districts C and D.
10. The City of Lawrence was also a defendant in another recent case involving voting rights violations. In Morris, Oiste, et al. v. City of Lawrence, 01-CV-118899 WGY, the United States District Court for the District of Massachusetts (Zobel, J.), entered a preliminary injunction in 2001, prohibiting the City from imposing a written identification requirement for voters, after the City of Lawrence had purported to adopt such a requirement shortly before the Mayoral election in the fall of 2001.
B. The City's Violation of Law with Respect to the City Census and the Placing of Large Numbers of Voters on the “Inactive” List
11. The November 8, 2005 election was the first mayoral election, and second City Council election, implementing the changes mandated by the Settlement Agreement reached between the City and the United States in 2003.
12. In early 2005, the City mailed approximately 23,000 city census cards to households in the City of Lawrence. On information and belief, the census cards were written in the English language, and were not bilingual. On information and belief, many Spanish-speaking voters within the City of Lawrence thus did not receive adequate notice of the requirements stated in the city census cards, or of the potential consequences of failing to return those cards as requested in English.
13. On information and belief, the City received only roughly 8,000 responses to the census, and approximately 1,700 census cards were returned to the City as undeliverable. Under state law, the City was obligated to send confirmation notices on or before June 5, 2005 to those individuals who were registered to vote in 2004, but who did not respond to the City census and were as a result placed on the inactive voter list.
14. Despite the low response, the City did not send confirmation notices regarding the census as required by state law, and on July 15, 2005, at 5 p.m., the City closed the census. On information and belief, the City did not take steps to verify the accuracy of its mailing list, or to attempt to update its list in response to the low response rate or the high number of cards returned as “undeliverable.”
15. In mid-July 2005, the City caused approximately 18,400 voters who did not respond to the city census to be placed on the “inactive” voter list, without providing any further notice, in violation of state law. On information and belief, the City also caused a number of voters who had returned the City census forms to be place, improperly, on the “inactive” voters list. On information and belief, the 18,400 voters placed on the “inactive” list constituted approximately 60 percent of the City's registered voters.
16. The failure of the City to provide notice, or attempt to provide notice, to those voters who were placed by the City on the inactive voter list constituted both a violation of state law and a change in the City's longstanding practice. Previously, the practice of the City's Clerk had been to keep voters on the voter list if they had voted the year before, without regard to the returns on the city census.
17. On information and belief, the Defendants knew or should have known that their conduct with respect to the City Census and the placing of large numbers of voters on the inactive voter list was done in violation of state law.
C. The City's Conduct Prior to and During the Elections in the Fall of 2005
18. Before the September 27, 2005 preliminary election for Mayor and City Council, the City's Clerk, Defendant William Maloney, made City officials aware that approximately 18,400 of the City's registered voters had been placed on the inactive voter list.
19. The Defendants took no action to address the situation, and provided no notification to the newly “inactive” voters of their change in status.
20. On September 27, 2005, the City held its preliminary Mayoral and City Council election.
21. On the day of the election, there was widespread confusion among voters as many previously registered voters now in “inactive” status did not understand why they were not on the active voting list. On information and belief, some of these voters became frustrated with the lack of information and, because they were unfamiliar with either the procedure to correct their status or of their rights to vote even when then were on inactive status, either were discouraged from voting or left without voting.
22. A number of voters who had been placed on the “inactive” voter list were told at the polls by the City poll workers that, if they filled out an affidavit of continued residency, they would be allowed to cast what they were told was a “provisional” ballot on that day. In fact, under state law, such a “provisional” vote is improper. Of the 18,400 voters on the inactive list, approximately 3,500 voters cast ballots at the preliminary election. On information and belief, these voters were restored to the active list following the preliminary election.
23. There was a historically low turnout in the preliminary election. While in 1997, there were 9,954 voters in the corresponding preliminary election; and in 2001 there were 9,888 voters, there were only 6,800 in 2005.
24. Subsequently, voters complained to the Commonwealth of Massachusetts' Secretary of State. In response, the Commonwealth's Secretary of State, Mr. William Galvin, reportedly “urge[d the] city to send out postcards in an attempt to clean up the voter list.”
25. In early October 2005, the City hired a private company, LHS Associates, Inc. to prepare and distribute a postcard mailing to the voters who were on the “inactive” voter list. On October 7, 2005, the City provided LHS Associates with a list of approximately 14,900 voters now on the “inactive” list. On information and belief, the City, however, made no effort to update or improve its mailing list.
26. On information and belief, LHS Associates told the City that it needed ten days to prepare and mail out the postcards to these “inactive” voters. Therefore, LHS would not even be able to start sending out the postcards until October 17, 2005, just two days before the voter registration deadline for the November 8, 2005 election.
27. On information and belief, LHS provided the postcards for mailing to the Lawrence Post Office on October 17, 2005, but the first half of the 14,900 were not mailed until October 18, 2005, the day before the voter registration deadline for the November 8th election. The second half of the postcards were not mailed until October 19,2005, the actual day of the voter registration deadline.
28. The postcards, as mailed, were in English and Spanish. The postcards stated, among other things that, “Our records indicate that you have not answered the annual street listing (census) as required by [state law]. Therefore, your name will be designated as `inactive' on the voting list.” This language incorrectly suggested that the voter had not yet been put on the inactive list, when in fact the voter had already been put on the list. However, in a confusing fashion, the postcard then went on to state that a voter could be “restored immediately to the active voter list” if he/she completed the attached postcard and returned it to the City. A recipient of the notice thus could readily have been confused as to whether he/she was in fact an active or inactive voter, and was allowed to vote or was capable of voting in the upcoming election. Perhaps more important, the City's postcard failed altogether to inform voters that even if they were unable to timely submit the materials identified in the postcard in order to be returned to the “active” list, they were still able to vote in the November 8, 2005 election. Without this additional information, the postcards mailed out by the Defendants, on information and belief, would have been confusing to voters and caused discouraged certain voters from exercising their right to vote during the November 8th elections.
29. Of the 14,900 postcards mailed out by the City, approximately 1,000 voters were able to return the postcards and change their status to “active” voter, and an additional 40 voters went personally to the City Hall to change their status.
30. On information and belief, at least 10,000 of the postcards were returned by the post office as undeliverable, and of these at least seventy percent (70%) were addressed to persons with Hispanic surnames. The City again made no effort to update or improve its mailing list, or to contact those voters whose cards were returned as “undeliverable.”
31. Two weeks before the final election, on October 20, 2005, City Council members Marcos Devers, Angel Rivera, Barbara Gonzalez, and various other City Council candidates sent a letter to Mr. William Francis Galvin, Secretary of the Commonwealth of Massachusetts explaining the problem and requesting assistance.
32. On information and belief, the City acknowledged that there was confusion and a potential problem with its notices to voters. However, the City took no action to provide notice to voters on the “inactive” voter list who received the postcard after the registration deadline other than placing a “Notice to Inactive Voters” in the November 1, 2005 edition of Rumbo, a bi-lingual newspaper in Lawrence.
33. The announcement in the Rumbo newspaper stated that “voters will be asked for identification” (in several possible forms), and that “[a] voter unable to produce suitable identification shall be allowed to vote, but said ballot is subject to challenge” under state law. Again, however, the Notice failed to state that a voter on the “inactive” voter list has a right to vote under state law. Nor did the Notice identify the date of the election, what election the Notice is referring to, nor is it tied in any way to the City's previous notices, or to the postcard sent by the City.
34. This announcement did not reach the collective set of “inactive” voters as Rumbo's circulation is not coextensive with the “inactive” voter's list. The announcement was also inconsistent with the information previously provided by the City in the postcards, and did not tell voters what to do in response to the announcement.
35. Late in the day on November 4, 2005, Plaintiffs filed a Complaint in the United States District Court for the District of Massachusetts, seeking immediate injunctive relief in connection with the impending November 8, 2005 election. As soon as practicable, the following Monday, November 7, 2005, Plaintiffs filed an Emergency Motion for a Temporary Restraining Order Against Violations of Voting Rights.
36. On the afternoon of November 7, 2005, the day before the election, the Court (Gorton, J.) held an emergency hearing. At the hearing, counsel for the Defendants admitted that due to “administrative error” the Defendants had failed to send out notice in June 2005 to those thousands of voters whom the City placed on the inactive list. However, the Court denied Plaintiffs' motion for a temporary restraining order and Plaintiffs' request to hold the election open for an additional time period to allow those persons who had been confused or misled by the Defendants' actions to be notified of their rights and have a fair opportunity to vote. Orally, the Court ordered Defendants to provide notice to potential voters on the inactive list of their right to vote by attempting to post announcements on certain radio stations, and the local cable station starting on the evening of November 8, 2005, and the publication of an advertisement in both Spanish and English in the local newspaper - the Eagle Tribune - using certain text agreed upon by the parties on at the hearing on November 7, 2005.
37. On information and belief, while Defendants did post a message in the local cable station, they did not cause any radio announcements to be put on the air until after the polls opened on November 8, 2005, and failed to publish an advertisement in the Eagle Tribune in the bilingual manner consistent with the Court's order. As a result, at the time of the final election on November 8, 2005, the City had not actually or adequately provided notice to many previously registered voters in the City of Lawrence that they had been placed on the inactive list or that they were nonetheless still entitled to vote in the November 8th elections for Mayor and City Council.
38. The turnout on election day, November 8th, was again unusually low, and there was again confusion at the polls as a result of the City's actions in improperly placing large numbers of voters on the inactive list. On information and belief, the confusion caused by the City's conduct with respect to the voting lists and the subsequent mailing discouraged a significant number of eligible voters from participating in the election. Other conduct by the City, including without limitation the failure to properly notify voters of changes in the location of their assigned polling places, the giving of incorrect instructions and information to voters who arrived at the polls, the mislabeling of polling places, and the inconsistent treatment of persons within the same household with respect to their status on the active or inactive voter list, contributed to the confusion and discouraged other voters from exercising their right to vote. As a result of the Defendants' conduct, Lawrence voters and the Plaintiffs were harmed, and the elections conducted by the City on November 8th were not full and fair.
COUNT I
VIOLATION OF DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT
39. The allegations contained in paragraphs 1-39 are hereby incorporated by reference.
40. As a result of Defendants' conduct, as described above, on information and belief thousands of voters in the City were effectively deprived of their Constitutionally protected right to vote, and Defendants' conduct failed to afford Plaintiffs and thousands of Lawrence voters with full and fair preliminary and final elections for Mayor and City Council.
COUNT II
VIOLATION OF § 1983
41. The allegations contained in paragraphs 1-40 are hereby incorporated by reference.
42. Defendants the City of Lawrence and William Maloney were acting under the color of the law when they engaged in the conduct and made the violations of state and federal law described above.
43. It was Defendants' duty to provide adequate notice to voters of their change in status, and how to properly return themselves to active status before the election, to protect the voting rights and the due process rights of voters in Lawrence, and to ensure full, and fair preliminary and final elections to all voters.
44. As a result of Defendants' conduct, as described above, on information and belief, Defendants violated state law, and thousands of voters in the City were effectively deprived of their Constitutionally protected right to vote, and Defendants' conduct failed to afford Plaintiffs and thousands of Lawrence voters with full and fair preliminary and final elections for Mayor and City Council.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court grant them the following relief:
1. A declaratory judgment that the conduct of Defendants described in this Complaint has deprived Plaintiffs of rights to due process secured by the Fourteenth Amendment to the United States Constitution;
2. A declaratory judgment that the conduct of Defendants described in this Complaint violates 42 U.S.C. § 1983;
3. If appropriate, a declaratory judgment that the results of the November 8, 2005 election are invalid, null, and void;
4. An appropriate permanent injunction order requiring Defendants to adopt all measures appropriate to provide a full and fair opportunity for all voters to exercise their rights to vote, including without limitation, to correct and update its voter list so as to enable the Defendants to provide actual notice to the voters within the City who were registered to vote prior to the City's actions enumerated above, to actually provide full, fair and timely notice to all eligible voters within the City of Lawrence as to their eligibility to vote, their status on the active or inactive voter list, their rights to change their status, and their rights with respect to voting even if they remain on “inactive” status, and also awarding such other and further injunctive relief so as to remedy any past violations of law;
5. An award of damages, attorneys fees and costs and expenses pursuant to 42 U.S.C. § 1983 and § 1988, and
6. Such other and further relief as this Court deems appropriate.
Jury Trial Demand
Plaintiffs demand a trial by jury on all issues so triable.
¿OISTE? INC., BARBARA GONZALEZ AND CARLOS MATOS
By their attorneys,
__________________________
J. Anthony Downs (BBO#552839)
GOODWIN PROCTER LLP
Exchange Place
53 State Street
Boston, MA 02109
(617) 570-1000
__________________________
John Reinstein (BBO #416120)
ACLU of Massachusetts
211 Congress St.
Boston, MA 02110
(617) 482-3170
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Nadine Cohen (BBO #090040)
LAWYERS COMMITTEE FOR CIVIL RIGHTS
UNDER LAW OF BOSTON BAR ASSOCIATION
294 Washington Street, Suite 443
Boston, MA 02108
(617) 988-0609
Dated: March 2, 2006
LIBA/1653520.2
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