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In our previous blog post on 13 January, we covered 12 out of 13 votes contested in Ryan v. City of Salem, et al. On Friday, 3 January, Judge Lu ruled against Ryan on 12 of 13 complaints, but one issue remained: a voter who actually did not cast a ballot. That issue took up the next 2.5 days of the trial (and had already consumed some of the previous 6). Ultimately, on 8 January, Judge Lu ruled against Ryan on this last issue. Number 13 was very complicated and interesting.
Let’s dive in . . .
The Background
We will call this voter “John,” although his name has been published elsewhere. John completed a voter registration form at a state agency, the Department of Transitional Assistance. The agency sent the form to the Salem Elections Department (supervised by the City Clerk). The City processed the form as a mail-in registration. At trial, the City presented Secretary of the Commonwealth (SOC) guidance that this was proper.
When a voter registration form is mailed to the Elections Department without ID proof of residency, the state voter registration information system flags the voter as required to present proof of residency the first time they vote. John was flagged as such a voter, although he had appeared in-person at the state agency, presumably with proof of residency (and citizenship) to receive services. At trial, the City asserted that this is the standard procedure dictated by the SOC.
The Secretary of the Commonwealth’s (SOC’s) website (and guidance to Elections Departments) asserts:
“If you are voting for the first time in a federal election in Massachusetts after registering to vote by mail, you may be required to show identification under federal law. It is recommended that you include a copy of your identification with your mail-in voter registration form; if you choose not to do so, you may be asked for identification when you go to your polling place on Election Day. If you are unable to present identification when you check-in, you may cast a provisional ballot and return later with identification. If you do not return with acceptable identification by close of polls, your ballot cannot be counted.”
What is a provisional ballot? Also known as as “fail-safe ballot,” a provisional ballot is a way for a voter to cast a ballot even though an election official has disputed the voter’s eligibility to vote. Provisional ballots are set aside and if the election official later determines that the voter really was eligible, their ballot is counted. If the voter really wasn’t eligible, the ballot is not counted.
At the trial, the City presented SOC guidance that this policy should be applied to non-federal elections (like Salem’s municipal election) as well as federal elections.
John arrived at the polls near the 8 p.m. closing time; his exact arrival time is unclear and variously estimated between 7:40 and 7:55 or so. He arrived with a Ryan campaign worker who interpreted for him (John is not fluent in English). John was also assisted by several poll workers, including one who spoke to him in Spanish.
Some time (several minutes at least) was spent looking through the documents John had with him to see if they could be used as proof of residency, but they could not be, because they did not have a Salem address. According to testimony, as relayed by the Twitter record, the Ryan campaign worker insisted that John’s Puerto Rican driver’s license should be acceptable and the City’s Spanish-speaking poll worker explained that it was not. According to her affidavit, the precinct warden told John he could fill out a provisional ballot, but that it would never be counted, because he would have to have brought his ID proof of residency back to the poll before the 8:00 p.m. closing, but there was not enough time to do so. John left the polling place without voting as the hour of 8:00 p.m. had passed and the closing of the polls had been announced.
The Final Argument
So, the judge allowed the trial to continue 2.5 more days because he felt there was a question that needed to be explored: “Did the nature of the interpretive services unlawfully deprive [the voter] of the right to vote?” Specifically, did a delay in interpretive services prevent John from going home to get proper ID with proof of residency?
Ryan’s attorney’s final arguments were these:
If John had been greeted promptly by an interpreter and immediately told what types of ID proof of residency he could supply, he could have gone home and come back with proof before 8:00 p.m., because he lived very close by, perhaps a 2-3 minute trip. The City had a duty to supply this level of service because:
the City had signed a Memorandum of Understanding (MOU) with the Latinx community in 2016, which included a promise to provide interpreters at polling places;
the City is or should be covered by the Voting Rights Act (VRA) language assistance requirements (“Section 203”); and
even without the MOU or Section 203, the US Department of Justice had sued on behalf of communities similar to the Salem Latinx and won settlements and there are “all kinds of statutes” to protect voters. [This last point sounded garbled in the Twitter record. It probably was probably spoken and recorded quickly.]
Ryan’s attorney said “the touchstone here isn’t simply providing Spanish interpretation, but providing competent, effective . . not just interpretation, but advice.” “We’re not saying [the City] didn’t try. We’re saying they missed the mark.”
The Resolution
MOU:
The MOU is a product of the collaboration between members of the Point Neighborhood Association, North Shore CDC, and the Latino Leadership Coalition (LLC). The MOU was created to publicly identify that Salem needed to improve its election practices and to put in place a plan and accountability measures to help Salem in delivering on improvements. From 2013 to 2015, the three organizations tried to rectify problems at the polls that often resulted with Latinos being unable to vote or feeling unwelcome when they did. In June 2015, the LLC filed their grievances with the Attorney General’s office, who recommended that they take the matter to the Secretary of the Commonwealth. On 1 July 2015, the LLC filed an inquiry with the SOC, and on 15 July 2015, the clerk, Cheryl LaPointe agreed to meet with them. The LLC drafted and presented an MOU intended to inform Spanish-speaking voters of their rights, protect those rights by compyling with the law, and improve language access. The mayor and the chief of police signed and endorsed the MOU, but LaPointe, declined to sign on the advice of her personal lawyer. The memorandum was received and filed, but never endorsed by the city council at their February meeting in 2016. The city clerk reports to the city council, not the mayor, and not the chief of police, so the council’s lack of endorsement is important. Current city clerk, Ilene Simons, testified that the clerk’s office adheres to the principles of the MOU, even though there is no legal obligation to do so. In a Salem News article published on 20 January, the LLC leadership outlined the progress that has been made since Simon’s appointment as clerk. Since 2016, the LLC has worked with the city to help recruit bilingual poll workers and interpreters for elections. They have collaborated with the city to promote Early Voting initiatives to Salem's Spanish-speaking community. Chief Butler prioritized making sure officers working the polls understood their role during elections. Simons has been open to meetings with the LLC and suggestions to improve voter access based on Latino voter feedback. It may be time to review the MOU, because it is important to ensure practices and protections that support increased voter engagement are formally incorporated into how Salem administers elections.
VRA:
Salem is not covered by Section 203 of the VRA. Every 5 years, the Census Bureau determines which jurisdictions are covered. The last determination, from 2016, did not include Salem. A jurisdiction is covered by Section 203 if:
more than 5% of voting age citizens are limited-English proficient, OR
more than 10,000 voting age citizens are limited-English proficient;
AND the rate of total voting age citizens that are limited-English proficient and have less than a 5th grade education is higher than the national rate.
(The jurisdiction is covered for the specific language minority group(s) that make(s) up the 5+ % or the 10,000+ people.)
Judge Lu ruled against Ryan, saying that “the plaintiff thinks the clerk must give all-knowing advice to the voter and that’s impossible to achieve, and that’s not something that can be imposed on the City in the circumstances of this one voter.” It was already 8:00 pm by the time John was aware of what proof of residence he needed. The judge was further convinced by the testimony of Councilor Domingo Dominguez about the City’s “general compliance.”
And there you have it, the end of the trial.
Next Steps?
Ryan has issued a press release saying he will continue to appeal, not his loss, but whether the City’s policy of requiring identification from certain “flagged” individuals meets election law standards. “I am very concerned about the obstacles being placed in the way of our poor, disabled and non-English speaking Salem neighbors when it comes to registering to vote and actually voting,” Ryan said.
In the days after the election, John visited the City Clerk and, with the aid of representatives of the LLC, discussed what had happened election night. He also brought his ID proof of residency and resolved that issue. At trial, John indicated that he was disappointed that he did not vote, but satisfied with the actions of the Clerk and her elections staff. The LLC issued a statement in a a letter to the editor of the Salem News, also expressing satisfaction with the professionalism of the Clerk, and vowing to continue the work of increasing voter empowerment.
There have been statements made that the new Massachusetts automatic voter registration (AVR) law will prevent what happened to John from happening to other people–but it will not. The Department of Transitional Assistance is not part of AVR at this time. Only the Registry of Motor Vehicles, MassHealth, and the Health Connector are participating agencies. For other state agencies to join AVR, they must meet certain minimum requirements and sign an MOU with the Secretary of the Commonwealth.