SB 963

SENATE BILL NO. 963
A bill to provide for language assistance for elections; to
provide for the powers and duties of certain state and local governmental
officers and entities; to create the language access advisory council; and to
provide for remedies.
the people of the state of michigan enact:
Sec. 1. This act may be
cited as the "language assistance for elections act".
Sec. 3. As used in this
act:
(a) "Limited English proficiency" means an
individual who does not speak English as that individual's primary language and
who speaks, reads, or understands the English language less than very well.
(b) "Local government" means a county, or a city or township that conducts an election.
(c) "Michigan voting and
elections database and institute" means the Michigan voting and elections
database and institute created in section 5 of the voting and elections
database and institute act.
(d) "Voting-eligible
population" means the population of individuals with United States
citizenship who are 18 years of age or older.
Sec. 5. (1) A local
government must provide language assistance for elections conducted in that
local government if that local government meets either
of the following conditions:
(a) Before January 1, 2030, has more
than 5% of the voting-eligible population in that local government who speak a
single shared language other than English and have limited English proficiency,
or, beginning January 1, 2030, has a voting-eligible population of at
least 600 individuals in that local government who speak a single shared language other than English and have
limited English proficiency.
(b) Before January 1, 2030, has a
voting-eligible population of more than 10,000 in that local government who
speak a single shared language other than English and have limited English
proficiency, or, beginning January 1, 2030, has a voting-eligible
population of at least 100 individuals in that local government who speak a single shared language other than English and have
limited English proficiency and also comprise 2.5% or more of the
voting-eligible population in the local government.
(2) If a local government that is
required to provide language assistance for elections conducted in that local
government under this section enters into an agreement with the county in which
that local government is located authorizing the county to conduct early voting
for that local government as provided under section 720g of the Michigan
election law, 1954 PA 116, MCL 168.720g, the county must comply with the
language assistance requirements for that local government during the early
voting period.
(3) Not later than January 31 of
each odd-numbered year, the secretary of state shall post on the
department of state's website both of the following based on data made
available by the United States Census Bureau or the American
Community Survey, or, if that data is insufficient,
data of comparable quality collected by a governmental
entity or the Michigan voting and elections database and institute:
(a) A list of each local government that is required under
this section to provide language assistance for
elections under subsection (1).
(b) A list of each language in which the local governments
listed in subdivision (a) are required to provide language assistance for
elections.
(4) At least 10 days before the
secretary of state posts the information on the department of state's website
under subsection (3), the director of elections shall provide that information to the clerk of each local
government in this state. If a local government is
added to the information posted on the department of state's website under
subsection (3), the secretary of state must do all of the following:
(a) Notify that local government of
the language assistance requirements.
(b) Require that local government to
implement the language assistance requirements not later than the next state
primary election date.
(c) Provide in the covered language
all voting materials produced by the secretary of state relevant to that local
government.
(d) Issue guidance on implementing
the language assistance requirements described in subsection (2).
(5) If the secretary of state
determines under this section that language assistance for
elections must be provided in a local government, the secretary of state must do all of the following:
(a) Except as otherwise provided
under this subdivision, provide translations for voter-facing materials in
each designated language as translated by a certified translator, including
registration and voting notices, forms,
instructions, assistance, ballots, absent voter ballot applications, signage at
clerks' offices, polling places, and early voting sites, and other materials designated by the language access advisory council, as
created under section 6. The secretary of state shall annually provide to the
language access advisory council a list of materials suggested for translation.
If a local government requires language assistance for elections that is not
provided by the secretary of state under this subsection, that local government
is required to submit language to the secretary of state no later than 82 days
before the election, and if that language is not submitted to the secretary of
state by the local government as required under this subdivision, that local
government is required to provide the language assistance for elections as
required under this subdivision.
(b) Ensure that all materials
provided in a designated language are translated by a
certified translator and do not rely solely on any automatic translation
service, are of an equal quality to the English counterparts, and accurately convey
the intent and essential meaning of the original text or communication in the most widely used dialect.
(c) Provide to that local
government, and to the county in which that local government is located if that
local government has entered into an agreement with the county in which that
local government is located authorizing the county to conduct early voting for
that local government as provided under section 720g of the Michigan election
law, 1954 PA 116, MCL 168.720g, a voting system technology that produces
ballots on demand and a voter assist terminal that displays a translated ballot
for the voter to mark using the electronic interface on the voter assist
terminal and that prints a translated ballot reflecting the voter's votes for
tabulation.
(d) Subject to this subdivision,
reimburse that local government for additional costs associated with logic and
accuracy testing on tabulators conducted by that local government, or, if
approved by the governing body of the local government, directly contract with
a vendor to do logic and accuracy testing on tabulators in that local
government. The secretary of state shall not prohibit the clerk of a local
government or a board of election commissioners from using any source to
prepare the chart of predetermined results and test decks with those
predetermined results used in that preliminary logic and accuracy testing if
the chart of predetermined results and test decks with those predetermined
results meet the required standards under law. A clerk of a local government or
a board of election commissioners may use any source to print test ballots if
the source is capable of printing ballots that are designed to be scanned
properly by voting equipment, and may use any source to conduct logic and
accuracy testing if that logic and accuracy testing is limited to only placing
test ballots in voting equipment and comparing the results to the chart of
predetermined results, and does not involve any additional examination of or
access to voting equipment.
(6) If the secretary of state
provides language assistance for elections to a local government under
subsection (5), that local government must use all of the language assistance
for elections provided by the secretary of state.
(7) If the secretary of state
determines under this section that language assistance for elections must be
provided in a local government, the secretary of state shall provide to the
clerk of that local government access to either a live interpreter or a virtual
system, along with any necessary equipment that can be used for providing
language interpretation to electors. The secretary of state shall provide to
the clerks in any other local government access to a virtual system on request.
The live interpreter or virtual system described in this subsection must be
provided in the clerk's office for the period beginning 45 days before the
election and continuing through election day, in early voting sites during the
early voting period, and in election day polling places on election day.
(8) The secretary of state
must produce electronic copies of the specified election
materials that the secretary of state makes public in each language that has
been designated under subsection (1).
(9) Nothing in this section
prohibits a local government from voluntarily providing language assistance for elections beyond that language assistance for elections required in this section if the local
government determines that language assistance for
elections would be beneficial for the limited English proficiency
residents in that local government.
(10) This section takes
effect January 1, 2028.
Sec.
6. (1) The language access advisory council is created in the department of
state.
(2) The language access advisory
council consists of the following members who shall be appointed by the
secretary of state:
(a) One clerk who is selected from a
list of nominees submitted by the Michigan Association of Municipal Clerks.
(b) One clerk who is selected from a
list of nominees submitted by the Michigan Association of County Clerks.
(c) One member from each group that
is eligible for language assistance for elections under this act.
(3) The secretary of state shall
appoint the members of the language access advisory council no later than May
1, 2027.
(4) If a vacancy occurs on the
language access advisory council, the secretary of state shall fill the vacancy
in the same manner as the original appointment.
(5) The members of the language
access advisory council shall meet 1 or more times annually, as directed by the
secretary of state, to advise the secretary of state on implementing the
provisions of section 5.
(6) The language access advisory
council shall annually approve a list of voter-facing materials that must be
translated into each designated language by a certified translator, including
the required materials provided in section 5(5)(a).
Sec.
7. (1) Except as otherwise provided under subsection (5), before commencing a
civil action against the secretary of state or a local government that alleges
a violation of section 5, a prospective plaintiff must send by certified mail a
notification letter to the secretary of state or, for a local government, the
clerk and chief administrative officer of the local government that asserts
that the secretary of state or the local government may be in violation of
section 5. The notification letter must explain in detail each alleged
violation of section 5 and propose a remedy for each alleged violation of
section 5.
(2) Within 30 days after receiving a
notification letter under subsection (1), the secretary of state, or the clerk
of the local government and the chief administrative officer or chief executive
officer of that local government, along with legal counsel or any other
individual the secretary of state or the local government wishes to attend, may
meet with the prospective plaintiff and the prospective plaintiff's
representatives to prepare and agree on a written plan to address the alleged
violations of section 5 by the secretary of state or the local government. If
the secretary of state or the local government does not meet with the
prospective plaintiff, the prospective plaintiff may file a cause of action as
provided under subsection (5). If the secretary of state or the local
government agrees to meet with the prospective plaintiff to prepare and agree
on a plan to address the alleged violations, the prospective plaintiff or the
prospective plaintiff's representatives must participate in the meeting. The written
plan described in this subsection must be in writing, be approved by the
secretary of state or, for a local government, by a resolution of the governing
body of the local government, and do all of the following:
(a) Identify each alleged violation
of section 5 by the secretary of state or the local government.
(b) Identify a specific remedy for
each alleged violation of section 5 by the secretary of state or the local
government or state that the parties agree that no remedy is appropriate for 1
or more of the alleged violations.
(c) Establish specific measures that
the secretary of state or the local government must take to facilitate any
needed approvals to implement each specific remedy.
(d) Provide a schedule for the
needed approvals and the implementation of each specific remedy.
(3) If a prospective plaintiff and
the secretary of state or the local government agree on a written plan that
complies with subsection (2), and that written plan is approved by the
secretary of state or, for a local government, by a resolution of the governing
body of the local government, no cause of action may be filed by the
prospective plaintiff unless the secretary of state or the local government
fails to comply with the requirements of the written plan.
(4) If a prospective plaintiff and
the secretary of state or the local government do not agree on a written plan
as described under subsection (2), the prospective plaintiff may file a cause
of action as provided under subsection (5).
(5) Subject to subsections (1) to
(4), any individual aggrieved by a violation of section 5, any entity whose
membership includes individuals aggrieved by a violation of section 5, any
entity whose mission would be frustrated by a violation of section 5, any
entity that would expend resources in order to fulfill its mission as a result
of a violation of section 5, or the attorney general may file a cause of action
against a local government as provided under section 12(1) or against the
secretary of state as provided under section 12(2) if any of the following
requirements are met:
(a) The party gave written notice as
required under subsection (1) and the secretary of state or the local
government did not meet and approve a written plan as provided under subsection
(2).
(b) Another party has already
submitted a notification letter under subsection (1) that alleges a
substantially similar violation of section 5 and that party is eligible to
bring a cause of action under this subsection.
(c) After a party submitted a
notification letter under subsection (1), the secretary of state or the local
government failed to implement a written plan as provided under subsection (2).
(d) The party is seeking preliminary
relief with respect to an upcoming election as provided under section 13.
Sec.
8. (1) Subject to subsection (4), if, pursuant to a process commenced by a
notification letter under section 7, a local government enacts or implements a
remedy to a potential violation of this act, the department of state shall
reimburse the prospective plaintiff who sent the notification letter from the
Michigan voting rights assistance fund, as created in section 15 of the state
voting rights act, or, if there is insufficient money in the Michigan voting
rights assistance fund, from other money appropriated to the department of
state for this purpose, for the reasonable costs to generate the notification
letter under section 7.
(2) If a local government enacts or
implements a remedy to a potential violation of this act, either in response to
a notification letter received under section 7 or on its own volition, the
department of state shall reimburse that local government from the Michigan
voting rights assistance fund, as created in section 15 of the state voting
rights act, or, if there is insufficient money in the Michigan voting rights
assistance fund, from other money appropriated to the department of state for
this purpose, for the reasonable costs to evaluate whether the remedy was
necessary to prevent a potential violation of this act.
(3) The department of state shall
reimburse a local government from the Michigan voting rights assistance fund, as
created in section 15 of the state voting rights act, or, if there is
insufficient money in the Michigan voting rights assistance fund, from other
money appropriated to the department of state for this purpose, for the
reasonable costs incurred to evaluate whether a remedy is necessary to prevent
a possible violation of this act. The department shall provide reimbursement
under this subsection only if both of the following requirements are met:
(a) The costs were incurred by the
local government in response to a notification letter received under section 7.
(b) The department of state
determines, on request from the local government, that a reasonable plaintiff,
with reasonable investigation before sending the notification letter, would
have known the allegations in the notification letter lacked legal or factual
merit.
(4) Subject to subsection (6), the amount
of reimbursement provided under subsection (1), (2), or (3) must not exceed
$50,000.00. This amount must be adjusted annually by an amount determined by
the state treasurer to reflect the cumulative annual percentage increase in the
United States Consumer Price Index for the immediately preceding calendar year
and rounded to the nearest $100.00 increment.
(5) A request for reimbursement made
by a prospective plaintiff or a local government under subsection (1) or (2)
must be transmitted to the department of state not later than 90 days after the
enactment or implementation of the remedy. A request for reimbursement made by
a local government under subsection (3) must be transmitted to the department
of state not later than 90 days after the local government receives a
determination by the department of state that the allegations in the notification
letter lacked legal or factual merit. The request for reimbursement must be
substantiated with financial documentation, including, as applicable, detailed
invoices for expert analysis and reasonable attorney fees calculated using a
lodestar methodology. A prospective plaintiff or local government that does not
receive satisfactory reimbursement within 120 days after the request for
reimbursement may file a declaratory judgment action to obtain a clarification
of rights.
(6) A local government may seek
reimbursement only under subsection (2) or (3), and not subsections (2) and
(3), regarding a notification letter.
(7) As used in this section,
"United States Consumer Price Index" means the United States Consumer
Price Index for all urban consumers as defined and reported by the United
States Department of Labor, Bureau of Labor Statistics.
Sec.
9. (1) In any action brought under this act, the court has broad authority to
order adequate remedies that are tailored to address the violation. The ordered
remedies must be only as extensive as reasonably necessary to remedy the
violation. Subject to subsection (3), adequate remedies include, but are not
limited to, any of the following:
(a) Requiring the establishment and
conducting of a comprehensive program that ensures an equal opportunity for
citizens in the local government who are entitled to language assistance under
this act to participate in the electoral process.
(b) Adding voting days or hours.
(c) Ordering a special election on
either a regular election date as provided under section 641 of the Michigan
election law, 1954 PA 116, MCL 168.641, or on another date, as determined by
the court, if necessary to remedy a violation.
(d) Imposing nominal or compensatory
damages.
(e) Subject to this subdivision,
imposing punitive damages in the form of a civil fine. The civil fine must be
deposited into the Michigan voting rights assistance fund created in section 15
of the state voting rights act. When assessing the amount of punitive damages,
the court shall take into consideration the severity of the violation, the
number of violations, whether the local government has previous violations, the
number of registered electors in the local government, the local government's
ability to pay the punitive damages, and any other factors the court considers
necessary. The court shall provide an explanation in any order requiring the
payment of punitive damages on why punitive damages were required and how the
court determined the amount of those punitive damages. Punitive damages may be
ordered only if the court finds any of the following:
(i)
The violation is intentional.
(ii)
The local government or an official of a local government demonstrated a
disregard for the voting rights of qualified electors in the local government.
(iii)
After being notified of an alleged violation under section 7(1), the local
government failed to take any action under section 7(2).
(iv)
The local government violated a court order issued under this act, article II
of the state constitution of 1963, the federal voting rights act of 1965, 52
USC 10301 to 10314, 10501 to 10508, and 10701 to 10702, or any other law
applicable to or affecting voting rights.
(v)
After addressing any violation of this act, article II of the state
constitution of 1963, or any other law applicable to or affecting voting
rights, the local government subsequently violated this act, article II of the
state constitution of 1963, or any other law applicable to or affecting voting
rights.
(vi)
Punitive damages are reasonably necessary to ensure compliance with this act.
(f) Any other form of declaratory or
injunctive relief that, in the court's judgment, is tailored to address the
violation.
(g) Retaining jurisdiction for a
period of time the court considers appropriate.
(2) In any action brought under this
act, the court shall consider remedies proposed by any parties and interested nonparties
and shall not provide deference or priority to a proposed remedy offered by the
defendant or the local government simply because the remedy has been proposed
by the defendant or the local government.
(3) In any action brought under this
act, the court has the authority to order remedies that may be inconsistent
with other provisions of state or local law, when the inconsistent provisions
of law would otherwise preclude the court from ordering an adequate remedy.
Sec.
11. In any action brought under this act, the court shall award reasonable
attorney fees and litigation costs, including expert witness fees and expenses,
to the any of the following:
(a) A party that filed the action
and prevailed in the action. The party that filed the action is considered to
have prevailed if, as a result of the action, the party against whom the action
was filed has yielded some or all of the relief sought in the action.
(b) A party that defended an action
and prevailed in the action if the written response by the local government
under section 7(2) details why no violation occurred and the court finds no
violation occurred for the same or substantially similar reasons provided in
the local government's written response under section 7(2).
Sec.
12. (1) Any individual or entity identified in section 7(5) or the attorney
general may file an action against a local government in the circuit court of
the county in which the local government is located or in the court of claims
to compel compliance with and seek an appropriate remedy under this act.
(2) Any individual or entity
identified in section 7(5) or the attorney general may file an action against
the secretary of state in the court of claims to compel compliance with and
seek appropriate remedy under this act.
Sec.
13. Because of the frequency of elections, the severe consequences and
irreparable harm of holding elections under unlawful conditions, and the
expenditure to defend potentially unlawful conditions that benefit incumbent
officials, actions brought under this act are subject to expedited pretrial and
trial proceedings and must receive an automatic calendar preference. In any
action alleging a violation of section 5 in which a plaintiff party seeks
preliminary relief with respect to an upcoming election, the court shall grant
relief if the court determines, after a hearing at which all parties may
present arguments and offer evidence, that the plaintiffs are more likely than
not to succeed on the merits and it is possible to implement an adequate remedy
that would resolve the alleged violation in the upcoming election.
Sec.
15. Nothing in this act shall be interpreted to conflict with federal law or
suggest that voters have fewer rights than granted under federal law,
including, but not limited to, section 203 of the federal voting rights act of
1965, 52 USC 10503.
Enacting section 1.
This act does not take effect unless all of the following bills of the 103rd
Legislature are enacted into law:
(a) Senate Bill No. 961.
(b) Senate Bill No. 962.