Toyukuk et al v. Treadwell et al

Filing 333

ORDER granting 331 Joint Motion to Approve and Enter Second Stipulated Order and denying as moot 311 Motion to Extend Stipulation and Order. Signed by Judge Sharon L. Gleason on 9/20/21. (JLH, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MIKE TOYUKAK, et al.,
Plaintiffs,
v.

Case No. 3:13-cv-00137-SLG
1

KEVIN MEYER , et al.,
Defendants.

SECOND STIPULATED ORDER
I.

PREAMBLE AND REMEDIES
WHEREAS, Plaintiffs filed this action to enforce the statutory guarantee of

language assistance for limited-English proficient (LEP) Alaska Native, United
States (U.S.) voting-age (18 years of age and older) citizens under Section 203 of
the Voting Rights Act (VRA), 52 U.S.C. § 10503 (redesignated from 42 U.S.C. §
1973aa-1a) (Section 203), and the voting guarantees of the Fourteenth and Fifteenth
Amendments of the United States Constitution, and to obtain injunctive and
declaratory relief pursuant to Section 3 of the VRA, 52 U.S.C. § 10302 (redesignated
from 42 U.S.C. § 1973a), and 28
U.S.C. § 2201; and

Pursuant to Fed. R. Civ. P. 25(d), Lieutenant Governor Kevin Meyer was automatically
substituted as a party defendant as the successor in office to Byron Mallott.
1

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WHEREAS, Plaintiffs contended that Defendants failed to provide effective
language assistance to LEP Alaska Native voting-age citizens in the Dillingham
Census Area (DCA), Kusilvak Census Area (KCA, formerly Wade Hampton Census
Area), and Yukon-Koyukuk Census Area (YKCA) of Alaska (collectively referred to
as “the Three Census Areas”); and
WHEREAS, the Court has jurisdiction over this action pursuant to 28 U.S.C.
§§ 1331 & 1343(a)(3)-(4), 52 U.S.C. § 10308(f) (redesignated from 42 U.S.C. §
1973j(f)), and the September 30, 2015 Stipulated Judgment and Order, and venue
is appropriate under 28 U.S.C. § 1391(b); and
WHEREAS, Plaintiffs are two individual LEP Yup’ik-speaking Alaska Native
U.S. citizens of voting-age who are registered to vote or are eligible to register to
vote and reside in the DCA and KCA and four tribal councils in the DCA, KCA, and
YKCA that are the elected governments for their respective villages, which include
LEP Yup’ik- speaking or Gwich’in-speaking Alaska Native voting-age U.S. citizens
who are registered to vote or are eligible to register to vote in federal and state
elections; and
WHEREAS, Defendants, in their official capacities, are the Lieutenant
Governor of the State of Alaska, the Director of the Division of Elections for the State
of Alaska, and the Region III and Region IV Supervisors who are responsible under
Alaska law for conducting elections in the DCA, KCA, and YKCA and are collectively
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referred to as “the Division of Elections” or “the Division”; and
WHEREAS, the Division administers all federal, statewide, and Regional
Educational Attendance Area (REAA) elections in the DCA, KCA, and YKCA; and
WHEREAS, this Second Stipulated Order (“Order”) is entered into by and
between Plaintiffs and Defendants, hereinafter referred to jointly as the “Parties;”
WHEREAS, this Order takes effect upon issuance by this Court (the “Effective
Date”); and
WHEREAS, the DCA, KCA, and YKCA have been continuously covered under
either Section 4(f)(4) of the VRA and/or Section 203 of the VRA since October 22,
1975, 40 Fed. Reg. 49,422 (Oct. 22, 1975); 28 C.F.R. § 51, App.; and
WHEREAS, it is undisputed that Section 203 applies to the villages in these
three census areas for the Yup’ik (in the DCA and KCA) and Gwich’in (in the YKCA)
languages; and
WHEREAS, in the most recent Section 203 coverage determinations, coverage
for Yup’ik was triggered in the DCA (see Dep’t of Commerce, Bureau of the Census,
Voting Rights Act Amendments of 2006, Determinations Under Section 203 (2011
Coverage Determinations), 76 Fed. Reg. 63,602 (Oct. 13, 2011) (to be codified at 28
C.F.R. pt. 55)), and on November 1, 2011, the United States Department of Justice
notified Defendants that Section 203 coverage of the DCA was triggered by the
villages of Aleknagik, Clarks Point, Dillingham, Ekwok, Manokotak, Koliganek, New
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Stuyahok, Togiak, and Twin Hills; and
WHEREAS, the most recent Section 203 coverage determinations triggered
coverage for Yup’ik in the KCA (see 2011 Coverage Determinations), and on
November 1, 2011, the United States Department of Justice notified Defendants that
Section 203 coverage of the KCA was triggered by the villages of Alakanuk,
Algaaciq, Andreafsky (St. Mary’s), Chevak, Emmonak, Hooper Bay, Kotlik, Marshall,
Mountain Village, Nunam Iqua, Pilot Station, Pitkas Point, Russian Mission, and
Scammon Bay; and
WHEREAS, the most recent Section 203 coverage determinations triggered
coverage for Alaskan Athabascan (including Gwich’in) in the YKCA (see 2011
Coverage Determinations), and on November 1, 2011, the United States
Department of Justice notified Defendants that Section 203 coverage of the YKCA
was triggered by the villages of Allakaket, Beaver, Fort Yukon, Galena, Grayling,
Holy Cross, Hughes, Huslia, Kaltag, Koyukuk, Minto, Nenana, Nulato, Ruby,
Shageluk, and Tanana all for Alaskan Athabascan, and Defendants acknowledge
and agree that Section 203 coverage applies to Arctic Village and Venetie; and
WHEREAS, according to the census data underlying the 2011 Coverage
Determinations, the DCA has 2,050 U.S. citizens of voting-age who speak Yup’ik,
approximately 18.3 percent of whom are LEP, and the illiteracy rate among those
LEP voters is about 32 percent; and
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WHEREAS, according to the census data underlying the 2011 Coverage
Determinations, the KCA has 3,195 U.S. citizens of voting-age who speak Yup’ik,
approximately 16.1 percent of whom are LEP, and the illiteracy rate among those
LEP voters is about 21.4 percent; and
WHEREAS, according to the census data underlying the 2011 Coverage
Determinations, the YKCA has 2,665 U.S. citizens of voting-age who speak Alaskan
Athabascan, approximately 6.4 percent of whom are LEP, and the illiteracy rate
among those LEP voters is about 14.7 percent; and
WHEREAS, the 2011 Coverage Determinations were “effective upon
publication in the Federal Register” and are not “subject to review in any court” (52
U.S.C. § 10503(b)(4) (redesignated from 42 U.S.C. § 1973aa-1a(b)(4))); and
WHEREAS, the DCA, KCA, and YKCA have not bailed out from coverage
under Section 203 pursuant to Section 203(d) of the VRA, 52 U.S.C. § 10503(d)
(redesignated from 42 U.S.C. § 1973aa-1a(d)); and
WHEREAS, following the Court’s decision on the law of the case [Dkt. 124],
this case proceeded through a two-week trial that concluded on July 3, 2014, and
resulted in a partial Decision on Record issued by the Court on September 3, 2014
[Dkt. 223], an Interim Order issued by the Court on September 22, 2014 [Dkt. 226],
to implement relief for the November 4, 2014 General Election, and a Stipulated
Judgment and Order issued by the Court on September 30, 2015 [Dkt. 282]; and
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WHEREAS, the Plaintiffs filed a Motion to Extend the Stipulated Judgment
and Order on December 30, 2020, Dkt. 311; and
WHEREAS, the Parties want to collect reliable information about the conduct
of elections in Alaska and the language assistance provided and to provide this
information to the Court; and
WHEREAS, Defendants do not admit and specifically deny liability on all
claims and do not concede the Court’s holdings were correct, but to avoid protracted
and costly litigation, the Parties have conferred in good faith and agreed that the
Plaintiffs’ Motion should be resolved through the terms of this enforceable Order.
Accordingly, the Parties hereby freely and voluntarily consent to the entry of this
Order, after having an opportunity to confer with legal counsel, as indicated by the
signatures of the Parties and/or their respective counsel; and
WHEREAS, Defendants enter into this Order in good faith and will take all
reasonable actions to accomplish the goals specified herein; and
WHEREAS, in exchange for the entry of this Order, Plaintiffs agree that their
motion has been resolved; and
WHEREAS, the Parties stipulate that each provision of this Order is appropriate
and necessary;
It is hereby ORDERED, ADJUDGED, AND AGREED that:
1.

The Court finds this Order is “fair, reasonable and equitable and does

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not violate the law or public policy,” Sierra Club v. Elec. Controls Design, Inc., 909
F.2d 1350, 1355 (9th Cir. 1990), including the requirements of the Voting Rights Act,
and the Court is “satisfied that the [Order] represents a ‘reasonable factual and legal
determination,’” United States v. Oregon, 913 F.2d 576, 581 (9th Cir. 1990) (internal
cite omitted), consistent with the Court’s previous decisions in this case including the
Decision on the law of the case, the partial Decision on Record, the Order re: Interim
Remedies (Interim Order), and Stipulated Judgment and Order, after a trial on the
merits of Plaintiffs’ claims. [Dkts. 124, 223, 226, 282]
2.

The Court adopts the background and terms as set forth herein and

enters the relief as set forth herein.
3.

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the

Defendants, the Division, its agents, employees, contractors, successors, and all
other persons acting in concert with or on behalf of the Division, are permanently
enjoined from violating the requirements of Section 203 in the DCA, KCA, and YKCA
and are ordered to implement the remedial terms identified in this Order.
4.

The terms of this Order are final and binding and shall apply to all

federal, state, and local elections administered by Defendants, the Division, and its
agents, employees, contractors, successors, and all other persons acting in concert
with or on behalf of the Division. Whenever Defendants or the Division enter into an
election services contract with any other person, entity, political subdivision, or
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political party to conduct an election on behalf of that entity, Defendants shall require
such person or entity to agree to abide by the terms of this Order as if such person or
entity were a party to this Order, and consistent with the responsibility of each person
or entity to comply fully with Section 203 of the Voting Rights Act.
The terms of this Order shall supersede any and all conflicting and

5.

inconsistent policies, practices, or procedures pertaining to the subject matter of this
Order that are used by Defendants, the Division, and its agents, employees,
contractors, successors, and all other persons acting in concert with or on behalf of
the Division.
No term of this Order shall be construed for or against either party

6.

because it has been negotiated by the Parties and represents the Parties’ mutual
agreement.
7.

This Order shall remain in effect from the Effective Date through

December 31, 2022, unless the Court modifies that term. The requirements of this
Order shall apply in the DCA, KCA, and YKCA (as to Gwich’in only in the YKCA) from
the Effective Date through December 31, 2022, without regard to any changes in
Section 203 coverage as a result of any determinations that may be made by the
Director of the Census and/or the Attorney General of the United States or the U.S.
Department of Justice during the Order’s term.
8.

At any time after entry of this Order but before its expiration, either party

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may petition this Court for an Order to enforce the terms of this Order, request
clarifications or instructions, and/or apply for any other appropriate relief.
Pursuant to Section 3(a) of the VRA, 52 U.S.C. § 10302(a)

9.

(redesignated from 42 U.S.C. § 1973a(a)), during the term of this Order, Election
Observers are appointed and are authorized to attend and observe elections and
election activities that federal law authorizes, including training, in the DCA, KCA,
and YKCA.
10.

Defendants shall implement the improvements in language assistance

identified in this Order.
11.

This Second Stipulated Order represents the entire agreement between

the Parties. Any other oral or written representations or agreements of any kind
concerning the subject matter of this Second Stipulated Order are of no force or
effect. This Second Stipulated Order supersedes the Stipulated Order and Judgment
entered September 30, 2015.
12.

This Second Stipulated Order may be executed in counterparts, each

of which shall constitute an original, and all of which shall constitute one and the same
agreement.
13.

The Court shall retain jurisdiction of this action through December 31,

2022 to enter further relief or such other orders as may be necessary to effectuate
the terms of this Order and to ensure compliance with Section 203 of the Voting
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Rights Act and the guarantees of the Fourteenth and Fifteenth Amendments to the
United States Constitution.
14.

If any party, before December 31, 2022, shall commence proceedings

either to seek compliance with this Order or to seek other relief pursuant to this Order,
including but not limited to relief necessary to implement the Order, or to modify one
or more of its terms, the Court shall retain jurisdiction over this case until all issues
relating to such proceedings have been fully resolved.
II.

THE COURT’S PRIOR DECISIONS IN THIS CASE
On July 19, 2013, Plaintiffs filed their Complaint. On June 4, 2014, before trial

of this matter, the Court issued a Decision on Record to establish the law of the case
to be applied in its consideration of Plaintiffs’ claims. [Dkt. 124] On September 3,
2014, after a two-week trial of this matter, the Court issued a partial Decision on
Record in favor of Plaintiffs on their claim under Section 203 of the Voting Rights Act.
The Court took under advisement Plaintiffs’ constitutional claim under the Fourteenth
and Fifteenth Amendments. [Dkt. 223] At the Court’s direction [Dkt. 223 at 22],
Defendants [Dkt. 224] and Plaintiffs [Dkt. 225] each provided input on the scope of
interim relief to be implemented for the November 4, 2014 General Election. On
September 22, 2014, after considering the Parties’ respective submissions, the
Court entered an Order granting interim relief for that election. [Dkt. 226]
III.

REMEDIES AGREED TO BY THE PARTIES

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A.

Remedies originating in the Interim Order of September 22, 2014
1.

The Official Election Pamphlet (OEP) will clearly explain that LEP

voters may ask their outreach workers for pre-election help in translating the
pamphlet, and it will also include the following information:
(a)

Language assistance is available for all information in the

OEP;
(b)

Voters are entitled to help, in their village dialect, with

all information in the OEP;
(c)

A summary of pre-election language assistance available,

including VHF radio announcements, community meetings, voter
registration and absentee ballot assistance opportunities;
(d)

An explanation to voters that help is available both on and

before Election Day; and
(e)

A toll-free number for voters to determine the identity of

bilingual workers in the voter’s village and when events are scheduled.
The identity of all bilingual workers, listed by village, shall be on a
document that can be referenced by Division staff for any calls that they
receive, and this information will be made available to any voter upon
request.
2.

The outreach worker instructions will inform outreach workers of

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their language assistance responsibilities and the Certificate of Outreach form
will allow outreach workers to report the number of hours spent assisting voters
in pre-election outreach efforts and the number of voters the outreach work
assisted. Additionally:
(a)

Certificates of Outreach will allow for confirmation that the

outreach worker has made himself or herself available to translate the
OEP, is familiar with the translated OEP, and has made themselves
available at least one informational meeting with voters in their village or
met with voters on a one-on-one basis;
(b)

The Division will provide outreach workers with a list of

dates by which each of their assigned tasks should be completed;
(c)

Each outreach worker will complete and return the

Certificate of Outreach; and
(d)

If the outreach worker fails to complete the Certificate of

Outreach, the Division may confirm by telephone the tasks that the
outreach worker has completed and the dates of completion, preparing
their confirmation in a signed and dated writing.
3.

The Division will prepare a cover letter to the tribal councils in the

Three Census Areas that directly encourages each council to inform tribal
members that it has election materials available for them to review. The
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Division will also:
Disseminate all written voting materials identified in the

(a)
Order; and

Explain how the voting materials are to be used and

(b)

disseminated by the tribal council.
4.

At least thirty days before each election, with updated dates for

each election and in the applicable language and dialect as identified in
Paragraph III(B), the Division will:
(a)

Distribute the public service announcements for local radio

stations in the Three Census Areas at issue in this litigation to notify
voters (1) that outreach worker(s) are available to provide language
assistance before the election and (2) that bilingual poll workers will be
available to assist voters on Election Day. This public service
announcement shall also instruct voters that they can call the Yup’ik
assistance hotline for general language assistance.
(b)

Distribute

a

written

version

of

a

public

service

announcement that contains the same information described in
paragraph (a) above, for outreach workers to broadcast over VHF in their
communities.
(c)

Distribute

the

following

translated

pre-election

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announcements to be read by outreach workers over the VHF radio that
include the following information:
(i)

Absentee ballot application deadlines and the

availability of the outreach worker to assist in the completion of
absentee ballot applications;
(ii)

Early voting information including the dates,

times, and locations;
(iii)

The date, time, and location for the election, and

other requirements for voting including voter identification;
(iv)

The subject matter to be included on the election

ballot (e.g., what offices are to be filled, bond measures,
identification of the subject of each ballot question);
(v)

The availability of language assistance before

Election Day and on Election Day, including the name of the
person(s) and dates and locations when it will be provided; and
(vi)

The dates, times, and locations for community

meetings to discuss the election information and the name of the
person(s) to contact if voters have any questions about the
meetings.
(d)

Include in the outreach worker packets in the Three Census

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Areas five copies of a pre-election poster advertising the availability of
pre-election language assistance, with instructions that they post them
in public locations such as the school, tribal council office, community
store, etc. The posters shall state the following:
(i)

You can receive help voting or with any voting-

related activity in your Native language;
(ii)

The person(s) available to help you is [blank for

the name(s) and telephone number(s) to be filled in by the
outreach worker];
(iii)

Help will be provided in your Native language

before the election on [blank for the time and date to be filled in by
the outreach worker] at [blank for the location to be filled in by the
outreach worker];
(iv)

Help will be provided in your Native language

during early voting, Contact [blank for the name(s) and telephone
number(s) to be filled in by the outreach worker] for more
information; and
(v)

Help will be provided to you at the polling place

in your Native language during the election, and will be held at
[blank for the location to be filled in by the outreach worker] from
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7:00 a.m. to 8:00 p.m.
5.

When the Division sends Election Day supplies to poll workers

approximately three weeks before each election, it will include:
Buttons for poll workers saying “Can I help?” translated

(a)

into Yup’ik or Gwich’in, as applicable, and Election Day posters
translated into Yup’ik and Gwich’in announcing the availability of
language assistance.
(b)

Election Day posters that state the following, in English

and also translated into the applicable language:
(i)

You can receive help voting or with any voting-

related activity in your Native language;
(ii)

The person(s) available to help you are [blank for

the names to be filled in by the outreach worker]; and
(iii)

You also have the right to receive help voting from

any person of your choice.
(c)

For each poll worker, at least two copies of the Election Day

poster described above, with instructions that the poll workers are to post
them in conspicuous places inside the polling place where they can be
seen by voters before they vote.
6.

At least three weeks before the election, the Division will post on

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its website the written Central Yup’ik translations of election materials that the
Division already routinely posts as individual audio files on the website, as well
as written Yup’ik translations of those same election materials that are (1) in a
Yup’ik dialect that is understandable in the DCA; and (2) in a Yup’ik dialect that
is understandable in the KCA. The Division will also include the Gwich’in audio
and materials as well as Yup’ik audio and materials that have been prepared
by the Division.
7.

Before each primary, general, or special election for which the

Division disseminates an OEP, the Division will:
(a)

Send to each of the outreach workers in the Three Census

Areas (in addition to the audio translations of ballot measure neutral
summaries, pro/con statements, and candidate statements) written
translations of the following so as to assist the outreach workers in
providing oral translations to LEP voters:
(i)

Sample ballots including ballot questions;

(ii)

Neutral summaries of each ballot question prepared

by the State;
(iii)

Statements of cost associated with ballot questions;

(iv)

Summary of bond measures;

(v)

Pro and con statements for ballot questions and

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bond measures;
(vi)

Candidate statements (federal and state offices and

judicial candidates);
(vii)

A copy of the Official Election Pamphlet; and

(viii) A cover letter and updated instruction packet to the
outreach workers that emphasizes to each outreach worker that
she/he is expected to be available to assist voters to understand
all voting information and that encourages workers to call the
Division with any questions about performing these tasks.
(b)

Translate the entire OEP into written Gwich’in and Yup’ik

(with the dialectical differences identified in Paragraph III(B)(1) noted)
and distributed at least twenty-two days before any election for which
the Division disseminates an OEP, except that candidate statements
(federal and state offices and judicial candidates) and Judicial Council
recommendations will be translated only if they are received by the
Division at least thirty days before the applicable statutory deadline. The
Division shall include an instruction to candidates and to the Judicial
Council that: (1) encourages candidate statements and Judicial Council
recommendations be provided to the Division according to this schedule
for candidates running for offices that are on the ballot in the DCA, KCA,
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and YKCA; and (2) states that the statements or recommendations
must be filed with the Division at least thirty days before the applicable
statutory deadline if they wish

to

have

their

statement

or

recommendation translated.
8.

Working with partners and tribal councils, the Division will make

every effort to provide at least one trained bilingual outreach worker and one
bilingual poll worker required for each village and to also provide:
(a)

Defendants shall verify the language abilities of each

bilingual outreach worker or poll worker to confirm they are fluent and
literate in English and the covered language/dialect, both oral and
written, but it shall be sufficient verification for Defendants, without
limitation, to obtain written confirmation from the tribal council that the
outreach worker or poll worker has these qualifications;
(b)

Defendants will endeavor to use workers recommended by

the tribal council. If no worker is identified by the tribal council, then
Defendants will identify and recruit a worker who is bilingual and literate
in English and the covered language/dialect, both oral and written;
(c)

To the extent it has not already determined the language

abilities of a bilingual worker, the Division will confirm the worker’s
language abilities by: (1) having a qualified person who speaks the
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language/dialect converse with the worker in the language/dialect; and
(2) ask the worker to read out loud voting materials translated into the
language/dialect;
(d)

Each worker shall agree in writing their willingness to serve

as a bilingual worker and indicate that they feel comfortable providing
the translations and language assistance. If the worker fails to agree in
writing, the Division may confirm by telephone the worker has agreed
to serve as a bilingual worker, preparing their confirmation in a signed
and dated writing;
(e)

The tribal councils may recommend to the Division that a

bilingual poll worker be replaced;
(f)

The Division and the tribal council shall collaborate in

determining whether the person recommended by the tribal council will
be used as a bilingual worker; and
(g)

Subparagraph (a) above does not absolve the Division of

any obligations it has under Section 203 of the VRA.
B.

Dialects
1.

Yup’ik in the DCA and KCA. The Yup’ik Translation Panel (YTP)

shall accommodate the following dialects of Yup’ik in its translation of all voting
materials and election information in the DCA and KCA: Bristol Bay Yup’ik
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(BB); Central Yup’ik (GCY); Hooper Bay/Chevak Yup’ik (HBC); Norton Sound
Yup’ik (NS); Yukon Yup’ik (Y); Nunivak Cupig.
2.

Gwich’in in the YKCA. The Gwich’in Translation Panel (GTP) shall

use Gwich’in in its translations of all voting materials and election information.
C.

Glossaries of Election Terms
1.

The Yup’ik glossary shall be updated to include common election

terms that appear on forms and instructions or on ballots that do not presently
appear in the glossary. The YTP shall review updates to the glossary and
identify any additional words to be added to the glossary. The Division shall
complete additional updates to follow as the YTP determines appropriate.
2.

A glossary shall be prepared by the GTP in Gwich’in using the

same set of common election terms in the updated Yup’ik glossary.
D.

Toll-Free Number for Language Assistance
1.

Defendants’ voting materials shall reflect that language

assistance is available in the covered languages and dialects as identified in
Paragraph III(B).
2.

Defendants will have available at least one bilingual translator for

each language and dialect spoken in the DCA, KCA, and YKCA as identified
in Paragraph III(B) to provide language assistance by phone.
3.

Defendants shall promptly arrange a call between the voter and

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an appropriate translator, depending upon the language and dialect of the
voter who is calling.
4.

The Division shall document the translator’s name, their language

and dialect, date and duration of the call with the voter calling the toll-free
number.
E.

Translation Panels
1.

The YTP shall have at least eight members that shall represent a

knowledge, collectively, of all Yup’ik dialects identified in Paragraph III(B)(1).
2.

A GTP shall be created with at least three bilingual speakers who

are proficient in performing oral and written translations into Gwich’in.
3.

The Division will pay each member of the two Translation Panels

$50-$75 an hour.
F.

Procedures for Translations
1.

All translations identified above shall:
(a)

For Yup’ik, include adjustments for any differences in the

dialects identified in Paragraph III(B)(1). If minor, they can be done
through footnotes. If more numerous or substantial adjustments are
necessary for a particular dialect, they can be done through a separate
document for that dialect which identifies the dialect. The YTP shall
determine whether the dialectical differences are sufficient to warrant
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using a separate document instead of footnotes; and
(b)

Be in writing, to facilitate complete, accurate, and uniform

oral translations.
2.

Translations of the official ballot, sample ballot, and glossary shall

be completed by a quorum (majority) of the members of each of the two
translation panels described in Paragraph III(E) of this Order. For example, if
the YTP has eight members, at least five members may be used to complete
the translations as long as those members can identify and adjust for the
dialectical differences identified in Paragraph III(B)(1). If the GTP has three
members, at least two members may be used to complete the translations.
3.

Translations of the pro/con statements, neutral summaries, and

summary of statement of costs may be completed by one translator and shall
be verified by at least one additional translator, as long as the Yup’ik
translators can identify and adjust for the dialectical differences identified in
Paragraph III(B)(1).
4.

Translations of other voting materials and election information

shall be completed by translation panel members to the maximum extent
feasible, provided that all Yup’ik translations are adjusted for the dialectical
differences identified in Paragraph III(B)(1). Whenever feasible, each
translation shall be verified by at least one other translator.
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5.

The Division shall make all reasonable efforts to recruit bilingual

recorders to provide audio of the translations identified above and an audio
translation of the glossaries. The Division will pay a bilingual recorder $50-$75
an hour, will have the bilingual recorder sign an agreement of their willingness
to work, and will give the bilingual recorder a deadline for each recording. If a
bilingual recorder misses the first deadline by more than five days, the Division
will endeavor to replace the bilingual recorder and will have the replacement
bilingual recorder sign an agreement of their willingness to work.
G.

Bilingual Outreach Workers and Poll Workers, and Language
Assistance Compliance Manager
1.

The Division shall retain a full-time employee responsible for

administrating and coordinating all activities necessary for the Division to
comply with Section 203 of the VRA (“Language Assistance Compliance
Manager”).
2.

The Division shall provide Yup’ik language assistance in all

villages in the DCA and KCA. The Division shall provide Gwich’in language
assistance in the following villages in the YKCA: Arctic Village, Beaver, Birch
Creek, Chalkyitsik, Circle, Fort Yukon, and Venetie.
3.

In each village, the Division shall require outreach workers

provide outreach sufficient to complete, before each election, the Mandatory
Pre-Election Outreach detailed below, I. Thirty hours for each election is the
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maximum number of hours authorized to be paid to an outreach worker unless
the outreach worker first obtains the Division’s approval.
4.

In the Division’s initial communication with the tribal councils about

upcoming election information, the Division shall include a statement that the
tribal council may recommend a bilingual outreach worker or poll worker, and
may request at any time that a bilingual outreach worker or poll worker be
replaced.
5.

The Division will consult with the tribal councils in the DCA, KCA,

and YKCA and ask that the tribal councils provide the Division with a list of
names and contact information of persons who have been identified by the
tribal councils as being bilingual and literate in English and the covered
language/dialect.
6.

The Division shall secure the written agreement of replacement

bilingual workers. If the replacement bilingual worker fails to agree in writing,
the Division may confirm by telephone the worker has agreed to serve as a
bilingual worker, preparing their confirmation in a signed and dated writing.
7.

If the Division learns that a person scheduled to work as a

bilingual outreach worker has not performed or cannot perform their assigned
tasks, where feasible the Division shall recruit and train a replacement
bilingual outreach worker.
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H.

Mandatory Training
1.

The Division will make all poll workers aware of language

assistance requirements in its regular training sessions.
2.

Mandatory in-person training. All bilingual election workers are

required to receive the training identified in this Order. If a bilingual outreach
worker or bilingual poll worker fails to attend in-person training, wherever
feasible the Division must reschedule training for that worker or replace that
worker who will be scheduled to attend the next in-person training.
3.

Frequency. In-person training shall be done every even-

numbered year and for elections in odd-numbered years in which a special
ballot measure appears, at the time identified in this Order. During oddnumbered years in which there is no special ballot measure, telephonic training
shall be conducted. If in-person training is not possible, the Division will
conduct synchronous virtual training by video or phone, which will constitute
in-person training for the purposes of this Order. The Division will provide all
training materials to attendees in hard copy. Whenever possible, the Division
will provide training materials to attendees ahead of any distance training.
4.

Duration of Bilingual Outreach Worker and Bilingual Poll Worker

Training. Training for bilingual election workers must be for a reasonable
amount of time sufficient to cover the topics in paragraph 5 below. The Division
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shall make travel arrangements for those election workers who must travel to
the training location that are sufficient to ensure that all bilingual election
workers attend all of the mandatory in-person training. The Division shall pay
for all associated costs of travel, lodging, and per diem.
5.

Content of language training. Language assistance training shall

be in addition to any training provided for election procedures and Alaska
elections law; the training will focus exclusively on language assistance and
practicing available translations. The Division may schedule this language
training to be on a day consecutive to its more general training provided to all
poll workers. The language training shall adequately cover the following
topics:
(a)

Summary of language assistance required under the VRA;

(b)

Procedures for identifying and assisting voters who may

need language assistance;
(c)

Advising all voters of the availability of translation

assistance;
(d)

Instructions for providing assistance on voter registration;

(e)

Instructions

for providing assistance in completion of

absentee ballot applications or their equivalent (e.g., vote by fax, etc.);
(f)

Special instructions for workers covering Permanent

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Absentee Voting (PAV) locations;
(g)

Instructions on early voting procedures and schedule;

(h)

Instructions for casting a ballot on a voting machine,

including how to use the audio translation feature;
(i)

Instructions on assisting voters who need to cast a

challenged ballot;
(j)

Translations on the content of the OEP available at the

time of training, which shall be provided to workers in writing in the
applicable language and dialect as identified in Paragraph III(B);
(k)

How to use written translations to provide complete,

accurate, and uniform translations in the covered language and dialect;
(l)

Instructions on how to translate procedural voting materials

(forms and instructions);
(m)

Instructions on conducting informational meetings before

the election to discuss the ballot and registration and voting
procedures;
(n)

Practice performing available translations;

(o)

Translation of the entire ballot into the language/dialect;

(p)

Practicing the translation of the ballot with each translator;

and
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(q)

A checklist summarizing all of the workers’ assigned duties

under the Order and the expected dates of completion for pre-election
and post- election activities.
6.

Training materials. Training materials provided to bilingual

outreach workers and poll workers shall facilitate training on all of the topics
listed above. Bilingual workers shall be provided with copies of all written
translations available at the time of the training to use for practice during the
training, a training handbook, a checklist of their assigned duties and expected
completion dates, Election Day materials, and any other materials covering
the training topics. Written translations not available at the time of this training
shall be provided by mail to the bilingual worker when they become available.
7.

Additional in-person training for bilingual poll workers for the

General Election. After all remaining materials for the General Election become
available, but before the General Election, the Division will conduct three inperson training sessions, one each for the DCA, KCA, and YKCA, for the
bilingual poll workers in those areas. The training shall cover any voting
materials, ballot, ballot measures, pro/con statements, neutral summaries,
bond questions, statements of costs, candidate statements, etc. not available
during the earlier training session. Emphasis will be placed on practicing
translations of ballot measures, ballots, and other information not provided in
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the initial training.
8.

Phone or A s y nc hr on ous v i de o training only to be provided

in emergencies. Phone or asynchronous video training shall only be provided
in exceptional cases, including if travel is not possible for any of the mandatory
in-person training sessions due to inclement weather or if a bilingual outreach
worker or bilingual poll worker is unable to perform their duties and there is
insufficient time to provide in-person training to a replacement worker. Phone
or asynchronous video training must be done at least one (1) day before the
election and can be by conference call. The training must be at least two (2)
hours in duration and cover the topics from the regular training.
9.

Documentation of training. Defendants shall maintain records of

the following through the term of this Order:
(a)

The training agenda, to include all of the topics listed above;

(b)

Training materials disseminated to bilingual workers;

(c)

Audiovisual

and

other

materials

used

during

the

presentation;
(d)

Written role-playing scenarios covered during the training;

(e)

Attendance list with the bilingual worker’s printed name

and village and their signature and sign-in and sign-out times. If one or
more bilingual workers did not attend the complete training, then the
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Division must identify that act; and
(f)

Documentation of travel provided for training, to include

Division employees and workers who attended.
10.

Notice of Training. Defendants shall endeavor to provide notice of

all trainings to bilingual election workers, to include the call-in information for
distance training, at least fifteen days prior to training. If fifteen days’ notice is
not possible, notice shall be given as soon as practicable.
I.

Mandatory Pre-election Outreach
1.

Mandatory informational meetings. Pre-election outreach must

include informational meetings. Performance of this requirement by outreach
workers may be through one or more community-wide informational
meeting(s), small group meeting(s), or one-on-one meetings. The informational
meetings shall be to register voters and to cover the following election topics
before the election:
(a)

Announce

all upcoming election deadlines (including

registration, absentee ballots, etc.);
(b)

Announce all upcoming election dates and a summary of

what will appear on the ballot to include:
(i)

Federal, state, or local offices;

(ii)

Ballot questions: and

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(iii)
(c)

Bond questions;

Provide an opportunity to register to vote and provide

language assistance for filling out registration forms;
(d)

Explain the absentee ballot application and voting process

when the applications or ballots are being disseminated or accepted by
the State;
(e)

Explain the early voting process including dates and

locations;
(f)

Explain voter identification requirements to include the

acceptable forms of identification;
(g)

Review in the covered language and dialect all of the

information in the OEP;
(h)

Review in the covered language and dialect the sample

(i)

Describe the availability of language assistance before

ballot;

Election Day and on Election Day, including the name of the person(s)
and dates and locations where it will be provided;
(j)

For other informational meetings, if any, identify the dates,

times, and locations for other meetings to discuss the election
information and the name of the person(s) to contact if the voters have
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any questions about the meetings;
(k)

Provide the name and toll-free number of the person

available for assistance in their language/dialect; and
(l)

Have a question and answer session in the language and

dialect regarding the election or voting process.
2.

Mandatory follow-up. At least twenty-five days before an election,

the Division shall follow up with the outreach workers to confirm that they have
received the outreach materials and that they agree that they will perform the
outreach in a timely manner.
J.

Pre-election and Election Day Publicity
1.

The Division shall provide publicity that includes all of the

announcements described in the Interim Order [Dkt. 226].
2.

In addition to the publicity specified in the Interim Order [Dkt. 226],

the following terms will be implemented:
(a)

Radio broadcasts. The Division shall request that the

following radio stations broadcast PSAs, using the language and dialect
identified in parentheses:
(i)

KDLG – Dillingham (Bristol Bay Yup’ik);

(ii)

KYUK – Bethel (Central Yup’ik);

(iii)

KICY – Nome (Yukon Yup’ik);

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(iv)
(v)
(b)

KCUK – Chevak (Hooper Bay/Chevak); and
KZPA – Fort Yukon (Gwich’in).

Frequency. The Division shall request that beginning at

least five days before each election and each deadline (e.g., absentee
voting, voter registration, list maintenance), the radio station make at
least three announcements a day on weekdays for three days in the
language and dialect identified above in Paragraph III(J)(2)(a).
(c)

Content (in the language and dialect identified above in

Paragraph III(J)(2)(a)). The following topics shall be included in the
PSAs:
(i)

Date and time of the next election;

(ii)

Opportunities to register to vote and the deadline

for registering before the next election;
(iii)

Availability of absentee voting and the deadline

for submitting an application;
(iv)

Early voting dates and the Division’s telephone

number to find the voter’s early voting location;
(v)

General description of the subject matter of the ballot

including if there are federal/state/local offices, bond questions,
ballot propositions, etc.;
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(vi)

Availability of language assistance before Election

Day and on Election Day; and
(vii)

Toll-free number for language assistance or to find

out the name of the bilingual outreach worker in the voter’s
village.
(d)

List maintenance announcements. The following topics

shall be included:
(i)

A summary of what list maintenance is and why it

is important;
(ii)

Steps to take to ensure the voter remains on the

active voter list; and
(iii)

Toll-free number for language assistance for any

questions.
(e)

Documentation. The Division shall keep documentation of

its correspondence with the radio stations, including if it is provided
information by the radio station that identifies the dates, times, and
content of the ads aired.
K.

Language Assistance for List Maintenance to be provided to Tribal
Councils.
1.

Within two weeks of when the Division sends list maintenance

inactivation notices to voters it shall provide to tribal councils a written
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translation in the applicable language and dialect identified in Paragraph III(B)
of the list maintenance radio ad.
L.

Touch-screen Voting Machines
1.

Touch-screen voting machines shall be available at all polling

places on Election Day when there are federal races on the ballot. If more than
one language and dialect for a village is identified pursuant to the procedure
in Paragraph III(B), then the audio translation on the touch-screen voting
machine shall be provided in one language and dialect identified by the YTP
in consultation with the appropriate tribal council. Audio translations shall be
included in the applicable language and dialect identified pursuant to
Paragraph III(B) for all audio information and instructions provided on the
machine in English. All poll workers shall be trained on how to use the audio
language assistance available on the machines.
2.

If placing audio translations on the touch-screen voting machines

is not technologically feasible, the Division will provide the voter with access
to the audio translation in another format and will make available to the voter
the translated sample ballot.
M.

Sample Ballots and their Use
1.

The Division shall continue to post on its webpage and to provide

written bilingual sample ballots to tribal councils, outreach workers, and poll
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workers. The tribal councils or outreach workers may provide copies of the
written bilingual sample ballots to voters before the election. Voters are free
to bring in their marked-up sample ballot to assist them in casting a ballot on
Election Day.
2.

Written bilingual sample ballots shall be available to voters at

the Division’s four Regional Offices and at the Division’s Mat-Su office.
N.

Voter Registration
1.

Voter registration forms. The Division shall ensure that each

tribal council has an adequate supply of voter registration forms and
instructions.
2.

Sign. A sign shall be posted in the applicable language and

dialect identified in Paragraph III(B) in the village identifying the availability of
voter registration forms, language assistance to register, and the name and
phone number of the bilingual registrar, if any. If there is no bilingual registrar,
the sign shall provide the Division’s toll- free number for language assistance.
O.

Permanent Absentee Voting (PAV)
1.

PAV sites in the Three Census Areas must have resident

bilingual workers who are required to be available during the entire time that
absentee voting is occurring, with a notice posted in public places in the
applicable language and dialect identified in part III(B) advertising the name,
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phone number, location of the bilingual worker and that language assistance
is available. The bilingual worker must be trained in-person and be fully
bilingual and literate in English and the language/dialect spoken in the village.
2.

No village in the Three Census Areas that is not currently a PAV

site shall be designated as a PAV site without providing the Plaintiffs with at
least sixty days’ notice of Defendants’ intention to designate the village as a
PAV site.
P.

Voters Provided Questioned Ballots
1.

The Division shall provide instructions to all voters who vote a

questioned ballot on the questioned ballot process in the applicable language
and dialect identified in Paragraph III(B). Information and notices about the
questioned ballot process may be provided by the bilingual poll worker orally,
to include information on how the voter determines whether their vote was
counted via a toll-free number. Language assistance as described in
Paragraph III(D) shall be provided to voters calling the toll-free number.
Q.

Record-Keeping
1.

Defendants must maintain all records pertaining to their language

assistance program, consistent with 28 C.F.R. § 55.21. Complete records must
be maintained for the term of this Stipulation and Order to identify the
Division’s efforts under it.
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R.

Reporting Requirements
1.

Thirty days before each election, the Division shall inform Plaintiffs

if they do not believe they will be in compliance with any requirement under this
Order.
2.

Defendants will submit reports and records to the Court. The

report will assess the Division’s compliance with each requirement of this
Order and will include supporting records as required by A(2), A(8)(d), D(4),
G(6), H(9) and J(2)(e). The report will also include documentation of the
Division’s efforts to secure bilingual outreach and poll workers in any villages
where it is unsuccessful. Additional records kept pursuant to this Order will be
provided to the Court or Plaintiffs upon request. The reports shall be provided
on the following schedule:
(a)

in odd-numbered years, 60 days after the REAA Election;

(b)

in even-numbered years, 60 days after the General

and

Election for the Primary, REAA, and the General Elections.
3.

Plaintiffs will have an opportunity to file a response within 60 days

after Defendants file their report.
IV.

ENFORCEMENT
A.

The Court may enforce the terms of this Order through contempt

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proceedings. See United States v. Sandoval County, 797 F. Supp. 2d 1249, 1254
(D.N.M. 2011).
B.

If Defendants or the Division do not have the intent or means to comply

with the terms of this Order, Plaintiffs shall have the right to seek such relief as may
be necessary to enforce the terms of this Order. Before seeking such relief from the
Court, Plaintiffs shall notify Defendants, in writing, of Plaintiffs’ understanding or belief
that Defendants lack the intent or means to comply with this Order. Such notice shall
specify any grounds for such understanding or belief.
C.

If the Defendants are otherwise in compliance with the terms of this

Order, a de minimis violation will not alter that substantial compliance. Factors that
are relevant to whether non-compliance with a provision in the Order is de minimis
include:
1.

Previous non-compliance for the polling location and/or village;

2.

The nature of the non-compliance: whether the non-compliance

was minor (such as failing to have a translator available for a portion of the day
that the polls were open or having a translator who failed to attend training) or
more substantial (such as not having a translator available for the entire day);
3.

The circumstances of the noncompliance: whether the non-

compliance was the result of unforeseeable circumstances (such as a
translator not showing up because of a death in the family or poll workers
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unable to attend in-person training because of inclement weather);
4.

Efforts undertaken by Defendants in advance to plan for possible

contingencies, such as the one resulting in non-compliance;
5.

If pre-election outreach was not provided or was limited (such as

not including information in the OEP), efforts undertaken by Defendants to
provide that in-person outreach through other means, including on Election
Day; and
6.

Translations or assistance the Defendants provided through

alternative means (such as through other bilingual speakers or through written
translations provided to voters who could read and understand them).
V.

AMENDMENTS TO THE ORDER
A.

Modification. The Court may, either on request of a party or acting sua

sponte, modify one or more of the provisions of this Order if the Court finds that such
modification is necessary to achieve the purposes of the Order or in the interests of
justice.
1.

Sua Sponte. Before modifying a term sua sponte, the Court will

give the Parties notice and an opportunity to be heard on the issue. The Court
will make specific findings on the record to support any decision to modify a
term.
2.

Upon request of a Party. Pursuant to the “flexible approach” to

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be applied to motions to modify a final judgment pursuant to Fed. R. Civ. P.
60(b)(5), the Court will consider two factors in determining whether a
requested modification is warranted. First, the party seeking modification must
establish “a significant change either in factual conditions or in law” that would
“make compliance with the decree substantially more onerous” or “unworkable
because of unforeseen obstacles” or that “enforcement of the decree without
modification would be detrimental to the public interest.” Rufo v. Inmates of
Suffolk County Jail, 502 U.S. 367, 384 (1992). Second, the Court will “consider
whether the proposed modification is suitably tailored to the changed
circumstance.” Id. at 383. The party seeking such a modification must
establish a “significant” change in circumstance, and not merely that “it is no
longer convenient” to use the existing term for which modification is sought. Id.
Any proposed modification is limited to resolution of “the problems created by
the change in circumstances. A court should do no more, for a[n order such
as this Order] is a final judgment that may be reopened only to the extent that
equity requires.” Id. at 391.
B.

Extension of the term of the Order. This Order shall terminate on

December 31, 2022.
VI.

ATTORNEYS’ FEES AND COSTS UNDER THE ORDER
A.

The parties are each responsible for their own costs and fees incurred

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after the Court’s issuance of the Stipulated Judgment and Order.
CONCLUSION
IT IS ORDERED that the parties’ Joint Motion at Docket 331 is GRANTED
and Plaintiffs’ Motion to Extend Stipulated Judgment and Order at Docket 311 is
DENIED as moot.
The Court finds that the parties’ proposed Second Stipulated Order is fair,
reasonable and equitable and does not violate public policy. See Turtle Island
Restoration Network v. U.S. Dep’t of Commerce, 672 F.3d 1160, 1165 (9th Cir. 2012)
(quoting Sierra Club, Inc. v. Elec. Controls Design, Inc., 909 F.2d 1350, 1355 (9th
Cir. 1990)). Therefore, this Second Stipulated Order is entered on this date.

DATED this 20th day of September, 2021 at Anchorage, Alaska.

/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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Order re Second Stipulated Order
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