Toyukuk et al v. Treadwell et al

Filing 355

THIRD STIPULATED ORDER: granting 354 Joint Motion Approve and Enter Third Stipulated Order. Signed by Judge Sharon L. Gleason on 8/31/23. (RMC, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

MIKE TOYUKAK, et al.,
v.

Plaintiffs,

NANCY DAHLSTROM1, et al.,
Defendants.

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

THIRD 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
WHEREAS, Plaintiffs contended that Defendants failed to provide effective
language assistance to LEP Alaska Native voting-age citizens in the Dillingham Census

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

1

1

Area (DCA), Kusilvak Census Area (KCA, formerly Wade Hampton Census Area), and
Yukon-Koyukuk Census Area (YKCA) of Alaska; 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)), the
September 30, 2015 Stipulated Judgment and Order, and the September 20, 2021 Second
Stipulated 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 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 Third Stipulated Order (“Order”) is entered into by and between
Plaintiffs and Defendants, hereinafter referred to jointly as the “Parties;”
2

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 the DCA and
KCA for the Yup’ik language; 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 (2021 Coverage
Determinations), 86 Fed. Reg. 69,611, 69,612 (Dec. 8, 2021)); and
WHEREAS, the most recent Section 203 coverage determinations included coverage
for Yup’ik in the KCA (see 2021 Coverage Determinations); and
WHEREAS, the most recent Section 203 coverage determinations did not include
coverage for Alaskan Athabascan (including Gwich’in) in the YKCA (see 2021 Coverage
Determinations); and
WHEREAS, according to the census data underlying the 2021 Coverage
Determinations, the DCA has 2,411 U.S. citizens of voting-age who speak Yup’ik,
approximately 235 of whom are LEP and 54 are also illiterate; and
WHEREAS, according to the census data underlying the 2021 Coverage
Determinations, the KCA has 3,829 U.S. citizens of voting-age who speak Yup’ik,
3

approximately 304 of whom are LEP and 43 are also illiterate; and
WHEREAS, according to the census data underlying the 2021 Coverage
Determinations, the YKCA has 2,535 U.S. citizens of voting-age who speak Alaskan
Athabascan, approximately 77 of whom are LEP and 9 are also illiterate; and
WHEREAS, the 2021 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
WHEREAS, the Parties negotiated a Second Stipulated Order, which the Court issued
on September 20, 2021 [Dkt. 333]; and
WHEREAS, the Plaintiffs wished to extend the Second Stipulated Order and the
Defendants agreed to extend it past its December 31, 2022 expiration date; and
WHEREAS, the Parties want to collect reliable information about the conduct of
4

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’ request
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 request
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 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
5

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), the Stipulated
Judgment and Order, and the Second Stipulated Order, after a trial on the merits of Plaintiffs’
claims. [Dkts. 124, 223, 226, 282, 333]
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 and KCA 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 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.
5.

The terms of this Order shall supersede any and all conflicting and inconsistent
6

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.
6.

No term of this Order shall be construed for or against either party 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,

2026. The requirements of this Order shall apply in the DCA and KCA from the Effective
Date through December 31, 2026, unless the Court modifies this coverage after changes in
Section 203 coverage 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 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.
9.

Pursuant to Section 3(a) of the VRA, 52 U.S.C. § 10302(a) (redesignated from

42 U.S.C. § 1973a(a)), until December 31, 2024, Election Observers are appointed and are
authorized to attend and observe elections and election activities that federal law authorizes,
including training, in the DCA and KCA. Observer reports shall be filed under seal with
copies provided to the parties.
10.

Defendants shall implement the improvements in language assistance

identified in this Order.
11.

This Third Stipulated Order represents the entire agreement between the
7

Parties. Any other oral or written representations or agreements of any kind concerning the
subject matter of this Third Stipulated Order are of no force or effect. This Third Stipulated
Order supersedes the Second Stipulated Order entered September 20, 2021.
12.

This Third 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, 2026, 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 Rights Act and the guarantees
of the Fourteenth and Fifteenth Amendments to the United States Constitution.
14.

If any party, before December 31, 2026, 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]
8

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]
On September 30, 2015 the Court issued the Stipulated Order and Judgment and on
September 20, 2021, the Court issued the Second Stipulated Order.
III.

REMEDIES AGREED TO BY THE PARTIES
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

(b)

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

OEP;

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

(e)

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

Election Day; and

9

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

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

(d)

If the outreach worker fails to complete the Certificate of

Outreach; and

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
10

Three Census Areas that directly encourages each council to inform tribal members that it
has election materials available for them to review. The Division will also:
(a)

Disseminate all written voting materials identified in the Order;

(b)

Explain how the voting materials are to be used and

and

disseminated by the tribal council.
4.

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

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

Distribute the public service announcements for local radio

stations in the DCA and KCA to notify voters (1) outreach workers may be 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 or
bilingual poll workers to broadcast over VHF in their communities.
(c)

Distribute the following translated pre-election announcements

to be read by outreach workers or bilingual poll 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;
11

(ii)

Early

and

absentee-in-person

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 any 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 DCA and KCA 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];
12

(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 and absentee-in-person 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 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:
(a)

Buttons for poll workers saying “Can I help?” translated into

Yup’ik and Election Day posters translated into Yup’ik announcing the availability of
language assistance.
(b)

Election Day posters that state the following, in English and

Yup’ik:
(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

13

(iii)

You also have the right to receive help voting from any

person of your choice including an election official.
(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 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 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 DCA and KCA (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;
14

(iii)

Statements of cost associated with ballot questions;

(iv)

Summary of bond measures;

(v)

Pro and con statements for ballot questions and bond

(vi)

Candidate statements (federal and state offices and

(vii)

A copy of the Official Election Pamphlet; and

measures;

judicial candidates);

(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 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 and KCA; and (2) states that
the statements or recommendations must be filed with the Division at least thirty days before
15

the applicable statutory deadline if they wish to have their statement or recommendation
translated.
8.

The Division will make every effort to provide at least one trained

bilingual poll worker for each village and to hire and train individuals interested in serving
as bilingual outreach workers. The Division will continue to disseminate information
regarding the bilingual outreach program.
(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 dialect, both oral and written;
(b)

The Division will contact and attempt to recruit all potential

bilingual workers identified by the Plaintiffs and tribal councils.
(c)

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 dialect, both oral
and written;
(d)

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 dialect converse with the worker in the dialect; and (2) ask
the worker to read out loud voting materials translated into the dialect;
(e)

Each worker shall agree in writing their willingness to serve as a

bilingual worker and indicate that they feel comfortable providing the translations and
16

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;
(f)

The tribal councils may recommend to the Division that a

bilingual poll worker be replaced;
(g)

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
(h)

Subparagraph (a) above does not absolve the Division of any

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

Dialects
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 (BB); Central Yup’ik
(GCY); Hooper Bay/Chevak Yup’ik (HBC); Norton Sound Yup’ik (NS); Yukon Yup’ik (Y);
Nunivak Cupig.
C.

Glossaries of Election Terms
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
17

determines appropriate.
D.

Toll-Free Number for Language Assistance
1.

Defendants’ voting materials shall reflect that language assistance is

available in the covered dialects as identified in Paragraph III(B)(1).
2.

Defendants will have available at least one Yup’ik bilingual translator

to provide language assistance by phone, and provide referrals for assistance in specific
dialects spoken in the DCA and KCA as necessary.
3.

Defendants shall promptly arrange a call between the voter and an

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

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

The Division will pay each member of the Translation Panel(s)

at least $50 an hour.
F.

Procedures for Translations
1.

All translations identified above shall:
(a)

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
18

through a separate document for that dialect which identifies the dialect. The YTP shall
determine whether the dialectical differences are sufficient to warrant 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 translation panel(s)
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).
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.
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 at least $50 an hour, will have the
19

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.
3.

The Division shall require outreach workers to provide outreach

sufficient to complete, before each election, the Mandatory Pre-Election Outreach detailed
below, Paragraph I. Thirty hours for each election is the 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 and KCA

and ask that the tribal councils provide the Division with a list of names and contact
20

information of persons who have been identified by the tribal councils as being bilingual and
literate in English and the covered 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.
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 odd-numbered years in which there is no special ballot
measure, telephonic training shall be conducted. If in-person training is not possible, the
21

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 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 will provide a Yup’ik speaker during each training session. 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

(c)

Advising all voters of the availability of translation assistance;

(d)

Instructions for providing assistance on voter registration;

language assistance;

22

(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 Absentee

Voting (PAV) locations;
(g)

Instructions on early and absentee-in-person voting procedures

(h)

Instructions for casting a ballot on a voting machine, including

and schedule;

how to use the audio translation feature;
(i)

Instructions on assisting voters who need to cast a challenged

(j)

Translations on the content of the OEP available at the time of

ballot;

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

How to use written translations to provide complete, accurate, and

uniform translations in the covered 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 dialect;
23

(p)

Practicing the translation of the ballot with each translator;

(q)

Hands-on training with the touch-screen voting machines that

emphasizes the importance of setting up and offering the touch-screen voting machine on
election day; and
(r)

Poll workers may assist voters by referring to and reading in

Yup’ik from the translated OEP.
(s)

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.

Supplemental 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 provide these materials to the bilingual poll workers
and conduct synchronous virtual training sessions in the DCA and KCA. The training shall
cover any voting materials, ballot, ballot measures, pro/con statements, neutral summaries,
24

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 the initial training.
8.

Phone or Asynchronous video 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 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 Division must identify that act; and
(f)

Documentation of travel provided for training, to include
25

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:

(c)

(i)

Federal, state, or local offices;

(ii)

Ballot questions: and

(iii)

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
26

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

Explain the early and absentee-in-person voting process

including dates and locations;
(f)

Explain voter identification requirements to include the

acceptable forms of identification;
(g)

Review in the covered dialect all of the information in the OEP;

(h)

Review in the covered dialect the sample ballot;

(i)

Describe the availability of language assistance before 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 any questions about the meetings;
(k)

Provide the name and toll-free number of the person available for

assistance in Yup’ik, and for referral for dialect assistance as necessary; and
(l)

Have a question and answer session in the 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.
27

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 dialect identified in parentheses:

(b)

(i)

KDLG – Dillingham (Bristol Bay Yup’ik);

(ii)

KYUK – Bethel (Central Yup’ik);

(iii)

KICY – Nome (Yukon Yup’ik); and

(iv)

KCUK – Chevak (Hooper Bay/Chevak).

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 dialect identified above in Paragraph III(J)(2)(a).
(c)

Content (in the 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
28

submitting an application;
(iv)

Early and absentee-in-person voting dates and the Division’s

telephone number to find these voting locations;
(v)

General description of the subject matter of the ballot

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

Availability of language assistance before Election Day

(vii)

Toll-free number for language assistance or to find out the

and on Election Day; and

name of any 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

(ii)

Steps to take to ensure the voter remains on the active voter

(iii)

Toll-free number for language assistance for any

important;

list; and

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.
29

1.

Within two weeks of when the Division sends list maintenance

inactivation notices to voters it shall provide to tribal councils a written translation in the
applicable dialect identified in Paragraph III(B) of the list maintenance radio ad.
2.
L.

The Division will provide list maintenance notices in Yup’ik.

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 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 dialect identified by the YTP in
consultation with the appropriate tribal council. Audio translations shall be included in the
applicable dialect identified pursuant to Paragraph III(B) for all audio information and
instructions provided on the machine in English. All poll workers shall practice using 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, OEP, 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 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 and
30

translated OEP to assist them in casting a ballot on Election Day. Poll workers may assist
voters by referring to and reading in Yup’ik from the translated OEP.
2.

Written bilingual sample ballots shall be available to voters at the

Division’s five Regional Offices.
N.

Voter Registration
1.

The Division shall ensure that each tribal council has an adequate supply

of voter registration forms and instructions.
2.

The Division shall provide to each village signs in the applicable dialect

identified in Paragraph III(B) 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 DCA and KCA 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 dialect identified in Paragraph III(B)
advertising the name, 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 dialect spoken in the village.
2.

No village in the DCA and KCA that is not currently a PAV site shall

be designated as a PAV site without providing the Plaintiffs with at least sixty days’ notice
31

of Defendants’ intention to designate the village as a PAV site.
P.

Voters Provided Questioned Ballots
The Division shall provide instructions to all voters who vote a questioned

ballot on the questioned ballot process in the applicable 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
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 Third Stipulated Order to identify the Division’s efforts under it.
R.

Targeted Assistance
If there is information suggesting that there are no LEP Yup’ik speaking voters

in a particular village, the Division will provide that information to the Plaintiffs. After the
Plaintiffs have an opportunity to examine the information, review Census data, and confer
with the village in question, within 120 days they will inform the Division whether they
agree that Yup’ik-language assistance is not needed in that village and provide supporting
information.
S.

Reporting Requirements
1.

Thirty days before each election, the Division shall inform Plaintiffs if
32

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; and

(b)

in even-numbered years, 60 days after the General 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.

LANGUAGE ASSISTANCE IN GWICH’IN
The parties acknowledge that Gwich’in is no longer a covered language in the YKCA.

Nevertheless, the Division will preserve the existing translated materials and to the extent
practicable make them available on the Division’s website and upon request. The Division
will continue to re-hire existing Gwich’in bilingual poll workers to the extent they are willing
to serve.
V.

PERIODIC MEETINGS
The parties will meet regularly, at least twice a year, at dates and times that are
33

convenient for the parties. The meetings can include topics that are covered under the terms
of this Order.
VI.

ENFORCEMENT
A.

The Court may enforce the terms of this Order through contempt 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
34

of a death in the family or poll workers 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 inperson 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).
VII.

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 be

applied to motions to modify a final judgment pursuant to Federal Rule of Civil Procedure
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
35

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, 2026.
C.

Standard for modification and extension. This Order may be modified or

extended if the moving party can meet the requirements under applicable law for securing
that relief. The parties agree that the Division’s compliance with this Order will be measured
by the standards set out in 28 C.F.R. § 55.2.
VIII. ATTORNEYS’ FEES AND COSTS UNDER THE ORDER
A.

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

Court’s issuance of the Stipulated Judgment and Order.
CONCLUSION
IT IS ORDERED that the parties’ Joint Motion at Docket 354 is GRANTED.
36

The Court finds that the parties’ proposed Third 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 Third
Stipulated Order is entered on this date.
DATED this 31st day of August 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

37

38