Bill Text: MI SB0403 | 2023-2024 | 102nd Legislature | Engrossed
Bill Title: Elections: voters; language assistance for elections act; create. Creates new act. TIE BAR WITH: SB 0401'23, SB 0402'23
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Engrossed) 2024-12-03 - Referred To Second Reading [SB0403 Detail]
Download: Michigan-2023-SB0403-Engrossed.html
Substitute For
SENATE BILL NO. 403
A bill to provide for language assistance for elections; to provide for the powers and duties of certain state and local governmental officers and entities; to create the language access advisory council; and to provide for remedies.
the people of the state of michigan enact:
Sec. 1. This act may be cited as the "language assistance for elections act".
(a) "Limited English proficiency" means an individual who does not speak English as that individual's primary language and who speaks, reads, or understands the English language less than very well.
(b) "Local government" means a county, or a city or township that conducts an election.
(c) "Michigan voting and elections database and institute" means the Michigan voting and elections database and institute created in section 5 of the voting and elections database and institute act.
(d) "Voting-eligible population" means the population of individuals with United States citizenship who are 18 years of age or older.
Sec. 5. (1) A local government must provide language assistance for elections conducted in that local government if that local government meets either of the following conditions:
(a) Before January 1, 2030, has more than 5% of the voting-eligible population in that local government who speak a single shared language other than English and have limited English proficiency, or, beginning January 1, 2030, has a voting-eligible population of at least 600 individuals in that local government who speak a single shared language other than English and have limited English proficiency.
(b) Before January 1, 2030, has a voting-eligible population of more than 10,000 in that local government who speak a single shared language other than English and have limited English proficiency, or, beginning January 1, 2030, has a voting-eligible population of at least 100 individuals in that local government who speak a single shared language other than English and have limited English proficiency and also comprise 2.5% or more of the voting-eligible population in the local government.
(2) If a local government that is required to provide language assistance for elections conducted in that local government under this section enters into an agreement with the county in which that local government is located authorizing the county to conduct early voting for that local government as provided under section 720g of the Michigan election law, 1954 PA 116, MCL 168.720g, the county must comply with the language assistance requirements for that local government during the early voting period.
(3) Not later than January 31 of each odd-numbered year, the secretary of state shall post on the department of state's website both of the following based on data made available by the United States Census Bureau or the American Community Survey, or, if that data is insufficient, data of comparable quality collected by a governmental entity or the Michigan voting and elections database and institute:
(a) A list of each local government that is required under this section to provide language assistance for elections under subsection (1).
(b) A list of each language in which the local governments listed in subdivision (a) are required to provide language assistance for elections.
(4) The director of elections shall provide the information posted on the department of state's website under subsection (3) to the clerk of each local government in this state. If a local government is added to the information posted on the department of state's website under subsection (3), the secretary of state must do all of the following:
(a) Notify that local government of the language assistance requirements.
(b) Require that local government to implement the language assistance requirements not later than the next state primary election date.
(c) Provide in the covered language all voting materials produced by the secretary of state relevant to that local government.
(d) Issue guidance on implementing the language assistance requirements described in subsection (2).
(5) If the secretary of state determines under this section that language assistance for elections must be provided in a local government, the secretary of state must do all of the following:
(a) Except as otherwise provided under this subdivision, provide effective language assistance for elections in each designated language and provide related materials in English, and in each designated language as translated by a certified translator, including registration and voting notices, newspaper notices, forms, instructions, assistance, ballots, absent voter ballot applications, signage at clerks' offices, polling places, and early voting sites, and other materials and information relating to the electoral process. If a local government requires language assistance for elections that is not provided by the secretary of state under this subsection, that local government is required to submit language to the secretary of state no later than 82 days before the election, and if that language is not submitted to the secretary of state by the local government as required under this subdivision, that local government is required to provide the language assistance for elections as required under this subdivision.
(b) Ensure that all materials provided in a designated language are translated by a certified translator and do not rely solely on any automatic translation service, are of an equal quality to the English counterparts, and accurately convey the intent and essential meaning of the original text or communication in the most widely used dialect.
(c) Provide to that local government, and to the county in which that local government is located if that local government has entered into an agreement with the county in which that local government is located authorizing the county to conduct early voting for that local government as provided under section 720g of the Michigan election law, 1954 PA 116, MCL 168.720g, a voting system technology that produces ballots on demand and a voter assist terminal that displays a translated ballot for the voter to mark using the electronic interface on the voter assist terminal and that prints a translated ballot reflecting the voter's votes for tabulation.
(d) Subject to this subdivision, reimburse that local government for additional costs associated with logic and accuracy testing on tabulators conducted by that local government, or, if approved by the governing body of the local government, directly contract with a vendor to do logic and accuracy testing on tabulators in that local government. The secretary of state shall not prohibit the clerk of a local government or a board of election commissioners from using any source to prepare the chart of predetermined results and test decks with those predetermined results used in that preliminary logic and accuracy testing if the chart of predetermined results and test decks with those predetermined results meet the required standards under law. A clerk of a local government or a board of election commissioners may use any source to print test ballots if the source is capable of printing ballots that are designed to be scanned properly by voting equipment, and may use any source to conduct logic and accuracy testing if that logic and accuracy testing is limited to only placing test ballots in voting equipment and comparing the results to the chart of predetermined results, and does not involve any additional examination of or access to voting equipment.
(6) If the secretary of state provides language assistance for elections to a local government under subsection (5), that local government must use all of the language assistance for elections provided by the secretary of state.
(7) Except as otherwise provided in this subsection, the secretary of state shall provide local government clerks access to a live interpreter for providing language interpretation to electors. If a live interpreter is not available, the secretary of state shall provide local government clerks access to a telephone system or other remote system that can be used for providing language interpretation to electors.
(8) The secretary of state must produce electronic copies of any election materials that the secretary of state makes public in each language that has been designated under subsection (1).
(9) Nothing in this section prohibits a local government from voluntarily providing language assistance for elections beyond that language assistance for elections required in this section if the local government determines that language assistance for elections would be beneficial for the limited English proficiency residents in that local government.
(10) This section takes effect January 1, 2026.
Sec. 6. (1) The language access advisory council is created in the department of state.
(2) The language access advisory council consists of the following members who shall be appointed by the secretary of state:
(a) One clerk who is selected from a list of nominees submitted by the Michigan Association of Municipal Clerks.
(b) One clerk who is selected from a list of nominees submitted by the Michigan Association of County Clerks.
(c) One member from each group that is eligible for language assistance for elections under this act.
(3) The secretary of state shall appoint the members of the language access advisory council no later than May 1, 2025.
(4) If a vacancy occurs on the language access advisory council, the secretary of state shall fill the vacancy in the same manner as the original appointment.
(5) The members of the language access advisory council shall meet 1 or more times annually, as directed by the secretary of state, to advise the secretary of state on implementing the provisions of section 5.
Sec. 7. (1) Except as otherwise provided under subsection (5), before commencing a civil action against the secretary of state or a local government that alleges a violation of section 5, a prospective plaintiff must send by certified mail a notification letter to the secretary of state or, for a local government, the clerk and chief administrative officer of the local government that asserts that the secretary of state or the local government may be in violation of section 5. The notification letter must explain in detail each alleged violation of section 5 and propose a remedy for each alleged violation of section 5.
(2) Within 30 days after receiving a notification letter under subsection (1), the secretary of state, or the clerk of the local government and the chief administrative officer or chief executive officer of that local government, along with legal counsel or any other individual the secretary of state or the local government wishes to attend, may meet with the prospective plaintiff and the prospective plaintiff's representatives to prepare and agree on a written plan to address the alleged violations of section 5 by the secretary of state or the local government. If the secretary of state or the local government does not meet with the prospective plaintiff, the prospective plaintiff may file a cause of action as provided under subsection (5). If the secretary of state or the local government agrees to meet with the prospective plaintiff to prepare and agree on a plan to address the alleged violations, the prospective plaintiff or the prospective plaintiff's representatives must participate in the meeting. The written plan described in this subsection must be in writing, be approved by the secretary of state or, for a local government, by a resolution of the governing body of the local government, and do all of the following:
(a) Identify each alleged violation of section 5 by the secretary of state or the local government.
(b) Identify a specific remedy for each alleged violation of section 5 by the secretary of state or the local government or state that the parties agree that no remedy is appropriate for 1 or more of the alleged violations.
(c) Establish specific measures that the secretary of state or the local government must take to facilitate any needed approvals to implement each specific remedy.
(d) Provide a schedule for the needed approvals and the implementation of each specific remedy.
(3) If a prospective plaintiff and the secretary of state or the local government agree on a written plan that complies with subsection (2), and that written plan is approved by the secretary of state or, for a local government, by a resolution of the governing body of the local government, no cause of action may be filed by the prospective plaintiff unless the secretary of state or the local government fails to comply with the requirements of the written plan.
(4) If a prospective plaintiff and the secretary of state or the local government do not agree on a written plan as described under subsection (2), the prospective plaintiff may file a cause of action as provided under subsection (5).
(5) Subject to subsections (1) to (4), any individual aggrieved by a violation of section 5, any entity whose membership includes individuals aggrieved by a violation of section 5, any entity whose mission would be frustrated by a violation of section 5, any entity that would expend resources in order to fulfill its mission as a result of a violation of section 5, or the attorney general may file a cause of action against a local government as provided under section 12(1) or against the secretary of state as provided under section 12(2) if any of the following requirements are met:
(a) The party gave written notice as required under subsection (1) and the secretary of state or the local government did not meet and approve a written plan as provided under subsection (2).
(b) Another party has already submitted a notification letter under subsection (1) that alleges a substantially similar violation of section 5 and that party is eligible to bring a cause of action under this subsection.
(c) After a party submitted a notification letter under subsection (1), the secretary of state or the local government failed to implement a written plan as provided under subsection (2).
(d) The party is seeking preliminary relief with respect to an upcoming election as provided under section 13.
Sec. 8. (1) Subject to subsection (4), if, pursuant to a process commenced by a notification letter under section 7, a local government enacts or implements a remedy to a potential violation of this act, the department of state shall reimburse the prospective plaintiff who sent the notification letter from the Michigan voting rights assistance fund, as created in section 15 of the state voting rights act, or, if there is insufficient money in the Michigan voting rights assistance fund, from other money appropriated to the department of state for this purpose, for the reasonable costs to generate the notification letter under section 7.
(2) If a local government enacts or implements a remedy to a potential violation of this act, either in response to a notification letter received under section 7 or on its own volition, the department of state shall reimburse that local government from the Michigan voting rights assistance fund, as created in section 15 of the state voting rights act, or, if there is insufficient money in the Michigan voting rights assistance fund, from other money appropriated to the department of state for this purpose, for the reasonable costs to evaluate whether the remedy was necessary to prevent a potential violation of this act.
(3) The department of state shall reimburse a local government from the Michigan voting rights assistance fund, as created in section 15 of the state voting rights act, or, if there is insufficient money in the Michigan voting rights assistance fund, from other money appropriated to the department of state for this purpose, for the reasonable costs incurred to evaluate whether a remedy is necessary to prevent a possible violation of this act. The department shall provide reimbursement under this subsection only if both of the following requirements are met:
(a) The costs were incurred by the local government in response to a notification letter received under section 7.
(b) The department of state determines, on request from the local government, that a reasonable plaintiff, with reasonable investigation before sending the notification letter, would have known the allegations in the notification letter lacked legal or factual merit.
(4) Subject to subsection (6), the amount of reimbursement provided under subsection (1), (2), or (3) must not exceed $50,000.00. This amount must be adjusted annually by an amount determined by the state treasurer to reflect the cumulative annual percentage increase in the United States Consumer Price Index for the immediately preceding calendar year and rounded to the nearest $100.00 increment.
(5) A request for reimbursement made by a prospective plaintiff or a local government under subsection (1) or (2) must be transmitted to the department of state not later than 90 days after the enactment or implementation of the remedy. A request for reimbursement made by a local government under subsection (3) must be transmitted to the department of state not later than 90 days after the local government receives a determination by the department of state that the allegations in the notification letter lacked legal or factual merit. The request for reimbursement must be substantiated with financial documentation, including, as applicable, detailed invoices for expert analysis and reasonable attorney fees calculated using a lodestar methodology. A prospective plaintiff or local government that does not receive satisfactory reimbursement within 120 days after the request for reimbursement may file a declaratory judgment action to obtain a clarification of rights.
(6) A local government may seek reimbursement only under subsection (2) or (3), and not subsections (2) and (3), regarding a notification letter.
(7) As used in this section, "United States Consumer Price Index" means the United States Consumer Price Index for all urban consumers as defined and reported by the United States Department of Labor, Bureau of Labor Statistics.
Sec. 9. (1) In any action brought under this act, the court has broad authority to order adequate remedies that are tailored to address the violation. The ordered remedies must be only as extensive as reasonably necessary to remedy the violation. Subject to subsection (3), adequate remedies include, but are not limited to, any of the following:
(a) Requiring the establishment and conducting of a comprehensive program that ensures an equal opportunity for citizens in the local government who are entitled to language assistance under this act to participate in the electoral process.
(b) Adding voting days or hours.
(c) Ordering a special election on either a regular election date as provided under section 641 of the Michigan election law, 1954 PA 116, MCL 168.641, or on another date, as determined by the court, if necessary to remedy a violation.
(d) Imposing nominal or compensatory damages.
(e) Subject to this subdivision, imposing punitive damages in the form of a civil fine. The civil fine must be deposited into the Michigan voting rights assistance fund created in section 15 of the state voting rights act. When assessing the amount of punitive damages, the court shall take into consideration the severity of the violation, the number of violations, whether the local government has previous violations, the number of registered electors in the local government, the local government's ability to pay the punitive damages, and any other factors the court considers necessary. The court shall provide an explanation in any order requiring the payment of punitive damages on why punitive damages were required and how the court determined the amount of those punitive damages. Punitive damages may be ordered only if the court finds any of the following:
(i) The violation is intentional.
(ii) The local government or an official of a local government demonstrated a disregard for the voting rights of qualified electors in the local government.
(iii) After being notified of an alleged violation under section 7(1), the local government failed to take any action under section 7(2).
(iv) The local government violated a court order issued under this act, article II of the state constitution of 1963, the federal voting rights act of 1965, 52 USC 10301 to 10314, 10501 to 10508, and 10701 to 10702, or any other law applicable to or affecting voting rights.
(v) After addressing any violation of this act, article II of the state constitution of 1963, or any other law applicable to or affecting voting rights, the local government subsequently violated this act, article II of the state constitution of 1963, or any other law applicable to or affecting voting rights.
(vi) Punitive damages are reasonably necessary to ensure compliance with this act.
(f) Any other form of declaratory or injunctive relief that, in the court's judgment, is tailored to address the violation.
(g) Retaining jurisdiction for a period of time the court considers appropriate.
(2) In any action brought under this act, the court shall consider remedies proposed by any parties and interested nonparties and shall not provide deference or priority to a proposed remedy offered by the defendant or the local government simply because the remedy has been proposed by the defendant or the local government.
(3) In any action brought under this act, the court has the authority to order remedies that may be inconsistent with other provisions of state or local law, when the inconsistent provisions of law would otherwise preclude the court from ordering an adequate remedy.
Sec. 11. In any action brought under this act, the court shall award reasonable attorney fees and litigation costs, including expert witness fees and expenses, to the any of the following:
(a) A party that filed the action and prevailed in the action. The party that filed the action is considered to have prevailed if, as a result of the action, the party against whom the action was filed has yielded some or all of the relief sought in the action.
(b) A party that defended an action and prevailed in the action if the written response by the local government under section 7(2) details why no violation occurred and the court finds no violation occurred for the same or substantially similar reasons provided in the local government's written response under section 7(2).
Sec. 12. (1) Any individual or entity identified in section 7(5) or the attorney general may file an action against a local government in the circuit court of the county in which the local government is located or in the court of claims to compel compliance with and seek an appropriate remedy under this act.
(2) Any individual or entity identified in section 7(5) or the attorney general may file an action against the secretary of state in the court of claims to compel compliance with and seek appropriate remedy under this act.
Sec. 13. Because of the frequency of elections, the severe consequences and irreparable harm of holding elections under unlawful conditions, and the expenditure to defend potentially unlawful conditions that benefit incumbent officials, actions brought under this act are subject to expedited pretrial and trial proceedings and must receive an automatic calendar preference. In any action alleging a violation of section 5 in which a plaintiff party seeks preliminary relief with respect to an upcoming election, the court shall grant relief if the court determines, after a hearing at which all parties may present arguments and offer evidence, that the plaintiffs are more likely than not to succeed on the merits and it is possible to implement an adequate remedy that would resolve the alleged violation in the upcoming election.
Sec. 15. Nothing in this act shall be interpreted to conflict with federal law or suggest that voters have fewer rights than granted under federal law, including, but not limited to, section 203 of the federal voting rights act of 1965, 52 USC 10503.
Enacting section 1. This act does not take effect unless all of the following bills of the 102nd Legislature are enacted into law:
(a) Senate Bill No. 401.
(b) Senate Bill No. 402.
