Ninth Circuit Holds Recall Petitions Fall Within Bilingual Requirements of Federal Voting Rights Act of 1965
In the recent case of Padilla v. Lever, No. 03-56259, 429 F.3d 910 (9th Cir. Nov. 23, 2005), the Ninth Circuit (the "Court") held that Section 203 of the Voting Rights Act of 1965 (the "Act"), which requires voting materials in certain districts to be distributed in specified minority languages, applies to recall petitions circulated pursuant to California law. Specifically, the Court held that recall petitions were "other materials or information relating to the electoral process" and that the Orange County Registration and Elections Department (the "OCRED") "provided" the recall petitions within the meaning of the Act. The decision makes it likely, if not certain, that in every locale where bilingual or trilingual ballots are required, a similar requirement will also apply to initiative petitions.
In March 2002, Vivian Martinez ("Martinez") along with 10 other individuals (the "Recall Proponents") initiated a recall process against the Santa Ana Unified School District (the "District") Board Member Nativo Lopez ("Lopez"). Martinez and the Recall Proponents were private citizens and registered voters in the District. Pursuant to California Elections Code Section 11000, the Recall Proponents drafted and printed a Notice of Intention to Circulate Recall Petition (the "Notice"). The Notice was printed in English only. The Recall Proponents filed the Notice with the OCRED and a copy was served on Lopez. Lopez filed an answer with the OCRED, which he also served on the Recall Proponents. Lopez' answer was printed in English only.
After receiving Lopez' answer the Recall Proponents drafted a Petition for Recall ("Petition(s)") pursuant to the California Secretary of State's regulations, and to conform to the requirements of the California Elections Code. This Petition requested an election to replace Lopez, the Notice of Intention, and Lopez' Answer. The Recall Petition was in English only. The OCRED reviewed the Petition to recall Lopez and concluded the Petition conformed to the requirements of the California Elections Code. Thus, election officials authorized the Petition for circulation. The Petition was printed in English only and county officials did not require translation into Spanish.
In April 2002, Recall Proponents circulated the Petition and began obtaining the necessary signatures. On September 12, 2002, the Recall Proponents submitted signed Petitions to the OCRED. Election Officials Rosalind Lever ("Lever") and Susanne Slupsky ("Slupsky" or collectively with Lever, the "Defendants") verified the signatures and determined there were sufficient signatures to hold a recall election. Lever certified the signatures on the Petition and the District called for a recall election to be held on February 4, 2003. On December 12, 2002 Sandra Padilla and other residents in the District (the "Plaintiffs"), whose primary language is Spanish, filed suit seeking injunctive and declaratory relief against Lever and Slupsky.
Plaintiffs' suit alleged the Petition violated Section 203 of the Act, which requires voting materials in certain districts be distributed in specified minority languages. In their suit Plaintiffs alleged that because the Defendants failed to translate the Petition, the Plaintiffs signed the Petition without knowledge they were signing a petition to recall Lopez. According to Plaintiffs' argument, the Petitions were printed in English only and Petition circulators misrepresented its purpose. Specifically, Plaintiffs charged the Petition signature collectors told them it was merely a form to request additional information and was not a petition to recall Lopez. On January 10, 2003, the District Court denied the Plaintiffs' request for an injunction. On February 1, 2003, the District Court granted the Defendants Rule 12(b)(6) motion and dismissed the Plaintiffs' suit against Martinez with prejudice. On January 16, 2003 the District Court granted the Defendants' Motion for Judgment on the pleadings. Essentially, the District Court concluded the Petition was not governed by the Act because it was not "provided by" Orange County election officials and not material or information "relating to the electoral process."
The Court pointed out that Section 203 of the Act requires translation into a jurisdiction's minority language whenever a state or political subdivision provides any registration or voting notices, forms, instructions, assistance, or other materials relating to the electoral process. The Court stated the Act is to be broadly construed to achieve its objectives and pointed out that although the Act did not define what "other materials" meant, its duty in matters of statutory construction is to give effect to the intent of Congress. The court reasoned recall petitions have some bearing or concern and are connected with elections. Relying on its prior analysis in Zaldivar v. City of Los Angeles, 780 F.2d 823, 826 (9th Cir. 1986), the Court found that recall petitions serve no other purpose than to trigger an election and rejected the argument that a recall notice is only a preliminary step to voting and therefore is unaffected by the bilingual provisions of the Act.
The Court also relied on the Department of Justice's regulations implementing Section 203 of the Act where the United States Attorney General (the "Attorney General") defined "written materials" to "include ? ballots, sample ballots, information materials and petitions [emphasis added]." The Court pointed out that the Attorney General's inclusion of the word "petition" and definition of "written materials" was consistent with the Act's purpose to enable members of applicable minorities to participate in the electoral process. The Court criticized the District Court's decision as being inconsistent with the plain language of Section 203 and Congress' intent to protect minority voting rights. In conclusion, the Court held that recall petitions are "other materials or information relating to the electoral process" under the Act.
Furthermore, the Court discussed that Recall Petitions would still only fall under the Act's bilingual requirement if they were "provided by" the OCRED. The Court found that there was sufficient state involvement by the OCRED to trigger the bilingual requirements of the Act because the OCRED officials not only approved the form, but also the content of the Recall Petition. The Court concluded "here, the Recall Petitions, in English only, were submitted to the Orange County Elections Department as required by California law. By reviewing and approving the Recall Petition for circulation, the Orange County Elections Department sanctioned the content and format of the Petition, including its printing only in English" (923). The Court held that the state approval involved here, together with the extensive state regulation of the form of the Petition, was "sufficient state involvement to trigger application of the bilingual requirements and to conclude that the state provided [emphasis added] the Petition within the meaning of the Voting Right Act." (924)
Padilla makes it likely, if not certain, that in every locale where bilingual or trilingual ballots are required, a similar requirement will apply for initiative petitions. This requirement coupled with increasingly strict requirements regarding the material that must be included in initiative petitions, could be a formidable hurdle for either project proponents or opponents who resort to the initiative when they are unsuccessful at the locally elected decision-maker level.
For more information please contact Michael Wilmar. Michael B. Wilmar is special counsel in the Real Estate, Land Use and Natural Resources Practice Group in the firm's San Francisco office.