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Federal Voting Rights Issues Impact Initiative, Referendum and Recall Elections in Twenty-One California Counties

By: Stephen N. Roberts

As the May elections approach, a November 2005 Decision of the Ninth Circuit Court of Appeals has become a hot topic in the twenty-one California counties subject to sections of the Federal Voting Rights Act of 1965 ("FVRA") that require translation of election materials into multiple languages. The decision is Padilla v. Lever, 429 F. 3d 910 (9th Cir. 2005). Padilla held that the translation requirement extended to the pre-election circulation of a recall petition. In litigation flare-ups in several of the twenty-one counties, Padilla has been extended to initiative and referendum petitions as well. If you are in one of the affected jurisdictions and involved in any pending recall, initiative or referendum matters, you may wish to consider what immediate action might be necessary as a result of these developments.

Section 203 of FVRA (42 U.S.C. § 1973 et seq.) provides that certain counties throughout the United States must translate election materials into minority languages. In California, the counties are Alameda, Colusa, Fresno, Imperial, Inyo, Kern, Kings, Lake, Los Angeles, Merced, Monterey, Orange, Riverside, San Benito, San Bernardino, San Diego, San Francisco, Santa Clara, Tulare, Ventura and Yuba. 28 C.F.R., Ch. 1, Pt. 55, App. (2005). Prior to Padilla, the general wisdom among election officials was that recall, initiative and referendum petitions and related materials were not subject to the translation requirements. However, Padilla, which involved an Orange County recall petition, held that such a petition was subject to the requirements. FVRA states that language requirements apply not only to the ultimate ballots, but also to "any registration or voting notices, forms, instructions, assistance or other materials or information relating to the electoral process, including ballots." 42 U.S.C. 1973aa-1a(b)(3)(A). Using a plain meaning analysis, the majority in Padilla concluded that a recall petition was clearly "relating to the electoral process." A further question was whether recall petition materials were "provided by" the Orange County election officials within the meaning of the statute. 42 U.S.C. 1973aa-1a(c). The court held that there was sufficient government involvement in the process to fulfill this requirement, even though recall petitions are drafted and circulated by private citizens. With the foregoing two-pronged analysis, the 2-1 majority in Padilla concluded that the translation requirements applied to the petition. The Ninth Circuit distinguished seemingly contradictory decisions of the Tenth and Eleventh Circuits involving initiative petitions, but also clearly disagreed with elements of those decisions. In dissent, Judge Canby predicted that the holding would affect referendum and initiative petitions as well.

Judge Canby's prognostication has proven correct. Indeed, the logic of the decision may apply to those other two types of petitions with equal or greater force. In an order filed March 23, 2006 in the case of In re Monterey Initiative Cases, No. C 06-01407 (N.D. Cal), Judge James Ware held that the County of Monterey acted correctly in refusing to send to the ballot an initiative petition which would have amended the County’s general plan, but which was circulated in English only. An emergency injunction motion seeking to overturn Judge Ware’s order was turned down by the Ninth Circuit on April 5. More recently, Monterey has taken a referendum measure on a land use ordinance off the ballot for a similar reason; that case is now pending in federal court. This firm has represented Monterey in both these suits. In San Bernardino County, opponents of a land use initiative at the City of Loma Linda were successful in federal court in removing the matter from the ballot; but not successful with respect to a referendum matter. In the City of Rosemead, a recall petition was held off the ballot by the courts. And as this article is being written an initiative matter is being challenged in Kern County; the District Court there denied a temporary restraining order that would have required the County to remove a petition from the ballot, but a preliminary injunction hearing will be heard shortly. Some sponsors of initiative petitions in Los Angles County have wisely chosen to circulate them in multiple languages, to avoid any possibility of invalidity.

The minority language provisions of the FVRA clearly apply to the 21 counties listed above and likely apply to some but not all of the local government subdivisions within those counties. It is less clear whether any of this jurisprudence might apply to statewide petitions. To date, the post-Padilla litigation has involved ongoing measures, and so there has been no decision yet as to whether it would be retroactively applied to elections completed before the date Padilla was decided, or, if so, what the statute of limitations on a challenge might be. And, the Ninth Circuit has not yet spoken the final word. A petition for rehearing en banc is now pending in Padilla (the decision is still binding precedent unless and until the Circuit acts to grant the request for en banc review), and the Monterey case will be briefed and decided in that Court once it makes its decision about en banc review in Padilla. But until then, local governments and those involved in the petition process have difficult decisions to make.

Stephen N. Roberts is a Partner with Nossaman and has devoted his practice to general business litigation since 1974. The majority of his cases involve transportation, public agency law, real estate, construction and related infrastructure issues. He can be reached at (415) 438-7224 or

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