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63 F.3d 1046 (9th Cir. 2006) (en banc)
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
SANDRA PADILLA; VICTOR SANCHEZ; ROSA ANDRADE, Plaintiffs-Appellants,
v.
ROSALYN LEVER, in her official capacity as Registrar of Voters, Orange
County Registration and Elections Department; SUZANNE SLUPSKY, in her
official capacity as Assistant Registrar of Voters, Orange County Registration
and Elections Department, Defendants-Appellees,
and
VIVIAN MARTINEZ, Defendant-Appellee.
No. 03-56259
D.C. No.
CV-02-01145-AHS
OPINION
Appeal from the United States District Court for the Central District of
California Alicemarie H. Stotler, District Judge, Presiding
Argued and Submitted En Banc June 22, 2006—San Francisco, California
Filed September 19, 2006
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson, William C. Canby,
Jr., Stephen Reinhardt, Alex Kozinski, Diarmuid F. O’Scannlain,
Pamela Ann Rymer, Andrew J. Kleinfeld, Raymond C. Fisher, Ronald M. Gould,
Richard A. Paez, Richard C. Tallman, Johnnie B. Rawlinson, Jay S. Bybee,
and Carlos T. Bea Circuit Judges.
Opinion by Judge Canby; Concurrence by Judge Reinhardt; Dissent by Judge Pregerson
COUNSEL
Nina Perales (argued), Mexican American Legal Defense and Educational Fund,
San Antonio, Texas, for the plaintiffs-appellants.
Wendy J. Phillips (argued), Deputy County Counsel, Santa Ana, California;
Frederic D. Woocher (argued), Strumwasser & Woocher, LLP, Santa Monica,
California; for the defendants-appellees.
George W. Shaeffer, Jr. (argued), Heather B. Scheck (brief), Breon, Shaeffer
& Bryant, P.L.C., Irvine, California; Louis R. Mauro, Senior Assistant
Attorney General, Sacramento, California, for amici curiae.
OPINION
CANBY, Circuit Judge:
A provision of the federal Voting Rights Act, 42 U.S.C. § 1973aa-1a(c),
requires that, in certain States with substantial linguistic minority
populations of voting age, election materials must be provided in the
applicable minority languages as well as English. This requirement applies
to any covered State or political subdivision that “
provides any . . . materials or information relating to the electoral process.”
Id. (emphasis added). The question presented by this appeal is whether this
requirement attaches to recall petitions initiated, circulated and paid
for by private proponents of a recall, when the proponents are required
to draft the petitions in a form specified by the State and county.
We conclude that § 1973aa-1a(c) does not apply to such recall petitions
because they are not “provide[d]” by the State or its subdivision.
We therefore affirm the judgment of the district court, which rejected
the plaintiffs’ challenge to a recall election triggered by petitions
circulated only in English.
BACKGROUND
The recall petitions at issue were initiated by defendant Vivian Martinez
and others, who sought to recall Santa Ana Unified School District Board
Member Nativo Lopez. Pursuant to California Elections Code section 11000
et seq., the proponents drafted and printed (in English) a Notice of Intention
to Circulate Recall Petition, which included a statement of the grounds
for recall. The proponents filed the Notice with the Orange County Registration
and Elections Department and a copy was served on Lopez. In response,
Lopez filed an Answer (also in English) with the County Elections Department
and served copies on the recall proponents.
The recall proponents then drafted a recall petition in accordance with
the California Elections Code and the regulations of the California Secretary
of State. The recall petition included a request to hold an election to
replace Lopez, the Notice of Intention (including a statement of the reasons
for the recall), and Lopez’s Answer. Except for Lopez’s Answer
(which he drafted), the recall proponents drafted the contents of the
Recall Petition, adhering to the requirements and format specified by
the Secretary of State. This draft petition was in English only.
As required by Cal. Elec. Code § 11042, the recall proponents filed
two blank copies of the Recall Petition with the Orange County Elections
Department, along with a proof of publication of the Notice of Intention,
for election officials to ascertain whether the recall petition conformed
to the proper format and applicable election law.
See Cal. Elec. Code § 11042(a)-(b). The County Elections Department reviewed
the proposed form and wording of the petition and concluded that it conformed
to the requirements of the California Election Code. They accordingly
authorized circulation of the petitions. They required no translation,
and the authorized petition was printed only in English. The final petitions,
also in English, were printed at the proponents’ expense.
In April 2002, the proponents began collecting signatures and in September
2002 they submitted the signed petitions to the County Elections Board,
which verified the signatures and certified that enough signatures had
been collected to precipitate an election. The School District then set
a recall election for February 4, 2003.
On December 12, 2002, however, the plaintiffs entered the picture. They
are registered voters and residents of the School District whose primary
language is Spanish. They filed this action seeking injunctive and declaratory
relief against Martinez and the County officials charged with overseeing
the recall election. The complaint alleged that the recall petitions did
not comply with § 1973aa-1a(c) of the Voting Rights Act because they
had not been translated into Spanish. The plaintiffs sought an injunction
prohibiting the defendant officials from taking any steps to proceed with
the recall election and requiring translation of the recall petition into Spanish.
The plaintiffs alleged that they signed the petitions because the circulators
misrepresented the petitions’ nature, and the plaintiffs could not
fully understand the petitions firsthand because they were printed only
in English.
The plaintiffs sought a temporary restraining order to prevent the election,
and the district court denied that motion on December 24, 2002. The plaintiffs
moved for a preliminary injunction, which the district court denied on
January 10, 2003. The plaintiffs appealed and sought to prevent the election
by filing an emergency motion for injunction pending appeal, which this
court denied on January 30, 2003. The election took place as scheduled
on February 4, 2003, and the plaintiffs then voluntarily dismissed their
appeal of the denial of the preliminary injunction. On February 21, 2003,
the district court granted defendant Martinez’s motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6). Finally, on June 16, 2003, the district
court granted the county defendants’ motion for judgment on the
pleadings. The plaintiffs appealed.
DISCUSSION
1.
Mootness.
[1] The plaintiffs concede that their claim for injunctive relief has become
moot. The recall election has occurred, and the term of office filled
by that election has expired. The plaintiffs contend, however, that their
claim for declaratory relief is not moot. We conclude that they are correct.
[2] The plaintiffs seek a declaration that the Voting Rights Act was violated
when the proponents were permitted to, and did, circulate petitions printed
only in English. It is too late, of course, for the declaration to have
any effect on the recall petitions for the election of February 4, 2003.
The plaintiffs’ claim for declaratory relief, however, falls classically
into that category of cases that survive mootness challenges because they
are “ ‘capable of repetition, yet evading review.’ ”
Roe v. Wade, 410 U.S. 113, 125 (1973) (quoting
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)). That exception applies when “(1) the
duration of the challenged action is too short to allow full litigation
before it ceases, and (2) there is a reasonable expectation that the plaintiffs
will be subjected to it again.”
Greenpeace Action v. Franklin, 14 F.3d 1324, 1329 (9th Cir. 1992).
[3] As we observed in
Porter v. Jones, 319 F.3d 483, 490 (9th Cir. 2003), “the inherently brief duration
of an election is almost invariably too short to enable full litigation
on the merits.” Here, the petitions were certified as sufficient
on September 26, 2002, and the election was held on February 4, 2003 —
a period of approximately four and one-half months during which the plaintiffs
could have challenged the threatened election.
1
In other contexts, we have held that periods as long as one or two years
were insufficient to permit full review of challenged regulations or practices.
See Greenpeace Action, 14 F.3d at 1329-30 (one year);
Alaska Ctr. for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 855 (9th Cir. 1999) (two years).
Here, the plaintiffs vigorously sought prompt review, seeking stays in
both the district court and our court. Those stays were denied but the
plaintiffs did not receive a full adjudication of their claim on the merits.
We are reaching the merits of their claim today, some four and one-half
years after they filed their complaint. This case evaded review, and likely
would again. It is true that in some extraordinary cases, we are able
to hear expedited appeals prior to a scheduled election,
see, e.g.,
SW Voter Registration Educ. Proj. v. Shelley, 344 F.3d 914 (9th Cir. 2003) (en banc)
, but we cannot expect extraordinary responses as a matter of course. “
‘Evading review’ for the purpose of the exception need not
mean that review is impossible. It only means that in the ordinary course
of affairs it is very likely to escape review.”
Joyner v. Mof
ford, 706 F.2d 1523, 1527 (9th Cir. 1983).
[4] There is also a reasonable expectation that the plaintiffs will again
be presented with recall petitions printed only in English. The election
officials’ practice of not requiring translation remains in place,
and recall petitions printed only in English are likely to be circulated
in the plaintiffs’ district in the future.
See Alaska Right to Life Comm. v. Miles, 441 F.3d 773, 779-80 (9th Cir. 2006) (finding claim not moot because
of “sufficient likelihood” that petitioners would have to
comply with challenged campaign finance laws in future). This case is not moot.
2.
Recall Petitions and the Voting Rights Act.
[5] The Voting Rights Act of 1965 imposes certain bilingual or multilingual
election requirements for “covered” States or political subdivisions.
“Covered” States or subdivisions are defined by certain requisite
percentages of minority-language citizens of voting age who have limited
proficiency in English and whose illiteracy rate is above the national average.
See 42 U.S.C. § 1973aa-1a(b)(2)(A). There is no dispute that Orange County,
California, which conducted the recall election, is a “covered”
subdivision.
[6] The controversy before us centers on the following provision of the Act:
Whenever any State or political subdivision subject to the prohibition
of subsection (b) of this section
provides any registration or voting notices, forms, instructions, assistance, or
other materials or information relating to the electoral process, including
ballots, it shall provide them in the language of the applicable minority
group as well as in the English language.
Id. § 1973aa-1a(c) (emphasis added).
2
We conclude, as did the district court, that the recall petitions circulated
by the proponents of the recall were not subject to this provision because
they were not “provided” by Orange County or the State.
3
[7] It is true that California regulates recall petitions in some detail.
The petitions must follow a format provided by the Secretary of State,
and must use a minimum type size.
See Cal. Elec. Code § 11041(a). The petition also must include a copy
of the Notice of Intention, the statement of grounds for recall, and the
answer of the targeted officer if the officer submitted one.
Id. at § 11041(a)(2), (3). But these regulations do not mean that the
petitions are
provided by the State or subdivision. The form is regulated by the State, but the
proponents fill out the petition, supply the grounds of recall, and have
the petitions printed at their own expense. The fact that, under Cal.
Elec. Code § 11041(a), the Secretary of State “provides”
the format does not mean that the State “provides” the petitions
themselves within the meaning of the Voting Rights Act.
[8] The plaintiffs argue that, because the election officials are charged
under state law with ascertaining whether “the proposed form and
wording of the petition meets the requirements of this chapter[,]” Cal.
Elec. Code § 11042(a) (emphasis added), they are dictating the content
of the petitions to the degree that the petitions may be said to be “provided”
by the County. But there is nothing in the chapter governing elections
that specifies the actual wording that proponents must use, for example,
in stating their grounds for recall. Nor does the record contain any hint
that the election officials determine the contents of the petition; they
merely make sure that the petitions are in the form specified by statute.
It is not reasonable to hold that this regulatory process transforms petitions
privately initiated, drafted, and circulated by the proponents into petitions
“provided” by the County for purposes of the Voting Rights Act.
Our conclusion does not conflict with our decision in
Zaldi
var v. City of Los Angeles, 780 F.2d 823 (9th Cir. 1986),
over
ruled on other grounds by Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990). In that case the complaint alleged that § 1973aa-1a
applied to a Notice of Intention to seek a recall election.
Id. at 826-27. We did not rule on that point; we ruled only that an attorney
who signed the complaint could not be sanctioned under Fed. R. Civ. P.
11 for filing a frivolous lawsuit.
4
See id. at 833. That a claim is not frivolous does not establish that it is meritorious.
Our conclusion that the County did not “provide” the recall
petitions is not only consistent with
Zaldivar, it is directly supported by the decisions of two of our sister circuits.
The Tenth Circuit held in
Montero v. Meyer, 861 F.2d 603, 609-10 (10th Cir. 1988), that initiative petitions were
not subject to the requirements of § 1973aa-1(c) because they were
not provided by the State. The Eleventh Circuit came to a similar conclusion in
Delgado v. Smith, 861 F.2d 1489, 1496 (11th Cir. 1988).
5
No circuit authority to the contrary has been cited to us, and we have
found none.
The plaintiffs argue that the Justice Department has supported their view
in its regulation describing the types of materials that must be provided
in a minority language. The regulation states in part:
A jurisdiction required to provide minority language materials is only
required to publish in the language of the applicable language minority
group materials distributed to or provided for the use of the electorate
generally. Such materials include, for example, ballots, sample ballots,
informational materials, and
petitions.
28 C.F.R. § 55.19(a) (1999) (emphasis added). We are not convinced
that this regulation encompasses recall petitions initiated, drafted and
circulated by citizens. Moreover, we have been directed to no instances
in which the Department of Justice has attempted to impose translation
requirements on recall petitions in the several decades that § 1973aa-1a
has been in existence. In any event, the ultimate determination is what
Congress meant by imposing requirements on materials “provided”
by the State or its subdivision. That term simply cannot reasonably be
construed to apply to recall petitions initiated, drafted and circulated
by private citizens.
[9] We hold, therefore, that § 1973aa-1(a) does not apply to the recall
petitions in this case. The language and structure of the statute compel
our decision. We note in addition that there are sound practical reasons
supporting what we conclude is an inevitable interpretation of the statute.
[10] It distorts § 1973aa-1a to apply it in a situation for which it clearly
is not intended. Those who circulate recall petitions have an incentive
to gather as many signatures as they can,
6
but they are under no legal duty to do so, just as they were under no
duty to launch a recall process at all. No one, including the plaintiffs,
suggests that the proponents have any duty to present a petition to any
particular voter, or to solicit in any particular neighborhood. The plaintiffs
in fact concede that they have no right to have a petition presented to
them; they insist only that they have a right to be provided a translation
with any petition that
is presented to them. But when the Voting Rights Act creates no duty to present
a petition to the plaintiffs in the first place, it is difficult to see
why the Act requires the petition to be translated into their language.
A requirement of translation for recall petitions is far more likely to
be used as a sword than a shield, as in the case of the plaintiffs here,
who brought their suit to stop an election for which sufficient signatures
had been collected. The plaintiffs complain that they were deceived as
to the nature of the petition, and this deception caused them to sign
it. There are, however, avenues of relief available to the plaintiffs
that do not threaten the recall process itself. One is to rescind the
signature, as one of the plaintiffs here did, by filing a written request
with the election officials prior to the day the petition section bearing
the signature is filed.
See Cal. Elec. Code § 11303. Another, ultimate resort is to vote “no”
in the recall election.
[11] Finally, a translation requirement is very likely to have a chilling effect
on the petition process itself. If translation is required in Orange County,
recall petitions will have to be printed, at a minimum, in English, Spanish,
Vietnamese, Korean and Chinese.
7
There is no provision in state law or the Voting Rights Act requiring the
County to bear the costs; printing of recall petitions is done at the
expense of the proponents, as in the present case. The expense and trouble
of fulfilling the translation requirements are likely to deter proponents
who otherwise would launch petitions. When that happens, then application
of § 1973aa-1a will have had a perverse effect: it will have prevented,
rather than promoted, participation in the electoral process.
We are satisfied, therefore, that our interpretation of § 1973aa-1a
is not only compelled by its language but also reaches the most practical
result in light of the nature of the recall petition process.
CONCLUSION
The judgment of the district court is AFFIRMED.
FOOTNOTES
1
The initiative process itself began with the filing of a Notice of Intention
on March 25, 2002, but there was nothing in the Notice of Intention that
would indicate whether the recall petition would be translated into languages
other than English. The earliest that plaintiffs could conceivably have
sued for declaratory relief would have been when the petitions were first
circulated in April 2002 — some eleven months before the election.
As we point out above, even that period is too short to permit full litigation
of the plaintiffs’ challenge.
2
A complementary prohibition appears earlier in the same section: “Before
August 6, 2007, no covered State or political subdivision shall provide
voting materials only in the English language.” 42 U.S.C. §
1973aa1a(b)(1).
3
Our conclusion makes it unnecessary for us to address the question whether
recall petitions meet a second requirement of § 1973aa-1a(c): that
they qualify as “materials . . . relating to the electoral process.”
4
The dissent errs in relying on our dicta in
Zaldivar in the absence of any other precedent supporting its argument. (Dissent
at 11572, 11577). Beyond its narrow holding,
Zaldivar’s dicta were confined to whether it was frivolous to view the Notice
of Intention as “relating to the electoral process,” and did
not address the question whether it was “provided” by the City.
Zaldivar, 780 F.2d at 833.
5
The dissent argues that
Montero and
Delgado are “readily distinguishable” because “California’s
statutory scheme is more stringent than those in Colorado or Florida,
making [it] . . . more than ‘merely ministerial.’ ”
(Dissent at 11579). Notwithstanding the dissent’s assertion, the
California Court of Appeal has characterized local election officials’
duties as “purely ministerial” and said that such officials
are authorized only “to review a petition as submitted for compliance
with procedural requirements” and are foreclosed from making “decisions
that are discretionary or go beyond a straightforward comparison of the
submitted petition with the statutory requirements for petitions.”
Alliance for a Better Downtown Millbrae v. Wade, 108 Cal. App.4th 123, 133 (2003);
see also Farely v. Healey, 67 Cal. 2d 325, 327 (1967)(Traynor, C.J.) (“The right to propose
initiative measures cannot properly be impeded by a decision of a ministerial
officer . . . that the subject is not appropriate for submission to voters.”).
6
Any signature of a registered voter that the proponents fail to obtain
counts as a “no” vote on the question whether to have a recall
election. The number of signatures needed to precipitate a recall election
is calculated as a percentage of the total number of registered voters
in the affected district.
See Cal. Elec. Code § 11221.
7
The dissent here understates the problem by pointing out that the election
officials failed to require translation of the petitions into Spanish,
and that the County’s regulation of the process triggers the “bilingual
requirements” of the Voting Rights Act. (Dissent at 11578). If §
1973aa-1a were held to apply to the petitions in this case, they would
have to be circulated in five languages, whether or not the petitions
were presented to speakers of all of those languages.
REINHARDT, Circuit Judge, concurring:
The plain meaning of the language of the Voting Rights Act compels me to
concur in the result reached by the majority, because neither the State
of California nor the County of Orange “provided” the recall
petition at issue in this case. Rather, as the majority holds, the petition
was funded, drafted, printed, and circulated — i.e., provided —
by the private proponents of the recall, although in conformance with
the relevant provisions of the California Elections Code. In view of the
unambiguous provisions of 42 U.S.C. § 1973aa-1a(c), that is all the
majority needs to say. Instead of stopping when it is ahead, however,
the majority continues on and seeks to support its decision on practical
and policy grounds. I write separately because I disagree with the additional
justifications it advances. Also, I wish to note my agreement with the
dissent regarding an important issue not reached by the majority: There
can be no doubt that recall petitions “relate to” the electoral process.
I strongly disagree with the majority’s statement that its construction
of the statute, in addition to being compelled by the statutory language,
is supported by “sound practical reasons.”
See maj. at 11561. To the contrary, I believe that the result we are required
to reach is
not consistent with the objectives of the Voting Rights Act and that common
sense and practicality would support Congress’s extension of the
Act to cover a process that was initially omitted, inadvertently or otherwise,
but that is integral to the electoral system. The majority contends that
a contrary reading of the statute would (1) “distort” the
Voting Rights Act by “apply[ing] it in a situation for which it
clearly is not intended,” and (2) have a chilling effect on the
petition process because “[t]he expense and trouble of fulfilling
the translation requirements are likely to deter proponents who otherwise
would launch petitions.” Maj. at 11562-63. I fully agree with Judge
Pregerson’s dissent in its rejection of both contentions.
First, requiring that recall petitions be provided in a manner that ensures
that as many citizens as possible are able to participate in the recall
process would not, as the majority asserts, “distort” the
Voting Rights Act. As Judge Pregerson notes in dissent, the purpose of
the relevant provision of the Act is to guarantee that language minorities
have the ability to exercise fully their fundamental democratic rights.
It would be difficult to imagine how fostering the electoral participation
of such minorities by allowing them to read and understand relevant voting
materials would distort that purpose. To the contrary, encouraging large
numbers of previously excluded but eligible voters to participate in an
important aspect of the electoral system would be wholly consistent with
the purposes of the Act.
The majority also suggests that there was no reason for Congress to cover
recall petitions because, although proponents have no legal duty to present
language minorities with petitions, they “have an incentive to gather
as many signatures as they can.” Maj. at 11561. That this case is
now before us is evidence of how wrong the majority is. Sponsors of petitions,
including those who provided the petitions in the present case, have a
strong incentive not to precipitate heated debate or angry confrontations
when attempting to collect signatures on controversial or divisive measures.
1
In recent years, California has had a number of highly controversial initiatives,
some successful, designed to curtail the rights of minorities.
2
Opponents of these initiatives have accused the proponents of using deceptive
advertising and solicitation techniques in their efforts to collect signatures
and support. The proponents are said to have represented these measures
as being innocuous or even as advancing or protecting minority rights.
Whether or not such accusations are well-founded, the ability to obtain
signatures for a petition is aided when the communities adversely affected
by the initiative or, in this case, the recall, are not confronted directly
by the petition in a form in which they are able to perceive its true
meaning and potential impact.
More important, it is irrelevant whether recall proponents have an incentive
to exclude eligible voters. The pertinent question is whether language
minorities are in fact kept from meaningful or actual participation in
the electoral process because they cannot read the voting materials. Here,
the contention is that Spanish-speaking voters were duped into signing
a petition to recall a Latino elected official whom they supported. Thus,
although they participated in the electoral process in some bare sense,
their participation cannot be characterized as informed or meaningful.
Also, many other non-English speakers were likely prevented from participating
in the process in
any manner as a result of their inability to read or understand the petition.
Accordingly, although the law may not currently require recall proponents
to translate the petitions they provide, English-only petitions plainly
serve to exclude eligible and registered citizens from an important part
of the voting process. Surely such a phenomenon is not consistent with
the purpose of the Voting Rights Act.
3
Second, I disagree with the majority’s assertion that mandating translation
of recall petitions in language-diverse municipalities would chill the
recall process. As Judge Pregerson’s dissent points out, the minimal
cost of translating less than a page of text can hardly be deemed a substantial
burden on the proponents of a recall. To this I would add that the majority
seems to assume that implementing measures promoting fairness in the electoral
process is a less important value than adding items to the ballot that
are placed there in violation of the spirit of the Voting Rights Act.
I disagree. There are many provisions designed to regulate recall and
other elections that may in practice affect the number of measures or
individuals who qualify for a place on the ballot, including provisions
that limit the right to raise and spend funds; require proponents to obtain
a certain number of signatures, sometimes in the hundreds of thousands;
and restrict the arguments or explanations that may be offered in the
qualifying papers.
4
To the extent that such rules reduce the number of candidates, issues,
or recalls, the electorate is not chilling rights or preventing participation
in the electoral process. Rather, it is favoring electoral fairness and
other similarly important democratic values. Specifically, even if the
proponents of recalls or initiative measures are required to bear some
additional financial cost, the translation of recall petitions into the
languages spoken by significant minorities (and, in some cases, majorities)
would enhance the recall procedure: The translations would allow and encourage
otherwise-excluded, eligible voters to play a part in the process of placing
items on the ballot, and thus would significantly advance the objectives
of the Voting Rights Act.
As to the issue the majority does not reach, I would hold, as would the
dissent, that California recall petitions are voting materials “relating
to the electoral process.” 42 U.S.C. § 1973aa-1a(c). First,
courts have routinely, and in a variety of contexts, construed the term
“relating to” broadly.
See, e.g., Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 397-98 (1967) (construing a “relating to” clause
broadly in the arbitration context);
Luu-Le v. INS, 224 F.3d 911, 916 (9th Cir. 2000) (recognizing that the term “relating
to” is to be construed broadly in the immigration context);
Tachiona v. United States, 386 F.3d 205, 220 (2d Cir. 2004) (noting that the term “relating
to,” “when used in statutes,” is construed broadly to
mean “connection with,” “reference to,” or “association
with”). Further, we have previously squarely rejected the defendants’
argument that the preliminary nature of recall petitions permits them
to escape coverage by the Voting Rights Act: “The argument that
a recall notice is only a preliminary step to voting and therefore is
unaffected by the bilingual provisions of the Act is without merit.”
Zaldivar v. City of Los Angeles, 780 F.2d 823, 833 n.11 (9th Cir. 1986). At least one state apparently
agrees: Massachusetts pays the cost of producing recall petitions and,
pursuant to the Voting Rights Act, provides translations in minority languages.
See Delgado v. Smith, 861 F.2d 1489, 1497 n.7 (11th Cir. 1988) (acknowledging that Massachusetts
complies with the Act by translating its initiative and referendum petitions).
In addition, not only has the Attorney General expressly acknowledged
that petitions are qualifying voting materials,
see 28 C.F.R. § 55.19(a), but common sense dictates that, where a petition
is a necessary predicate to an election and is governed by exacting state
election statutes, the petition “relates to” the voting process
of that state. In light of our obligation to construe the Voting Rights
Act broadly so as to effectuate its remedial purposes,
see Tcherepnin v. Knight, 389 U.S. 332, 336 (1967), I see no reasonable argument that recall petitions
are not voting materials relating to the electoral process in California.
As Judge Pregerson notes in his dissent, the Voting Rights Act was designed
to apply “throughout the electoral process.”
See H.R. Rep. No. 102-655 (1992). Regrettably, the plain and inescapable meaning
of the statutory language requires me to conclude that, with respect to
the issue before us, the Act falls short of its objective. Thus, reluctantly,
I must concur. I need not, however, join the majority in its assertion
that Congress’s omission constitutes sound public policy.
FOOTNOTES
1
Signature gatherers frequently station themselves outside of supermarkets,
discount stores, movie theaters, or public arenas where numerous people
of varying backgrounds are present.
2
Examples include Proposition 209, the self-labeled “California Civil
Rights Initiative,” and Proposition 187, the so-called “Save
our State” initiative which related to undocumented persons.
3
It is true, as the majority points out, that citizens do not have a right
to have recall, initiative, or candidate petitions presented to them for
their consideration. However, when persons are excluded from an important
part of the electoral process because of their race, religion, ethnicity,
or language minority status, the values inherent in both the Constitution
and the Voting Rights Act are seriously undermined.
4
In addition, fees are imposed for the certification of petitions, refundable
should the sponsors be successful in placing the issue on the ballot.
CAL. ELEC. CODE § 9004.
PREGERSON, Circuit Judge, dissenting:
I respectfully dissent. I read section 203 of the Voting Rights Act, 42
U.S.C. § 1973aa-1a, to require the translation of recall petitions
circulated in areas with significant limited-English proficient voter
populations. In this case, the purpose of the Voting Rights Act was undermined
when the recall petitions were printed only in English and limited-English
proficient voters were deprived of their right to fully understand a petition
they were solicited to sign.
I. The Voting Rights Act of 1964
In 1975, Congress amended the Voting Rights Act to include section 203,
which requires certain jurisdictions to provide bilingual voting materials.
See 42 U.S.C. § 1973aa1a
; Zaldivar v. City of Los Angeles, 780 F.2d 823, 826 (9th Cir. 1986),
overruled on other grounds by Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990). Section 203’s broad remedial purpose was
directed at a problem that continues to confront many United States citizen
immigrants. Specifically, their “inability or limited ability to
read English obviously thwarts any attempt to knowledgeably participate
in the electoral process.” H.R. Rep. No. 102-655, at 3 (1992). It
is clear that Congress understood the severity of the wrong inflicted
on limited-English proficient voters: “The inability of members
of language minority populations to comprehend the ballot and voting related
information provided solely in English prevented and continues to prevent
them from casting an effective vote.”
Id. at 5. “[T]he use of English, as the sole language throughout the
electoral process, continues to be discriminatory and has a direct and
invidious impact upon the ability of such populations to participate actively
in the electoral process.”
Id. Thus, section 203 was enacted with a broad remedial purpose: “to
ensure that language minority populations have substantive access to the
ballot.”
Id.
Permitting the use of English-only petitions contravenes the Voting Rights
Act, which Congress designed for use “throughout the electoral process.”
Id. In essence, English-only petitions would perpetuate the very injustice
the Voting Rights Act seeks to eliminate — the exclusion of “single
language minority” voters from a vital stage of the electoral process.
42 U.S.C. § 1973aa-1a(b)(2)(A). I do not believe that this was Congress’s
intent. The majority’s interpretation gives voters proficient in
English a preference over limited-English proficient voters. Indeed, the
majority entirely writes off full participation by significant portions
of the voting population in the recall process.
II. The Voting Rights Act and Recall Petitions
Section 203 of the Voting Rights Act requires translation into the jurisdiction’s
minority language(s) whenever a state or political subdivision “provides
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(c). Thus, the essential questions
here are: (1) whether recall petitions are “other materials or information
relating to the electoral process,” and (2) whether the Orange County
Elections Department “provided” the recall petitions.
As a remedial statute, the Voting Rights Act is to be construed broadly
so as to achieve the Act’s objectives.
See Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (“[W]e are guided by the familiar canon
of statutory construction that remedial legislation should be construed
broadly to effectuate its purposes.”). The Supreme Court has explained
that “[t]he Voting Rights Act was aimed at the subtle, as well as
the obvious, state regulations which have the effect of denying citizens
their right to vote because of their race.”
Allen v. State Bd. of Elections, 393 U.S. 544, 565 (1969) (footnote omitted). Thus, in
Allen, the Supreme Court “reject[ed] a narrow construction . . . to §
5 [of the Voting Rights Act]” and concluded that “the [Voting
Rights] Act gives a broad interpretation to the right to vote, recognizing
that voting includes ‘all action necessary to make a vote effective.’ ”
Id. at 565-66.
1
It is this well-established canon of statutory construction that must guide
the analysis here.
A. Recall Petitions Are “Voting Materials”
Section 203 defines “voting materials” to “mean[ ] 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). It does not, however, define what
constitutes “other materials or information relating to the electoral
process.”
Id. Where a statute fails to define a key term, this court’s “duty,
in matters of statutory construction, is to give effect to the intent
of Congress.”
San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) (quoting
A-Z Int’l v. Phillips, 323 F.3d 1141, 1146 (9th Cir. 2003)). “To this end, ‘it is
elementary that the meaning of a statute must, in the first instance,
be sought in the language in which the act is framed, and if that is plain,
. . . the sole function of the courts is to enforce it according to its
terms.’ ”
Id. (quoting
Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1231-32 (9th Cir. 2003)). “When a statute does not
define a term, a court should construe that term in accordance with its
‘ordinary, contemporary, common meaning.’ ”
Id. (quoting
A-Z Int’l, 323 F.3d at 1146 (citation omitted)). “Only if an ambiguity exists
in the statute, or when an absurd construction results, does this court
refer to the statute’s legislative history.”
Id.
“To determine the ‘plain meaning’ of a term undefined
by a statute, resort to a dictionary is permissible.”
Id. Black’s Law Dictionary defines “related” to mean “to
stand in some relation; to have bearing or concern; to pertain; refer;
to bring into association with or connection with.” Black’s
Law Dictionary 1289 (6th ed. 1991). Supreme Court and Ninth Circuit precedent
suggest that this broad definition of “related” is an appropriate
one to use here.
See, e.g., Morales v. Trans World Airlines, 504 U.S. 374, 383 (1992) (noting that ordinary meaning of “relating
to” is “a broad one”);
Aloha Islandair Inc. v. Tseu, 128 F.3d 1301, 1302 (9th Cir. 1997) (“The phrase ‘relating
to’ should be construed broadly to mean ‘has a connection
with or reference to.’ ”). Based on this reading, recall petitions
clearly have some “bearing or concern” and are “connected
with” an election. Indeed, recall petitions serve no other purpose
than to trigger an election. As this court has explained,
The election itself is merely the culmination of th[e electoral] process.
It includes those acts that a citizen must perform to establish his eligibility
as a voter, as well as those acts that a candidate must perform to place
his name on the ballot. The range of conduct “relating to the elector[
]al process” includes, for example, compliance by a would-be voter
with statutes regulating registration and compliance with other statutes
to place a name or an issue on the ballot. That the state or a political
subdivision has mandated by law that certain preliminary steps be taken
by the would-be voter, the candidate for office, or the proponents of
an issue does not in any sense absolve the governmental entity of its
responsibility under the Voting Rights Act. Such compelled acts are far
removed from those voluntarily undertaken by a candidate, such as the
printing of campaign literature.
Zaldivar, 780 F.2d at 833.
Zaldivar rejected “[t]he argument that a recall notice is only a preliminary
step to voting and therefore is unaffected by the bilingual provisions
of the [Voting Rights] Act.”
Id. at 833 n.11.
Looking beyond the statutory text, in the Department of Justice’s
regulations implementing section 203, the U.S. Attorney General has defined
“written materials” to “include, for example, ballots,
sample ballots, informational materials, and
petitions.” 28 C.F.R. § 55.19(a) (emphasis added). While the Attorney
General’s views are not binding on this court, they are persuasive
and bolster the conclusion that recall petitions are “other materials
relating to the electoral process.” Furthermore, it is important
to note that courts owe considerable deference to the Attorney General’s
construction of the Voting Rights Act, particularly where the language
of that interpretation mirrors the Act’s own language.
See United States v. Sheffield Bd. of Comm’rs, 435 U.S. 110, 131-32 (1978);
City of Pleasant Grove v. United States, 479 U.S. 462, 468 (1987) (noting that the Attorney General’s interpretation
of the Voting Rights Act is entitled to considerable deference and that
“Congress was aware of the Attorney General’s view in this
regard, and implicitly approved it, when it reenacted the Voting Rights
Act in 1982”).
2
The Attorney General’s inclusion of the word “petition”
in the definition of “written materials” is consistent with
the Justice Department’s position that the Voting Rights Act’s
purpose is to “enable members of applicable language minority groups
to participate effectively in the electoral process.” 28 C.F.R.
§ 55.2(b).
3
The district court’s conclusion that the Voting Rights Act applies
only when a vote is cast between two or more alternative choices relies
on too restricted a reading of Congress’s intent in requiring bilingual
voting materials. Such a narrow reading of this statute is contrary to
the general rule that such remedial statutes are to be broadly construed.
See Allen, 393 U.S. at 565-66;
see also Tcherepnin, 389 U.S. at 336. The Supreme Court’s decision in
Allen is instructive here. There the Court concluded that the petition process
to place a candidate’s name on an electoral ballot constituted a
“standard, practice, or procedure with respect to voting”
under section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.
Allen, 393 U.S. at 569-70. The recall petition process is comparable to the
nomination process at issue in
Allen as both are preliminary steps to an election. While we are concerned with
section 203 of the Voting Rights Act, the language specifically at issue
here — “materials . . .
related to the electoral process,” 42 U.S.C. § 1973aa-1a(c) (emphasis
added) — is at least as broad as that of section 5 — “standard,
practice, or procedure
with respect to voting,” 42 U.S.C. § 1973(c) (emphasis added) — construed
by the Court to include the nomination process.
The district court’s reasoning also ignores the simple fact that
recall petitions
doimplicate a decision between two alternatives, i.e., a choice between (1)
recalling the officeholder by signing, and (2) not recalling the officeholder
by not signing the petition. California election law requires that a certain
percentage of registered voters join in a call to recall an official by
signing a valid, pre-approved petition.
See Cal. Elec. Code § 11221. An effective way to choose to keep a challenged
incumbent in office is to refuse to sign the proffered petition, thereby
reducing the likelihood that the recall election will occur.
4
Thus, the choice whether to sign or not sign a recall petition can have
a tremendous impact on the fate of the incumbent. Indeed, in the First
Amendment context, the right to vote is inextricably tied to the right
to petition and petition signatures are treated the same as votes for
constitutional purposes.
See Green v. City of Tucson, 340 F.3d 891, 893 (9th Cir. 2003);
see also Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 186 (1999) (noting that under First Amendment, petition
circulation “is core political speech because it involves interactive
communication concerning political change” (internal quotations
omitted));
Meyer v. Grant, 486 U.S. 414, 421 (1988) (“The circulation of an initiative petition
of necessity involves both the expression of a desire for political change
and a discussion of the merits of the proposed change.”). Given
the importance of petitions to recall procedure, they should be deemed
“voting materials” that a person solicited has a right to
understand.
B. “Provided By” the Orange County Elections Department
Although I believe that recall petitions relate to the recall process,
the recall petitions would only fall under the Act’s bilingual requirements
if they were “provided by” the Orange County Elections Department.
42 U.S.C. § 1973aa-1a(c). Because the state’s acquiescence
in the content of recall petitions is a condition precedent to its circulation,
I believe the state provides recall petitions to the public.
Recall petitions in California are subject to extensive regulations that
go beyond imposing mere ministerial duties upon election officials.
See Cal. Elec. Code § 11000-11047. Under these regulations, the state,
or in this case the Orange County Elections Department, has the authority
and obligation to authorize and approve the form and content of proposed
recall petitions, verify collected signatures, and set election dates.
See Cal. Elec. Code § 11042, 11043. No signatures may be collected on
a recall petition unless and until the Orange County Elections Department
notifies the petition’s proponents that the form and wording of
the proposed petition comply with the Elections Code.
See Cal. Elec. Code § 11042(d).
California’s Elections Code mandates a specific format for recall
petitions that must be used by recall proponents.
See Cal. Elec. Code § 11041(a) (“[P]roponents shall use the recall
petition format provided by the Secretary of State.”). While private
persons may print the actual recall petitions, the form must adhere to
the statutory requirements, which regulate the content and even the typeface
to be used on such petitions.
See id. The proponents must file, within ten days of receipt the recall target’s
answer, two blank copies of the recall petition with the jurisdiction’s
election officials.
See Cal. Elec. Code § 11042(a). Election officials are charged with ensuring
that the proposed petition conforms to the requirements of the Election
Code in both form and content.
See id. If election officials determine that a proposed petition does not comply,
they must issue written findings.
See Cal. Elec. Code § 11042(b). In such cases, officials must notify the
proponents of the alterations necessary for the petition’s approval.
See Cal. Elec. Code § 11042(c).
The Elections Code also dictates the contents of a recall petition, requiring
that each page of the petition include: (1) a request that an election
be called to recall an officeholder; (2) a copy of the Notice of Intention;
(3) a written statement of the grounds for the recall; (4) the names of
at least ten recall proponents that appear on the Notice of Intention;
(5) any answer filed by the officer sought to be recalled or a statement
that the official did not answer; and (6) the name and title of the officer
sought to be recalled.
See Cal. Elec. Code §§ 11020(a)-(d), 11023(a), 11041(a). California
election officials must also approve the content of the recall petition.
See Cal. Elec. Code § 11042(a) (charging election officials with “ascertain[ing]
if the proposed form and
wording of the petition meets the requirements of this chapter” (emphasis
added)). Indeed, recall proponents are statutorily required to change
their recall petition as directed by election officials until the officials
are satisfied that no further alterations are required.
See Cal. Elec. Code § 11042(c).
California law prohibits
any private party from circulating a recall petition until the petition receives
state approval.
See Cal. Elec. Code § 11042(d) (“No signature may be affixed to
a recall petition until the elections official or, in the case of the
recall of a state officer, the Secretary of State, has notified the proponents
that the form and wording of the proposed petition meet the requirements
of this chapter.”). Signed petitions must be submitted to the proper
election officials for certification.
See Cal. Elec. Code §§ 11222, 11224, 11227. If enough signatures
have been collected, the recall election is called and scheduled by election
officials.
See id.
Considering this extensive regulation, I can only conclude that recall
petitions are not the same as fliers or candidate literature wholly created
and controlled by private parties.
See Zaldivar, 780 F.2d at 833 (“That the state or a political subdivision has
mandated by law that certain preliminary steps be taken by the would-be
voter, the candidate for office, or the proponents of an issue does not
in any sense absolve the governmental entity of its responsibility under
the Voting Rights Act. Such compelled acts are far removed from those
voluntarily undertaken by a candidate, such as the printing of campaign
literature.”). Rather, they are more akin to ballots or initiative
materials that are distributed by voting districts or to the nomination
petition at issue in
Allen.
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 officially sanctioned the content and format of the petition,
including its English-only printing.
5
Election officials could have altered the text of the petition or demanded
that the recall proponents publish it in Spanish as well as English, but
chose not to do this and instead approved the petitions in their English-only
form. This state approval, together with the extensive state regulation
of the form of the petitions is sufficient state involvement to trigger
application of the bilingual requirements and to conclude that the state
“provided” the Recall Petition within the meaning of the Voting
Rights Act.
III. Relevant Case Law
The majority states that its holding is supported by two out-of-circuit
cases. Maj. Op. at 11560. In the first case,
Montero v. Meyer, 861 F.2d 603 (10th Cir. 1988), the Tenth Circuit held that initiative
petitions do not fall under the Voting Rights Act’s bilingual requirements.
See id. at 609-10. In
Montero, the plaintiffs challenged initiative petitions circulated by members
of the Official English Committee seeking to amend the Colorado Constitution
to make English the state’s official language.
See id. at 605. According to the Tenth Circuit, the “electoral process”
did not commence until a measure qualified for placement on the ballot
and signing an initiative petition was not “voting” within
the meaning of the Voting Rights Act.
Id. at 607. The court further held that petitions were not “provided
by” the state such as to make the minority language provisions operable.
Id. at 609-10. Rather, the court reasoned that the state’s actions in
approving the initiative petitions were merely “ministerial”
and did not alter the character of the petitions or render their circulation
“state action.”
Id. at 610.
Employing similar reasoning, the Eleventh Circuit reached the same conclusion in
Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1988). Like
Montero,
Delgado also involved a proposed citizen initiative to make English the official
language of Florida.
See id. at 1491. The court concluded that the Voting Rights Act did not apply because
Congress did not intend the bilingual requirements to apply to private citizens.
See id. at 1492. In addition, Florida election officials’ involvement in
approving the initiatives was “ministerial” and did not constitute
“state action.”
See id. at 1495-96. Thus, the initiative to amend Florida’s Constitution
to make English the state’s official language did not require translation
into minority languages under the Voting Rights Act.
See id. at 1498.
Those two cases are readily distinguishable from the instant case. First,
California’s statutory scheme is more stringent than those in Colorado
or Florida, making the Orange County Elections Department’s approval
of the Recall Petition more than “merely ministerial.” Neither
Florida’s nor Colorado’s statutory and regulatory schemes
governing initiative petitions are structurally equivalent to California’s
scheme. For example, under Florida law, Florida election officials are
limited to verifying only that a proposed initiative petition complies
with applicable format requirements; the regulations do not provide for
a review of the petition’s contents.
See Fla. Admin. Code Ann. r. 1S-2.009(1) (“The Division shall review
the form for sufficiency of the format only.”). In contrast, California
election officials are charged with authorizing and approving the form
and content of the recall petition.
See Cal. Elec. Code § 11042(a) (charging election officials with “ascertain[ing]
if the proposed form and
wording of the petition meets the requirements of this chapter”) (emphasis added).
While Colorado empowers election officials to suggest revisions to a petition’s
content, such revisions are merely suggestions: recommendations made regarding
format or content are discretionary to the petitioner.
See Colo. Rev. Stat. § 1-40-105(2) (“[T]he proponents
may amend the petition in response
to some or all of the comments of the directors of the legislative council and the office
of legislative legal services, or their designees.”) (emphasis added).
Unlike Colorado, California recall proponents are statutorily required
to alter their recall petition as directed by election officials until
those officials are satisfied that no further alterations are required.
Compare Cal. Elec. Code § 11042(a), (c),
with Colo. Rev. Stat. § 1-40-105(2).
Not only are the cases distinguishable, but they demonstrate the problem
with excluding pre-election petitions from section 203’s requirements
for translation. Both
Montero and
Delgado concerned petitions to qualify English-only initiatives to amend their
respective state constitutions. These cases ironically excluded limited-English
proficient voters from knowledgeably deciding whether to sign a petition
for a ballot which sought to enshrine an English-only requirement into
their state constitutions. Such a result cannot be what Congress intended
when it enacted section 203 to remedy past language discrimination in
voting practices by enforcing the guarantees of the Fourteenth and Fifteenth
Amendments to the Constitution and to ensure that citizens of language
minorities are no longer effectively excluded from full participation
in the electoral process.
See 42 U.S.C. § 1973aa-1a(a).
IV. Fraud
It is important to emphasize the fraud that occurred in this case. Here,
the recall proponents disingenuously claimed that those who signed the
petition would receive information about Nativo Lopez, a school board
member. Instead, those voters were signing a petition to recall Lopez.
Because the petition’s signers were limited-English proficient voters,
they were unable to determine whether they were being deceived.
Fraud-prevention lies at the heart of the Voting Rights Act because the
Act ensures that all voters — including minority language speakers
— have equal opportunities to understand voting materials. The majority
minimizes this problem, suggesting that other means of remedying petition
fraud exist.
Maj. Op. at 11562. But the fact that multiple remedies exist does not mean
Congress did not intend section 203 to remedy fraud. Moreover, the majority’s
suggestion that every deceived signer may rescind his or her signature
and report the incident, as one voter did in this case, is unworkable.
That “remedy” assumes that the non-English speaker would at
some point recognize that he or she had been tricked, which seems unlikely
except in rare occasions. Furthermore, imagine the havoc it would wreak
on election results and voter confidence to have entire elections questioned
months, if not years, after an elected official took office because of
fraudulently induced petition signatures. It is clearly preferable to
avoid such problems
before actual recall and initiative elections by taking the simple step of ensuring
that all voters have equal access to information and are protected from
the sort of discriminatory practices and exclusions the Voting Rights
Act was designed to prevent.
This case demonstrates why section 203 must be interpreted to require the
translation of petitions. Congress has recognized that “without a
federal mandate, much needed bilingual assistance in the voting process, meant
to ensure the guarantees of the Fourteenth and Fifteenth Amendments, may
disappear.” H.R. Rep. No. 102-655, at 3 (emphasis added). Certainly
the “discrimination . . . encountered by these minority language
populations” that the Voting Rights Act was enacted to remedy includes
fraud perpetrated on minority language voters at all stages of the electoral process.
Id. The Voting Rights Act should serve to prevent the class of fraud that occurred
in this case.
We cannot catalogue every deceptive method used by signature gatherers.
But when we have identified one of their methods — lying to minority-language
speakers about the content of recall petitions — we should not tolerate
it. As a broad
remedialprovision, section 203 should not be a tool to help recall or initiative
proponents perpetrate deception.
V. Chilling Effect
The majority and Defendants speculate about a hypothetical chilling effect
that requiring petitions to be translated would have on petition proponents.
Maj. Op. at 11562-63. Increased costs, however, are a secondary concern
in the realm of the Voting Rights Act. Certainly Congress knew there would
be costs of translation when it enacted section
203. But that is a necessary cost if we truly desire to include all eligible
voters in the electoral process. In amending the Voting Rights Act, Congress
was responding to a history of language discrimination in voting. It did
not suggest that its remedy should be undermined because there might be
an increased financial burden on states or political subdivisions.
See 42 U.S.C. § 1973aa-1a. Such translation costs are a burden we must
bear as members of a diverse, multilingual society.
Further, it is not clear to me that the costs of translation would actually
deter groups from circulating their petitions. The statement on a recall
petition is subject to a maximum of 200 words.
See Cal. Elec. Code § 11020(b). I find it hard to believe that the “expense
and trouble” of translating 200 words would be enough to discourage
recall proponents. Moreover, states or political subdivisions subject
to section 203 are necessarily areas with significant minority language
populations and already have systems in place through which other voting
materials are translated. I do not believe that a slightly increased financial
burden should outweigh the right of every voter to participate in the
electoral process, or that this is a sufficient reason to justify leaving
limited-English proficient voters in the dark about the petitions they
are solicited to sign. In short, I am not swayed by an unseen and unproven
chilling effect that a petition translation requirement would cause.
CONCLUSION
“[T]he purpose of the bilingual provisions of the [Voting Rights]
Act is to end the language disability of some citizens to full participation
in the electoral process; and to this end, the Act requires information
relating to the electoral process to be brought to their attention in
both English and the minority language.”
Zaldivar, 780 F.2d at 833. Holding that these bilingual provisions do not apply
to recall petitions denies minority language speakers the right to fully
participate in the electoral process by depriving them of the ability
to consider the written arguments for and against a particular recall
target. Such a result runs counter to the very purpose of Congress in
remedying minority language discrimination in voting. Accordingly, I believe
that section 203 of the Voting Rights Act must apply to recall petitions
circulated pursuant to California law. I therefore dissent.
FOOTNOTES
1
The Court further explained that
Congress knew that some of the States covered by § 4(b) of the Act
had resorted to the extraordinary stratagem of contriving new rules of
various kinds for the sole purpose of perpetuating voting discrimination
in the face of adverse federal court decrees. Congress had reason to suppose
that these States might try similar maneuvers in the future in order to
evade the remedies for voting discrimination contained in the Act itself.
Id. at 565 n.30 (quoting
South Carolina v. Katzenbach, 383 U.S. 301, 335 (1966)).
2
In
Sheffield, the Court explained,
What is perhaps a more compelling argument concerning the original, and
subsequent, congressional understanding of the scope of § 5 is that
the Attorney General has, since the Act was adopted in 1965, interpreted
§ 5 as requiring all political units in designated jurisdictions
to preclear proposed voting changes. This contemporaneous administrative
construction of the Act is persuasive evidence of the original understanding,
especially in light of the extensive role the Attorney General played
in drafting the statute and explaining its operation to Congress. In recognition
of the Attorney General’s key role in the formulation of the Act,
this Court in the past has given great deference to his interpretations of it.
Sheffield Bd. of Comm’rs, 435 U.S. at 131 (footnotes and citations omitted).
3
Defendants argue that these regulations are not a “requirement”
because the same regulations also provide that “[t]he determination
of what is required for compliance with section . . . 203[(c)] is the
responsibility of the affected jurisdiction. These guidelines should not
be used as a substitute for analysis and decision by the affected jurisdiction.”
28 C.F.R. § 55.2(c). But, Defendants place too much importance on
this language. First, nothing in the record suggests that Defendants engaged
in any analysis regarding the applicability of section 203 to the recall
petition in this case. Second, the language cited by Defendants does not
diminish that regulation’s minimum requirement that affected jurisdictions
are “
required to publish in the language of the . . . minority group materials distributed
to . . . the electorate generally . . . for example . . . petitions.”
28 C.F.R. § 19(a) (emphasis added).
4
The majority notes that people who circulate recall petitions have an incentive
to “gather as many signatures as they can.” Maj. Op. at 11561.
By the same token, however, signature gatherers have an incentive to fraudulently
induce individuals to sign a recall petition, for political reasons or
because their compensation for circulating the petition is based on the
number of signatures gathered.
See below, Part IV.
5
Defendants argue that the recall petition was not “provided by”
the Orange County Elections Department because the recall proponents here
drafted the petition’s content, with the exception of Lopez’s
response. This seems to take too narrow a view of “provided.”
Under such a definition, ballots would not have to be translated, as the
candidates’ names, occupations, and political party affiliations
are not drafted by the state, but rather only “ministerially”
assembled onto the ballot.
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