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Putting a chill on the initiative process

RICHARD L. HASEN specializes in election law at Loyola Law School in Los Angeles and writes the Election Law Blog (electionlawblog.org).

A LITTLE-NOTICED ruling from the U.S. 9th Circuit Court of Appeals last month threatens to throw a monkey wrench into California’s initiative process, and it has already been used by City Council members in Rosemead to block a recall election. The court should reconsider the case, and in the meantime indicate that its ruling does not apply to recall and initiative petitions already in circulation at the time of the court’s decision in late November.

In Padilla vs. Lever, the court held that Orange County election officials had a legal responsibility to ensure that petitions seeking to recall a Santa Ana school board official were available in both English and Spanish, so as to comply with the Voting Rights Act. That law requires that certain jurisdictions with large populations of non-English speakers must provide all voting materials in English as well as the language of the protected minority group.

The Padilla ruling says that recall petitions -- which are prepared by private parties but subject to approval as to form by local election authorities -- counted as materials “provided” by elections officials and therefore are subject to the Voting Rights Act.

Under this reasoning, initiative petitions also should be subject to the bilingual provisions.

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As a matter of statutory interpretation, the majority’s opinion is debatable. It might just as reasonably have concluded that these materials are prepared privately and therefore are not “provided” by elections officials. It is no surprise that two other courts reached contrary opinions.

But putting aside the question of the statute’s meaning, the interpretation could put a damper on important political activity.

As Judge William C. Canby noted in his dissent: “The downside ... is the chilling effect on recalls and initiatives. As the defendants point out, if the Voting Rights Act were to be applied to recall petitions for an office of Orange County, California, petitions would have to be presented in English, Spanish, Vietnamese, Korean and Chinese. It is not at all clear who is to bear the expense of such translation and printing; presumably it would be those who seek the recall. Even aside from the expense, the sheer burdensomeness of the effort is likely to chill petition campaigns and make their success extremely unlikely.”

And it is not as though the lack of foreign-language petitions disenfranchises non-English-speaking voters. The petitions serve merely to qualify initiative or recall questions for the ballot. Once those measures are on the ballot, then all voters in the jurisdiction get to vote and are entitled to relevant ballot materials in all languages required by the Voting Rights Act.

Most worrisome about the 9th Circuit’s opinion is its potential application to pending initiative and recall petitions.

Last week in Rosemead, a majority of the City Council voted to put off the recall of two of its members pending confirmation from a federal judge that going forward with the election won’t violate Padilla. Rosemead has a heavy minority-language population, but recall petitions were circulated only in English.

Yet no one was harmed by the lack of foreign-language petitions in Rosemead. Non-English-speaking supporters of the recall would have gotten the recall, with or without non-English petitions. And non-English-speaking opponents of the recall would not have been able to stop it, even if petitions had been printed in their language.

Disturbingly, two of the three members of the council majority voting to put off the recall were the recall’s targets.

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And what of the more than two dozen initiatives in circulation at the statewide level in California? Are they all going to be subject to challenge for failure to comply with this provision of the Voting Rights Act?

At the very least, the 9th Circuit panel should apply this ruling only to initiatives or recall petitions not already qualified to be in circulation.

Ultimately, Congress should clarify its intent as to the need to translate recall and initiative petitions when this provision of the Voting Rights Act comes up for renewal in 2007. In the meantime, the 9th Circuit should carefully rethink whether requiring private parties to circulate petitions in multiple languages is worth the chilling costs to the political process and inevitable litigation, particularly when it would add nothing to the enfranchisement of voters.


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