Under the Federal Voting Rights Act, many jurisdictions in California are required to provide election materials in a language other than English, to accommodate non-English speakers within the jurisdiction.  This rule is set forth in Section 203 of the Act.  Recent federal court decisions have held that, in jurisdictions subject to the Act, Section 203 applies to recall and initiative petitions prepared and circulated by citizens.  A federal court has also made a preliminary determination that this requirement applies to referendum petitions, and that issue will be finally decided by that court later this spring.  As a result of these decisions, parties involved with land use ballot measures must carefully evaluate whether the petitions for such measures must be circulated in additional languages.

This new trend in ballot measure case law began to emerge in late 2005, when the federal Ninth Circuit Court of Appeals ruled that recall petitions for a school board member in Orange County must be printed in both Spanish and English.  The court ordered the recall election off the ballot because the recall proponents failed to circulate the petition in Spanish as well as English.  In this case, Padilla v. Lever, 429 F.3d 910 (9th Cir. 2005), the court first noted that Orange County is subject to the Voting Rights Act because the United States Director of the Census has determined that the requisite number of eligible voters within the County are Spanish speakers with limited proficiency in English.  The court next addressed, under Section 203, (1) whether the recall petitions were "other materials or information relating to the electoral process," and (2) whether Orange County "provided" the recall petitions.  Answering both questions in the affirmative, the court determined that the recall petition was subject to Section 203 of the Act.

More recently, the United States District Court for the Northern District of California ruled that Section 203 applies to citizen-sponsored initiatives in jurisdictions subject to the Voting Rights Act.  In a ruling issued in late March 2006, the court in In re County of Monterey Initiative Matter, No. 06-01407, applied the two-part test from Padilla to determine that a land use initiative drafted and circulated by a citizens group in English only was subject to Section 203.  Since the Director of the Census has designated Monterey County as a jurisdiction required to provide elections materials in English and Spanish, the court ordered the initiative off the ballot.  Although a citizens group drafted and circulated the initiative petition, the court ruled that Monterey County had "provided" the petition because of the County’s role in preparing the initiative ballot title and summary that is a critical part of the petition, and the County’s "extensive regulation" of the initiative process.

Also, in a case arising out of San Bernardino County and the City of Loma Linda, the U.S. Central District Court issued an injunction barring a referendum petition from the ballot because it was not circulated in Spanish as required under the Voting Rights Act.  This initial decision in Chinchay v. Verjil, No. 06-01637, will be re-evaluated at a full hearing on the merits later this spring, although the court’s issuance of the injunction suggests a ruling that the referendum petitions must be circulated in more than one language in jurisdictions subject to section 203 of the Act.

The list of jurisdictions in California designated by the Director of the Census as subject to the Voting Rights Act and, therefore, requiring election material to be provided in a language or languages other than English, is available in the Federal Register.  Although only counties are included in this list, federal regulations provide that when a county is subject to Section 203, all cities within that county are similarly subject to Section 203.

Participants and stakeholders in land use issues throughout California must be aware of these recent decisions involving the Voting Rights Act as land use issues and decisions are increasingly subject to voter scrutiny either by the initiative or referendum process.  Failure to comply with Section 203 of the Voting Rights Act (or a failure to comply with the many other rules governing land use initiatives and referenda) can result in the removal of an initiative or referendum from the ballot.