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A eagerly anticipated recent decision by the Ninth Circuit Court of Appeals failed to clear up uncertainty over whether the minority language requirements of the federal Voting Rights Act apply to citizen-sponsored initiatives and referenda in California. The court’s en banc decision in Padilla v. Lever held that the Act’s minority language provisions do not apply to recall petitions, but did not address initiative and referendum petitions. It remains uncertain, therefore, whether the Act requires initiative and referendum proponents in jurisdictions subject to it to translate their petitions into minority languages.

Voting Rights Act

In jurisdictions with substantial voting-age populations not proficient in English, the Voting Rights Act requires certain election materials to be provided in minority languages as well as English. Specifically, section 203 of the Act states that whenever a state or political subdivision with a specified voting-age population not proficient in English “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.” 42 U.S.C. § 1973aa-1a(c).

The list of jurisdictions 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. In California, statewide election materials must be provided in English and Spanish, and 25 counties must provide election materials in one or more languages other than English. Whenever a particular county is subject to section 203, all cities within that county are similarly subject to section 203.

There is no question the Voting Rights Act requires covered jurisdictions such as a county holding an election to provide ballots in English as well as minority languages. However, it is less clear whether this provision applies to citizen-sponsored petitions to qualify a measure for the ballot. For example, in order for a referendum, citizen-sponsored initiative, or public official recall to qualify for an election, the proponents must prepare a petition and gather signatures from the requisite number of registered voters. The Act does not explicitly address whether such petitions must be prepared and circulated in both English and minority languages.

Padilla v. Lever

In Padilla v. Lever, a group of citizens initiated a recall of a member of the Santa Ana Unified School District Board by drafting a recall petition. The Orange County Elections Department reviewed the petition and concluded that it complied with the requirements of the California Elections Code. The recall proponents then circulated the recall petition and gathered the required number of signatures to hold a recall election. Although Orange County is required by section 203 to provide election materials in multiple languages, the recall petition was circulated only in English.

A group of plaintiffs challenged the validity of the recall petition since it was not made available in Spanish. Reversing an earlier decision of a three-judge panel, the full 11-judge panel of the Ninth Circuit rejected the challenge and held that the Voting Rights Act did not apply to recall petitions since the petitions were prepared and circulated by private citizens and, therefore, were not “provided by” a state or political subdivision. This holding affirmed the original ruling of the federal district court.

The plaintiffs in Padilla argued that as a result of California’s extensive regulation of the form of recall petitions and because the Orange County Elections Department had reviewed and approved the form of petition, the “provided by” requirement was satisfied. In rejecting this argument, the Ninth Circuit concluded that although the California Elections Code provides the format for a recall petition, that does not mean the State itself provides the petition. The court noted that the California Elections Code does not specify the actual wording to be used in a recall petition and that the role of the County Elections Department was simply to ensure that the petition complied with the form required by law. As a result, it could not be said that the County “provided” the recall petition to the public. The court also expressed concern about the “chilling effect” of translating petitions into multiple languages, as the costs of translation and reprinting are borne by the recall proponents. The expense and trouble of complying with the translation requirements, reasoned the court, may deter proponents from launching petitions in the first place.

Conclusion

While the Padilla ruling clearly holds that recall petitions are not subject to the Voting Rights Act’s requirement to provide election materials in English as well as minority languages, it remains uncertain whether referendum and citizen-sponsored initiative petitions are similarly exempt from the Voting Rights Act. The Padilla court chose not to address either of these situations. There are procedural and substantive differences between recall petitions, on the one hand, and initiative and referendum petitions, on the other hand, that may make the court’s analysis in Padilla inapplicable to other petitions. Until courts resolve this issue, participants and stakeholders in land use and other electoral issues throughout California must be aware of the potential consequences of failing to follow the Voting Rights Act when they propose a referendum or initiative, as well as the possibility of challenging a referendum or initiative based on failure to comply with the Act.

Citations:

Padilla v. Lever, 463 F.3d 1046 (9th Cir. 2006) (en banc)

Voting Rights Act, 42 U.S.C. § 1973aa-1a(c)