Metropolitan News-Enterprise


Monday, August 4, 2003


Page 1


MALDEF Sues to Knock Connerly Initiative Off Recall Ballot


By KENNETH OFGANG, Staff Writer/Appellate Courts


A measure to bar the state from collecting data on race and national origin could be off the Oct. 7 recall ballot if a lawsuit a Latino civil rights group filed Friday succeeds, an attorney for the group said.

The Mexican American Legal Defense and Educational Fund contends voters in Monterey County-one of four California counties subject to federal preclearance rules-did not get their ballot pamphlets 100 days ahead of the election as required.

According to the complaint filed in the U.S. District Court for the Northern District of California, San Jose Division, voters in the Monterey area will have 57 days to review the pamphlet.

“It’s too short a time frame to digest the proposition and what it means,” said Victor Viramontes, a staff attorney at the group’s Los Angeles headquarters.

Viramontes told the METNEWS that, in MALDEF’s view, “any deviation” in the statutory time period is a change that is subject to the preclearance provisions of the Voting Rights Act. The case will have to be heard by a three-judge panel, Viramontes said, adding that MALDEF will be asking this week for an expedited hearing.

Opposed to Measure

MALDEF is opposed to what sponsors—led by UC Regent Ward Connerly, who led the successful drive to pass the anti-affirmative action Proposition 209—have dubbed the Racial Privacy Initiative, which is currently scheduled to appear on the ballot as Proposition 54. But Viramontes said the suit is being brought “strictly to vindicate the rights of the voters and to make certain that California complies with...federal law,” and does not represent a strategic attempt to delay the election to a date when it might be easier to defeat.

The uniqueness of the recall election, the attorney said, makes it difficult to speculate as to whether the initiative is more likely to pass in October or at the next statewide election, which is the March primary.

If the suit is successful, Viramontes said, Proposition 54 would have to be taken off the ballot statewide, not just in Monterey County. He said a law cannot go into effect statewide if voters in one county are unable to vote.

Under the preclearance provisions, changes to election laws or procedures cannot be implemented in certain jurisdictions without having been submitted to the Justice Department for review at least 60 days in advance. If the Justice Department objects, a special panel of the U.S. District Court in Washington would have to determine whether the change violates voting rights.

Monterey, Kings, Yuba, and Merced counties are the preclearance jurisdictions in California, based on criteria set forth in the act, including historical voter turnout and past discrimination against racial or language minorities. Viramontes said the suit deals only with Monterey County because the failure to preclear in one county would make the issue moot as to the others.

The MALDEF suit is at least the sixth to be brought with regard to the October ballot.

Last Tuesday, a federal district judge in San Diego ruled that a statute requiring voters to vote ëyes” or “no” on the recall in order to cast a valid ballot in the election of a replacement is unconstitutional. Secretary of State Kevin Shelley’s spokesman said there would be no appeal.

Other Actions

The other four actions are all the subject of petitions for review or mandate in the State Supreme Court, a spokesperson for the high court said.

They are:

Eisenberg v. Shelley in which the petitioner, attorney Jon Eisenberg, claims that the statute requiring that certain measures appear on the next statewide ballot does not apply to the recall because it is not a “statewide special election.” If he prevails, it will have the same effect as if MALDEF’s suit prevails, plus it would knock the less-controversial Proposition 53, a proposed constitutional amendment dealing with public finance, off the October ballot and on to the March ballot.

Frankel v. Shelley and Byrnes v. Bustamante, dealing with whether replacement candidates should be listed on the same ballot as the recall question.

Burton v. Shelley, dealing with qualifications of replacement candidates.

The Supreme Court has established an expedited briefing schedule for those cases. The state’s briefs in opposition to the petitions are due at noon today, and reply briefs must be in by noon Wednesday, the court said.


Copyright 2003, Metropolitan News Company