Recall Petitions Need Not Be Printed In Foreign Languages

Wednesday, September 20, 2006

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Recall Petitions Need Not Be Printed In Foreign Languages—C.A.

By a MetNews Staff Writer

Petitions to recall elected officials initiated and distributed by private recall proponents need only be printed in English, even where it is not the predominant language of the large majority of voters, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court, in a 14-1 en banc decision, affirmed U.S. District Court Judge Alicemarie H. Stotler, for the Central District of California, who had rejected a challenge under the Voting Rights Act to a school board recall election triggered by petitions circulated only in English.

The ruling replaces a 2-1 panel decision in favor of Sandra Padilla and other opponents of a recall of Santa Ana Unified School District board member Nativo Lopez, who was at the center of a controversy resulting from the 1998 passage of Proposition 227, banning bilingual education. The author of the panel decision, Judge Harry Pregerson, was the lone dissenter yesterday.

Vivian Martinez and other recall proponents prepared and filed the necessary papers to begin the recall process, including the recall petition, which was drafted in accordance with the California Elections Code and regulations of the California secretary of state.

The Orange County elections office reviewed the proposed form and wording of the petition and, concluding that it conformed to California Election Code requirements, authorized circulation of the petitions. The department required no translation, and the final petitions were all printed in English at the proponents’ expense, as provided by state law.

The proponents began collecting signatures and submitted the signed petitions to the elections office, which verified the signatures and certified that enough signatures had been collected to have an election.

Among the signatures collected were those of Sandra Padilla, Victor Sanchez and Rosa Andrade. But they claimed they signed the petitions because the circulators misrepresented the petitions’ nature, and they could not fully understand the petitions firsthand because they were printed only in English, and their primary language was Spanish.

Padilla and the others filed suit seeking injunctive and declaratory relief against Martinez and Orange County election officials, alleging that the recall petitions did not comply with the Voting Rights Act because they had not been translated into Spanish.

After plaintiffs requests for an injunction to prevent the election were denied by Stotler and the Ninth Circuit, the election took place as scheduled. Lopez was recalled by greater than a 2-1 margin, losing in every district.

Stotler then granted Martinez’s motion to dismiss and the county officials’ motion for judgment on the pleadings. The plaintiffs dropped their requests for injunctive relief, but appealed the judgment on their claim for declaratory relief.

The Voting Rights Act provides that whenever any state, or political subdivision thereof, with sizable minority populations who are not conversant in English, “provides” voting materials, it shall provide them in the language of the applicable minority groups as well as in English. In Santa Ana 74 percent of the residents speak Spanish 84 percent speak a language other than English.

The Ninth Circuit held that recall petitions are not included in the minority language requirement because they are initiated, drafted and circulated by private citizens, and not the state or a subdivision thereof.

Senior Judge William C. Canby Jr., writing for the court, said:

“The fact that . . . 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.”

Plaintiffs argued that a Justice Department regulation which includes petitions when describing the types of materials that must be provided in a minority language, supported their claim. But Canby said he was “not convinced that this regulation encompasses recall petitions initiated, drafted and circulated by citizens.”

He said:

“[T]he 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.”

Canby said that public policy also supports a finding that recall petitions are not included in the requirement.

“[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. . . . 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 . . . [the Voting Rights Act] will have had a perverse effect: it will have prevented, rather than promoted, participation in the electoral process.”

Chief Judge Mary M. Schroeder and Judges 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 concurred in Canby’s opinion.

Judge Stephen Reinhardt concurred separately. He said the plain meaning of the language in the act compelled him to reluctantly join 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.”

He disagreed with the majority’s view that including recall petitions in the minority language requirement would distort the purpose of the act by chilling political participation, saying:

“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.”

In his lone dissent, Pregerson said that because the state’s acquiescence in the content of recall petitions is a condition precedent to its circulation, he believed that the state “provides” recall petitions to the public, within the meaning of the act.

He also rejected the majority’s concern regarding increased costs of printing materials in more than one language, saying:

“[T]hat 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. . . . Such translation costs are a burden we must bear as members of a diverse, multilingual society.”

The judge also pointed out that fraud was involved, saying:

“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.”

Pregerson added:

“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.”

The case is Padilla v. Lever, 03-56259.