FLASHREPORT

On November 23, a three-judge panel of the federal 9th Circuit Court of Appeal came down with a doosy of a ruling that has the potential to confuse and hamstring the already complex initiative and referendum process.  The ruling, Padilla v. Lever, 2005 U.S. App. LEXIS 25254 (9th Cir. 2005), relates to the 2002 recall of Santa Ana Unified School District Trustee Nativo Lopez.  No doubt, many FlashReport readers who are in tune with OC politics are familiar with Lopez's long-standing activism in the Latino community and are familiar with the reasons leading to his recall.  However, those issues were not relevant to the ruling, which deals exclusively with the application of federal law to the recall petition process contained in the California Elections Code.

At issue in Padilla was whether the notice of intention and the recall petitions prepared by recall proponents was required to comply with provisions of the federal Voting Rights Act of 1965 (the "VRA").  Specifically, section 203 of the VRA requires that certain "covered jurisdictions" must "provide . . . materials or information relating to the electoral process" in the language of the applicable minority group.  "Covered jurisdictions" are essentially states or political subdivisions with a significant population of single-language minority voters or limited English proficient voters, as defined in the VRA.  Thus, section 203 basically requires certain jurisdictions to publish bilingual or multilingual voter materials.

The 9th Circuit panel in Padilla extended section 203's bilingual requirement to apply to recall notices and petitions because the panel concluded that these documents are "materials or information relating to the electoral process" that are "provided" by a governmental unit.  This is an interesting conclusion given that recall notices and petitions are actually prepared, printed and disseminated by private parties, not a government entity.  The 9th Circuit appellate panel's ruling was predicated on the determination that the preparation of the recall notice of intention and the recall petitions is subject to a high level of government involvement because the local elections official (usually the County Registrar of Voters or a city clerk) is required to review and approve the form and content of recall petitions.  Similarly, the appellate panel in Padilla also relied on the California Elections Code's extensive formatting requirements for recall petitions.  Taken as a whole, the appellate panel concluded that the oversight required by the Elections Code established that the government in fact "provides" election related materials, even though it is the recall proponents who actually prepare and circulate the recall documentation.

The ruling in Padilla is extremely significant for several reasons.  First, the appellate panel relied on dicta in an earlier 9th Circuit panel decision to establish that the recall process is subject to section 203 of the VRA; and in doing so, the Padilla panel has arguably expanded the scope of section 203.  For those of you who aren't lawyers (be thankful), "dicta" is legalese for a statement in a court's decision that is not legally necessary to the court's ultimate determination.  The earlier decision relied upon by the appellate panel, Zaldivar V. City of Los Angeles, 780 F.2d 823 (9th Cir. 1986), actually related to whether a plaintiff's lawyer should have been subject to sanctions for filing a frivolous lawsuit in a section 203 action challenging a recall notice of intention.  Zaldivar did not head-on address the issue of whether section 203 applied to recalls; rather it was a case dealing with federal procedure. 

Second, Padilla's result is contrary to two other federal appellate cases.  Both the Tenth Circuit (in Montero v. Meyer, 861 F.2d 603 (10th Cir. 1988)) and the Eleventh Circuit (in Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1988) have determined that section 203 does not apply to state initiative petitions.  The appellate panel in Padilla distinguished these cases on the basis that the state election laws at issue (Florida and Colorado) did not have the same level of government involvement.  For instance, the Padilla ruling distinguished California's Elections Code requirements requiring specific formatting, approval of formatting, and approval of content of recall petitions from Colorado and Florida laws, which do not include such an involved government agent or formatting process.

Third, and most importantly, Padilla is significant because by distinguishing the Montero and Delgado decisions (which are initiative cases) the appellate panel signaled an intention to treat the documentation prepared by initiative and referendum proponents as being subject to section 203's requirements.  Indeed, the Padilla ruling expressly noted that the stated Congressional purpose of section 203 would apply to initiative cases.  The issue of whether initiatives and referendum notices and petitions are subject to section 203 wasn't specifically addressed in Padilla; however, the appellate panel's description of the process of the formatting of initiative and referendum petitions (as well as the election official's obligation to conduct prima facie reviews of the contents of the petitions) clearly suggests that the 9th Circuit could be poised to require section 203 compliance in connection with preparing initiative and referendum petitions.  Further, since initiative petitions must include an impartial ballot title and summary, there is yet one more reason that a court may conclude that section 203 is applicable to initiative petitions.

The Padilla ruling, if left intact, will definitely lead to a re-thinking of how initiative and referendum petitions are prepared, and whether these documents must be printed in bilingual or multilingual format.  Additionally, the Padilla ruling also calls into question whether section 203 applies to the so-called "full text" requirement for initiatives and referendum petitions.  [The full text requirement obligates initiative and referendum proponents to attach the full text of the proposed or challenged law to the petition when it is being circulated.]  Does Padilla mean that the "full text" of the measure must also be in bilingual or multilingual format?  Many initiatives propose revisions to city general plans and are literally hundreds of pages long.  Will these revisions to general plans now have to be printed in multiple languages?  The Padilla ruling doesn't tell us; but a conservative reading of the decision would be that multiple language publication may be required.

Another question left unanswered by this decision is whether petitions being currently circulated are subject to attack if the jurisdiction in which the petitions are being circulated is a "covered jurisdiction" subject to section 203.

As of the date of this posting, the County is reportedly unsure as to whether it will seek a full 9th Circuit panel review of this ruling or whether it will appeal to the Supreme Court.  Whether review will be granted or not is up for anyone's guess.  Aside from the issue of whether the state Elections Code process is truly a government action triggering section 203, this case also implicates the right of the people to petition the government, as protected by the federal Constitution.   Stay tuned to this issue, it is very likely to shake up the initiative and referendum world.