November 25, 2005

Ninth Circuit: Recall Petitions Must Be Translated

As Rick Hasen notes, in a 2-1 decision, a Ninth Circuit panel held that Orange County election officials violated the minority language provisions of the Voting Rights Act by not requiring the proponents of a Santa Ana school district recall to print their petitions in Spanish as well as English. In Padilla v. Lever, the court concluded that recall petitions constituted "registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process," with the meaning of the Act and that the petitions were "provided" by elections officials, triggering the requirement that they be printed in minority languages in those California jurisdictions subject to the minority language provisions of the Act.

Critical to the court's holding was the requirement of Elections Code section 11042 that elections officials approve the form and content of recall petitions before they are circulated for signatures. This pre-circulation approval process does not apply to initiative and referendum measures, and therefore Padilla would not appear to apply to such measures.

I agree with Professor Hasen that the case will receive further review from the Ninth Circuit, and perhaps from the Supreme Court as well. It will also be interesting to see what position the Department of Justice takes. According to one news account, the DOJ has advised local jurisdictions that minority language provisions of the Act do not apply to recall petitions.

The opinion will also present administrative challenges to the election officials in jurisdictions subject to the Act's minority language provisions. is the elections official responsible for translating the English version of the recall petition into the required minority languages, or must the proponent do that, subject to the approval of the elections official? Must each petition section be translated into all of the required minority language provisions, or is it sufficient for a circulator to have available separate petition sections, one of which is printed in English, and the other which is printed in the appropriate minority language?

Interestingly, while there were approximately 28 lawsuits arising out of the 2003 gubernatorial recall, not one them challenged the fact that the recall petition was not printed in Spanish, even though California is a covered jurisdictioon for Hispanic voters.

The Los Angeles Times story on the decision is here.

Posted by Randy Riddle at November 25, 2005 05:43 PM