November 29, 2005

Padilla v. Lever Revisited

In Padilla, the Ninth Circuit concluded that the minority language requirements of Section 203 of the Voting Rights Act applied to recall petitions, meaning that in covered jursdictions, recall petitions must be translated into the appropriate languages. My initial view was that this holding would not apply to initiative petitions, because -- unlike recall petitions -- elections officials are not required to approve the format and content of initaitve petitions before they are circulated.

After additional consideration, I now believe that this Ninth Circuit panel would conclude that Section 203 applies to initiative petitions.

First, given the broad construction of section 203 by the Ninth Circuit, there is no doubt that it would conclude that initiative petitions are "materials or information relating to the electoral process" within the meaning of that section.

Second, while the issue is a closer one, I also believe that this panel would also conclude that initiative petitions are "provided by" election officials.

As is true with recall petitions, the content and format of initiative petitions are extensively regulated by the Elections Code.

Further, part of the an initiative petition consists of the title and summary, prepared by a government attorney and then provided by the elections official to the proponent.

Moreover, the Padilla court found the Section 203 discussion in Zaldivar v. City of Los Angeles to be "compelling." In the relevant portion of that decision, the Ninth Circuit held that it was not frivilous for an attorney to argue that Section 203 applied to a notice of recall since the notice -- and the target official's answer -- appear on the petition, and persons literate only in Spanish would be deprived of the opportunity of considering arguments for and against the recall. Simiarly, the notice of intent to circulate an intiative petition -- which includes a statement of the reasons for the measure -- and the officially prepared title and summary must appear on the initiative petition. Given the Padilla court's strong endorsement of the reasoning in Zaldivar, it is likely that the court would extend the Padilla decision to initiative petitions.

Finally, Judge Canby, who dissented in Padilla, appears to view the majority decision as applying to initiative petitions.

Posted by Randy Riddle at November 29, 2005 12:05 PM