June 22, 2006

Padilla oral argument

I attended the Padilla en banc oral argument this morning. It appears likely that the court will conclude that the minority language provisions of the Voting Rights Act do not apply to recall petitions. While the other side may find four, and maybe five, votes for application of the VRA to such petitions, it is unlikely to garner the six votes necessary to overturn the trial court decision dismissing the VRA challenge.

Much of the early argument concerned whether the case was moot, a point Judges Tallman and Klienfeld pursued. There was some uncertainty about the standard to apply in determining whether a case was capable of repetition but evading review, with neither the judges nor counsel articulating a specific standard. Interestingly, all of the counsel arguing the case agreed that the case was not moot because it was capable of repetition but evading review. It appears likely that the court will reach the merits of the case.

On the merits, Judges Pregerson and Reinhardt emphasized that the VRA is a remedial statute that must be broadly construed, and that the petition process is an integral part of California's direct democracy system. But there was a lot of skepticism about whether Congress intended to extend the VRA to the private circulation of recall petition, even though California law largely prescribes the content and format of the petition, and requires county election officials to approve the recall petition before it may be circulated. Near the end of the argument, Fred Woocher, counsel for the proponents of the recall, pointed out that two other circuits had previously concluded that the VRA did not apply to petitions circulated under the laws of other states, and that Congress did nothing in response to change the VRA when it was subsequently reauthorized.

Accordingly, it appears likely that the court will conclude that such petitions are not "provided by" the government, and therefore are not covered by the minority language provisions of the VRA.

Posted by Randy Riddle at June 22, 2006 10:56 AM