Padilla v. Lever

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANDRA PADILLA; VICTOR SANCHEZ; 

ROSA ANDRADE,

Plaintiffs-Appellants,

v.

ROSALYN LEVER, in her official

capacity as Registrar of Voters,

Orange County Registration and No. 03-56259

Elections Department; SUZANNE

SLUPSKY, in her official capacity as  D.C. No.

CV-02-01145-AHS

Assistant Registrar of Voters, OPINION

Orange County Registration and

Elections Department,

Defendants-Appellees,

and

VIVIAN MARTINEZ,

Defendant-Appellee.



Appeal from the United States District Court

for the Central District of California

Alicemarie H. Stotler, District Judge, Presiding

Argued and Submitted En Banc

June 22, 2006—San Francisco, California

Filed September 19, 2006

11549

11550 PADILLA v. LEVER

Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,

William C. Canby, Jr., Stephen Reinhardt, 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 Circuit Judges.

Opinion by Judge Canby;

Concurrence by Judge Reinhardt;

Dissent by Judge Pregerson

PADILLA v. LEVER 11553

COUNSEL

Nina Perales (argued), Mexican American Legal Defense and

Educational Fund, San Antonio, Texas, for the plaintiffs-

appellants.

Wendy J. Phillips (argued), Deputy County Counsel, Santa

Ana, California; Frederic D. Woocher (argued), Strumwasser

& Woocher, LLP, Santa Monica, California; for the

defendants-appellees.

George W. Shaeffer, Jr. (argued), Heather B. Scheck (brief),

Breon, Shaeffer & Bryant, P.L.C., Irvine, California; Louis R.

Mauro, Senior Assistant Attorney General, Sacramento, Cali-

fornia, for amici curiae.

OPINION

CANBY, Circuit Judge:

A provision of the federal Voting Rights Act, 42 U.S.C.

§ 1973aa-1a(c), requires that, in certain States with substantial

linguistic minority populations of voting age, election materi-

als must be provided in the applicable minority languages as

well as English. This requirement applies to any covered State

or political subdivision that “provides any . . . materials or

information relating to the electoral process.” Id. (emphasis

added). The question presented by this appeal is whether this

requirement attaches to recall petitions initiated, circulated

and paid for by private proponents of a recall, when the pro-

ponents are required to draft the petitions in a form specified

by the State and county.

We conclude that § 1973aa-1a(c) does not apply to such

recall petitions because they are not “provide[d]” by the State

or its subdivision. We therefore affirm the judgment of the

11554 PADILLA v. LEVER

district court, which rejected the plaintiffs’ challenge to a

recall election triggered by petitions circulated only in

English.

BACKGROUND

The recall petitions at issue were initiated by defendant

Vivian Martinez and others, who sought to recall Santa Ana

Unified School District Board Member Nativo Lopez. Pursu-

ant to California Elections Code section 11000 et seq., the

proponents drafted and printed (in English) a Notice of Inten-

tion to Circulate Recall Petition, which included a statement

of the grounds for recall. The proponents filed the Notice with

the Orange County Registration and Elections Department

and a copy was served on Lopez. In response, Lopez filed an

Answer (also in English) with the County Elections Depart-

ment and served copies on the recall proponents.

The recall proponents then drafted a recall petition in

accordance with the California Elections Code and the regula-

tions of the California Secretary of State. The recall petition

included a request to hold an election to replace Lopez, the

Notice of Intention (including a statement of the reasons for

the recall), and Lopez’s Answer. Except for Lopez’s Answer

(which he drafted), the recall proponents drafted the contents

of the Recall Petition, adhering to the requirements and for-

mat specified by the Secretary of State. This draft petition was

in English only.

As required by Cal. Elec. Code § 11042, the recall propo-

nents filed two blank copies of the Recall Petition with the

Orange County Elections Department, along with a proof of

publication of the Notice of Intention, for election officials to

ascertain whether the recall petition conformed to the proper

format and applicable election law. See Cal. Elec. Code

§ 11042(a)-(b). The County Elections Department reviewed

the proposed form and wording of the petition and concluded

that it conformed to the requirements of the California Elec-

PADILLA v. LEVER 11555

tion Code. They accordingly authorized circulation of the

petitions. They required no translation, and the authorized

petition was printed only in English. The final petitions, also

in English, were printed at the proponents’ expense.

In April 2002, the proponents began collecting signatures

and in September 2002 they submitted the signed petitions to

the County Elections Board, which verified the signatures and

certified that enough signatures had been collected to precipi-

tate an election. The School District then set a recall election

for February 4, 2003.

On December 12, 2002, however, the plaintiffs entered the

picture. They are registered voters and residents of the School

District whose primary language is Spanish. They filed this

action seeking injunctive and declaratory relief against Marti-

nez and the County officials charged with overseeing the

recall election. The complaint alleged that the recall petitions

did not comply with § 1973aa-1a(c) of the Voting Rights Act

because they had not been translated into Spanish. The plain-

tiffs sought an injunction prohibiting the defendant officials

from taking any steps to proceed with the recall election and

requiring translation of the recall petition into Spanish.

The plaintiffs alleged that they signed the petitions because

the circulators misrepresented the petitions’ nature, and the

plaintiffs could not fully understand the petitions firsthand

because they were printed only in English.

The plaintiffs sought a temporary restraining order to pre-

vent the election, and the district court denied that motion on

December 24, 2002. The plaintiffs moved for a preliminary

injunction, which the district court denied on January 10,

2003. The plaintiffs appealed and sought to prevent the elec-

tion by filing an emergency motion for injunction pending

appeal, which this court denied on January 30, 2003. The

election took place as scheduled on February 4, 2003, and the

plaintiffs then voluntarily dismissed their appeal of the denial

11556 PADILLA v. LEVER

of the preliminary injunction. On February 21, 2003, the dis-

trict court granted defendant Martinez’s motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6). Finally, on June 16,

2003, the district court granted the county defendants’ motion

for judgment on the pleadings. The plaintiffs appealed.

DISCUSSION

1. Mootness.

[1] The plaintiffs concede that their claim for injunctive

relief has become moot. The recall election has occurred, and

the term of office filled by that election has expired. The

plaintiffs contend, however, that their claim for declaratory

relief is not moot. We conclude that they are correct.

[2] The plaintiffs seek a declaration that the Voting Rights

Act was violated when the proponents were permitted to, and

did, circulate petitions printed only in English. It is too late,

of course, for the declaration to have any effect on the recall

petitions for the election of February 4, 2003. The plaintiffs’

claim for declaratory relief, however, falls classically into that

category of cases that survive mootness challenges because

they are “ ‘capable of repetition, yet evading review.’ ” Roe

v. Wade, 410 U.S. 113, 125 (1973) (quoting Southern Pacific

Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)). That excep-

tion applies when “(1) the duration of the challenged action

is too short to allow full litigation before it ceases, and (2)

there is a reasonable expectation that the plaintiffs will be

subjected to it again.” Greenpeace Action v. Franklin, 14 F.3d

1324, 1329 (9th Cir. 1992).

[3] As we observed in Porter v. Jones, 319 F.3d 483, 490

(9th Cir. 2003), “the inherently brief duration of an election

is almost invariably too short to enable full litigation on the

merits.” Here, the petitions were certified as sufficient on

September 26, 2002, and the election was held on February 4,

2003 — a period of approximately four and one-half months

PADILLA v. LEVER 11557

during which the plaintiffs could have challenged the threat-

ened election.1 In other contexts, we have held that periods as

long as one or two years were insufficient to permit full

review of challenged regulations or practices. See Greenpeace

Action, 14 F.3d at 1329-30 (one year); Alaska Ctr. for the

Env’t v. U.S. Forest Serv., 189 F.3d 851, 855 (9th Cir. 1999)

(two years).

Here, the plaintiffs vigorously sought prompt review, seek-

ing stays in both the district court and our court. Those stays

were denied but the plaintiffs did not receive a full adjudica-

tion of their claim on the merits. We are reaching the merits

of their claim today, some four and one-half years after they

filed their complaint. This case evaded review, and likely

would again. It is true that in some extraordinary cases, we

are able to hear expedited appeals prior to a scheduled elec-

tion, see, e.g., SW Voter Registration Educ. Proj. v. Shelley,

344 F.3d 914 (9th Cir. 2003) (en banc), but we cannot expect

extraordinary responses as a matter of course. “ ‘Evading

review’ for the purpose of the exception need not mean that

review is impossible. It only means that in the ordinary course

of affairs it is very likely to escape review.” Joyner v. Mof-

ford, 706 F.2d 1523, 1527 (9th Cir. 1983).

[4] There is also a reasonable expectation that the plaintiffs

will again be presented with recall petitions printed only in

English. The election officials’ practice of not requiring trans-

lation remains in place, and recall petitions printed only in

English are likely to be circulated in the plaintiffs’ district in

the future. See Alaska Right to Life Comm. v. Miles, 441 F.3d

1

The initiative process itself began with the filing of a Notice of Inten-

tion on March 25, 2002, but there was nothing in the Notice of Intention

that would indicate whether the recall petition would be translated into

languages other than English. The earliest that plaintiffs could conceivably

have sued for declaratory relief would have been when the petitions were

first circulated in April 2002 — some eleven months before the election.

As we point out above, even that period is too short to permit full litiga-

tion of the plaintiffs’ challenge.

11558 PADILLA v. LEVER

773, 779-80 (9th Cir. 2006) (finding claim not moot because

of “sufficient likelihood” that petitioners would have to com-

ply with challenged campaign finance laws in future). This

case is not moot.

2. Recall Petitions and the Voting Rights Act.

[5] The Voting Rights Act of 1965 imposes certain bilin-

gual or multilingual election requirements for “covered”

States or political subdivisions. “Covered” States or subdivi-

sions are defined by certain requisite percentages of minority-

language citizens of voting age who have limited proficiency

in English and whose illiteracy rate is above the national aver-

age. See 42 U.S.C. § 1973aa-1a(b)(2)(A). There is no dispute

that Orange County, California, which conducted the recall

election, is a “covered” subdivision.

[6] The controversy before us centers on the following pro-

vision of the Act:

Whenever any State or political subdivision sub-

ject to the prohibition of subsection (b) of this sec-

tion provides any registration or voting notices,

forms, instructions, assistance, or other materials

or information relating to the electoral process,

including ballots, it shall provide them in the lan-

guage of the applicable minority group as well as

in the English language.

Id. § 1973aa-1a(c) (emphasis added).2 We conclude, as did the

district court, that the recall petitions circulated by the propo-

2

A complementary prohibition appears earlier in the same section: “Be-

fore August 6, 2007, no covered State or political subdivision shall pro-

vide voting materials only in the English language.” 42 U.S.C. § 1973aa-

1a(b)(1).

PADILLA v. LEVER 11559

nents of the recall were not subject to this provision because

they were not “provided” by Orange County or the State.3

[7] It is true that California regulates recall petitions in

some detail. The petitions must follow a format provided by

the Secretary of State, and must use a minimum type size. See

Cal. Elec. Code § 11041(a). The petition also must include a

copy of the Notice of Intention, the statement of grounds for

recall, and the answer of the targeted officer if the officer sub-

mitted one. Id. at § 11041(a)(2), (3). But these regulations do

not mean that the petitions are provided by the State or subdi-

vision. The form is regulated by the State, but the proponents

fill out the petition, supply the grounds of recall, and have the

petitions printed at their own expense. The fact that, under

Cal. Elec. Code § 11041(a), the Secretary of State “provides”

the format does not mean that the State “provides” the peti-

tions themselves within the meaning of the Voting Rights Act.

[8] The plaintiffs argue that, because the election officials

are charged under state law with ascertaining whether “the

proposed form and wording of the petition meets the require-

ments of this chapter[,]” Cal. Elec. Code § 11042(a) (empha-

sis added), they are dictating the content of the petitions to the

degree that the petitions may be said to be “provided” by the

County. But there is nothing in the chapter governing elec-

tions that specifies the actual wording that proponents must

use, for example, in stating their grounds for recall. Nor does

the record contain any hint that the election officials deter-

mine the contents of the petition; they merely make sure that

the petitions are in the form specified by statute. It is not rea-

sonable to hold that this regulatory process transforms peti-

tions privately initiated, drafted, and circulated by the

proponents into petitions “provided” by the County for pur-

poses of the Voting Rights Act.

3

Our conclusion makes it unnecessary for us to address the question

whether recall petitions meet a second requirement of § 1973aa-1a(c): that

they qualify as “materials . . . relating to the electoral process.”

11560 PADILLA v. LEVER

Our conclusion does not conflict with our decision in Zaldi-

var v. City of Los Angeles, 780 F.2d 823 (9th Cir. 1986), over-

ruled on other grounds by Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384 (1990). In that case the complaint alleged that

§ 1973aa-1a applied to a Notice of Intention to seek a recall

election. Id. at 826-27. We did not rule on that point; we ruled

only that an attorney who signed the complaint could not be

sanctioned under Fed. R. Civ. P. 11 for filing a frivolous lawsuit.4

See id. at 833. That a claim is not frivolous does not establish

that it is meritorious.

Our conclusion that the County did not “provide” the recall

petitions is not only consistent with Zaldivar, it is directly

supported by the decisions of two of our sister circuits. The

Tenth Circuit held in Montero v. Meyer, 861 F.2d 603, 609-10

(10th Cir. 1988), that initiative petitions were not subject to

the requirements of § 1973aa-1(c) because they were not pro-

vided by the State. The Eleventh Circuit came to a similar

conclusion in Delgado v. Smith, 861 F.2d 1489, 1496 (11th

Cir. 1988).5 No circuit authority to the contrary has been cited

to us, and we have found none.

4

The dissent errs in relying on our dicta in Zaldivar in the absence of

any other precedent supporting its argument. (Dissent at 11572, 11577).

Beyond its narrow holding, Zaldivar’s dicta were confined to whether it

was frivolous to view the Notice of Intention as “relating to the electoral

process,” and did not address the question whether it was “provided” by

the City. Zaldivar, 780 F.2d at 833.

5

The dissent argues that Montero and Delgado are “readily distinguish-

able” because “California’s statutory scheme is more stringent than those

in Colorado or Florida, making [it] . . . more than ‘merely ministerial.’ ”

(Dissent at 11579). Notwithstanding the dissent’s assertion, the California

Court of Appeal has characterized local election officials’ duties as

“purely ministerial” and said that such officials are authorized only “to

review a petition as submitted for compliance with procedural require-

ments” and are foreclosed from making “decisions that are discretionary

or go beyond a straightforward comparison of the submitted petition with

the statutory requirements for petitions.” Alliance for a Better Downtown

Millbrae v. Wade, 108 Cal. App.4th 123, 133 (2003); see also Farely v.

Healey, 67 Cal. 2d 325, 327 (1967)(Traynor, C.J.) (“The right to propose

initiative measures cannot properly be impeded by a decision of a ministe-

rial officer . . . that the subject is not appropriate for submission to vot-

ers.”).

PADILLA v. LEVER 11561

The plaintiffs argue that the Justice Department has sup-

ported their view in its regulation describing the types of

materials that must be provided in a minority language. The

regulation states in part:

A jurisdiction required to provide minority language

materials is only required to publish in the language

of the applicable language minority group materials

distributed to or provided for the use of the elector-

ate generally. Such materials include, for example,

ballots, sample ballots, informational materials, and

petitions.

28 C.F.R. § 55.19(a) (1999) (emphasis added). We are not

convinced that this regulation encompasses recall petitions

initiated, drafted and circulated by citizens. Moreover, we

have been directed to no instances in which the Department

of Justice has attempted to impose translation requirements on

recall petitions in the several decades that § 1973aa-1a has

been in existence. In any event, the 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 ini-

tiated, drafted and circulated by private citizens.

[9] We hold, therefore, that § 1973aa-1(a) does not apply

to the recall petitions in this case. The language and structure

of the statute compel our decision. We note in addition that

there are sound practical reasons supporting what we con-

clude is an inevitable interpretation of the statute.

[10] It distorts § 1973aa-1a to apply it in a situation for

which it clearly is not intended. Those who circulate recall

petitions have an incentive to gather as many signatures as

they can,6 but they are under no legal duty to do so, just as

6

Any signature of a registered voter that the proponents fail to obtain

counts as a “no” vote on the question whether to have a recall election.

The number of signatures needed to precipitate a recall election is calcu-

lated as a percentage of the total number of registered voters in the

affected district. See Cal. Elec. Code § 11221.

11562 PADILLA v. LEVER

they were under no duty to launch a recall process at all. No

one, including the plaintiffs, suggests that the proponents have

any duty to present a petition to any particular voter, or to

solicit in any particular neighborhood. The plaintiffs in fact

concede that they have no right to have a petition presented

to them; they insist only that they have a right to be provided

a translation with any petition that is presented to them. But

when the Voting Rights Act creates no duty to present a peti-

tion to the plaintiffs in the first place, it is difficult to see why

the Act requires the petition to be translated into their lan-

guage.

A requirement of translation for recall petitions is far more

likely to be used as a sword than a shield, as in the case of the

plaintiffs here, who brought their suit to stop an election for

which sufficient signatures had been collected. The plaintiffs

complain that they were deceived as to the nature of the peti-

tion, and this deception caused them to sign it. There are,

however, avenues of relief available to the plaintiffs that do

not threaten the recall process itself. One is to rescind the sig-

nature, as one of the plaintiffs here did, by filing a written

request with the election officials prior to the day the petition

section bearing the signature is filed. See Cal. Elec. Code

§ 11303. Another, ultimate resort is to vote “no” in the recall

election.

[11] Finally, 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.7 There is no provision in state law or the

7

The dissent here understates the problem by pointing out that the elec-

tion officials failed to require translation of the petitions into Spanish, and

that the County’s regulation of the process triggers the “bilingual require-

ments” of the Voting Rights Act. (Dissent at 11578). If § 1973aa-1a were

held to apply to the petitions in this case, they would have to be circulated

in five languages, whether or not the petitions were presented to speakers

of all of those languages.

PADILLA v. LEVER 11563

Voting Rights Act requiring the County to bear the costs;

printing of recall petitions is done at the expense of the propo-

nents, as in the present case. The expense and trouble of ful-

filling the translation requirements are likely to deter

proponents who otherwise would launch petitions. When that

happens, then application of § 1973aa-1a will have had a per-

verse effect: it will have prevented, rather than promoted, par-

ticipation in the electoral process.

We are satisfied, therefore, that our interpretation of

§ 1973aa-1a is not only compelled by its language but also

reaches the most practical result in light of the nature of the

recall petition process.

CONCLUSION

The judgment of the district court is

AFFIRMED.

REINHARDT, Circuit Judge, concurring:

The plain meaning of the language of the Voting Rights

Act compels me to concur in the result reached by the major-

ity, because neither the State of California nor the County of

Orange “provided” the recall petition at issue in this case.

Rather, as the majority holds, the petition was funded, drafted,

printed, and circulated — i.e., provided — by the private pro-

ponents of the recall, although in conformance with the rele-

vant provisions of the California Elections Code. In view of

the unambiguous provisions of 42 U.S.C. § 1973aa-1a(c), that

is all the majority needs to say. Instead of stopping when it

is ahead, however, the majority continues on and seeks to sup-

port its decision on practical and policy grounds. I write sepa-

rately because I disagree with the additional justifications it

advances. Also, I wish to note my agreement with the dissent

11564 PADILLA v. LEVER

regarding an important issue not reached by the majority:

There can be no doubt that recall petitions “relate to” the elec-

toral process.

I strongly disagree with the majority’s statement that its

construction of the statute, in addition to being compelled by

the statutory language, is supported by “sound practical rea-

sons.” See maj. at 11561. To the contrary, I believe that the

result we are required to reach is not consistent with the

objectives of the Voting Rights Act and that common sense

and practicality would support Congress’s extension of the

Act to cover a process that was initially omitted, inadvertently

or otherwise, but that is integral to the electoral system. The

majority contends that a contrary reading of the statute would

(1) “distort” the Voting Rights Act by “apply[ing] it in a situ-

ation for which it clearly is not intended,” and (2) have a

chilling effect on the petition process because “[t]he expense

and trouble of fulfilling the translation requirements are likely

to deter proponents who otherwise would launch petitions.”

Maj. at 11562-63. I fully agree with Judge Pregerson’s dissent

in its rejection of both contentions.

First, requiring that recall petitions be provided in a manner

that ensures that as many citizens as possible are able to par-

ticipate in the recall process would not, as the majority

asserts, “distort” the Voting Rights Act. As Judge Pregerson

notes in dissent, the purpose of the relevant provision of the

Act is to guarantee that language minorities have the ability

to exercise fully their fundamental democratic rights. It would

be difficult to imagine how fostering the electoral participa-

tion of such minorities by allowing them to read and under-

stand 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.

PADILLA v. LEVER 11565

The majority also suggests that there was no reason for

Congress to cover recall petitions because, although propo-

nents have no legal duty to present language minorities with

petitions, they “have an incentive to gather as many signatures

as they can.” Maj. at 11561. That this case is now before us

is evidence of how wrong the majority is. Sponsors of peti-

tions, including those who provided the petitions in the pres-

ent case, have a strong incentive not to precipitate heated

debate or angry confrontations when attempting to collect sig-

natures on controversial or divisive measures.1 In recent years,

California has had a number of highly controversial initia-

tives, some successful, designed to curtail the rights of minori-

ties.2 Opponents of these initiatives have accused the

proponents of using deceptive advertising and solicitation

techniques in their efforts to collect signatures and support.

The proponents are said to have represented these measures

as being innocuous or even as advancing or protecting minor-

ity rights. Whether or not such accusations are well-founded,

the ability to obtain signatures for a petition is aided when the

communities adversely affected by the initiative or, in this

case, the recall, are not confronted directly by the petition in

a form in which they are able to perceive its true meaning and

potential impact.

More important, it is irrelevant whether recall proponents

have an incentive to exclude eligible voters. The pertinent

question is whether language minorities are in fact kept from

meaningful or actual participation in the electoral process

because they cannot read the voting materials. Here, the con-

tention is that Spanish-speaking voters were duped into sign-

ing a petition to recall a Latino elected official whom they

1

Signature gatherers frequently station themselves outside of supermar-

kets, discount stores, movie theaters, or public arenas where numerous

people of varying backgrounds are present.

2

Examples include Proposition 209, the self-labeled “California Civil

Rights Initiative,” and Proposition 187, the so-called “Save our State” ini-

tiative which related to undocumented persons.

11566 PADILLA v. LEVER

supported. Thus, although they participated in the electoral

process in some bare sense, their participation cannot be char-

acterized as informed or meaningful. Also, many other non-

English speakers were likely prevented from participating in

the process in any manner as a result of their inability to read

or understand the petition. Accordingly, although the law may

not currently require recall proponents to translate the peti-

tions they provide, English-only petitions plainly serve to

exclude eligible and registered citizens from an important part

of the voting process. Surely such a phenomenon is not con-

sistent with the purpose of the Voting Rights Act.3

Second, I disagree with the majority’s assertion that man-

dating translation of recall petitions in language-diverse

municipalities would chill the recall process. As Judge Pre-

gerson’s dissent points out, the minimal cost of translating

less than a page of text can hardly be deemed a substantial

burden on the proponents of a recall. To this I would add that

the majority seems to assume that implementing measures

promoting fairness in the electoral process is a less important

value than adding items to the ballot that are placed there in

violation of the spirit of the Voting Rights Act. I disagree.

There are many provisions designed to regulate recall and

other elections that may in practice affect the number of mea-

sures or individuals who qualify for a place on the ballot,

including provisions that limit the right to raise and spend

funds; require proponents to obtain a certain number of signa-

tures, sometimes in the hundreds of thousands; and restrict the

arguments or explanations that may be offered in the qualify-

ing papers.4 To the extent that such rules reduce the number

3

It is true, as the majority points out, that citizens do not have a right

to have recall, initiative, or candidate petitions presented to them for their

consideration. However, when persons are excluded from an important

part of the electoral process because of their race, religion, ethnicity, or

language minority status, the values inherent in both the Constitution and

the Voting Rights Act are seriously undermined.

4

In addition, fees are imposed for the certification of petitions, refund-

able should the sponsors be successful in placing the issue on the ballot.

CAL. ELEC. CODE § 9004.

PADILLA v. LEVER 11567

of candidates, issues, or recalls, the electorate is not chilling

rights or preventing participation in the electoral process.

Rather, it is favoring electoral fairness and other similarly

important democratic values. Specifically, even if the propo-

nents of recalls or initiative measures are required to bear

some additional financial cost, the translation of recall peti-

tions into the languages spoken by significant minorities (and,

in some cases, majorities) would enhance the recall proce-

dure: The translations would allow and encourage otherwise-

excluded, eligible voters to play a part in the process of plac-

ing items on the ballot, and thus would significantly advance

the objectives of the Voting Rights Act.

As to the issue the majority does not reach, I would hold,

as would the dissent, that California recall petitions are voting

materials “relating to the electoral process.” 42 U.S.C.

§ 1973aa-1a(c). First, courts have routinely, and in a variety

of contexts, construed the term “relating to” broadly. See, e.g.,

Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S.

395, 397-98 (1967) (construing a “relating to” clause broadly

in the arbitration context); Luu-Le v. INS, 224 F.3d 911, 916

(9th Cir. 2000) (recognizing that the term “relating to” is to

be construed broadly in the immigration context); Tachiona v.

United States, 386 F.3d 205, 220 (2d Cir. 2004) (noting that

the term “relating to,” “when used in statutes,” is construed

broadly to mean “connection with,” “reference to,” or “associ-

ation with”). Further, we have previously squarely rejected

the defendants’ argument that the preliminary nature of recall

petitions permits them to escape coverage by the Voting

Rights Act: “The argument that a recall notice is only a pre-

liminary step to voting and therefore is unaffected by the

bilingual provisions of the Act is without merit.” Zaldivar v.

City of Los Angeles, 780 F.2d 823, 833 n.11 (9th Cir. 1986).

At least one state apparently agrees: Massachusetts pays the

cost of producing recall petitions and, pursuant to the Voting

Rights Act, provides translations in minority languages. See

Delgado v. Smith, 861 F.2d 1489, 1497 n.7 (11th Cir. 1988)

(acknowledging that Massachusetts complies with the Act by

11568 PADILLA v. LEVER

translating its initiative and referendum petitions). In addition,

not only has the Attorney General expressly acknowledged

that petitions are qualifying voting materials, see 28 C.F.R.

§ 55.19(a), but common sense dictates that, where a petition

is a necessary predicate to an election and is governed by

exacting state election statutes, the petition “relates to” the

voting process of that state. In light of our obligation to con-

strue the Voting Rights Act broadly so as to effectuate its

remedial purposes, see Tcherepnin v. Knight, 389 U.S. 332,

336 (1967), I see no reasonable argument that recall petitions

are not voting materials relating to the electoral process in

California.

As Judge Pregerson notes in his dissent, the Voting Rights

Act was designed to apply “throughout the electoral process.”

See H.R. Rep. No. 102-655 (1992). Regrettably, the plain and

inescapable meaning of the statutory language requires me to

conclude that, with respect to the issue before us, the Act falls

short of its objective. Thus, reluctantly, I must concur. I need

not, however, join the majority in its assertion that Congress’s

omission constitutes sound public policy.

PREGERSON, Circuit Judge, dissenting:

I respectfully dissent. I read section 203 of the Voting

Rights Act, 42 U.S.C. § 1973aa-1a, to require the translation

of recall petitions circulated in areas with significant limited-

English proficient voter populations. In this case, the purpose

of the Voting Rights Act was undermined when the recall

petitions were printed only in English and limited-English

proficient voters were deprived of their right to fully under-

stand a petition they were solicited to sign.

I. The Voting Rights Act of 1964

In 1975, Congress amended the Voting Rights Act to

include section 203, which requires certain jurisdictions to

PADILLA v. LEVER 11569

provide bilingual voting materials. See 42 U.S.C. § 1973aa-

1a; Zaldivar v. City of Los Angeles, 780 F.2d 823, 826 (9th

Cir. 1986), overruled on other grounds by Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384 (1990). Section 203’s broad

remedial purpose was directed at a problem that continues to

confront many United States citizen immigrants. Specifically,

their “inability or limited ability to read English obviously

thwarts any attempt to knowledgeably participate in the elec-

toral process.” H.R. Rep. No. 102-655, at 3 (1992). It is clear

that Congress understood the severity of the wrong inflicted

on limited-English proficient voters: “The inability of mem-

bers of language minority populations to comprehend the bal-

lot and voting related information provided solely in English

prevented and continues to prevent them from casting an

effective vote.” Id. at 5. “[T]he use of English, as the sole lan-

guage throughout the electoral process, continues to be dis-

criminatory and has a direct and invidious impact upon the

ability of such populations to participate actively in the elec-

toral process.” Id. Thus, section 203 was enacted with a broad

remedial purpose: “to ensure that language minority popula-

tions have substantive access to the ballot.” Id.

Permitting the use of English-only petitions contravenes the

Voting Rights Act, which Congress designed for use

“throughout the electoral process.” Id. In essence, English-

only petitions would perpetuate the very injustice the Voting

Rights Act seeks to eliminate — the exclusion of “single lan-

guage minority” voters from a vital stage of the electoral pro-

cess. 42 U.S.C. § 1973aa-1a(b)(2)(A). I do not believe that

this was Congress’s intent. The majority’s interpretation gives

voters proficient in English a preference over limited-English

proficient voters. Indeed, the majority entirely writes off full

participation by significant portions of the voting population

in the recall process.

II. The Voting Rights Act and Recall Petitions

Section 203 of the Voting Rights Act requires translation

into the jurisdiction’s minority language(s) whenever a state

11570 PADILLA v. LEVER

or political subdivision “provides any registration or voting

notices, forms, instructions, assistance, or other materials or

information relating to the electoral process, including bal-

lots.” 42 U.S.C. § 1973aa-1a(c). Thus, the essential questions

here are: (1) whether recall petitions are “other materials or

information relating to the electoral process,” and (2) whether

the Orange County Elections Department “provided” the

recall petitions.

As a remedial statute, the Voting Rights Act is to be con-

strued broadly so as to achieve the Act’s objectives. See

Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (“[W]e are

guided by the familiar canon of statutory construction that

remedial legislation should be construed broadly to effectuate

its purposes.”). The Supreme Court has explained that “[t]he

Voting Rights Act was aimed at the subtle, as well as the

obvious, state regulations which have the effect of denying

citizens their right to vote because of their race.” Allen v.

State Bd. of Elections, 393 U.S. 544, 565 (1969) (footnote

omitted). Thus, in Allen, the Supreme Court “reject[ed] a nar-

row construction . . . to § 5 [of the Voting Rights Act]” and

concluded that “the [Voting Rights] Act gives a broad inter-

pretation to the right to vote, recognizing that voting includes

‘all action necessary to make a vote effective.’ ” Id. at 565-66.1

It is this well-established canon of statutory construction that

must guide the analysis here.

1

The Court further explained that

Congress knew that some of the States covered by § 4(b) of the

Act had resorted to the extraordinary stratagem of contriving new

rules of various kinds for the sole purpose of perpetuating voting

discrimination in the face of adverse federal court decrees. Con-

gress had reason to suppose that these States might try similar

maneuvers in the future in order to evade the remedies for voting

discrimination contained in the Act itself.

Id. at 565 n.30 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 335

(1966)).

PADILLA v. LEVER 11571

A. Recall Petitions Are “Voting Materials”

Section 203 defines “voting materials” to “mean[ ] registra-

tion or voting notices, forms, instructions, assistance, or other

materials or information relating to the electoral process,

including ballots.” 42 U.S.C. § 1973aa-1a(b)(3)(A). It does

not, however, define what constitutes “other materials or

information relating to the electoral process.” Id. Where a

statute fails to define a key term, this court’s “duty, in matters

of statutory construction, is to give effect to the intent of Con-

gress.” San Jose Christian Coll. v. City of Morgan Hill, 360

F.3d 1024, 1034 (9th Cir. 2004) (quoting A-Z Int’l v. Phillips,

323 F.3d 1141, 1146 (9th Cir. 2003)). “To this end, ‘it is ele-

mentary that the meaning of a statute must, in the first

instance, be sought in the language in which the act is framed,

and if that is plain, . . . the sole function of the courts is to

enforce it according to its terms.’ ” Id. (quoting Kaplan v. City

of N. Las Vegas, 323 F.3d 1226, 1231-32 (9th Cir. 2003)).

“When a statute does not define a term, a court should con-

strue that term in accordance with its ‘ordinary, contempo-

rary, common meaning.’ ” Id. (quoting A-Z Int’l, 323 F.3d at

1146 (citation omitted)). “Only if an ambiguity exists in the

statute, or when an absurd construction results, does this court

refer to the statute’s legislative history.” Id.

“To determine the ‘plain meaning’ of a term undefined by

a statute, resort to a dictionary is permissible.” Id. Black’s

Law Dictionary defines “related” to mean “to stand in some

relation; to have bearing or concern; to pertain; refer; to bring

into association with or connection with.” Black’s Law Dic-

tionary 1289 (6th ed. 1991). Supreme Court and Ninth Circuit

precedent suggest that this broad definition of “related” is an

appropriate one to use here. See, e.g., Morales v. Trans World

Airlines, 504 U.S. 374, 383 (1992) (noting that ordinary

meaning of “relating to” is “a broad one”); Aloha Islandair

Inc. v. Tseu, 128 F.3d 1301, 1302 (9th Cir. 1997) (“The

phrase ‘relating to’ should be construed broadly to mean ‘has

a connection with or reference to.’ ”). Based on this reading,

11572 PADILLA v. LEVER

recall petitions clearly have some “bearing or concern” and

are “connected with” an election. Indeed, recall petitions

serve no other purpose than to trigger an election. As this

court has explained,

The election itself is merely the culmination of th[e

electoral] process. It includes those acts that a citizen

must perform to establish his eligibility as a voter, as

well as those acts that a candidate must perform to

place his name on the ballot. The range of conduct

“relating to the elector[ ]al process” includes, for

example, compliance by a would-be voter with stat-

utes regulating registration and compliance with

other statutes to place a name or an issue on the bal-

lot. That the state or a political subdivision has man-

dated by law that certain preliminary steps be taken

by the would-be voter, the candidate for office, or

the proponents of an issue does not in any sense

absolve the governmental entity of its responsibility

under the Voting Rights Act. Such compelled acts

are far removed from those voluntarily undertaken

by a candidate, such as the printing of campaign lit-

erature.

Zaldivar, 780 F.2d at 833. Zaldivar rejected “[t]he argument

that a recall notice is only a preliminary step to voting and

therefore is unaffected by the bilingual provisions of the [Vot-

ing Rights] Act.” Id. at 833 n.11.

Looking beyond the statutory text, in the Department of

Justice’s regulations implementing section 203, the U.S.

Attorney General has defined “written materials” to “include,

for example, ballots, sample ballots, informational materials,

and petitions.” 28 C.F.R. § 55.19(a) (emphasis added). While

the Attorney General’s views are not binding on this court,

they are persuasive and bolster the conclusion that recall peti-

tions are “other materials relating to the electoral process.”

Furthermore, it is important to note that courts owe consider-

PADILLA v. LEVER 11573

able deference to the Attorney General’s construction of the

Voting Rights Act, particularly where the language of that

interpretation mirrors the Act’s own language. See United

States v. Sheffield Bd. of Comm’rs, 435 U.S. 110, 131-32

(1978); City of Pleasant Grove v. United States, 479 U.S. 462,

468 (1987) (noting that the Attorney General’s interpretation

of the Voting Rights Act is entitled to considerable deference

and that “Congress was aware of the Attorney General’s view

in this regard, and implicitly approved it, when it reenacted

the Voting Rights Act in 1982”).2 The Attorney General’s

inclusion of the word “petition” in the definition of “written

materials” is consistent with the Justice Department’s position

that the Voting Rights Act’s purpose is to “enable members

of applicable language minority groups to participate effec-

tively in the electoral process.” 28 C.F.R. § 55.2(b).3

2

In Sheffield, the Court explained,

What is perhaps a more compelling argument concerning the

original, and subsequent, congressional understanding of the

scope of § 5 is that the Attorney General has, since the Act was

adopted in 1965, interpreted § 5 as requiring all political units in

designated jurisdictions to preclear proposed voting changes.

This contemporaneous administrative construction of the Act is

persuasive evidence of the original understanding, especially in

light of the extensive role the Attorney General played in drafting

the statute and explaining its operation to Congress. In recogni-

tion of the Attorney General’s key role in the formulation of the

Act, this Court in the past has given great deference to his inter-

pretations of it.

Sheffield Bd. of Comm’rs, 435 U.S. at 131 (footnotes and citations omit-

ted).

3

Defendants argue that these regulations are not a “requirement”

because the same regulations also provide that “[t]he determination of

what is required for compliance with section . . . 203[(c)] is the responsi-

bility of the affected jurisdiction. These guidelines should not be used as

a substitute for analysis and decision by the affected jurisdiction.” 28

C.F.R. § 55.2(c). But, Defendants place too much importance on this lan-

guage. First, nothing in the record suggests that Defendants engaged in

any analysis regarding the applicability of section 203 to the recall petition

in this case. Second, the language cited by Defendants does not diminish

that regulation’s minimum requirement that affected jurisdictions are “re-

quired to publish in the language of the . . . minority group materials dis-

tributed to . . . the electorate generally . . . for example . . . petitions.” 28

C.F.R. § 19(a) (emphasis added).

11574 PADILLA v. LEVER

The district court’s conclusion that the Voting Rights Act

applies only when a vote is cast between two or more alterna-

tive choices relies on too restricted a reading of Congress’s

intent in requiring bilingual voting materials. Such a narrow

reading of this statute is contrary to the general rule that such

remedial statutes are to be broadly construed. See Allen, 393

U.S. at 565-66; see also Tcherepnin, 389 U.S. at 336. The

Supreme Court’s decision in Allen is instructive here. There

the Court concluded that the petition process to place a candi-

date’s name on an electoral ballot constituted a “standard,

practice, or procedure with respect to voting” under section 5

of the Voting Rights Act, 42 U.S.C. § 1973c. Allen, 393 U.S.

at 569-70. The recall petition process is comparable to the

nomination process at issue in Allen as both are preliminary

steps to an election. While we are concerned with section 203

of the Voting Rights Act, the language specifically at issue

here — “materials . . . related to the electoral process,” 42

U.S.C. § 1973aa-1a(c) (emphasis added) — is at least as

broad as that of section 5 — “standard, practice, or procedure

with respect to voting,” 42 U.S.C. § 1973(c) (emphasis added)

— construed by the Court to include the nomination process.

The district court’s reasoning also ignores the simple fact

that recall petitions do implicate a decision between two alter-

natives, i.e., a choice between (1) recalling the officeholder by

signing, and (2) not recalling the officeholder by not signing

the petition. California election law requires that a certain per-

centage of registered voters join in a call to recall an official

by signing a valid, pre-approved petition. See Cal. Elec. Code

§ 11221. An effective way to choose to keep a challenged

incumbent in office is to refuse to sign the proffered petition,

thereby reducing the likelihood that the recall election will

occur.4 Thus, the choice whether to sign or not sign a recall

4

The majority notes that people who circulate recall petitions have an

incentive to “gather as many signatures as they can.” Maj. Op. at 11561.

By the same token, however, signature gatherers have an incentive to

fraudulently induce individuals to sign a recall petition, for political rea-

sons or because their compensation for circulating the petition is based on

the number of signatures gathered. See below, Part IV.

PADILLA v. LEVER 11575

petition can have a tremendous impact on the fate of the

incumbent. Indeed, in the First Amendment context, the right

to vote is inextricably tied to the right to petition and petition

signatures are treated the same as votes for constitutional pur-

poses. See Green v. City of Tucson, 340 F.3d 891, 893 (9th

Cir. 2003); see also Buckley v. Am. Constitutional Law

Found., 525 U.S. 182, 186 (1999) (noting that under First

Amendment, petition circulation “is core political speech

because it involves interactive communication concerning

political change” (internal quotations omitted)); Meyer v.

Grant, 486 U.S. 414, 421 (1988) (“The circulation of an ini-

tiative petition of necessity involves both the expression of a

desire for political change and a discussion of the merits of

the proposed change.”). Given the importance of petitions to

recall procedure, they should be deemed “voting materials”

that a person solicited has a right to understand.

B. “Provided By” the Orange County Elections

Department

Although I believe that recall petitions relate to the recall

process, the recall petitions would only fall under the Act’s

bilingual requirements if they were “provided by” the Orange

County Elections Department. 42 U.S.C. § 1973aa-1a(c).

Because the state’s acquiescence in the content of recall peti-

tions is a condition precedent to its circulation, I believe the

state provides recall petitions to the public.

Recall petitions in California are subject to extensive regu-

lations that go beyond imposing mere ministerial duties upon

election officials. See Cal. Elec. Code § 11000-11047. Under

these regulations, the state, or in this case the Orange County

Elections Department, has the authority and obligation to

authorize and approve the form and content of proposed recall

petitions, verify collected signatures, and set election dates.

See Cal. Elec. Code § 11042, 11043. No signatures may be

collected on a recall petition unless and until the Orange

County Elections Department notifies the petition’s propo-

11576 PADILLA v. LEVER

nents that the form and wording of the proposed petition com-

ply with the Elections Code. See Cal. Elec. Code § 11042(d).

California’s Elections Code mandates a specific format for

recall petitions that must be used by recall proponents. See

Cal. Elec. Code § 11041(a) (“[P]roponents shall use the recall

petition format provided by the Secretary of State.”). While

private persons may print the actual recall petitions, the form

must adhere to the statutory requirements, which regulate the

content and even the typeface to be used on such petitions.

See id. The proponents must file, within ten days of receipt

the recall target’s answer, two blank copies of the recall peti-

tion with the jurisdiction’s election officials. See Cal. Elec.

Code § 11042(a). Election officials are charged with ensuring

that the proposed petition conforms to the requirements of the

Election Code in both form and content. See id. If election

officials determine that a proposed petition does not comply,

they must issue written findings. See Cal. Elec. Code

§ 11042(b). In such cases, officials must notify the proponents

of the alterations necessary for the petition’s approval. See

Cal. Elec. Code § 11042(c).

The Elections Code also dictates the contents of a recall

petition, requiring that each page of the petition include: (1)

a request that an election be called to recall an officeholder;

(2) a copy of the Notice of Intention; (3) a written statement

of the grounds for the recall; (4) the names of at least ten

recall proponents that appear on the Notice of Intention; (5)

any answer filed by the officer sought to be recalled or a state-

ment that the official did not answer; and (6) the name and

title of the officer sought to be recalled. See Cal. Elec. Code

§§ 11020(a)-(d), 11023(a), 11041(a). California election offi-

cials must also approve the content of the recall petition. See

Cal. Elec. Code § 11042(a) (charging election officials with

“ascertain[ing] if the proposed form and wording of the peti-

tion meets the requirements of this chapter” (emphasis

added)). Indeed, recall proponents are statutorily required to

change their recall petition as directed by election officials

PADILLA v. LEVER 11577

until the officials are satisfied that no further alterations are

required. See Cal. Elec. Code § 11042(c).

California law prohibits any private party from circulating

a recall petition until the petition receives state approval. See

Cal. Elec. Code § 11042(d) (“No signature may be affixed to

a recall petition until the elections official or, in the case of

the recall of a state officer, the Secretary of State, has notified

the proponents that the form and wording of the proposed

petition meet the requirements of this chapter.”). Signed peti-

tions must be submitted to the proper election officials for

certification. See Cal. Elec. Code §§ 11222, 11224, 11227. If

enough signatures have been collected, the recall election is

called and scheduled by election officials. See id.

Considering this extensive regulation, I can only conclude

that recall petitions are not the same as fliers or candidate lit-

erature wholly created and controlled by private parties. See

Zaldivar, 780 F.2d at 833 (“That the state or a political subdi-

vision has mandated by law that certain preliminary steps be

taken by the would-be voter, the candidate for office, or the

proponents of an issue does not in any sense absolve the gov-

ernmental entity of its responsibility under the Voting Rights

Act. Such compelled acts are far removed from those volun-

tarily undertaken by a candidate, such as the printing of cam-

paign literature.”). Rather, they are more akin to ballots or

initiative materials that are distributed by voting districts or to

the nomination petition at issue in Allen.

Here, the recall petitions, in English only, were submitted

to the Orange County Elections Department as required by

California law. By reviewing and approving the Recall Peti-

tion for circulation, the Orange County Elections Department

officially sanctioned the content and format of the petition,

including its English-only printing.5 Election officials could

5

Defendants argue that the recall petition was not “provided by” the

Orange County Elections Department because the recall proponents here

11578 PADILLA v. LEVER

have altered the text of the petition or demanded that the

recall proponents publish it in Spanish as well as English, but

chose not to do this and instead approved the petitions in their

English-only form. This state approval, together with the

extensive state regulation of the form of the petitions is suffi-

cient state involvement to trigger application of the bilingual

requirements and to conclude that the state “provided” the

Recall Petition within the meaning of the Voting Rights Act.

III. Relevant Case Law

The majority states that its holding is supported by two out-

of-circuit cases. Maj. Op. at 11560. In the first case, Montero

v. Meyer, 861 F.2d 603 (10th Cir. 1988), the Tenth Circuit

held that initiative petitions do not fall under the Voting

Rights Act’s bilingual requirements. See id. at 609-10. In

Montero, the plaintiffs challenged initiative petitions circu-

lated by members of the Official English Committee seeking

to amend the Colorado Constitution to make English the

state’s official language. See id. at 605. According to the

Tenth Circuit, the “electoral process” did not commence until

a measure qualified for placement on the ballot and signing an

initiative petition was not “voting” within the meaning of the

Voting Rights Act. Id. at 607. The court further held that peti-

tions were not “provided by” the state such as to make the

minority language provisions operable. Id. at 609-10. Rather,

the court reasoned that the state’s actions in approving the ini-

tiative petitions were merely “ministerial” and did not alter

the character of the petitions or render their circulation “state

action.” Id. at 610.

Employing similar reasoning, the Eleventh Circuit reached

the same conclusion in Delgado v. Smith, 861 F.2d 1489 (11th

drafted the petition’s content, with the exception of Lopez’s response. This

seems to take too narrow a view of “provided.” Under such a definition,

ballots would not have to be translated, as the candidates’ names, occupa-

tions, and political party affiliations are not drafted by the state, but rather

only “ministerially” assembled onto the ballot.

PADILLA v. LEVER 11579

Cir. 1988). Like Montero, Delgado also involved a proposed

citizen initiative to make English the official language of

Florida. See id. at 1491. The court concluded that the Voting

Rights Act did not apply because Congress did not intend the

bilingual requirements to apply to private citizens. See id. at

1492. In addition, Florida election officials’ involvement in

approving the initiatives was “ministerial” and did not consti-

tute “state action.” See id. at 1495-96. Thus, the initiative to

amend Florida’s Constitution to make English the state’s offi-

cial language did not require translation into minority lan-

guages under the Voting Rights Act. See id. at 1498.

Those two cases are readily distinguishable from the instant

case. First, California’s statutory scheme is more stringent

than those in Colorado or Florida, making the Orange County

Elections Department’s approval of the Recall Petition more

than “merely ministerial.” Neither Florida’s nor Colorado’s

statutory and regulatory schemes governing initiative petitions

are structurally equivalent to California’s scheme. For exam-

ple, under Florida law, Florida election officials are limited to

verifying only that a proposed initiative petition complies

with applicable format requirements; the regulations do not

provide for a review of the petition’s contents. See Fla.

Admin. Code Ann. r. 1S-2.009(1) (“The Division shall review

the form for sufficiency of the format only.”). In contrast,

California election officials are charged with authorizing and

approving the form and content of the recall petition. See Cal.

Elec. Code § 11042(a) (charging election officials with “as-

certain[ing] if the proposed form and wording of the petition

meets the requirements of this chapter”) (emphasis added).

While Colorado empowers election officials to suggest

revisions to a petition’s content, such revisions are merely

suggestions: recommendations made regarding format or con-

tent are discretionary to the petitioner. See Colo. Rev. Stat.

§ 1-40-105(2) (“[T]he proponents may amend the petition in

response to some or all of the comments of the directors of

the legislative council and the office of legislative legal ser-

11580 PADILLA v. LEVER

vices, or their designees.”) (emphasis added). Unlike Colo-

rado, California recall proponents are statutorily required to

alter their recall petition as directed by election officials until

those officials are satisfied that no further alterations are

required. Compare Cal. Elec. Code § 11042(a), (c), with Colo.

Rev. Stat. § 1-40-105(2).

Not only are the cases distinguishable, but they demon-

strate the problem with excluding pre-election petitions from

section 203’s requirements for translation. Both Montero and

Delgado concerned petitions to qualify English-only initia-

tives to amend their respective state constitutions. These cases

ironically excluded limited-English proficient voters from

knowledgeably deciding whether to sign a petition for a ballot

which sought to enshrine an English-only requirement into

their state constitutions. Such a result cannot be what Con-

gress intended when it enacted section 203 to remedy past

language discrimination in voting practices by enforcing the

guarantees of the Fourteenth and Fifteenth Amendments to

the Constitution and to ensure that citizens of language minor-

ities are no longer effectively excluded from full participation

in the electoral process. See 42 U.S.C. § 1973aa-1a(a).

IV. Fraud

It is important to emphasize the fraud that occurred in this

case. Here, the recall proponents disingenuously claimed that

those who signed the petition would receive information

about Nativo Lopez, a school board member. Instead, those

voters were signing a petition to recall Lopez. Because the

petition’s signers were limited-English proficient voters, they

were unable to determine whether they were being deceived.

Fraud-prevention lies at the heart of the Voting Rights Act

because the Act ensures that all voters — including minority

language speakers — have equal opportunities to understand

voting materials. The majority minimizes this problem, sug-

gesting that other means of remedying petition fraud exist.

PADILLA v. LEVER 11581

Maj. Op. at 11562. But the fact that multiple remedies exist

does not mean Congress did not intend section 203 to remedy

fraud. Moreover, the majority’s suggestion that every

deceived signer may rescind his or her signature and report

the incident, as one voter did in this case, is unworkable. That

“remedy” assumes that the non-English speaker would at

some point recognize that he or she had been tricked, which

seems unlikely except in rare occasions. Furthermore, imag-

ine the havoc it would wreak on election results and voter

confidence to have entire elections questioned months, if not

years, after an elected official took office because of fraudu-

lently induced petition signatures. It is clearly preferable to

avoid such problems before actual recall and initiative elec-

tions by taking the simple step of ensuring that all voters have

equal access to information and are protected from the sort of

discriminatory practices and exclusions the Voting Rights Act

was designed to prevent.

This case demonstrates why section 203 must be inter-

preted to require the translation of petitions. Congress has rec-

ognized that “without a federal mandate, much needed

bilingual assistance in the voting process, meant to ensure the

guarantees of the Fourteenth and Fifteenth Amendments, may

disappear.” H.R. Rep. No. 102-655, at 3 (emphasis added).

Certainly the “discrimination . . . encountered by these minor-

ity language populations” that the Voting Rights Act was

enacted to remedy includes fraud perpetrated on minority lan-

guage voters at all stages of the electoral process. Id. The Vot-

ing Rights Act should serve to prevent the class of fraud that

occurred in this case.

We cannot catalogue every deceptive method used by sig-

nature 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. As a

broad remedial provision, section 203 should not be a tool to

help recall or initiative proponents perpetrate deception.

11582 PADILLA v. LEVER

V. Chilling Effect

The majority and Defendants speculate about a hypotheti-

cal chilling effect that requiring petitions to be translated

would have on petition proponents. Maj. Op. at 11562-63.

Increased costs, however, are a secondary concern in the

realm of the Voting Rights Act. Certainly Congress knew

there would be costs of translation when it enacted section

203. But that 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.

See 42 U.S.C. § 1973aa-1a. Such translation costs are a bur-

den we must bear as members of a diverse, multilingual soci-

ety.

Further, it is not clear to me that the costs of translation

would actually deter groups from circulating their petitions.

The statement on a recall petition is subject to a maximum of

200 words. See Cal. Elec. Code § 11020(b). I find it hard to

believe that the “expense and trouble” of translating 200

words would be enough to discourage recall proponents.

Moreover, states or political subdivisions subject to section

203 are necessarily areas with significant minority language

populations and already have systems in place through which

other voting materials are translated. I do not believe that a

slightly increased financial burden should outweigh the right

of every voter to participate in the electoral process, or that

this is a sufficient reason to justify leaving limited-English

proficient voters in the dark about the petitions they are solic-

ited to sign. In short, I am not swayed by an unseen and

unproven chilling effect that a petition translation requirement

would cause.

CONCLUSION

“[T]he purpose of the bilingual provisions of the [Voting

Rights] Act is to end the language disability of some citizens

PADILLA v. LEVER 11583

to full participation in the electoral process; and to this end,

the Act requires information relating to the electoral process

to be brought to their attention in both English and the minor-

ity language.” Zaldivar, 780 F.2d at 833. 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.

Accordingly, I believe that section 203 of the Voting Rights

Act must apply to recall petitions circulated pursuant to Cali-

fornia law. I therefore dissent.