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.