21. In 1974 Proposition 9 was adopted and effected a change in recall election procedures so as, inter alia, to allow for the circulation of a recall petition within 180 days of the election and inauguration of the Governor. Said change constituted a change in voting standards, practices or procedures different from those in force or effect on November 1, 1968, in Monterey County, within the meaning of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.
22. Sections 15 and 17 of Article II of the California Constitution provide that, in the event of a gubernatorial recall election, the Lieutenant Governor shall set the date of the election not less than 60 days nor more than 80 days from the date of certification of sufficient signatures. As such, an election to recall the governor is a “special election” within the meaning of 28 C.F.R. § 51.17(a), and the setting of the date of such an election is a “discretionary setting of the date for a special election” within the meaning of 28 C.F.R. § 51.17(b), and as such the setting of the Recall Election date is subject to the preclearance requirement of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.
23. Pursuant to 28 C.F.R. § 51.17(a), the conduct of a special election “is subject to the preclearance requirement to the extent that the jurisdiction makes changes in the practices or procedures to be followed.” Id. Plaintiffs are informed and believe that Defendants have made and are making changes in the practices and procedures to be followed in the Recall Election, including but not limited to one or more of the following: (a) to the extent polling places are used, consolidating precincts and otherwise reducing the number of polling places, (b) not circulating sample ballots as far in advance of the election as previously was the practice, (c) not making as many multi-lingual sample ballots, ballots and other materials available as previously provided, and (d) initiating other voting changes resulting from the abbreviated election schedule involving the number of polling places, consolidation of voting precincts, and assignment of election personnel to administer this election.
24. Based on information and belief, Defendants have not received preclearance under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, from either the United States Attorney General or the United States District Court for the District of Columbia, for any change in recall election procedures reflected in Proposition 9, or for the setting of the date of the Recall Election or for any of the other changes in the conduct of the Recall Election.
25. The failure of Defendants to secure a determination from either the United States Attorney General or the United States District Court for the District of Columbia that the various changes in recall election procedures and the setting of the Recall Election date do not have the purpose and do not have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, constitutes a violation of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.
26. The failure of Defendants to secure a determination from either the United States Attorney General or the United States District Court for the District of Columbia that the various changes in recall election procedures and the setting of the Recall Election date do not have the purpose and do not have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, renders the implementation of these changes legally unenforceable.

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Professor Rick Hasen
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-0019
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlaw.blogspot.com