http://electionlawblog.org/archives/005243.html

Federal District Courty Enjoins Monterey Initiative on Grounds that Initiative Petitions Were Not Circulated in English and Spanish, Thereby Violating the Voting Rights Act

Here is the decision in "In Re County of Monterey Initiative Matter." It follows the Ninth Circuit's controversial decision in Padilla v. Lever holding that recall petitions must be circulated in languages other than English to comply with the language provisions of the Voting Rights Act. Judge Ware wrote in his decision:

This Court finds that the Padilla court's rationale with respect to recall petitions applies equally and perhaps more strongly to California initiative petitions because of the extensive County's involvement in the initiative process. As noted above, the critical factor for the satisfaction of this prong with respect to recall petitions was the fact that, under California law, such petitions are reviewed by County agencies, which have some authority to require changes to their contents in order to bring them into compliance with state law. With respect to initiative petitions, the authority of local agencies is even greater. County elections officials not only review them, they draft a portion that is critical to the public's understanding of them. The Title and Summary play a central role in California's initiative process. Moreover, like the recall petitions, the County controls the format in which initiative petitions are printed. For example, the Election Code mandates that the Title and Summary appear on across the top of each page of the petition, in roman boldface type not smaller than 12 point and that the text of the measure shall be printed in type not smaller than 8 point. The Ninth Circuit determined that these requirements for recall petitions constitute "extensive regulation." Accordingly, this Court finds that the County's control of form and content of initiative petitions constitute extensive regulation and are thus not the "same as fliers or candidate literature" but rather, are "akin to ballots or initiative materials that are distributed by voting districts." Padilla, 429 F.2d at 923.

Even beyond Padilla's core two-prong analysis, other aspects of the opinion also indicate that its holding would apply fully to initiative petitions. First, in reaching its conclusion, the Padilla court expressly distinguished two cases from other circuits--ontero v. Meyer, 861 F.2d 603 (10th Cir. 1988), and Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1988)--each of which held that the requirements of Section 203 did not apply to initiative petitions circulated in the states in which they arose. In distinguishing the cases, the Ninth Circuit had an opportunity to state that the Voting Rights Act did not apply at all to initiatives. It did not do so, but distinguished the cases on the
grounds that the initiative processes in those states were different from the recall process in California.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
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