Mark Scarberry's idea is very creative, and no one on
this list had previously expressed it.
I also had an idea, which is: why aren't candidate
petitions also now required to be in other languages?
Although California petitioning for the primary is now
over, there are potentially petitions to be a write-in
candidate in the June 2006 primary (due in late May
2006), and independent candidate petitions that
circulate between April and August 2006. They are all
state forms and are not in foreign languages. There
also petitions to create a new party, although it's
too late for those, this year.
--- "Scarberry, Mark" <Mark.Scarberry@pepperdine.edu>
wrote:
I haven't been following this very closely, and thus
someone may already
have dealt with this question (or perhaps it's dealt
with in the Ninth
Circuit opinion). But I wonder how the Ninth
Circuit's view fits with the
reality that many initiative petitions are for the
purpose of proposing a
law (an initiative statute or state constitutional
amendment), and the law
must be in English. The initiative, if successful,
will not result in a law
that is both in English and Spanish, unless that is
the next logical step
for the Ninth Circuit to require...
Thus presentation of a Spanish version of the
petition to a registered voter
for signature is not the presentation of the actual
language of the law that
the petition circulator seeks to have enacted. I
suppose I can see that an
explanation of the proposed statutory or
constitutional language might be
required to be in both languages, and I suppose a
translation of the
statutory or constitutional language itself might be
useful, if prominently
labeled "translation, not the official text of the
proposed law."
Mark Scarberry
Pepperdine
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
To: Rick Hasen
Cc: election-law
Sent: 4/5/2006 11:53 AM
Subject: Re: ruling in Monterey initiative case
corrected link is here:
http://electionlawblog.org/archives/005334.html
<http://electionlawblog.org/archives/005334.html>
Rick Hasen wrote:
http://electionlawblog.org/archives/005333.html
<http://electionlawblog.org/archives/005333.html>
Breaking News: Ninth Circuit Denies Order in
Monterey Case; Stays
Briefing Pending Resolution of Padilla En Banc Order
I have posted the Court's two page order here
<http://electionlawblog.org/archives/monterey-9th-order.pdf>
. The court
accepted my amicus
<http://electionlawblog.org/archives/hasen-monterey-9th.pdf>
letter and
another amicus letter for filing, and then denied
the motion of
plaintiffs, which would have had the effect of
putting the Monterey
initiative back on the ballot. The court, in an
order from Judges
Kozinski and Rymer, then wrote:
This court's decision in Padilla v. Lever, 429 F.3d
910 (9th
Cir. 2005), is currently under consideration for
rehearing en banc.
Briefing in this appeal shall be stayed pending the
resolution of the
petition for rehearing en banc in Padilla. If this
court denies the
petition for rehearing en banc, the Clerk will
establish a new briefing
schedule in this appeal. If this court grants the
petition for rehearing
en banc in Padilla, the briefing schedule in this
appeal shall be stayed
pending a decision of the en banc court in Padilla.
This of course is bad news for the initiative
proponents in Monterey,
but what is its broader significance? Perhaps the
court is about to
grant rehearing en banc in Padilla (and at least we
know that Padilla
now has the attention of two judges in the Ninth
Circuit who care about
grants in en banc cases), which would have the
effect of wiping out the
panel decision. See Circuit
<http://www.ca9.uscourts.gov/ca9/Documents.nsf/3dffd4075d235586882566c20
007d3c4/6e3403b781251464882566d0007b9f77/$FILE/FRAP_0404_complete.pdf>
Advisory Committee Note to Rules 35-1-35-3: if court
grants rehearing en
banc, "The three-judge panel decision shall not be
cited as precedent by
or to this court or any district court of the Ninth
Circuit, except to
the extent allowed by the en banc court."
While the grant of en banc in Padilla would not
preclude a district
court judge from holding, as the district court did
in the Monterey
case, that initiative or recall petitions must be in
multiple languages
to comply with section 203 of the Voting Rights Act,
I would think that
judges would be much less likely to do so with no
(citable) appellate
court precedent so holding, and two cases from other
circuits reaching
the contrary conclusion. At the very least, the
grant of en banc
rehearing in Padilla would signal to lower court
judges that a number of
Ninth Circuit judges have serious questions about
the three-judge panel
ruling.
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu <mailto:rick.hasen@lls.edu>
http://www.lls.edu/academics/faculty/hasen.html
<http://www.lls.edu/academics/faculty/hasen.html>
http://electionlawblog.org
<http://electionlawblog.org>
--
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA 90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu <mailto:rick.hasen@lls.edu>
http://www.lls.edu/academics/faculty/hasen.html
<http://www.lls.edu/academics/faculty/hasen.html>
http://electionlawblog.org
<http://electionlawblog.org>
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