What Happens to Monterey Initiative Kicked Off the Ballot Under the Authority of the Padilla v. Lever Case?

This Monterey Herald report about the unexpected (and poorly timed) resignation of Monterey County Registrar of Voters Tony Anchundo also notes the following:

    Anchundo has been thrust in the middle of several complex and emotionally charged land-use issues during the past several months.
    The controversy revolves around two ballot initiatives — the first a community-inspired General Plan, the second a challenge to supervisors’ approval of a subdivision north of Salinas — and the fact that supporters of the initiatives failed to circulate Spanish-language versions of the ballot measures while gathering signatures.
    Both proposals are knocking around federal court.
    Initiative proponents easily gathered enough signatures to qualify their measure for the June ballot, but the Board of Supervisors refused to place the issues on the ballot, citing the Voting Rights Act.
    Even as news of Anchundo’s resignation stunned county officials, they learned Friday that the Community General Plan Initiative may have new life after the 9th Circuit Court of Appeals in San Francisco ordered a new hearing in a case that led to a district court ruling removing the initiative from the ballot.
    Thursday’s ruling could revive Measure C, the ballot measure intended to overturn county approval of the 671-acre Butterfly Village project north of Salinas.
    A three-judge panel in the appellate court ruled last fall that petitions and other materials related to ballot measures could not be limited to English in most California counties. Because the General Plan Initiative materials were not translated into Spanish, U.S. District Judge James Ware last month pulled the measure from the June ballot, citing the 2-1 appeals court ruling known as Padilla v. Lever. Monterey County supervisors followed suit by removing Measure C from the ballot on the same basis.
    On Thursday, Chief Judge Mary Schroeder of the court of appeal ordered that the Padilla case be heard again by an 11-judge panel and that the earlier decision not be used as precedent to decide other voting-rights cases.
    There was no indication when the hearing might be scheduled, though the California Attorney General’s Office and other government bodies have been pushing for a rehearing as soon as possible because the Padilla decision has confused the status of several potential ballot measures.
    LandWatch Monterey County, one of the key groups behind the slow-growth Community General Plan Initiative, has said it was hoping for a rehearing in time to get the measure on the November ballot.

Perhaps I’m reading the article wrong, but it sounds like the Monterey opponents want a rehearing in Padilla v. Lever and an opinion issued there before they go back to Judge Ware asking for him to reconsider his order. I’m not sure that this is necessary. As I’ve noted, the grant of en banc rehearing in the Padilla case wipes the precedent off the books. Why not make a motion to Judge Ware now, saying that there is no Ninth Circuit authority holding that recall petitions (or initiative petitions) must comply with section 203 of the Voting Rights Act, and two Court of Appeals cases from other circuits hold to the contrary as to initiative petitions?
By the way, the amicus letter I sought to file in the Ninth Circuit supporting en banc rehearing in Padilla was rejected as untimely by the court.
UPDATE:
John A. Ramirez writes:

    With respect to your post re the Landwatch measure, you do know there is a final judgment and an appeal has been filed — correct? The trial court no longer has any jdx over the case and hence could not take any action at this point. Thus, your suggestion in your post is unworkable.

When I wrote this post, I did not realize that the Monterey case was litigated to final judgment. I had thought it was up on a preliminary injunction. This creates some very interesting procedural problems now.

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