Ninth Circuit Decides Interesting Voting Rights Case Apparently Requiring that Recall and Initiative Petitions Be in Multiple Languages, Creating a Circuit Split

In Padilla v. Lever, a Ninth Circuit panel held 2-1 (opinion by Judge Pregerson; dissent by Judge Canby) that circulators of recall petitions in California may be compelled by Section 203 of the Voting Rights Act to provide recall petitions in Spanish. Petitioners alleged that Spanish-speaking voters were misled into signing recall petitions through a misrepresentation about the petition's contents.

The statutory questions in the case are interesting (I see reasonable arguments on both sides), but the consequences of the case are far-reaching and suggest to me that Judge Canby may have the better of the argument. The ruling appears to apply to initiative petitions as well as recall petitions. Judge Canby, in dissent, writes:

The downside of application of [section 203] to initiative and recall petitions is the chilling effect on recalls and initiatives. As the defendants point out, if the Voting Rights Act were to be applied to recall petitions for an office of Orange County, California, petitions would have to be presented in English, Spanish, Vietnamese, Korean and Chinese. It is not at all clear who is to bear the expense of such translation and printing; presumably it would be those who seek the recall. Even aside from the expense, the sheer burdensomeness of the effort is likely to chill petition campaigns and make their success extremely unlikely.

Two other circuits have ruled contrary to the Ninth Circuit. Montero v. Meyre, 861 F.2d 603 (10th Cir. 1988); Delgado v. Smith, 861 F.2d 1489 (11th Cir. 1988).
I will go out on a limb and predict that this case gets reconsidered either by the panel or through the en banc process. The case also is likely to garner the attention of Congress as it considers renewal of provisions of the Voting Rights Act including section 203.

Posted by Rick Hasen at November 23, 2005 11:42 AM