Putting a chill on the initiative process

A LITTLE-NOTICED ruling from the U.S. 9th Circuit Court of Appeals last month threatens to throw a monkey wrench into California's initiative process, and it has already been used by City Council members in Rosemead to block a recall election. The court should reconsider the case, and in the meantime indicate that its ruling does not apply to recall and initiative petitions already in circulation at the time of the court's decision in late November.

In Padilla vs. Lever, the court held that Orange County election officials had a legal responsibility to ensure that petitions seeking to recall a Santa Ana school board official were available in both English and Spanish, so as to comply with the Voting Rights Act. That law requires that certain jurisdictions with large populations of non-English speakers must provide all voting materials in English as well as the language of the protected minority group.

The Padilla ruling says that recall petitions -- which are prepared by private parties but subject to approval as to form by local election authorities -- counted as materials "provided" by elections officials and therefore are subject to the Voting Rights Act.

Under this reasoning, initiative petitions also should be subject to the bilingual provisions.

As a matter of statutory interpretation, the majority's opinion is debatable. It might just as reasonably have concluded that these materials are prepared privately and therefore are not "provided" by elections officials. It is no surprise that two other courts reached contrary opinions.

But putting aside the question of the statute's meaning, the interpretation could put a damper on important political activity.

As Judge William C. Canby noted in his dissent: "The downside ... 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."