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 Bringing the Ninth Circuit into Line: Voting Rights Act Minority Language Requirements Do Not Apply to Privately Circulated Petitions

 By Wendy J. Phillips

Wendy J. Phillips is a deputy county counsel in the Office of the County Counsel for the County of Orange, California. Ms. Phillips briefed and argued Padilla v. Lever to the en banc panel.

In the case of Padilla v. Lever, 463 F.3d 1046 (9th Cir. 2006), the court considered whether privately circulated recall petitions must comply with the minority language requirements (MLR) of the Voting Rights Act of 1965 (VRA). Under the VRA, certain “covered” jurisdictions must conduct elections, provide materials, and assist voters in languages other than English. 42 U.S.C. § 1973aa-1a. Nationally, at least twenty-eight states have jurisdictions “covered” by the MLR. See 28 C.F.R. pt. 55 app. for a list of states and counties that must conduct elections in multiple languages.

A jurisdiction is required to conduct an election in languages other than English when the number of U.S. citizens of voting age in a single language group within the jurisdiction is

• more than 10,000; or

• is more than 5 percent of all voting age citizens; or

• on an Indian reservation, exceeds 5 percent of all reservation residents; and

• the illiteracy rate of the group is higher than the national illiteracy rate.

At issue in Padilla was the recall election of a school board member. Plaintiffs sought declaratory and injunctive relief and wanted to enjoin the recall election claiming that because the recall petitions had not been circulated in the five languages required within Orange County, California, that the petitions were invalid and the election illegal. The district court disagreed. Relying on two sister circuit decisions, which held the Voting Rights Act did not apply to privately circulated petitions because such petitions were not “provided by” the state nor were they “voting materials,” the district court declined to enjoin the recall election. Montero v. Meyer, 861 F.2d 603, 609–10 (10th Cir. 1988) (considering an initiative petition in Colorado); Delgado v. Smith, 861 F.2d 1489, 1496 (11th Cir. 1988) (considering an initiative petition in Florida). The district court dismissed the case on a 12(c) motion. Plaintiffs appealed.

In a 2–1 decision, the original three-judge panel of the Ninth Circuit issued a decision overturning the district court. In holding that the VRA does apply to recall petitions circulated by private citizens, the court found that the involvement of the elections officials was more than ministerial in nature because, for instance, the elections officials were required to approve the form and wording of the petition before it was circulated. Padilla v. Lever, 429 F.3d 910, 917 (9th Cir. 2005) (depublished by grant of en banc review). The original decision distinguished Padilla from Delgado and Montero claiming that the statutory constructs at issue were different, thus requiring a different result in Padilla. Id. at 917–18. The County of Orange petitioned for en banc rehearing based upon the conflict between Padilla and Delgado and Montero.

Upon rehearing, the en banc panel, like the Delgado and Montero courts, concluded that recall petitions are not “provided by” the state, but rather by private citizens, so the requirements of the VRA do not apply. Padilla, 463 F.3d at 1048. The Padilla decision is also in accord with the legislative intent recently expressed by Congress when the MLR was under consideration for renewal. Congress extended the MLR for twenty-five years when it passed H.R.9, which was signed by the President in July 2006. The House Judiciary Committee report, following hearings on H.R.9, noted that petitions that are initiated and distributed by private citizens are excluded from the MLR. H.R. Rep. No.109-478, at 73.