April 4, 2006 – Ruling on petitions could crimp direct democracy

April 4, 2006 "Ruling on petitions could crimp direct democracy"

SECTION: EDITORIALS; Pg. B7
LENGTH: 897 words
HEADLINE: Ruling on petitions could crimp direct democracy
BYLINE: Daniel Weintraub

BODY:
California's system of direct democracy could be threatened by a recent federal court decision concluding that the federal Voting Rights Act requires petitions circulated by private citizens to be translated into foreign languages.

The decision got little notice when it was rendered by a three-judge panel of the 9th U.S. Circuit Court of Appeals last year, in part because the election on which it was based had long since been completed and was not overturned.

But now lower courts and local officials are applying the ruling with controversial consequences.

In Rosemead, east of Los Angeles, the City Council last year blocked a recall election against two of its members after finding that the petitions circulated to prompt the election should have been translated into Spanish.

Last month, the Monterey County Board of Supervisors, using the same reasoning, pulled from the ballot a citizen initiative that sought to overturn the board's approval of a 671-unit subdivision and golf course near Salinas.

And in Loma Linda, in San Bernardino County, a federal judge ruled last week that a citizen initiative to preserve open space was invalid because it was circulated only in English.

No one has yet challenged a statewide ballot measure on these grounds, but that seems inevitable. And if the 9th Circuit's ruling applies to those cases as well, initiative and recall petitions will have to be translated into several languages depending on the demographic makeup of the community in which they are circulated. Richard Hasen, a Loyola Law School professor who has followed the case closely, wrote the Court of Appeals last week urging it to block the ruling from taking effect lest it "wreak havoc" on the state's June and November elections.

All of this stems from a decision last November written by Judge Harry Pregerson, the same jurist who, in September 2003, briefly blocked the recall election of former Gov. Gray Davis on grounds that punch card voting systems then used in several counties were flawed. A larger panel of the appeals court quickly overturned that decision, and the election went on as scheduled.

The 2002 recall of Nativo Lopez, a Santa Ana Unified School District trustee, offers the basis for the latest case. The recall movement was driven largely by Latino parents who believed Lopez was improperly blocking the implementation of a voter-approved state law requiring students to be taught primarily in English.

A lawsuit filed by Lopez supporters whose primary language was Spanish alleged that the recall petitions violated the federal Voting Rights Act of 1965 because they were printed only in English.

The plaintiffs claimed they had signed the petitions without realizing that they could lead to the removal of Lopez from office.

A district court judge threw out the suit. But in overturning that decision, the Pregerson panel, in a 2-1 decision, found that the recall petitions fell under a provision of the Voting Rights Act that required translation of election-related materials provided by the government in jurisdictions where large numbers of voters do not speak English.

Other federal courts, in cases in Colorado and Florida, had found that the act did not apply because citizen petitions, unlike voter pamphlets and ballots, were not materials "provided by" the government.

Pregerson, however, ruled that in California, state law requires elections officials to review not only the form but also the content of petitions, making them quasi-government documents. To circulate them only in English, he wrote, would "deny minority language speakers the right to fully participate in the electoral process."

Under the ruling, petitions would have to be translated whenever 10,000 citizens of voting age, or 5 percent of the voting-age citizen population in any jurisdiction, were members of a single-language minority, and the illiteracy rate of citizens in that group was higher than the national illiteracy rate.

In Orange County, and many places in California, petitions would have to be circulated in English, Spanish, Vietnamese, Korean and Chinese. If the rule on 10,000 citizens was held to apply to the state as a whole as a single jurisdiction, petitions might have to be provided in even more languages.

It's not clear if the ruling can even be followed under current California law, which requires that recall petitions include a statement of intent and a response from the target of the recall on the same page on which signatures are gathered.

In a dissent, Judge William C. Canby Jr. argued that the ruling, rather than broadening access to the electoral process, would likely reduce it. He said the logic of the majority in the case was "inherently perverse" because petition circulators already have every incentive to reach as many voters as possible while denying no one the right to sign their measures. If, as was argued in this case, a few voters claim they were misled into signing petitions they opposed, Canby wrote, that potential problem ought to be addressed without burdening all signature-gatherers with new language requirements.

At the moment, though, the ruling stands, ticking like a political time bomb waiting to explode California's love affair with the initiative process.

The Bee's Daniel Weintraub can be reached at (916) 321-1914 or at dweintraub@sacbee.com.
Readers can see his daily Weblog at www.sacbee.com/insider

NOTES: COMMENTARY