Padilla v. Lever

463 F.3d 1046, 2006 WL 2671059
Court of Appeals for the Ninth Circuit·Decided September 18, 2006·No. 03-56259·Published·Cited by 17 cases

Opinions

CANBY, Circuit Judge:

A provision of the federal Voting Rights Act, 42 U.S.C. § 1973aa-la(c), requires that, in certain States with substantial linguistic minority populations of voting age, election materials must be provided in the applicable minority languages as well as English. This requirement applies to any covered State or political subdivision that “provides any ... materials or information relating to the electoral process.” Id. (emphasis added). The question presented by this appeal is whether this requirement attaches to recall petitions initiated, circulated and paid for by private proponents of a recall, when the proponents are required to draft the petitions in a form specified by the State and county.

We conclude that § 1973aa-la(e) does not apply to such recall petitions because they are not “provide[d]” by the State or its subdivision. We therefore affirm the judgment of the district court, which rejected the plaintiffs’ challenge to a recall election triggered by petitions circulated only in English.

BACKGROUND

The recall petitions at issue were initiated by defendant Vivian Martinez and others, who sought to recall Santa Ana Unified School District Board Member Na-tivo Lopez. Pursuant to California Elections Code section 11000 et seq., the proponents drafted and printed (in English) a Notice of Intention to Circulate Recall Petition, which included a statement of the grounds for recall. The proponents filed the Notice with the Orange County Registration and Elections Department and a copy was served on Lopez. In response, Lopez filed an Answer (also in English) with the County Elections Department and served copies on the recall proponents.

The recall proponents then drafted a recall petition in accordance with the California Elections Code and the regulations of the California Secretary of State. The recall petition included a request to hold an election to replace Lopez, the Notice of Intention (including a statement of the reasons for the recall), and Lopez’s Answer. Except for Lopez’s Answer (which he drafted), the recall proponents drafted the contents of the Recall Petition, adhering to the requirements and format specified by the Secretary of State. This draft petition was in English only.

As required by Cal. Elec.Code § 11042, the recall proponents filed two blank copies of the Recall Petition with the Orange County Elections Department, along with a proof of publication of the Notice of Intention, for election officials to ascertain whether the recall petition conformed to the proper format and applicable election law. See Cal. Elec.Code § 11042(a)-(b). The County Elections Department reviewed the proposed form and wording of the petition and concluded that it conformed to the requirements of the California Election Code. They accordingly authorized circulation of the petitions. They required no translation, and the authorized petition was printed only in English. The final petitions, also in English, were printed at the proponents’ expense.

In April 2002, the proponents began collecting signatures and in September 2002 they submitted the signed petitions to the County Elections Board, which verified the signatures and certified that enough signatures had been collected to precipitate an election. The School District then set a recall election for February 4, 2003.

[1049] On December 12, 2002, however, the plaintiffs entered the picture. They are registered voters and residents of the School District whose primary language is Spanish. They filed this action seeking injunctive and declaratory relief against Martinez and the County officials charged with overseeing the recall election. The complaint alleged that the recall petitions did not comply with § 1973aa-la(c) of the Voting Rights Act because they had not been translated into Spanish. The plaintiffs sought an injunction prohibiting the defendant officials from taking any steps to proceed with the recall election and requiring translation of the recall petition into Spanish.

The plaintiffs alleged that they signed the petitions because the circulators misrepresented the petitions’ nature, and the plaintiffs could not fully understand the petitions firsthand because they were printed only in English.

The plaintiffs sought a temporary restraining order to prevent the election, and the district court denied that motion on December 24, 2002. The plaintiffs moved for a preliminary injunction, which the district court denied on January 10, 2003. The plaintiffs appealed and sought to prevent the election by filing an emergency motion for injunction pending appeal, which this court denied on January 30, 2003. The election took place as scheduled on February 4, 2003, and the plaintiffs then voluntarily dismissed their appeal of the denial of the preliminary injunction. On February 21, 2003, the district court granted defendant Martinez’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Finally, on June 16, 2003, the district court granted the county defendants’ motion for judgment on the pleadings. The plaintiffs appealed.

DISCUSSION

1. Mootness.

The plaintiffs concede that their claim for injunctive relief has become moot. The recall election has occurred, and the term of office filled by that election has expired. The plaintiffs contend, however, that their claim for declaratory relief is not moot. We conclude that they are correct.

The plaintiffs seek a declaration that the Voting Rights Act was violated when the proponents were permitted to, and did, circulate petitions printed only in English. It is too late, of course, for the declaration to have any effect on the recall petitions for the election of February 4, 2003. The plaintiffs’ claim for declaratory relief, however, falls classically into that category of cases that survive mootness challenges because they are “ ‘capable of repetition, yet evading review.’ ” Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (quoting Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911)). That exception applies when “(1) the duration of the challenged action is too short to allow full litigation before it ceases, and (2) there is a reas'onable expectation that the plaintiffs will be subjected to it again.” Greenpeace Action v. Franklin, 14 F.3d 1324, 1329 (9th Cir.1992).

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Padilla v. Lever, 463 F.3d 1046, 2006 WL 2671059 (9th Cir. 2006).

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