 history of U.S. Capitol. This is C-SPAN's America and the Courts. The Ninth Circuit Court of Appeals heard oral argument in Padilla v. Lever on Thursday, June 22 in San Francisco. The court will decide if Orange County election officials violated the Voting Rights Act by not providing petitions for the recall of a local school board member in English and Spanish. In November 2005, a Ninth Circuit three-judge panel ruled that election officials violated the bilingual requirements of the Voting Rights Act. The full circuit court is reviewing that decision now. Good morning, ladies and gentlemen. This is the time for argument in the re-hearing on bank in the case of Padilla v. Lever. We understand that council is ready to present argument that judges Gould and Fisher are with us by telephone and Judge Berzon is not available for this argument but we have a good group here. And we will proceed to hear the case. Ms. Perales, if you may proceed. Thank you, Your Honor. May it please the court. My name is Nina Perales. I represent plaintiffs of Pallets, Padilla, Sanchez, and Andrade. I'd like to reserve five minutes of my time for rebuttal, if I may. The question before the court is whether Section 203 of the Voting Rights Act applies to that part of the electoral process in which registered voters decide whether to place on the ballot the recall of an elected official. The question is primarily one of statutory interpretation. Section 203 requires that voters be allowed to read and consider a translated recall petition form for three reasons. First, the act of deciding whether a recall will go on the ballot is reserved exclusively to registered voters and is an integral part of the electoral process in a direct democracy system. Second, the state's heavy involvement in dictating the form's content and structure means that it is provided by the state. And third, when you read Section 203 in the context of the Voting Rights Act, you can see that Congress intended it to be read broadly to achieve its remedial purposes. I'm Ms. Perales. Is this case moved by virtue of the fact that the election has already been conducted? The school board member has been recalled and reported this morning to take his place. Well, what relief can we possibly award at this point to the plaintiff? At this point, the plaintiff's appellants seek declaratory relief. The claim for injunctive relief is moot because a subsequent election has already been held. But with respect to the claim for declaratory relief, because the issue is likely to arise again, it is capable of repetition, yet evading review. But how does that address the relief that the plaintiff is seeking? The plaintiffs are seeking... I mean, you asked at the first that the election be stopped, and are you asking us to overturn the result of the recall election, direct the removal of the replacement from the school board and order a new election with fully translated materials? No, Your Honor, we are not. That would be the injunctive relief portion of the case. What we seek from the court is a declaration that Section 203 does apply to the recall petition form. But there is no recall petition before us now. You're talking about a hypothetical recall petition that is not currently being circulated, aren't you? It is our position that it is not hypothetical because it is capable of repetition and evading review, meaning that it is quite likely at this point the plaintiffs remain registered voters and remain limited English proficient. Help me with this. We have a whole lot of cases where we actually do review election challenges after the election. We say they're not moved because they're capable of repetition and evading review. We also have a large number of election challenges where we review them, and they don't evade review. I guess the California recall was dramatic, but gee, every election time we have a whole bunch what is the sorting doctrine? Well, we would urge the court to place this case into the first category. I can't tell which category is which. What doctrine sorts out which is which? Well, because this was a local election, it is unlikely that it would have had the kind of visibility that it would have been able to move through the entire process, including on-bond review if necessary, prior to the election. I don't know. I've had some on motions and screening. We all have where it's elections nobody ever heard of that wasn't elections with a whole lot of news cameras. Well, perhaps the proof is in the pudding. In this case, plaintiffs were unable to complete the process of review prior to the election being held. And so here we are today with what we believe is a very live and compelling issue with respect to whether or not the petitions must be translated and provided to the voters so that they can make an informed decision at this critical point in the process. But the problem we have is that we don't have a petition before us. How do we know that the next petition that comes down the road won't be transcribed in more languages than English? Are we to assume past practice that past practices will be followed in the future? Well, there are no new practices that have replaced the old practices in the sense that the covered jurisdictions are not at this point translating. The registrars are not making these forms available translated. So would you point us to evidence beyond the record that was before the district court of what other local election officials have done since this litigation commenced? Is that what you're asking us to do? No, Your Honor. We would request that the court rule on the record before it. And there is simply no evidence that the practices have changed. The form that is available from the Secretary of State and that is then subsequently made available by the registrar is in English, and circulators cannot bring back something that, for example, is all in Spanish and have it approved for circulation. Is it your position that the actual form itself, which as I understand it prescribes the format of the petition, must also be translated into multiple languages? Yes, Your Honor. It's both. And with respect to the... And that's a state form, correct? Yes, it's the state model form, and then the registrar gets it out there. How many languages would the state, the Secretary of State, which I assume has responsibility for that form, translate the form that simply gives instructions or interested in circulating? California has covered statewide for one language in that Spanish, so it would be a Spanish translation. But with respect to the form itself, it is our contention that it is much, much more than simply a set of instructions. In fact, the state dictates almost exclusively what goes on the recall petition form. The state decides what the sections are, what the headings are. It is essentially filling the blank form, and that is why it is provided by the state. The large bulk of it is a state-mandated set of words, and what the voter sees is primarily a state form with certain areas that have been filled in with names and highly structured language regarding the fact that a recall election is being held. In fact, in the case at hand, the opponents of the petition only really put in 82 words of their own text, which was the reason for the recall. The rest of it did not happen. Does it have to include the official's answer as well? Yes, it does, and that is also a short paragraph. It doesn't come from the proponents. It comes from the private official. So the form has to include both the reasons for the recall and the elected official's answer. Yes, that is absolutely right. Those are the two parts of the form, really two paragraphs there that will differ from recall to recall as the petition is circulated, and then of course the filling in of names and other things like that. The fact that some private information goes onto this form takes the form out of the realm of being provided. You know, I think you've slid into the merits, and before you get too far down the road, it would help me on the mootness point that just Tom and just Clifford were asking about if you could give me just a very quick rundown of the sequence of events here as far as you can pin down. When was the petition approved for circulation when was the loss you brought, when was the election held and so on? You might not have all those dates with your fingertips, but maybe you can check it out and let them come as close as possible. I will give them to you as best I can recall them. I understand this is probably not something you expected to be asked about specifically, but I'd just like to know how quickly this moved along in the district court. In April of 2000 and two, the recall proponents began their process by publishing in the newspaper a notice of intent to recall. And then also in the spring, I believe, perhaps you know what, in April, that was when the petition began to be circulated. Prior to that, the notice of intent was published and the targeted officials... And that's something that's required by state law as the condition of starting a recall. Yes, and is it your contention that that needs to be in bilingual as well? Well, it is something that is done exclusively by private parties. I'm asking for your position. The case isn't before the court, but if it were before the court, it would be my position that that strictly worded statement that this is a notice of intent to circulate a recall petition with a fill-in-the-blank for the target's name and the proponent's name would have to be translated. What you're saying is you didn't challenge us in this case. Okay, that's really all I wanted to know. So this is not an issue in this case, but there was a notice published in April. Yes. And when was the petition... When did the petition start to circulate? It started to circulate around April. In March and April, the notice was published and the target's response was collected... So whatever the state officials did in approving the petition happened in about April? Yes. Of what year? In 2002. And then the petition was circulated over the summer. It was turned in September and in either September or October, the petition was certified with a sufficient number of signatures and the recall election was called for February 4th. Plaintiffs filed their case. The election was set for 2003, February 4th. Okay. Plaintiffs filed suit in December of 2002 and received a denial of their request for a TRO, I believe on Christmas Eve, 2002, December 24th. And then in January, the claims were dismissed on a motion from Ms. Martinez, who was a party in interest. And then subsequently to that, the claims were dismissed in the spring of 2003 as the motion to dismiss was brought by the county. And then the court... You did not appeal the denial of the TRO? I believe that we did, Your Honor. I'm asking a question. Did you? Yes, we did. What happened there? I think my opposing counsel can give a better description of this, but the appeal was not heard or it didn't result in a decision in our favor and we did not seek en banc review of that. It was in a procedural posture that we did not seek en banc review. But the election did occur on February 4th, 2003. Is that correct? Yes, the election occurred and the targeted official was recalled. Excuse me, this is Judge Fischer. If I could ask a question and also make a procedural comment if people could stay close to the mic. A question about the role of the Department of Justice and all of this, both specifically in this case and generally since the panel and the parties rely commentary, which refers to petitions. Did the Justice Department, in this case, the Voting Rights Act was not, in your view, being implemented? They have not. The Department of Justice did not weigh in in this particular litigation. I'm not sure if they were asked. They have a fairly small number of lawyers who do enforcement work under all of the statutes that they enforce, and we would certainly urge the court not to interpret a lack of a lawsuit by the Justice Department as any comment on the merits of this litigation. But if the Voting Rights Act applies under Section 5, don't you have to petition the Attorney General to approve any changes in the voting process, which would include asking the Attorney General for an interpretation of his understanding of whether or not these petitions and the instructions concerning recall petitions must also be translated into other languages than English? Yes, that would certainly be the case. If California decided to make changes in its petition process, it would have to pre-clear those changes under Section 5 of the Voting Rights Act. That wouldn't be something that would be done by the challengers, but something that would be done by the jurisdiction that's coming. But could the challenger bring a complaint to the Voting Rights Section of the Department of Justice as you did in the Federal District Court, asking the Department of Justice to declare that this particular practice is susceptible to the position that you're urging upon us, which in a covered jurisdiction would require translation? No, Your Honor. That wouldn't have been appropriate in this case, because a Section 5 enforcement action only can be brought by private parties when the state or the jurisdiction has made some kind of change and not pre-cleared it. And because here we were challenging an ongoing practice of failure to provide translations, there wouldn't have been the grounds for a Section 5 enforcement action. That's something that would happen later on if there were a change. I'd like to, if I might, move to the merits and address the question whether or not recall petition forms are related to the electoral process. Section 203 of the Voting Rights Act requires translation of registration or voting notices, forms, instructions, assistance, or other information or materials related to the electoral process, including ballots. When Congress enacted this language, it did not stop at voting documents. It actually continues on in its sentence. It's more than just registration or voting notices and forms. It also includes something other than that, which is material related to the election process. If the petition fails and you can't get enough signatures on the recall petition, how does that affect the election process? It never gets on the ballot. That's right, but it is part of the election process because the voters themselves have the right to participate at this point in the process. Because a recall can only happen if registered voters decide that it will happen. This is a very important part of the electoral process, that everybody has an equal right to participate in, which means that if a petition is being circulated and you as a voter are approached, you should have the same opportunity as any other voter to read and evaluate and decide whether or not to sign. That is activity in the electoral process. But under that theory, in order to circulate an effective petition, you would have to approach every registered voter within the jurisdiction with the petition in order to get their assent or their opposition to signing the petition. That's not required by the law, is it? No, Your Honor, that is not our position. Our position is not that you have a right to be approached with the petition. But if you are approached with the petition as a registered voter, you have a right to read it and evaluate it on the same terms as any other registered voter who is approached with the petition. So the perspective from the voter is if you happen to be given the petition and asked, please read it, please consider it, please engage in this part of the electoral process where you decide whether or not there will be an election and what will be on the ballot with respect to the recall, that you have an equal opportunity as anybody else who sees that petition. Would it be permissible for the proponent of a recall petition to write it in Spanish and then solicit only registered voters for whom Spanish is the primary language, deliberately excluding those who speak any language other than Spanish? Well, Your Honor, we don't think the petition would ever be allowed to be circulated if it were only written in Spanish. Right now you cannot go to your registrar with, say, a petition exclusively in Korean and have that certified for circulation. So your position would be that petition would have to be translated into at least English as well as Spanish? That wouldn't be required by the Voting Rights Act, but it would certainly be required by Common Sense and probably by California Election Code, which sets out... Wouldn't, as a matter of freedom of speech, circulators be perfectly free? Suppose they had a petition that they thought would be very appealing to Spanish language speakers and not as appealing to other portions of the voting population in that particular district. Wouldn't they be perfectly free to stand at their card tables at the shopping center and talk to passers-by in Spanish? And if the passers-by did not apparently understand them, just let them go? Canvassers typically try to talk to people they think will agree with them so that they won't stir up opposition and they'll just get turned out by supporters. And I'm thinking, just as a matter of freedom of speech, the petitioners would want to do something like that. Well, circulators do target different kinds of people when they're seeking to get signatures, and that's not really the issue that's been raised in this case. The issue in this case is whether the petition form itself, what the voter sees when ultimately approached and agrees to read and consider the question, whether that is acceptable or accessible to the voters. I would think if I was trying to sell something petitioner, back before the black robe excluded us all, and it were something appealing to Spanish-speaking people, but not many Anglos, I'd have a whole lot of poster board with all the stuff written in Spanish on it next to my card table, and that'd be that. And the Anglos would stay away. Well, I don't know if the Anglos would stay away. They might speak Spanish too, but that would certainly be within the realm of permissible private conduct is targeting certain people, or maybe targeting people in the neighborhood where an undesired development is going to go. Those kinds of activities are different from what we're focusing on in this case, which is, does that petition form, which is so strictly regulated by the state, have to be accessible to people in the language minority groups? You're arguing for access, but of course, even if your client is really complaining of too much access. In other words, I signed this when I didn't really mean to. I would have preferred not to have signed it at all. I wonder if we're talking about a right of access when that's the situation. There are some unusual facts in this case related to some voters having been misled, but putting aside the question of having been misled, the root claim is that the plaintiffs would have wanted to participate on an equal footing with others by being able to read and understand and consider whether or not to sign the petition. But isn't that the burden on the petitioner? The one who's circulating the petition assumes the burden that the petition cannot be understood by a certain portion of the electorate. That's the burden that the petitioner bears is the cost of exercising a right of petition. But for us to impose additional requirements on the petitioner, it seems to me, may even invoke First Amendment concerns, my concerns would not be under the right of free speech, but under the right of petition. That is that the state is now imposing additional burdens on those who are circulating petitions. Why can't the petitioner decide what burdens they will bear and what burdens they won't bear? Two answers to that. One is the rights of First Amendment exercise here, as well as participation in the voting process that are raised in this case. But California regulates in so many ways how that speech and right to petition is carried out by dictating the form, by dictating elements of the behavior of the circulators. Are you arguing the petitioner is now engaged in state action? No, not in this response, Your Honor. What I'm arguing is that these are carried out within a framework of regulation, and what we seek is an additional aspect to that. Not that the circulators would have to do the translation themselves, we believe the burden is on the jurisdiction, but that now circulators, in addition to all of the other requirements that they must meet while exercising their rights must also carry a piece of paper that happens to say across the top in various languages this form is available translated. That is not a heavy burden and it is consistent with other regulations on the right to petition that are embodied in the California election code. Similarly, besides the rights that are raised by the circulators or the petitioners, we don't want to lose focus on the rights of the voters, the people in whom the power is vested to decide whether or not there's going to be a recall election and who's going to be recalled. Does the state provide forms in Spanish? It does not, Your Honor. Would it accept petitions signed that were written in Spanish? The petitions would have to go to the registrar and do they would not approve Spanish forms under California law? We only have one incident of somebody trying it and being rejected, Your Honor. It is not our understanding that a Spanish language form will be accepted by the registrar. As long as it had English on it, I don't think there's any impediment to having a bilingual form. There is a problem, of course, because the election officials presumably speak and read English, whereas if you had I suppose I could find somebody who speaks Spanish there, although not necessarily somebody who's a competent translator, there's a big difference in being able to speak the language and being able to you know, to be able to translate it in a professional manner. And certainly when it comes to Korean or Vietnamese or any of their own languages are more exotic, I think it would be difficult. So wouldn't you say you think the state would approve it, but it's not at all clear that they would approve it. They would have to be sure that everything on the form is truthful or you know, that two languages match, they have the same message. I would guess they wouldn't approve a form that had a bunch of scribbling on it that they don't understand. So wouldn't you in fact, before you could before the state could approve that maybe that's something I would ask the state, but I would imagine that before the state could approve a form like that would approve a form like that, they would have to have a procedure for ensuring that the translation is accurate. And to do that getting better at a tolerance question they would have to get approval from the Justice Department. Am I am I does that match your understanding of how things work? Yes, Your Honor, the question whether or not a petition can be submitted for approval in a foreign language is not before the court and I think it's sort of an open question what any particular I think it is before the court and before me I think it was just by but we don't have to decide it in any but I agree that we don't have to decide it, but nevertheless it's something that might be so you're not sure about the answer I don't know what any particular registrar would do because these petitions of course are submitted at the county level and I don't know what a registrar would do however the requirement of translation that plaintiff's appellants are seeking are already in counties that do these translations in these languages so to speak for just my last moments on the practicalities of the issue anything submitted in Korean for example as suggested by the court would be to a county registrar's office that already translates things into Korean such as ballots and voter pamphlets and things like that so this is really adding a form and some language to the obligations of jurisdictions that already do these translations in these languages may I ask a question Judge Fischer a quick question somewhat related to this under the election code 11-0-2-0-B the requirement is that there be a statement not exceeding 200 words in length of the reasons for the proposed recall question one if that were in Spanish would be certainly as you're suggesting that there's not a definitive answer on that but you suggest officials do words in length do they ever edit the content of that well the registrar plays a very important role in reviewing both the structure of the form as it's submitted as well as the content and is not allowed to let the statement go over 200 words but it does that's not my question my question was does it the substance of what is said on the statement for the reason or on other parts of the form I'm just focused on that one section no generally I don't believe that the registrar makes changes to the substance but does also check and make sure that it complies in both length and structure and format and the other parts of the form as well so you have about two and a half minutes I'd like to reserve the rest of my time if I may the reason do you want to save your time yes your honor if I might thank you your answer would probably just make me good morning your honors may I please the court I am Wendy Phillips deputy county council from the county of orange I'm here on behalf of the respondents the county registrar of voters from the county of orange since there are three of us on respondent side of the podium I thought I would try and give a brief overview to the core of our intended division of the argument I plan to take approximately 15 minutes to address primarily the interpretation of the voting rights act and why we as respondents believe that minority language requirement does not attach to the circulation of petitions by private citizens Mr. Schaefer on behalf of the Santa Ana Unified School District I would like to speak briefly with regard to the remedy that he sees as appropriate in this case as it does affect the Santa Ana Unified School District finally Mr. Wucher will appear on behalf of one of the original petition proponents Ms. Martinez and he will be addressing the far reaching implications of requiring the minority language requirement to apply to the petition yes it appears that nobody plans to talk about it. Let me ask you as I mentioned to your adversary we have a whole bunch of election cases where we say election challenges are not moved even though the election is over because they are capable of repetition yet evading review and we have a whole bunch of election cases where they come up on short notice and we review them and get them all done before the election and I cannot tell what the sorting mechanism is that says when you use the capable of repetition yet evading review exception to mootness and I cannot figure out what the doctrine is can you help me and tell me a case? Your Honor I wish I could help you with that I like you have researched the issue of mootness in relation to these cases and it does seem to be in lots of camps with regard to how they are treated and it seems to be because of the amount of cases that sometimes address them and other times don't and it's moot that there is no clear rule on that issue in this circuit and they of course in this case to decide the question before it was rendered moot you'd have to have at least an appellate decision before February is that the would have had to have had you would have had to have had a decision before the day of voting the day the election was the results were certified what would have been the date where effective could still have been granted? If the determination of the mootness question is the fact that the election has occurred and we don't go to that's a question I'm asking yes then it would have been February 4th of 2000 I'm asking you what is the point in time at which nothing we do will make any difference in that election anymore? We would have said at the time that the election occurred which was February 4th of 2003 under California law as you probably know the California Supreme Court rarely decides the questions of constitutionality of initiative measures until after the election they say we shouldn't decide them before and they try to decide them afterwards under the theory that when the election occurs it's moot we'd never have any decisions in California would we? Which is why I believe so many cases focus on the idea that the issue is likely to be repeated and is not going to be subject to relief. I don't think you understand the question that Judge Reinhard asked which I think ties into my question I think what Judge Reinhard is suggesting is that there is relief that could be granted afterwards like setting aside the result of the election That is the relief that could be granted yes So the day the election is held it's not too late for a court to grant effective relief So there is some point in time past the election when at which point effective relief is still possible and so what is that point in time? Your Honor I don't think there is a bright line rule on that and that's an unfortunate thing The plaintiffs don't get a decision here in their favor or don't get any decision that the next election the petitions are going to look exactly the same Your Honor I believe that is true Yes So that's why it's if once the election is over if you said that it's moot then the issue would never be able to be reviewed I believe that is true Your Honor I'm not sure you're right in that believing that because if in fact you can grant effective relief by setting aside the election a year afterwards it's just Reinhard suggested that the court regularly reviews elections after long after the ballots are closed and on occasion sets aside the results grants relief the question I had asked which you said you weren't sure about the answer is how far into the future can such relief be granted where a court can come in and set aside the results of the election Your Honor under both California state law and I believe federal interpretation courts are usually bereft to actually set aside an election unless there was I'm not talking about judicial reluctance I'm talking about at which point in law is a we can't today set aside the election the recall election that the governor was the current governor was a player it's too late now so there must be some point in time at which an election becomes so final that even the state supreme court or federal court couldn't come in and undo it but we also know that there are points in time after the actual ballots are cast when it's not too late when I'm asking you to tell me if you know the answer is when after an election does it become so final that no judicial relief can be granted in that election Your Honor I don't think there is a specific rule or case that speaks to that issue so presumably if we rule in favor of petitioners here we could set aside the election what I was going to say is that I think that in this particular instance to the extent that there has been not only one more intervening election replacing Mr. on the Santa Ana unified school district but I think there have been actually two elections held where the same person was placed in that seat to go that far back to go four years in the past and undo the election and the will of the people I thought you weren't challenged but your position was this is not a challenge to the election process at all I'm sorry can you restate that? I thought your argument I'm trying to kind of get us into the merits here then we don't have an unlimited amount of time I thought that your position on the merits was that this is really not a challenge to the election process at all We think that is the case and I believe that appellate's council or appellate's council when she was up here indicated that they were no longer seeking any effect to the election and that they're merely looking for the declaratory relief to be granted that they originally requested in the future election How long before an election does the recall petition start? In this case it did start in March of 2002 and I was going to address that because I believe Judge Kaczynski had wanted a timeline and there were some time frames that were in question It was March of 2002 when the notice of intention to recall happened the petitions began to be circulated in April of 2002 then in September of 2002 all the petitions were submitted to the registrar of voters the signatures were certified as I'm sorry, I must not have heard at what point did the state official the county officials act to approve the petition The county officials would have acted to approve the petition in early April of 2002 when they said that the petition format met the California elections code requirements They certified for the ballot in September of 2002 the signatures were certified as sufficient and the Santa Ana Unified School District actually called the election in October of 2002 and set that election for February of 2002 In relation to the original case of course the TRO as described by Appellants Council was denied in December of 2002 the preliminary injunction was denied on January 13th I believe of 2003 they did file an immediate stay and in conjunction with that an immediate appeal and in conjunction with that immediate appeal they did ask for a motion panel to grant an immediate stay of the election the motion panel who considered that denied the immediate stay request and that was denied on January 30th of 2003 so that was the time frame how the cases moved I mean how this can possibly fall under the capable of repetition yet evading review the relief was not only sought but actually obtained before the election it wasn't the relief the petitioners wanted but you got an appellate ruling from a panel of this court before the election was held it could very well have been the opposite maybe not in this case depending on the merits but it certainly would have been possible by January 13th or January 15th a full three weeks before the election you could have gotten petitioners could have gotten relief yanking the the re-competition from the ballot they get a decision on the merits in January Your Honor that's what I was going to say I don't want to make a pellets argument for them but I imagine what they would say is that there was no decision on the merits it's not just a pellets argument I assume you'd like this issue resolved so we're not here again at the next election Yes Your Honor and with that if I could move to the merits Before you leave that I'm not sure that we've heard from the county what its position on Moot-Mis really is Do we have a position or not? Your Honor to the extent that the standard that the cases seem to apply is as expressed by a pellets council that it is subject to repetition and evading review and that does appear to be the overwhelming standard in most cases then we do believe that it is not Moot and we are asking the courts what they're saying. How about the Hays-Tilden election could the Supreme Court of the United States review that one? I'm sorry could you say that? Could the Supreme Court of the United States review the Hays-Tilden election? Let's try pictures as Gore instead if we're going to review an election Do you see that one again? I don't think so Your Honor because the court at least with regard to Bush-Bush's Gore has spoken to that issue Hays is not going to run against totally against but this this form is going to come back again Not this particular recall Ancient history as far as politics in Orange County go This particular petition between these proponents and that target Yes Your Honor that is true Let me ask you this What's the big problem in having a Spanish translation on the petition? You go into a supermarket you come out someone standing there sitting by the car table they stop you and they say oh you want to sign this petition it will reduce your taxes oh okay let me sign it and if it's not in the language that the voter understands a minority voter there's a very significant Latino Spanish speaking population in Orange County isn't there? Yes there is So if they don't understand it and someone tells them in English you know this is a good because of that and they go ahead and sign it and they're not really getting the full picture from that solicitor who gets paid a dollar of signature or sometimes more depending on the wealth of the candidate and so how are they ever going to know what this petition is all about? Unless you've got the translation in there that's no big deal I mean was the ballot in Spanish here? Yes all the materials that were provided by the registrar were the recall election was in Spanish too Yes it was Your Honor What's the big problem here? I don't understand it The question is whether or not the Voting Rights Act requires it and our position is that Orange County just do it I mean what's wrong with doing it? I think the question is is it a burden to do it? We believe that it is a burden to the petitioners because the law is unclear as to who would carry the cost of this and if you're discussing the application of the Minority Language Requirements Your Honor those facts are not specifically before the court but I can tell the court colloquially that I heard from some petition proponents in five different languages Your Honor Just looking for a minority of a certain percentage Yes Your Honor but in Orange County based on the most recent census data there are five languages including English that have to be translated into and presuming the Minority Language Requirement attaches to the privately circulated petitions What percentage of the electorate do those folks who speak those five languages represent? I don't know the specific percentages all I know is that based on the Federal Register information which is based on the most recent census there is the requirement in the County of Orange alone of Korean, Chinese, Vietnamese Spanish and English and so there's five total languages that the registrar must provide voting materials in that we believe that the petition itself are not voting materials The Voting Rights Act goes to the core effect of your right to a vote and have your vote counted and the Language of the Voting Rights Act focuses on from the start of the registration process through notification about when a vote will occur through the ballots provided by the local elections official but it doesn't speak to private petitioners being burdened with circulating five languages when they're in the party Don't you need a fair system a fair and impartial recall system? I mean isn't that we're all about fairness? Yes Your Honor People that speak four of the languages and that probably represents a very significant proportion of Orange County voters maybe I don't know maybe 50% or more but you're my guess so you're just cutting all those people out You're getting deceived At the root of it is the question that signing a petition is not a right there is no right to sign a petition if you as a citizen heard that there was a petition circulating you couldn't demand to sign it But the question is whether these are materials or information that relate to the electoral process relating to the process now it's something that qualifies the for the start of the process doesn't relate to the process We don't think it does Your Honor because electoral process is not a rather narrow concept of relating to And this is a remedial statute to be broadly construed A remedial statute which requires the state to provide certain materials but not private citizens That's a different issue is whether it relates to the process That's your two separate points One that is not provided by the state and two that it doesn't relate to the process I'm asking you about your second point Yes Your Honor It seems to me that if you wanted to limit materials to something directly a part of the process you wouldn't say anything that relates to the process Your Honor but electoral process is colloquially known as the election itself It's not the entire process that could be operated by To qualify for the election itself doesn't relate to the election But there's no guarantee that it will qualify for an election and it's based solely on the proponents own will as to whether or not it does to gather those signatures Every year many, many initiative petitions many different petitions that are circulated never see the ballot because they fail to obtain the signatures About whether it was relating to the process all you needed was whether it's provided by the state or political subdivision Am I mistaken about the logic of your case? No Your Honor we do believe that it's a two-tier standard and if one applies it's either not provided by the state or if it's not voting materials relating to the electoral process I'm trying to deal with your second argument which seems to me your weaker argument to put it mildly But we don't need both in order for this court to find in our favor So you'd like to abandon the second? No we're not abandoning the argument We certainly do not believe based on Montero and Delgado which of course are the sister circuit's 10th and 11th decision analyzing whether or not these are voting materials and we believe those are well-reasoned decisions I am cutting in Who bears the burden of paying for the translation The unfortunate thing is that there is no statute in California that would address that and it could very well fall upon the petitioners because they're the ones who are circulating it and they're the ones who would have to provide it in the minority language if the minority language requirement does apply in this instance I'm sorry go ahead Your Honor I only have knowledge based on one conversation with one initiative proponent and they said it cost $30,000 to get five translations How much time are you saving for your tooth? That's what I was attempting to sit down Your Honor Did you wish to ask? Just one quick question Even if the state bore the burden of translating the materials would the petitioners have an obligation to carry those materials with them? Certainly The Voting Rights Act would require the petitioners to carry translated materials with them? Well if the minority language requirement attaches and the translations are required then it doesn't make sense that they wouldn't have to have them with them in order for the Spanish speaker the Korean speaker the Vietnamese speaker to understand the petition that is presented to them Would you like to give the rest of your time to you? If I may Your Honors Thank you very much The petition process in our state is a very important advice for getting legislation on the books Yes Your Honor Our ballots are just loaded with these petitions because we can't get ruling from the state legislature you know it just doesn't get involved in some of those issues There's no dispute about that Just briefly if I may We think that the minority People are just excluded from the initiation of that process We believe the minority language requirement is protected because those individuals have the right to vote and receive all materials on the ballot before they go and vote in their own language Thank you Good morning, my name is Bill Schaefer I'm here on behalf of the Amakie Sanny Unified School District and Sport Education We support the Appelese argument that's been presented in their briefs We will focus our portion on the argument on the particular concerns this litigation presents to Amakie District and its governing board In the event the court finds congress clearly intended the translation requirements of the VRA to fully apply to any or all steps in the process to cause a petition to be circulated and any type of election to occur resulting from there from We request the court to specifically hold that no remedy for the violation can invalidate the constitutional recall election Nobody has argued that I don't know why you're burning up time making a point that nobody is the refuting point that nobody has They're only asking for declaratory relief Well, there's some dispute as to whether Mr. Lopez You don't have to get up and talk We'll waste your time for you asking That's why we're here just to make sure We'll tell you about freedom of speech But they are only asking I'll defer Mr. Wucher then Thank you Thank you, Your Honor Let me try and just add a couple of cents on some of the statutory interpretation question because I think one issue is being overlooked here You represent the petition We represented the original proponents of this recall petition Exactly Well, I think there's a big deal in three respects In some instances there is in fact a great burden to force the translation Now, in a recall petition in a jurisdiction where there's only one language that needs to be translated into Nobody's going to say that getting that translation is a huge burden financially or even time wise The elephant, of course, is that That is the case that we have here The burden here was nobody told them well, after they'd already gathered all their signatures handed the petitions in and were three weeks from election With crimes, you know Look at Martha And find out later That's not a good argument The second issue But I will point out that in many other instances the burden, for example with respect to the initiatives that Judge Pragerson mentioned that are the bulk of the petitioning activity in the state of California they can be tremendous burdens And I think Council mentioned there was a petition in Loma Linda one of the jurisdictions where it had to be translated into so many different languages that it would cost $60,000 and would literally take six months What she said is she talked to somebody who mentioned the figure $60,000 I don't believe Councils on the Oath that was hearsay I mean, you know you could say any number whatsoever Is there anything in the record documenting in burden? There's nothing in the record in this case The answer is we don't have anything We don't have any idea whatsoever that you couldn't just go to your speak Spanish and say hey translate this for me and get it done for free Are the teachers at the Santana Unified School District Who would have the responsibility for assuring that the translation was confident and accurate and not self misleading? Presumably if there were such a requirement it would be the state that would have the burden of having to determine that the translation was accurate but it does lead to potential litigation The same people to determine the rest of the ballot material in the county clerk's office I'm sorry, each of the This only applies when you have that burden anyway with respect to all the ballot material Yes Obviously a much more leisurely pace with respect to having the state resources Which is the second 100 words If you really want us to believe it's going to cost an arm and a leg to translate and certify the translation of at most 400 words I think I preface this by saying on a recall petition and a jurisdiction like this in this particular case I do not think the financial burden of translation is what is the key What is potentially a problem is the timing of it I should have made that clear when I started out Timing is an issue You for example raised the question about the notice The recall petition process starts when a citizen or at least 10 proponents serve on the officer sought to be recalled their notice of intent to recall and then file that with the county office Is that a document Presumably one would argue it relates to the electoral process in the same way that the petitions themselves are Is that a document that itself needs to be translated If that's the case how does it get to the state to perform that translation at the time it also has to begin the process by being a completely private transaction between two individuals The timing can be critical in a lot of these respects and I think this also relates to the mootness issue that there are a number of questions on Do you have a position on the mootness issue Yes I believe that in most instances the although not in this particular case in most instances these types of disputes will be capable of repetition certainly and will evade review and the reason is that for initiatives in referenda for example there is a very short time period under which a determination must be made as to whether an object a proposed measure but this case is moot Is that what you're saying In this case certainly the injunctive relief is moot the declaratory relief I do not believe is moot because I do think the same issue is capable of repetition It obviously depends upon how soon the challenge is brought which gets into a whole remedy issue here You only got two minutes Your answer is the declaratory relief The declaratory relief is not moot would be my position in this case Yes I want to get back to the burden issue as well because I do think in this particular case it's not a great burden In this case the issue was I'm sorry The second was the timing and that is when does this translation have to occur and the third is related to that is the uncertainty of how this whole process would fit in with the state process for not only the recall but the initiative referendum for example a referendum the petition has to be drafted it has to be circulated and submitted within 30 days from the date that the ordinance is enacted by the city council at a local level that in fact would be in many instances completely an impossible deadline to reach if for example you're in the county of Los Angeles where you need to have a translation of what could be a very lengthy ordinance itself and under the full text requirement of California law you have to not only have in your petition the actual text of the ordinance but any other materials that are referenced in that ordinance so a lot of these referendum petitions are literally 60, 150, 200 pages long and if you have to translate that into six different languages that just simply cannot physically be able to make shorter petitions I'm sorry you should teach people to make shorter petitions if it requires Ireland will breeze we get shorter breeze if we could force the legislatures to make shorter laws we'd have shorter petitions but unfortunately in a referendum context that's not our choice which of course is the irony of all of this the laws themselves are adopted in English nobody requires when the legislature passes the law that it has to be in any language other than English we can challenge that through a referendum petition legislators have enough trouble speaking English I'm sorry if one wants to challenge it through the referendum petition the burden would have to plainly be on the proponents of that measure and this I think gets to your point your honor about the burden on the First Amendment petitioning rights here they would definitely have that burden because the decision in this case will undoubtedly have a bearing on what happens and how it's interpreted with respect but referendums present a very different question very often those things are put up with the ballot by the legislature I'm using a referendum in the technical sense that it is a protesting the adoption of a law that the legislature the legislative body already enacted there is a there are referendums that are put on the ballot that be passed to the legislature it's commonly referred to as a referendum but it's not typically a petition if the legislature puts it on we don't need any petition signatures I see if you'd like to have 30 seconds I would like to get back to the point that I wanted to try initially and that is Congress has a role in this debate here and there's been no mention in the 30 minutes up until now about the congressional role Judge Fischer asked and pointed out what has the position of the department of justice been in the 30 years since this provision was added to the voting rights act and the position has been that they've never challenged they've not only filed a lawsuit they've never indicated that there's any reason to believe that the voting act requires petitions, recall petitions, initiative or referendum to be circulated and translated into multiple languages Congress has also that doesn't really mean anything because they've just got a small staff over there and they're running around the country you're on no matter how small the staff I believe the department of justice was aware that in California a year and a half ago there was a recall election going on I don't think you can attribute their lack of interest in this issue their lack of action in this issue to the fact that they were not aware of it or their staff was too small but more importantly, Congress was aware of it and in 1988 two circuit courts of appeals held that privately circulated petitions are not subject to the voting rights act Congress reauthorized it four years later and didn't say a word about reversing those decisions they implicitly accepted those petitions and as we stand here today there's a very active debate going on as you're certainly aware about the reauthorization for the voting rights act and if there's a change to be made if there's a clarification to be made Congress should be the body making it, not this court thank you, Council, time has more than expired two minutes we'll give you a little extra time thank you, first of all the burden is clearly under the statute the burden of translation falls on the jurisdiction that is providing the form the statute says whenever any state or political subdivision and then at the end it says it shall provide translated material Council, this is Judge Gould could you please address your argument why is it that we should consider recall petitions to be provided by the government recall petitions are provided because the question really turns on what the voter sees when presented with the recall petition and who determines what the voter sees it's not as much whose hand is showing the petition it isn't an analysis provided by because a circulator is showing it it's what does the voter see and who decides what the voter sees and the state strictly regulates and strictly determines what goes on that petition form as I mentioned earlier from the proponents are on there certifies airplanes for airworthiness you can't put a plane in the air without an FAA type certificate does that mean the government is providing airplanes that may not be the easiest analogy for me to deal with your honor I would say that's why I picked it of course I would say that the way to sort of analogize it is the government telling you how many seats to have on the plane is the government telling you what color they provide a template of the airplane well no but in this case the government does provide the template for the form and says the font the color the size the statements the words that have to be used in the statements in the notice of intent that there has to be a target response so much of this I can assure you that there are many many requirements to putting an airplane in the air and they are quite specific about it we tell you what font to use and how many words in your brief that doesn't mean we write them for you no that's true but my briefs aren't 82 words long your honor and those are the number of words that we wish that has to be translated in this case yes I know only having a problem being succinct as it is council if the state were to undertake to translate these what's the remedy if the petitioner fails to carry them with him when the petitioner goes door to door he's got six translations five translations whatever the number of languages in orange county what's the remedy if the petitioner fails to carry something in Korea but carries the other languages with him the remedy might be the invalidation of the petition because it is not the state would be required to do that under state law or by virtue of the voting rights act by virtue of the voting rights act that is to be able to see as a result I wanted to address the really what I think of as the parade of horribles that have been raised by opponents who essentially don't want to copy and don't want to carry translated recall petitions the burden is quite minimal in fact to copy to photocopy something that isn't very much longer and maybe carry one extra sheet of the translated information not have it on every petition but say across the top this is available in Korean and then have that extra piece of paper the burdens are not great they were all raised by opponents of 203 when congress decided to enact the statute they were raised and rejected and for that reason we urged the court to follow the plain meaning of the statute thank you thank you your honor it's just argued is submitted for decision that holds the court's calendar for this morning the court stands adjourned the full ninth circuit court of appeals is not ruled on this case you can read the court's earlier decision at c-span.org just click on America and the courts and join us next week for America and the courts Saturday evenings at 7 p.m. eastern on c-span