Padilla v. Lever (2006)

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The 9th Circuit Court of Appeals heard oral argument in Padilla v lever on Thursday June 22nd in San Francisco.
The court will decide if orange county election officials violated the Voting Rights Act by not providing petitions for the recall up a local school board member in English and Spanish in November 2005 a 9th circuit three-judge panel ruled that election officials violated the bilingual requirements of the Voting Rights Act.
The full circuit board is reviewing bad decision now morning ladies and gentleman this is the time for argument in the rehearing on bank holidays year versus leave early we understand at the council is ready to present argument Gould and Fisher.
Are with us by telefon in hand said offers on the stack field sound but we have a good group and death we will proceed to to hear the case our sprouts mentorship and.
Meet the support my name is Nina bet on this.
I represent plaintiffs appellants by the young Sanchez and on banning I'd like to reserve.
Five minutes of my time worry bout finding the question before the court.
Is whether section 203 the Voting Rights Act applies to that party the electoral process in which right voters decide whether to place on the ballot the recall have an elected official the question is primarily.
On a statutory interpretation section 203 requires that voters be allowed.
To read and consider I translated recall petition form for three reasons:.
First deciding.
Whether a recall will go on the ballot is reserved.
Exclusively to registered voters and is an integral part at the electoral process in a direct democracy system second these heavy involvement indicating the forms content and structure means that it is provided by the state when you read Section 203 in the car text other.
Voting Rights Act you can see that Congress intended it to be bred.
Broadly to achieve its remedial purposes I miss brown it is this case moon by virtue of the fact that the election has already been that the school board member as then call repaired aired his.
I what what relief can we possibly award at this point to the plate.
At this point the.
Plaintiffs-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 defeating review but how does that a trip how does that address the.
The relief that the plane to is seeking.
The plaintiffs are seeking mean you've US that the reef the first that the election be stopped and.
Are you asking us to overturn the result to the recall election.
Direct the removal up the replacement from the school board and order a new election with.
Fully translated I'm material 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 call but twitter is no there is no recall petition before us now that you're talking about a hypothetical recall petition that is not currently being fertility aren't you it is our position that it is not hypothetical because it is capable of any beating 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 move because they're capable of repetition yet evading review.
We also have a large number election challengers.
Where we review them and they'd only be.
Review I guess the California recall was some.
Dramatic but had she every every election time we have a whole bunch.
What is the yes sorting and doctrine.
We would urge the court to place this case into the first category I can't tell which categories which what doctor and sort out which is which well because this was a local I'm 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 bank review if necessary but I know I had someone motions integrating Eq sure we all have where election nobody ever heard of it was in elections with a whole lot of news cameras.
Well perhaps the proof is in the pudding case plaintiffs were unable.
To complete the process of review prior to.
The election bean-counting and so here we are today.
With what we believe is a very live in 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 the problem we have is is that we don't have a petition before us how do we know that the next petition that comes down the road wall.
The transcribed in more languages than English are we to assume.
But after 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 that covered jurisdictions are not at this point translating the registers are not making these forms available translated.
The would you point just who evidence beyond the record that was before the district court up what other local election officials.
Have done this litigation commands.
Is that what you're asking us to do no your honor we would request that the court ruled on-the-record.
Before and there is simply no evidence that the.
Practices have changed form that is available.
From the secretary stated men's 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 what is it your position that the actual so as I understand it for this product a.
Spend must also be translated into multiple languages yes your honor its bow.
And with respect to announce a state form crack.
Yes it's the state model form and then the Registrar how many wet after with the state the secretary of state in which I assume.
Responsibility for that form good.
Translate the form that simply gives instructions.
Students circulated scalp when he has covered statewide from one language in that span absolutely and.
Inflation the special 1000 is our contention medivaced much much more than simply a setup instructions in fact the state.
Decades almost exclusively what goes on drizzly call.
Petition form the state decides what the second time what the headings are.
It is essentially fill in the blank smart and that is why is provided by the state good the large bowl.
A bit ease its state mandated set upwards and what the voters sees is primarily.
If theform with certain areas that have been filled in with names hi stretch language regarding the fact that a recall election is being held back in the case at hand opponents other.
Petition only really plain 82 words.
Up there only taxed it was the reason for the park.
Rested it did not happen lubya he.
Office the officials answer yes it does and that it's also a short paragraph.
Doesn't come to the homies it comes from.
So that won't happen for the both the reasons for the recall Andy yet that the elected officials guess that is absolutely targeted.
Health care those are the key part to for nearly two paragraphs there.
That will differ recall to recall as skittishness circulated.
And then of course the filling in names and other things like that the fact that some private information goals.
Onto this for the past take the 41.
Out up around not being provided you know I think you're slid into the merits.
I'm before you get too far down the road it would help me on the mood national.
On com I just home on just cry for asking about.
If you could give me just a very quick rundown of the sequence of events here.
Artful or you far as you can pinned down when was the British trouble for circulation I'll when was the lost you of when I was election how the show are you might not have all worm the good from the Phelps the change.
Good comes close possible I knew I will give them to you as best I can recall i I understand this is probably not to.
Something you here about disagree but.
I just like to know how how quickly this for the long in the a.m.
Discord in April of 2010 the recall proponents began their.
Process by and publishing in the newspaper notice of intent could be call and band also in the spring I believe.
And perhaps in a neighborhood that was when the fish began to be circulated prior to that the no 710 was published and that targeted a.
And that's something that's required by Sh state law here as a condition of are starting every call.
Yes in Hyannis your contention BAPS.
Needs to be in a bilingual as well.
Well it is something that is done exclusively by I'm private parties.
I miss you free position the cases in 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 to be competition.
With the fill in the blank for the targets name and the proponents 9 I'm sorry have to be transferred what you're saying is you didn't challenges in this case okay that's really all I want to know I'm sorry so this is not an issue in this case.
By the wasn't known as published in a pool and when.
When art was petitioned when the petition stops are correct it started to circulate around April and March enable the notice was published in The targets response was collapse whatever the state officials dead.
In approving the petition happened.
In about a pool yes right here in 2002.
And then the petition was circulated over the summer it was turned in.
In September and in either September or October.
The petition was certified in sufficient number of signatures and the recall election was called for February 4th plaintiffs filed their 2003 the elections set for 2003 February 4th.
Plaintiffs filed suit in December of 2002.
And received deny love their request for TR 0.
I believe on Christmas Eve 2002 December 24th.
And then in January the claims were dismissed.
And on a motion from miss martinez who was a party in interest.
And then subsequently to that the claims were dismissed in the spring.
I've 2003 and as.
Did the motion to dismiss was brought by the.
County and then the court I V you did not appeal the denial that you're.
Believe that we did your honor I'm asking questions I'm did you yes we know what have you there I think my putting council can give a better description of this but it was.
The appeal was not was not heard for it was it.
It didn't result in in a decision in our favor and we did not seek.
On bank reveal that that it was it was in a procedural posture that we did not seek on bank review.
But the election did occur on February 4th 03 is occurring yes the election occurred and the targeted official was recalled yes to me this is george fisher if I could ask a.
Question and also make a procedural comment if people could.
Stay close to the mic no I have a question about the role of the department of justice and all that is both specifically in this case and general a sense the panel and over the party's rely.
Border dispute the Attorney General commentary.
Which refers to petitions the justice department in this case ever express any interest or were they asked to.
About the fact that the voting rights act was not in your view been implemented and have the power to choose we have they ever done so.
In any of the many elections that ok transpired over the years.
And what do we make a good if they have not Department of Justice did not weigh and in this particular.
Litigation I'd I'm not sure if they were asked they have a fairly small number of lawyers who do.
Enforcement work under all other statutes that they enforce and we would certainly.
Urged the court not to interpret a lack of a lawsuit by the Justice Department as any comment on american this litigation.
But it could vote right track but lies under Section 5 don't you.
Have to petitioned the Attorney General to approve any changes in the voting process which would include asking the Attorney General for an interpretation.
Up his understanding of what they're not be.
Conditions and the instructions can concern each.
Recall petitions must also be translated to other languages than English.
Is 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 up the Voting Rights Act that wouldn't be something that would be done by the challengers.
But something that would be done by the Jersey Connecticut ballenger.
Bring a complaint in the voting rights section.
The Department of Justice as you did in the federal district court.
Asking the Department of Justice to declare.
That this particular I'm practice.
Is susceptible to the position that you're urging upon a which in a covered jurisdiction Woodward require translation no your honor that would have been appropriate in this case because the 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 and.
And because here we were challenging a and ongoing practice a failure to provide translations there wouldn't have been the grounds for section 5 enforcement action.
That that's something that would happen later on if there were a change.
I'd like to if I might move to the merits an address the question.
Whether or not 3 competition forms are related to the electoral process.
Section 203 the Voting Rights Act requires translation /a registration or voting notices forms instructions.
Assistance or other information or materials related.
To the electoral process including balance when congress enacted this language it did not stop.
At voting documents be it actually continues on in it sends 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 recall petition how does that affect the room the election process it never gets on the ballot.
That's right but it is part of the election process because in 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 in the electoral process that everybody has an equal right to participate in which means that if a petition is being circulated and US voter are patched 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 under that theory in order to circulate ineffective.
Fishing you would have to approach every registered voter within the jurisdiction with the petition in order to get there I said.
For their opposition ironing the petition that's not required by the law is a.
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 and evaluate it on the same terms as any other registered voter who is with the petition so that perspective from the voter is if you happen to be given the petition asks please read it he's considering.
Please engage in this from 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 and equal opportunity as anybody else who sees that petition would it be permissible.
For the proponent of a recall petition to write in Spanish and then solicit.
Only registered voters for whom who.
Ivory language deliberately excluding.
I those who speak any language other than Spanish.
Leon 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 unsay a petition exclusively in Korean and have that certified.
For circulation but your position would be if that position would have to be translated into at least English as well as Spanish.
That would be required by the voting rights act we would certainly be required by common sense and probably by California Election Code.
Which sets out I wouldn't is matter.
Remixby circulated be perfectly free.
Both they had a petition that they thought would very revealing.
Spanish-language speakers and not as appealing to other or change the voting population that the killer.
District but maybe perfectly free to step their card tables at the shop.
Shopping center and talk to passersby in Spanish.
And if the passersby did not apparently.
Understand them just let him go at I campus use typically try to talk to people they think will agree with them.
So that they can store up opposition and I'll just get turnout.
By by yes supporters them and I am thinking.
Just as matter freedom of speech the petitioners would would want to do something like that well campaign circulators to 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 for miss out.
What the voter sees when all timidly approached and agrees to read.
And consider the question whether that is acceptable or accessible.
I was thinking perhaps if I was trained self something is the petitioner back you know before the black robe exclude orenthal at and and that were.
Something appealing to spanish-speaking people but not many anglos i'd have whole lotta poster board with all the stuff written in Spanish on it next to my card table and that'd be back me and both stay away well I don't the anglos would stay where they might speak Spanish to but that would certainly be within the brown love private conduct is targeting certain people are be turning in the neighborhood where you know 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 group arguing for access point of course.
Your plaintiff your client is really.
Complaining of too much access not a rich I sign this when I didn't really mean to I would have preferred not to have signed it all.
I wonder if we're talking by writer access.
When when that's the situation there are some unusual facts in this case related to.
Some boulders having been misled but putting aside the question up having been misled I think the route claim.
He 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 garden up the on on the petitioner the one who circulating the petition assumes the burden the petition cannot be understood by certain portion of the electorate that the burden that that that the petitioner bears and it is a cost.
Love %uh exercising a right to petition but for us to impose additional requirements on the petitioner it seems to me made may Union in both first amendment concerns.
My concern for not being to the right of free speech but under the under the right to petition that is that the state is now imposing additional burton's on those were circulating petitions but why can't why can't the petitioner the cycle burton's they will bear weapons they want their.
Two answers to that quickly first yes there is a very important.
Rights above 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 speed and right to petition is carried by dictating the form by dictating elements at the behavior.
%uh the circulators you can't hide are you arguing the petitioners now engaged in state action.
No not in this response your honor what i'm arguing is that these.
Rights are carried out within a framework %uh regulation and what we seek is an additional aspect to that not that the 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 the other requirements that they must meet while exercising their rights must also carry a piece of paper that happens to save across the top in various languages this form is available translated that is not a heavy burden.
And is consistent with the other regulations on the right to petition.
That are embodied in the california election code it similarly be sites rights that are raised by.
The circulator to the petitioners we don't wanna lose focus.
On them Heights the voters the people in whom the powers vested to decide whether or not there's going to be a recall election and who's going to be recalled SSK provide.
Forms in spanish it does not your honor.
The model I would accept petitions signed a.
That were written Spanish the petitions would have to go to the Registrar.
And yes Andrew they often that 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 former will be.
Accepted by the Registrar formerly.
Flow.
As long as it had English on it I don't think there's any impediment.
To having a bilingual form the at the code is Island wrong work because the to election presumably speak and be the English I heard you had remembered.
Was a good find some increase perished mall on.
Not necessary some really competent casting gon be able to speak the language should be able to your gamecast heard the name and remarry profession ma'am and certainly comes to Korean or Vietnamese or.
And you this a.m man which is a more.
Morgues are the MU difficult social with me wouldn't are you say are using the state approve a smile on truth that they would.
There with the hoop with every day they would have to be sure that everything on the form is truthful.
Or arm or or you know the the glad to have the same message I would guess they would not be a form that had.
But you're scribbling on it there baby boom.
%um understand so its own went to attract before you could go out before the state could improve that maybe it's something that we r us the state but I I would imagine are there.
Before her state for the pool for my america with the pool for like that they would have to and procedure for ensuring that the translation is accurate and to do that are getting back to church or.
Problems crushing they would have to get approval from the Justice Department.
AM I am i is a match.
Understanding of how things were yes your honor the question whether or not a petition can be submitted.
For prove all in a foreign language is not before the court Anna and I think it's sort of an open question what any particular.
Going to ask the questions i think is before the court I your honor 8075 yams but we don't have to decided in any that but not limited to agree that we don't have the size but nevertheless it's.
Something there for might bear arms she you know you're not sure about the answer I don't know what a any particular registrar we do because these petitions of course are submitted at the county level.
I don't know what a registrar would do however the requirement of translation.
That plaintiff its 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.
S as suggested by the court would be to a county registrar's office that already translates things into Crean such as ballots and.
Voter pamphlets and things like that so this is really adding a form and some language to the obligations under Sections that already do these but the right may I ask you a question george fisher a quick question under the somewhat related to this under the Election Code.
1102 0 be to.
BR requirement is that there be a statement not exceeding 200 words in line.
Over the reasons for the proposed recall two part question one if that were in Spanish with the certification not be allowed that.
The apparently is you're suggesting that there's not a definitive answer on that would you suggest.
Perhaps not and in any event what do the election officials do under that authority other than making sure that the that there is a statement and it does does not exceed 200 words unlike do they ever edit the content of that.
A statement is there any evidence about that well the do the Registrar plays a very important role in.
Reviewing both the structure in the form as it submitted as well as the content and is not allowed to let the statement go over 200 words but it does from my question does that my question what does.
Go to be substance to what is said not the word count: the substance of what is said on the statement for the reason or another part to the form I'm just focused on that one faction mmm know generally I don't believe that the Registrar makes changes to the substance thank you but does also %uh check and make sure that it complies in.
Both remain and structure and format and the other parts of the form as well.
I went to you have about two and a half minutes I'd like to reserve the rest my time if I meant.
Same reason up they've is your honor I might %uh thank and only the spread but a good morning you're honest man pleaded for.
I am Wendy Phillips deputy county counsel from the County of Orange.
I'm here on behalf of the respondents the county registrar voters from the county have orange since there are three of us on respondents cited the podium I thought I would try and give a brief overview to the core.
Ever intended division at the arguments 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 is not attached to the circulation.
A petitions by private citizens mister.
CERN Afghanistan and the Unified School District will speak briefly with regard to the remedy that he sees as appropriate.
In this case as it does a fact the Santa Ana Unified School District.
By me mister Witcher will appear on behalf and one in the original.
Petition proponents miss martinez and he will be addressing the.
Far-reaching implications as requiring the minority languages I'm.
To apply to the best yes and it appears that nobody plans to talk about movements and that's actually wouldn't this be loath to let me.
If you as a as I mentioned to your adversary.
We have a whole bunch of election cases where we say election challenge is ur are not mood even though the election's over because they're and we have a whole bunch election cases where.
They come up on short notice and we we do them get them all done before the election and I cannot tell what the sorting mechanism is.
Their must be some doctrine that says when you use a capable of repetition yet evading review at exception to move miss and I can't figure out what the doctor in is can you help me and tell me.
Case your honor I wish I could help you with that I like you have researched the issue neatness in relation to these cases and it does seem to be in lots in camps with regard to how they're treated.
And it seems to be add because them out in cases that sometimes address them and other times down and decide that it's me that there is no clear rule on that issue.
In this circuit and the of this this time the question before it was rendered moot you'd have to have at least an appellate decision before February.
Is as other bar would have had to have passed.
Once for you we would have had to have had a.
Decision be for.
That Dale draw during the day the election was.
There was also surprised at what what what would have been the date.
I'll in beer in a world where where factor coolly pursue looking around if the determination and the Minack question is the fact that the election has occurred and we don't go season-worst time ask yes then it would have been February court.
2000 as well as from bombings that's a very good question I'm asking you.
At what point in what is the point in time.
At which nothing we do we'll any difference in that election anymore yard and we would have said at the time that the election occurred which was February 4th 2012 california law as you probably know the California Supreme Court rarely decides to questions of constitutionality.
The nation have measures and tell after the election they say we shouldn't decide them before.
And they're trying to decide the master words I under the theory that when the election occurs it's mood.
Would have never have any decisions in california would right which is why I believe so many cases focus on the idea that be at issue is.
Is likely to be repeated and is not going to close at six hundred you understand the don't drive how grass which I think ties into my question I think we're just primerica suggesting is that there is relief could be granted afterwards like setting aside the result of the election that is a relief that could be great show that day.
The day the election is held it's not too late for a court to grant.
Effective relief are so so there are some point.
In time past the election when the.
When up well when nom at which point effectively who still possible.
And so what is that point in time your honor I don't think there's a bright line rule on that and that's unfortunate thing.
Activated the plaintiffs don't get a decision here.
In their favor or don't get any decision that the next election that the petitions are going to look exactly the same your honor I believe that is true that they were dokie yes so that's why it's its key if if if once the election is over I if he said that it's moot then the issue would never be able to be with you.
That I think that is from here today and we are not sure your armor living there because if in fact you can grant effective relief.
By setting aside election a year afterwards.
A procession the California Supreme Court.
Regularly reviews elections are after long after the ballots are closed.
And on occasions sets aside the result something.
Grants to leave so i i think the question I have asked a which you said you when sure about the answer.
Is how far into the future can such relief be granted work or can come in and set aside the results of the your honor under both California state law and I believe federal courts aren't usually your apt to actually set aside an election unless they were I'm not talking about judicial reluctance i'm talking about. at which point.
In law is elected you know we camped.
Today set aside the election %uh the recall election that no the governor.
Worse mean the current governor our home was a player I gather it's too late now.
Right so there must be some point in time at which an election become so final that even.
Their car state Supreme Court of Appeal Court couldn't come in and do 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 know tell me if you know the answer.
Is when after the election Gus at what point of time election does it become so final that nor judicial relief can be granted in that election gonna I don't think there is a specific ruled her case that speaks to that issue.
To presumably people who'll in favor of petitioners here we could set aside the election what I was going to say and I think that in this particular instance the extent that there has been.
Not only one more intervening replacing mister inlet Lopez a seat on the San an invite school district but I think there've been actually two elections held where the same person was placed in that seat to go that far back to you.
Go four years in the past and and do the election and the will and the people are still without you I thought you were challenged but this is your position was this is not a challenge to the election process at all.
I'm sorry can you restate that is the DAP I thought.
Your argument on the net and trying to kind of get us into the mat so we can.
Here then we don't have been 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 then I believe that and appellees Council.
Are appellant's counsel and she was up here indicated that there are no longer seeking I any affect the election and that they're merely looking for the declaratory relief to be granted.
That they originally requested in the near future life for faster action.
Now long as he can or an election this recall.
Petition start in this case it didn't start.
And marcher 2002 and I was going to adjust that cuz I believe a judge Kozinski had one and a time line and there were some time frames.
That were in question it was March a 2002 when the notice of intention to recall.
Happens the petitions began to be circulated in April a 2002 then in September up 2002 all the petitions were submitted to the register voters.
The signatures were certified I'm sorry I i must not have heard.
A at what point did the count is the the state official county officials act.
A to approve the petition the county officials would have act 22 per approved the petition in early April a 2002 when they said that the petition for Matt Matt the California Elections Code requirements.
Am so happy here is certified for the ballot.
And is September 2002 you those signatures were certified as sufficient.
And the Santa Ana Unified School District actually called the on in October 2002 and set that election for February 02 in relation to the original case course the TRL as described by appellant's counsel was denied and December 2002 the preliminary injunction was denied.
On January 13th I believe a 2003 they did file immediate day and in conjunction with that stay I'm sorry an immediate appeal and in conjunction with that immediate appeal they did ask for a motion panel to grant an immediate stay.
The election demotion panels you consider that night the immediate stay request and that was denied on January 30th 2003.
So that was the time frame that why I don't understand how r haro the case is more I i mean how this can possibly fall under evading a real a.
The relief was not only sought actually obtained before the it was in the early the petitioners wat abt but you got an appellate ruling.
Of remote booths a panel of this Court before the election was held.
A it could very well have been the opposite %uh or.
I mean are not maybe not in this case but paying on the merits but it certainly will be impossible by January for cancer J F-fifteens.
A full three weeks before the election you have gotten you I'm sorry petitioners could have gotten.
The leaf arm yanking the yanking I'll well Wombwell.
Paducah a recall petition from the ballots are big in a decision on the merits in January or.
Your honor that's why I was going to say I don't want to make a balance argument for them but I imagine what they would say.
That there was no decision on the max access to balance argument I assume you'd like this issue resolved so we're not here again at the next election yes your honor and it with that if I could mean to the wealthy freely that.
I'm not sure that we've heard from the county what its position on witness.
Really is your you have a position and a.
Your honor to the extent that the standard that the cases seem to apply.
Is as expressed by appellant's counsel that it is.
Subject repetition invading and that is does appear to be overwhelming standard in most cases.
Then we do believe that it is not married and are asking the court to hate.
Till the election at the Supreme Court of the United States thank you say that at the port in the United I.
Goal in the morning lexpress pictures goran mister we're gonna love you an election that one again pressure I don't live here because it already had.
Regard to the specials for has spent shaman.
Behaviors not gonna run against a.
But this this this Corp sweep.
Not this particular a page in history as far as politics in Orange County go.
That this particular petition between these proponents and that target yes your honor that is %um me ask you this but what's the big problem in the having the Spanish.
Translation this no.
You go into a supermarket you come out.
Someone standing there singing burkhart able to stop you this earlier oh you want to sign this petition.
Do your taxes up and.
The sign and a a.
That this not in and the language.
That the broader understands the minority voter in the is a very significant the latinos spanish-speaking population orange county's there yes yes yeah big one so a that they don't understand it and someone else and then you know this is not good because you're there and they go ahead and sign a and they're not really getting the full picture.
From there solicitor who get paid.
A dollar signature order sometime more.
Depending on the wealthy the candidate.
And a so.
That how how were they ever gonna dunno what this petition is all about.
An issue unless you got the the translation and their it's in Spanish Turner we would take the final big deal and then was the balance plan here.
Yes all the materials that were provided by the Registrar everywhere recalling the recall election was banished to the room.
Yes it was your honor not what work were what's the big problem because.
And understand the question is whether or not the Voting Rights Act requires it.
And our position is that when I orange county just do it only what's wrong with doing I think the question is is it a burden we believe that it is a burden to the petitioners because the lies.
Unclear as to who would carry the cost is this and.
If you're discussing at the application have the minority language like how much is a car your honor those backs are not specifically before the court but I can tell.
The court colloquially that I heard from some petition proponents.
Words and will in in five different languages your honor and.
Night with %uh the.
The indeed is looking for the man who already have a certain percentage.
Yes your honor but in Orange County the.
Based on the most recent census data there are five languages including English.
Have to be translated into and presuming the minority language requirement attach is to the privately circulated petitions with them always prided what percentage of the electorate 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.
Have Korean Chinese the enemy's Spanish.
And English and so there's five total languages that the Registrar must provide voting materials and.
And that's the issue that we believe that the petition in South.
Are not voting materials the voting rights act goes to the a fact your right to a vote and have your vote counted and the language the Voting Rights Act focuses on from the start at the registration process through notification about win 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 but heard a bright line he did.
Don't you need a fair system for an impartial recall.
Let that we're all about fairness.
Yes your honor but coming out people that speak for the languages.
And the probably represents a very significant.
Proportion orange county voters may be.
I know maybe fifty percent or more bear in mind yes see this coming all those people out your honor and thank you the seed at the router bit is the question that signing a petition is not a.
Right Paris right to sign a petition if you as a citizen heard that there was a petition circulating you couldn't demand to sign it and progress to question is whether.
These are materials or information relate to the that's a pretty broad term relating to.
The process not something that qualifies for Prime.
For the start of the process doesn't relate to the process we don't think it does your honor his electoral process I rather.
Meryl contractor relating to in this is a remedial statute to be broadly construed.
Ever media saturation requires clearance state to provide certain materials but not private citizens that's a different issue.
The question is whether it relates to the process that's your could separate point one is not provided by the state into that it doesn't relate to the process I'm asking about your second point.
Yes your honor the team's to make that if you wanna to limit materials to something directly in.
Apart from the process you wouldn't say.
Anything that relates to the scanner but elect process is colloquially known as the election itself.
It's not the entire process that could be operated by.
Qualifier for the election itself does not relate to the election but there's no pot there's no guarantee that it will qualify for election and it's based solely on the own well as to whether or not it does to gather those signatures every year I'll many many initiative petitions many different petitions that are speculated never.
See the ballot because they fail to the team's signature I about whether it was relating to the process all you needed was.
Whether it's that provided by the state or political subdivision a maid mistaken about the logic can be patient know you I really do believe that it's a two-tier standard and if one.
Applies it's either not provided or if it's not voting materials relating to an Amtrak s take deal with your second argument right and Wheatley teams to meet your weaker argument to put it mildly but we don't need both in order for the sport.
Find in our favor you'd like to abandon the circle no we're not abandoning.
He certainly does not believe based on Montero and I'll got over to force our sister circuits 10th and 11th decision analyzing whether or not these are voting materials and I believe those are well reasoned decisions.
I am paying yup cost and who bears the burden.
A pain for the translation important 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 at and they're the ones who would have to provide and the minority if the minority language requirement as a I heeds even if the stomach and forgot about your honor.
I only have knowledge base someone conversation with one initiative proponents and they said it cost sixty thousand dollars to get by Pam how much can we use shaving fear to that that's what I was attempting to break it down your honor if did you establish just want just one quick question even if the date bore the burden of translating the material with the petitioners have an obligation to to carry those materials with them.
Certainly door-to-door and Andy have voting rights act would require the petitioners to carry translated materials with them well if the minority language requirement actions in 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.
Vietnamese speaker to understand the petition.
That it is a nice which it would you like to you nag.
Give the rest to get ninety if I mayor first thank you very much this well you know the petition process in our stay.
Is a very him important advice for getting legislation on the books.
Yes your honor and their in our ballot is loaded with these petitions because.
We can't get ruling the state legislature.
The you know this the doesn't get barnes and nobles the issues and or there's no dispute about that away from him just just briefly if i may we think that the minority his food probably.
A initiation in that process we believe the minority language retirement is protected because as individuals have the right to vote and receive.
All materials on the ballot before they go and vote on in there own language think Inc.
Good morning my name is Bill shaper I'm here and be happy the anarchy Sanny.
Unified School District as for education.
We support the Apple ease argument that's been presented in their Braves.
We will focus our portion on the argument on the particular concerns this litigation presents Tamaki district and its governing board.
In the event the court finds Congress clearly intended the translation requirements at the BR /a to fully apply to any or all steps in the process cause a petition to be circulated and that.
Any type election to occur resulting from there from we request the court to specifically hold that no remedy for the violation can invalidate the original recall election or cause nobody is arguing I don't know why you're burning up time make your point but no use a furious when have no idea there are only asking for declaratory relief well well there's some dispute as to whether mister lopez don't have to get up and talk.
Okay will waste your time to write asking your budget question their right mind by British 10 ask why we're here just make sure you have my freedom of speech.
Over I but they are only asking all the perimeter which are then I.
Thank you thank you you for I thank your honor let me a gotten let me trying to get a couple sense and summers the stats trying to avert Asian question because I think 11 ish is being overlooked here I was a wrap your present the the petition we represent India the original proponents of this recall petition exactly asking this process questions were big deal.
Well I think there's a big deal I and three respects.
In some instances there is in fact a great burden.
A 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 gonna say that getting that translation is a huge burden financially.
Or even time what that's the elephant of course is that yes we have here.
That is the case that we have here part the bird here was never told them they had to do that until after they are together all their signatures and the petitions in over three weeks from election with crimes and look at marker.
I fire outlook guard.
But I like the argument thus thus the second issue at but I will point out that in many other instances the burden for for.
For example respect to the initiatives that the that the judge breyer's unmentioned the that are the ball up the petitioning activity in the state of California.
They can be tremendous burdens I and I think %uh the council mentioned there was that a petition in Loma Linda I wanna jurisdictions where had to be translated into so many different languages that it would cost sixty thousand dollars and we literally take six months contrary to what you said she talk to somebody who mentioned the figure 60,000 mile I'm lead counsel under oath I that was hearsay II you you know you could say any member whatsoever is anything on the record documenting amber there's no right there's nothing in the record in this case is races we don't have anything United any idea whatsoever that you could just go to: well speak Spanish as a hey passe this from me.
And get it done for our free are the teachers if he has any influence good.
Even better all who would have the responsibility for ensuring that the translation.
Always competent an integrated noted selflessly.
Presumably this if there were such a requirement it would be the state would have the burden of having to determine that the translation was accurate but it does lead to potential to bring people to determine the rest about material.
In the County Clerk's Office after each each other the what not only applies when you have that burden anyway with respect to all about material at yes over much I was a much more leisurely pace with respect to having the state resources which is the second good words I at if you really want us to believe this guy the cross the I'm elect.
Transcribed and certified translation at most four hundred words like.
I did I Spy I preface this by saying on a.
Recall petition in a.
Jurisdiction like this in this particular case I do not think the financial burden translation is what is the key what is potentially a problem is the timing on December.
Okay I'm sorry I i should medicare when I started out but okay timing is an issue you for example raise the question about the notice the recall petition process starts when.
A citizen art at least 10 finished proponents.
Serve on the officer sought to be recalled.
Their notice of intent to recall and then file that with the county of.
Now is that a document presumably 11 argued judge in relates to the electoral process and 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 stage 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 moon this issue that that was without that they remember questions on the UN decision on the moon I yes.
I believe that in most instances the a 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 and referenda for example there's a very short time period.
Under which determination must be made as to whether or not an object is.
A a proposed measure is going to go on the ballot or not but this case is moot is is that what you're saying well this in this case certainly did 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 I it obviously depends upon how soon the challenges brought which.
With which gets into a hole remedy issue here i'm for younger.
To make your own ways to all your time either your answers it the declaratory relief the card I believe is not move would be my pleasure in this case yes.
Um but but the I want to get back to to the burden issue as well because I do think in in this particular case it does not it's not a great bird that in this case the issue I wanted to I'm sorry you had three points and you got on I am with three second was the timing and that is when does the translation have to occur and who does I'm and the third related and that is the uncertainty UHV how this whole process would fit in.
With V state process for now I the recall but the national referendum for example a referendum.
Past the be the petition has to be drafted it has to be circulated and submitted within 30 days from the date that the ordinances enacted by the City Council at a local level.
Um that in fact would be in many instances completely.
Impossible deadline to reach if for example you're in the city the county of los angeles where you need to have a translation of what could be a very lengthy.
Accordance itself and under the full-text requirement california law you have to not only have in your petitioned the actual take the ordinance but any other materials that a reference in at Orenco.
A lot of these referendum petitions are literally sixty a 150 to 200 pages long if you have to translate that into six different languages.
That just simply cannot physically be accomplished within the 30-day period to make sure to petitions uncharged.
Wealth for I'm won't be we get short agree if we could force the legislatures to make sure laws we have shorter petitions but unfortunate referendum context that's not our choice.
Which of course is the irony of all this the laws themselves are adopted in English.
Nobody requires one legislature passes the law there has to be an in a language other than English.
And yet if we want to challenge that through a referendum petition urges leaders have enough trouble speaking English I'm sorry ok.
If one was the challenger through the referendum petition one the burden would have to be plainly be on the proponents of that measure.
And this I think Estill to the complete your point about the the burn on first member petitioning right here and they would ever have the hard work use because the decision in this case will undoubtedly have a bearing on what happens and how it's interpreted with respect government does.
Present a very different question angrier very often those things are possible down by the legislature on no rush I'm your friend in the technical sense that it is a protest thing the adoption of a law that the legislature the ledge their body already enacted there is a pig remembers a couple on the ballot and he has to the legislature are.
Its commonly referred to as a referendum it's not typically a doing but you don't need for additional our signature Americans earth if the legislature put an R we don't need a petition signatures to see.
I I see the is up if you'd like to have 30 seconds at which to I i would like to get back to the point that I wanted to try maker.
Initially and that is congress you know.
It has a role in this debate here and there's been no mention that thirty minutes up until now about.
The congressional role judge Fisher estan and point out what has the position on the Department of Justice been in the thirty years since the this this provision added to the voting rights act.
And the position has been that they've never challenge the not knowing not only follow the law so they never indicated that there's any reason to believe that the morning at requires.
Petitions recall petitions initiative or referendum to be circulated and translate into multiple languages.
Congress has also doesn't really mean anything because they discuss small staff over there and they're running around the cut your on no matter house plenty of work to do.
It 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 the center to the fact that they were not aware that other staffers has more but more importantly congress was aware and in 1988 to Circuit Court of Appeals held that privately circulated petitions are not subject to the voting rights act Congress reauthorized at four years later and didn't say a word about reversing those they implicitly accepted those positions and as we stand here today your honor there is a very your own answers a very active debate going on as you certainly aware.
About the reauthorization for the voting rights act by I and if there's a change to be made if there's a clarification he made congress should be the body making it not this part thank you Kathy times when it's back I.
Too many view will give you a little extra to thank you look for some of the burden clearly under the statute the burden of translation falls on the jurisdiction that is providing formed the statute says.
Whenever any state or political subdivision and then at the end it says.
It shall provide translated material that kelso.
Just all could you please address your argument why is that that we should there we call.
Position to be provided by the government.
Recall petitions are provided by the government.
Because the question really turns.
On what the voter sees when presented with the recall and who determines what the voter sees its not as much whose hand is.
Is showing the petition it isn't announces a prime as a circulator is showing it its what does the voter see and who decides with the voter sees and the state strictly regulates and strictly determines what goes on a petition for miss I mentioned earlier.
Only 82 words you know from the opponents are on there serve the Friars airplanes for airworthiness.
You can't put a plane in the air without an FAA.
Archives perfect I'll does that mean the governments providing airplanes.
The Minot be the easiest analogy for me to deal with your honor I that's why I pick you part I would say that.
You know that the the wait is renowned as it is is the government telling you how many seats to have on the plane is the government on you work hard they provide attempt by the airplane.
Well know but in this case the government does provide a template.
For the form and says the font the holler.
The signs the statements the words that have to be used in a statement in the notice of intent.
That there has to be a target response.
So much I can assure you that there are many many requirements putting air pressure in the area and they're quite specific about it.
We tell you what bond to use and how many words in your brief it that mean we're item for know that's true but my broussard 82 words long your honor and those are the number upward by.
Really wish comments now that doesn't really have anything yeah.
Calling having a problem being 60 K.
Council if if the state were to undertake to translate these what's the remedy petitioner failed to carry them with him yep on the petitioner goes door-to-door he's got 6 by translation whatever the number 12 Jersey in Orange County.
What's the remedy if the petitioner failed to carry something in Korean but carries the other languages spoken the remedy might be the invalidation a petition because the state would be required to do that under state law or by virtue.
Voting right that over to the voting rights act that's the issue in the case is section 2003 and what it requires voters to be able to see.
As a result I wanted to address the really what I think I've is the parade of horribles that have been raised by opponents who essentially don't wanna copy and don't wanna carry translated recall petitions the burden is quite minimal in fact to to cop to photocopy something that isn't very much longer and maybe carry one extra sheet.
Up 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 a paper the burdens are not great they were all raised by opponents have two or three.
When congress decided to enact the statute they were raised and rejected and for that reason we urge the court to follow the plain meaning of the statute thank you thank you on is just arguments submitted for decision that it's the court's calendar for this morning.
Parts bin sicher the full 9th Circuit Court of Appeals has not ruled on this case.
You can read the Court's earlier decision at C span dot 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.


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