Padilla v. Lever , 429 F.3d 910 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDRA PADILLA; VICTOR SANCHEZ; 
ROSA ANDRADE,
Plaintiffs-Appellants,
v.
ROSALYN LEVER, in her official
capacity as Registrar of Voters,
Orange County Registration and No. 03-56259
Elections Department; SUZANNE
SLUPSKY, in her official capacity as  D.C. No.
CV-02-01145-AHS
Assistant Registrar of Voters, OPINION
Orange County Registration and
Elections Department,
Defendants-Appellees,
and
VIVIAN MARTINEZ,
Defendant.

Appeal from the United States District Court
for the Central District of California
Alicemarie H. Stotler, District Judge, Presiding
Argued and Submitted
February 8, 2005—Pasadena, California
Filed November 23, 2005
Before: Harry Pregerson and William C. Canby, Jr.,
Circuit Judges, and Edward C. Reed, Jr.,* District Judge.
*The Honorable Edward C. Reed, Jr., Senior United States District
Judge for the District of Nevada, sitting by designation.
15485
15486 PADILLA v. LEVER
Opinion by Judge Pregerson;
Dissent by Judge Canby
PADILLA v. LEVER 15489
COUNSEL
Thomas A. Saenz, Mexican American Legal Defense and
Education Fund, Los Angeles, California, for the plaintiffs-
appellants.
Wendy J. Phillips, Deputy County Counsel, Santa Ana, Cali-
fornia, for the defendants-appellees.
George W. Shaeffer, Jr., Breon, Shaeffer & Bryant, Irvine,
California, for the amici curiae.
OPINION
PREGERSON, Circuit Judge:
Plaintiffs, residents and registered voters in the Santa Ana
Unified School District (“SAUSD”) whose primary language
is Spanish, appeal the district court’s dismissal of their law-
suit, filed pursuant to the Voting Rights Act of 1965, 42
U.S.C. § 1973aa-1a(c). Plaintiffs’ suit sought declaratory and
injunctive relief against the Orange County elections officials
charged with overseeing the recall election process in the
SAUSD because the officials failed to ensure that petitions in
the recall of School Board Member Nativo Lopez were pro-
vided in Spanish as well as English. For the reasons set forth
below, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2002, defendant Vivian Martinez,1 along with ten
1
Martinez was not initially named as a defendant in this suit. Rather,
after Martinez filed an Ex Parte Application for Order Staying Proceed-
ings and Shortening Time for hearing on Motion to Intervene, the plain-
tiffs filed a First Amended Complaint inserting Martinez’s name as a
defendant instead of two previously named defendants.
15490 PADILLA v. LEVER
other individuals, initiated a recall process against Santa Ana
Unified School District (“SAUSD”) Board Member Nativo
Lopez. Martinez and the other recall proponents (“Recall Pro-
ponents”) are private citizens, and all are registered voters of
the SAUSD.
Pursuant to California Elections Code section 11000 et
seq., the Recall Proponents drafted and printed a Notice of
Intention to Circulate Recall Petition (“Notice of Intention”).
The Notice of Intention included a statement of the grounds
for the recall, and was printed only in English. The Recall
Proponents filed the Notice of Intention with the Orange
County Registration and Elections Department (the “Orange
County Elections Department”) and a copy was served on
Lopez on March 25, 2002. In response to the Notice of Inten-
tion, Lopez filed an Answer with the Orange County Elec-
tions Department, which he also served on the Recall
Proponents. Lopez’s Answer was printed only in English.
After receiving Lopez’s Answer, the Recall Proponents
drafted a Petition for Recall (“Recall Petition”) pursuant to
the California Secretary of State’s regulations and to conform
to the requirements of the California Elections Code. The
Recall Petition included a request to hold an election to
replace Lopez, the Notice of Intention (including a statement
of the reasons for the recall), and Lopez’s Answer. Except for
Lopez’s Answer (which was drafted by Lopez), the Recall
Proponents drafted the contents of the Recall Petition, in
adherence to the statutory content requirements and using the
format provided by the Secretary of State. This draft Recall
Petition was in English only.
As required by Elections Code section 11042, the Recall
Proponents filed two blank copies of the Recall Petition with
the Orange County Elections Department, along with a proof
of publication of the Notice of Intention, for elections officials
to ascertain whether the Recall Petition conformed to the
proper format and applicable election law. See Cal. Elec.
PADILLA v. LEVER 15491
Code § 11042(a). The Orange County Elections Department
reviewed the proposed form and wording of the petition to
recall Lopez and concluded that the petition conformed to the
requirements of the California Elections Code. Thus, elections
officials authorized the proposed Recall Petition for circula-
tion. The Recall Petition was printed only in English and elec-
tions officials did not require translation into Spanish. The
final Recall Petition was printed at the Recall Proponents’
expense and was printed only in English.
In April 2002, the Recall Proponents circulated the Recall
Petition and began obtaining signatures. On September 12,
2002, the Recall Proponents submitted signed petitions to the
Orange County Elections Department. Orange County elec-
tions officials Rosalyn Lever and Suzanne Slupsky verified
the petition signatures and determined that sufficient signa-
tures had been obtained to hold a recall election. Two weeks
later, Lever issued a Certificate of Sufficiency of Signatures
on Recall Petition, thereby confirming that the signed peti-
tions contained sufficient signatures to support a recall elec-
tion.
After certifying the petition signatures, SAUSD called for
the recall election to be held on February 4, 2003. The elec-
tion would determine whether Lopez should be recalled and,
if so, who would be his successor. In addition to defendant
Martinez, four other candidates appeared on the recall ballot.
On December 12, 2002, Sandra Padilla and other residents
and registered voters in the SAUSD whose primary language
is Spanish, filed suit seeking injunctive and declaratory relief
against Orange County elections officials Lever and Slupsky,2
who were charged with overseeing the recall. Plaintiffs’ suit
alleged that the Recall Petition violated section 203, 42
U.S.C. § 1973aa-1a, of the 1965 Voting Rights Act, which
2
Lever and Slupsky were sued in their official capacities as, respec-
tively, Registrar and Assistant Registrar for the County of Orange.
15492 PADILLA v. LEVER
requires that voting materials in certain voting districts be dis-
tributed in specified minority languages as defined by the
Voting Rights Act and by U.S. Attorney General Regulations.
Plaintiffs sought an injunction prohibiting the Orange County
Elections Department from taking any steps to proceed with
the recall election and requiring translation of the Recall Peti-
tion into Spanish as required by section 203. Eight days later,
plaintiffs moved for a temporary restraining order, seeking to
restrain defendants Lever and Slupsky from conducting the
February 4, 2003 recall election.
In their suit, plaintiffs allege that because defendants failed
to require translation of the Recall Petition, plaintiffs signed
the circulated petitions without being aware that they were
signing a petition to recall Lopez. According to plaintiffs, the
petitions they signed were printed only in English and petition
circulators misrepresented the purpose of the petition. Specifi-
cally, plaintiffs charge that petition signature collectors told
them that the petition was merely a form to request additional
information and was not, in fact, a petition to recall Lopez.
The district court denied plaintiffs’ request for a temporary
restraining order on December 24, 2004, concluding that
plaintiffs failed to show that they were likely to succeed on
the merits and failed to raise the existence of serious questions
going to the merits. On January 10, 2003, the district court
denied plaintiffs request for a preliminary injunction.3 On
3
The disputed recall election has already occurred, thereby mooting
plaintiffs’ request for injunctive relief. However, their request for declara-
tory relief remains ripe for consideration because it challenges a wrong
that is capable of repetition yet evading review. See In re Burrell, 415 F.3d
994, 998 (9th Cir. 2005) (noting four major exceptions to mootness doc-
trine, including “wrongs capable of repetition yet evading review”). The
“capable of repetition yet evading review” exception applies where “(1)
the duration of the challenged action is too short to allow full litigation
before it ceases, and (2) there is a reasonable expectation that the plaintiffs
will be subjected to it again.” Biodiversity Legal Found. v. Badgley, 309
F.3d 1166, 1173 (9th Cir. 2002) (quoting Greenpeace Action v. Franklin,
PADILLA v. LEVER 15493
February 21, 2003, the district court granted defendant Marti-
nez’s Rule 12(b)(6) motion and dismissed plaintiffs’ suit
against Martinez, with prejudice. Finally, on June 16, 2003,
the district court granted remaining defendants Lever and
Slupsky’s motion for Judgment on the Pleadings under Rule
12(c), dismissing plaintiffs’ suit with prejudice. Relying on
Montero v. Meyer, 861 F.2d 603 (10th Cir. 1988), and Del-
gado v. Smith, 861 F.2d 1489 (11th Cir. 1988), the district
court concluded that the Recall Petition was not governed by
14 F.3d 1324, 1329 (9th Cir. 1993)). “The duration component of the
repetition/evasion analysis is present where the underlying action is almost
certain to run its course before either this court or the Supreme Court can
give the case full consideration.” Id. (internal quotations and citations
omitted). An issue “evades review” when, “in its regular course, [it]
resolves itself without allowing sufficient time for appellate review.” Id.;
see also Greenpeace Action, 14 F.3d at 1329-30 (finding that one year was
not sufficient time for judicial review); Alaska Ctr. for the Env’t v. U.S.
Forest Serv., 189 F.3d 851, 855 (9th Cir. 1999) (finding that two years not
enough time to allow for full litigation). Here, the district court denied the
petition for injunctive relief and the election was held within two weeks
of the filing of plaintiffs’ appeal, leaving an insufficient time to resolve the
dispute before the election.
“The second component of the repetition/evasion exception to the moot-
ness doctrine requires a probability that the challenged action will affect
the Appellants in the future.” Biodiversity Legal Found., 309 F.3d at 1174.
Where a plaintiff seeks declaratory relief, the question before us is
“whether the facts alleged, under all the circumstances, show that there is
a substantial controversy, between parties having adverse legal interests,
of sufficient immediacy and reality to warrant the issuance of a declara-
tory judgment.” Id. at 1174-75 (quoting Md. Casualty Co. v. Pac. Coal &
Oil Co., 312 U.S. 270, 273 (1941)). The plaintiffs seek declaratory relief
on behalf of minority-language speaking voters on the ground that elec-
tions officials permitted the printing and distribution of English-only recall
petitions in violation of the Voting Rights Act. Defendants argue that sec-
tion 203 does not require the translation of recall petitions. It is clear that
a substantial controversy exists between the parties and will continue
absent a decision in this case. Moreover, this recall election was not an
isolated incident, but an event that in all probability will recur. Thus, we
conclude that we have jurisdiction to consider the plaintiffs’ request for
declaratory relief.
15494 PADILLA v. LEVER
section 203 of the Voting Rights Act because it was not “pro-
vided by” the Orange County elections officials and because
it was not material or information “relating to the electoral
process,” see 42 U.S.C. § 1973aa-1a. Plaintiffs appeal.4
DISCUSSION
I. Standard of Review
We review de novo a district court’s dismissal for failure
to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). See Decker v. Advantage Fund, Ltd., 362 F.3d 593,
595-96 (9th Cir. 2004). Likewise, dismissals on the pleadings
under Rule 12(c) are reviewed de novo. See Turner v. Cook,
362 F.3d 1219, 1225 (9th Cir. 2004).
II. Section 203 of the Voting Rights Act
A. The Voting Rights Act of 1964
In 1975, Congress amended the Voting Rights Act to
require certain jurisdictions to provide bilingual voting mate-
rials. See 42 U.S.C. § 1973aa-1a; Zaldivar v. City of Los
Angeles, 780 F.2d 823, 826 (9th Cir. 1986), overruled on
other grounds by Cooter & Gell v. Hartmarx Corp., 496 U.S.
384 (1990). Congress took this action after expressly finding
that,
[T]hrough the use of various practices and proce-
dures, citizens of language minorities have been
effectively excluded from participation in the elec-
toral process. Among other factors, the denial of the
right to vote of such minority group citizens is ordi-
narily directly related to the unequal educational
4
Plaintiffs also filed an Emergency Motion for Injunction Pending
Appeal, which this court denied on January 30, 2003. That appeal was dis-
missed on February 25, 2003, pursuant to plaintiffs’ request.
PADILLA v. LEVER 15495
opportunities afforded them resulting in high illiter-
acy and low voting participation. The Congress
declares that, in order to enforce the guarantees of
the [F]ourteenth and [F]ifteenth [A]mendments to
the United States Constitution, it is necessary to
eliminate such discrimination by prohibiting these
practices, and by prescribing other remedial devices.
42 U.S.C. § 1973aa-1a(a). To remedy this voting discrimina-
tion, Congress acted to require that,
Whenever any State or political subdivision subject
to the prohibition of subsection (b) of this section
provides any registration or voting notices, forms,
instructions, assistance, or other materials or infor-
mation relating to the electoral process, including
ballots, it shall provide them in the language of the
applicable minority group as well as in the English
language.
42 U.S.C. § 1973aa-1a(c). Section 203’s remedial provisions
apply if (1) five percent or more of the voters in the state or
political subdivision are members of a single language minor-
ity, and (2) the illiteracy rate among this group is higher than
the national average.5 42 U.S.C. § 1973aa-1a(b)(2)(A); Zaldi-
var, 780 F.2d at 832.
5
Specifically, the Voting Rights Act states that:
A State or political subdivision is a covered State or political sub-
division for the purposes of this subsection if the Director of the
Census determines, based on census data, that —
(i)(I) more than 5 percent of the citizens of voting age of
such State or political subdivision are members of a single
language minority and are limited-English proficient;
(II) more than 10,000 of the citizens of voting age of such
political subdivision are members of a single language
minority and are limited-English proficient; or
15496 PADILLA v. LEVER
The parties do not dispute that SAUSD is subject to the
bilingual provisions of the Voting Rights Act. See 28 C.F.R.
pt. 55 app. Rather, the central dispute is whether recall peti-
tions fall under the Act’s translation requirements.
B. Is There Any Controlling Precedent?
Plaintiffs contend that Zaldivar v. City of Los Angeles con-
trols our decision here. In Zaldivar, the issue was whether the
district court properly imposed Rule 11 sanctions against the
plaintiffs’ counsel on the ground that “their Voting Rights
claims were ‘totally frivolous’ and ‘totally without merit.’ ”
Zaldivar, 780 F.2d at 827. Plaintiffs argued that section 203
applied to recall petitions and claimed that the defendant vio-
lated the Voting Rights Act by not translating the petitions
into the appropriate minority language. Id. at 825-26. The
panel noted that it was not reviewing Plaintiffs’ complaint in
the same way as it would under Rule 12(b)(6), and that
“[u]nder the appropriate legal standard, we are concerned
only with whether the complaint asserts a good faith argument
for applying the Voting Rights Act under these circumstances,
even if that legal argument may ultimately fail.” Id. at 832.
[1] Nevertheless, the panel determined that the “basic ques-
tion we must answer is whether the plaintiffs have an arguable
claim under the Voting Rights Act.” Id. It then determined
that they did. Id. at 833. In so concluding, the panel rejected
the argument that a recall notice is merely a “preliminary step
(III) in the case of a political subdivision that contains all or
any part of an Indian reservation, more than 5 percent of the
American Indian or Alaska Native citizens of voting age
within the Indian reservation are members of a single lan-
guage minority and are limited-English proficient; and
(ii) the illiteracy rate of the citizens in the language minority
as a group is higher than the national illiteracy rate.
42 U.S.C. § 1973aa-1a(b)(2)(A).
PADILLA v. LEVER 15497
to voting” and not covered by section 203’s translation
requirements. Id. at 833 n.11. As the panel explained,
The argument that a recall notice is only a prelimi-
nary step to voting and therefore is unaffected by the
bilingual provisions of the Act is without merit. The
Act requires all “notices, forms, instructions, assis-
tance, or other materials or information relating to
the electoral process” to be in the minority language.
The Act does not exempt information or material,
compelled by statute, which is preliminary to voting,
but essential if an election is to occur. The argument
that a necessary step, such as the publications of a
notice to recall an office holder, is within the scope
of section 1973aa-1a is one which can be made in
objective good faith.
Id.
[2] Defendants dismiss this quoted language as “dicta” and
urge this court to disregard Zaldivar. What exactly constitutes
“dicta,” however, is hotly contested and judges often disagree
about what is or is not dicta in a particular case. See United
States v. Johnson, 256 F.3d 895, 914-16 (9th Cir. 2001) (en
banc) (Kozinski, J., concurring). In Johnson, Judge Kozinski
explained that, “where a panel confronts an issue germane to
the eventual resolution of the case, and resolves it after rea-
soned consideration in a published opinion, that ruling
becomes the law of the circuit, regardless of whether doing so
is necessary in some strict logical sense.” Id. at 914; accord
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004)
(quoting Johnson); Miranda B. v. Kitzhaber, 328 F.3d 1181,
1186 (9th Cir. 2003) (per curiam) (same). Only “[w]here it is
clear that a statement is made casually and without analysis,
where the statement is uttered in passing without due consid-
eration of the alternatives, or where it is merely a prelude to
another legal issue that commands the panel’s full attention,
it may be appropriate to re-visit the issue in a later case.”
15498 PADILLA v. LEVER
Johnson, 256 F.3d at 915. Nevertheless, “any such reconsider-
ation should be done cautiously and rarely — only where the
later panel is convinced that the earlier panel did not make a
deliberate decision to adopt the rule of law it announced.” Id.If, however, “it is clear that a majority of the panel has
focused on the legal issue presented by the case before it and
made a deliberate decision to resolve the issue, that ruling
becomes the law of the circuit and can only be overturned by
an en banc court or by the Supreme Court.” Id. at 916; see
also Cetacean Cmty., 386 F.3d at 1173; Miranda B., 328 F.3d
at 1186. This understanding of binding circuit authority was
further articulated in Barapind v. Enomoto, 400 F.3d 744 (9th
Cir. 2005) (en banc) (per curiam), where we said that when
a panel has “addressed [an] issue and decided it in an opinion
joined in relevant part by a majority of the panel,” the panel’s
decision becomes “law of the circuit.” Id. at 750-51 (footnote
omitted).
[3] In Zaldivar, the panel engaged in reasoned deliberation
and made a considered decision regarding whether the Voting
Rights Act applies to recall petitions. See Zaldivar, 780 F.2d
at 832-33. In two pages of opinion, the panel described Con-
gress’s intent in amending the Voting Rights Act to include
a minority language translation requirement, considered the
purpose of the Voting Rights Act, and whether the purpose
was served in applying it to recall petitions. See id. Nothing
in the panel’s consideration of this issue suggests that its deci-
sion was made casually or without due consideration.
[4] While the panel’s discussion of section 203 was prelim-
inary to its decision on the appropriateness of Rule 11 sanc-
tions, the panel made a deliberate decision to resolve the
issue. Even if we were not bound by its conclusion, we find
Zaldivar’s reasoning compelling and useful in resolving the
current dispute.6
6
The dissent takes issue with our discussion of Zaldivar. However, as
the next section makes clear, independent of Zaldivar, we reach the same
result.
PADILLA v. LEVER 15499
Defendants, however, argue that two out-of-circuit deci-
sions should determine the outcome here. In the first case,
Montero v. Meyer, 861 F.2d 603 (10th Cir. 1988), the Tenth
Circuit held that initiative petitions did not fall under the Vot-
ing Rights Act’s bilingual requirements. See id. at 609-10. In
Montero, the plaintiffs challenged initiative petitions circu-
lated by members of the Official English Committee seeking
to amend the Colorado Constitution to make English the
state’s official language. Id. at 605. According to the Tenth
Circuit, the “electoral process” did not commence until a mea-
sure qualified for placement on the ballot and signing an ini-
tiative petition was not “voting” within the meaning of the
Voting Rights Act. Id. at 607. The court further held that peti-
tions were not “provided by” the state such as to make the
minority language provisions operable. Id. at 609-10. Rather,
the court reasoned that the state’s actions in approving the ini-
tiative petitions were merely “ministerial” and did not alter
the character of the petitions or render their circulation “state
action.” Id. at 610.
Employing similar reasoning, the Eleventh Circuit reached
the same conclusion in Delgado v. Smith, 861 F.2d 1489 (11th
Cir. 1988). Like Montero, this case also involved a proposed
citizen initiative to make English the official language of
Florida. Id. at 1491. The court concluded that the Voting
Rights Act did not apply because Congress did not intend the
bilingual requirements to apply to private citizens. Id. at 1492.
In addition, Florida elections officials’ involvement in
approving the initiatives was “ministerial” and did not consti-
tute “state action.” Id. at 1495-96. Thus, the initiative to
amend Florida’s Constitution to make English the state’s offi-
cial language did not require translation into minority lan-
guages under the Voting Rights Act. Id. at 1498.
We are not persuaded to depart from Zaldivar’s holding by
these two out-of-circuit cases, which are readily distinguish-
able from the instant case. First, as discussed below, we find
that California’s statutory scheme is more stringent than those
15500 PADILLA v. LEVER
underlying the Montero or Delgado decisions, making the
Orange County Elections Department’s approval of the Recall
Petition more than “merely ministerial.” Neither Florida’s nor
Colorado’s statutory and regulatory scheme governing initia-
tive petitions are structurally equivalent to California’s
scheme. For instance, under Florida law, Florida elections
officials are limited to verifying only that a proposed initiative
petition complies with applicable format requirements; the
regulations do not provide for a review of the petition’s con-
tents. See Fla. Admin. Code Ann. r. 1S-2.009(1) (“The Divi-
sion shall review the form for sufficiency of the format
only.”). In contrast, California elections officials are charged
with authorizing and approving the form and content of the
recall petition. See Cal. Elec. Code § 11042(a) (charging elec-
tions officials with “ascertain[ing] if the proposed form and
wording of the petition meets the requirements of this chap-
ter” (emphasis added)).
While Colorado empowers elections officials to suggest
revisions as to a petition’s content, such revisions are merely
suggestions: recommendations made as to format or content
are discretionary to the petitioner. See Colo. Rev. Stat. § 1-40-
105(2) (“[T]he proponents may amend the petition in response
to some or all of the comments of the directors of the legisla-
tive council and the office of legislative legal services, or their
designees.” (emphasis added)). Unlike Colorado, California
recall proponents are statutorily required to alter their recall
petition as directed by elections officials until elections offi-
cials are satisfied that no further alterations are required.
Compare Cal. Elec. Code § 11042(a), (c), with Colo. Rev.
Stat. § 1-40-105(2).
Finally, that both Montero and Delgado concerned petitions
to qualify English-only initiatives to amend their respective
state constitutions perhaps best, and rather ironically, demon-
strates the problem with excluding pre-election petitions from
section 203’s requirements for translation. The decisions of
these circuit courts essentially exclude non-English speaking
PADILLA v. LEVER 15501
persons from knowledgeably deciding whether to qualify an
initiative enshrining an English-only requirement into their
state constitutions. Such a result cannot be what Congress
intended when it defined the purpose of section 203 as one to
remedy past language discrimination in voting practices so as
to enforce the guarantees of the Fourteenth and Fifteenth
Amendments to the Constitution and to ensure that citizens of
language minorities are no longer effectively excluded from
participation in the electoral process. See 42 U.S.C. § 1973aa-
1a(a).
C. The Voting Rights Act and Recall Petitions
[5] Section 203 of the Voting Rights Act requires transla-
tion into the jurisdiction’s minority language(s) whenever a
state or political subdivision “provides any registration or vot-
ing notices, forms, instructions, assistance, or other materials
or information relating to the electoral process, including bal-
lots.” 42 U.S.C. § 1973aa-1a(c). Thus, the essential questions
here are (1) whether recall petitions are “other materials or
information relating to the electoral process,” and (2) whether
the Orange County Elections Department “provided” the
recall petitions.
As a remedial statute, the Voting Rights Act is to be
broadly construed so as to achieve the Act’s objectives. See
Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (“[W]e are
guided by the familiar canon of statutory construction that
remedial legislation should be construed broadly to effectuate
its purposes.”). The Supreme Court has explained “[t]he Vot-
ing Rights Act was aimed at the subtle, as well as the obvious,
state regulations which have the effect of denying citizens
their right to vote because of their race.” Allen v. State Bd. of
Elections, 393 U.S. 544, 565 (1969) (footnote omitted). Thus,
in Allen, the Supreme Court “reject[ed] a narrow construction
. . . to § 5” and concluded that “the [Voting Rights] Act gives
a broad interpretation to the right to vote, recognizing that
15502 PADILLA v. LEVER
voting includes ‘all action necessary to make a vote effective.’ ”7
Id. at 565-66. It is this well-established canon of statutory
construction that must guide our analysis here.
1. “Other Materials”
[6] Section 203 defines “voting materials” to “mean[ ] reg-
istration or voting notices, forms, instructions, assistance, or
other materials or information relating to the electoral pro-
cess, including ballots.” 42 U.S.C. § 1973aa-1a(b)(3)(A).
However, it does not define what constitutes “other materials
or information relating to the electoral process.” See id.
Where a statute fails to define a key term, this court’s “duty,
in matters of statutory construction, is to give effect to the
intent of Congress.” San Jose Christian Coll. v. City of Mor-
gan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) (quoting A-Z
Int’l v. Phillips, 323 F.3d 1141, 1146 (9th Cir. 2003)). “To
this end, ‘[i]t is elementary that the meaning of a statute must,
in the first instance, be sought in the language in which the
act is framed, and if that is plain, . . . the sole function of the
courts is to enforce it according to its terms.” Id. (quoting
Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1231-32 (9th
Cir. 2003)). “When a statute does not define a term, a court
should construe that term in accordance with its ‘ordinary,
contemporary, common meaning.’ ” Id. (quoting A-Z Int’l,
323 F.3d at 1146 (citation omitted)). “Only if an ambiguity
exists in the statute, or when an absurd construction results,
does this court refer to the statute’s legislative history.” Id.
7
In a footnote, the Court further explained that,
“Congress knew that some of the States covered by § 4(b) of the
Act had resorted to the extraordinary stratagem of contriving new
rules of various kinds for the sole purpose of perpetuating voting
discrimination in the face of adverse federal court decrees. Con-
gress had reason to suppose that these States might try similar
maneuvers in the future in order to evade the remedies for voting
discrimination contained in the Act itself.”
Id. at 565 n.30 (quoting South Carolina v. Katzenbach, 383 U.S. 301, 335
(1966)).
PADILLA v. LEVER 15503
[7] “To determine the ‘plain meaning’ of a term undefined
by a statute, resort to a dictionary is permissible.” Id. Black’s
Law Dictionary defines “related” to mean “to stand in some
relation; to have bearing or concern; to pertain; refer; to bring
into association with or connection with.” Black’s Law Dic-
tionary 1289 (6th ed. 1991). Supreme Court and Ninth Circuit
precedent suggest that this broad definition of “related” is an
appropriate one to use here. See, e.g., Morales v. Trans World
Airlines, 504 U.S. 374, 383 (1992) (noting that ordinary
meaning of “relating to” is “a broad one”); Aloha Islandair
Inc. v. Tseu, 128 F.3d 1301, 1302 (9th Cir. 1997) (“The
phrase ‘relating to’ should be construed broadly to mean ‘has
a connection with or reference to.’ ”). Based on this reading,
recall petitions clearly have some “bearing or concern” and
are “connected with” an election. Indeed, recall petitions
serve no other purpose than to trigger an election. As the Zal-
divar panel explained,
The election itself is merely the culmination of th[e
electoral] process. It includes those acts that a citizen
must perform to establish his eligibility as a voter, as
well as those acts that a candidate must perform to
place his name on the ballot. The range of conduct
“relating to the elector[ ]al process” includes, for
example, compliance by a would-be voter with stat-
utes regulating registration and compliance with
other statutes to place a name or an issue on the bal-
lot. That the state or a political subdivision has man-
dated by law that certain preliminary steps be taken
by the would-be voter, the candidate for office, or
the proponents of an issue does not in any sense
absolve the governmental entity of its responsibility
under the Voting Rights Act. Such compelled acts
are far removed from those voluntarily undertaken
by a candidate, such as the printing of campaign lit-
erature.
Zaldivar, 780 F.2d at 833. As noted above, Zaldivar rejected
“[t]he argument that a recall notice is only a preliminary step
15504 PADILLA v. LEVER
to voting and therefore is unaffected by the bilingual provi-
sions of the [Voting Rights] Act.” Id. at 833 n.11.
[8] Finally, in the Department of Justice’s regulations
implementing section 203, the U.S. Attorney General has
defined “written materials” to “include, for example, ballots,
sample ballots, informational materials, and petitions.” 28
C.F.R. § 55.19(a) (emphasis added). While the Attorney Gen-
eral’s views are not binding on this court, they are persuasive
and bolster the conclusion that recall petitions are “other
materials relating to the electoral process.”8 Furthermore, it is
important to note that we owe considerable deference to the
Attorney General’s construction of the Voting Rights Act,
particularly where the language of that interpretation mirrors
the Act’s own language.9 See United States v. Sheffield Bd. of
8
Citing MCI Telecommunications Corp. v. AT&T, Co., 512 U.S. 218,
229 (1994) and Lonberg v. Sanborn Theaters, Inc., 271 F.3d 953, 954 (9th
Cir. 2001), defendants argue that we should not defer to the Attorney Gen-
eral’s “contrary interpretation” where “the statute’s text is clear and unam-
biguous.” Even assuming that the statute’s text is clear and unambiguous,
we conclude that its clarity and lack of ambiguity weighs against the
defendants’ position. Moreover, the Attorney General’s interpretation is
far from “contradictory” to the language of section 203. Indeed, the inter-
pretation is in keeping with the statute’s purpose, as stated by Congress,
of ensuring minority-language-speaking citizens full participation in the
electoral process. 42 U.S.C. § 1973aa-1a(a).
9
In Sheffield, the Court explained,
What is perhaps a more compelling argument concerning the
original, and subsequent, congressional understanding of the
scope of § 5 is that the Attorney General has, since the Act was
adopted in 1965, interpreted § 5 as requiring all political units in
designated jurisdictions to preclear proposed voting changes.
This contemporaneous administrative construction of the Act is
persuasive evidence of the original understanding, especially in
light of the extensive role the Attorney General played in drafting
the statute and explaining its operation to Congress. In recogni-
tion of the Attorney General’s key role in the formulation of the
Act, this Court in the past has given great deference to his inter-
pretations of it.
Sheffield Bd. of Comm’rs, 435 U.S. at 131 (footnotes and citations omit-
ted).
PADILLA v. LEVER 15505
Comm’rs, 435 U.S. 110, 131-32 (1978); City of Pleasant
Grove v. United States, 479 U.S. 462, 468 (1987) (noting that
Attorney General’s interpretation of the Voting Rights Act is
entitled to considerable deference and that “Congress was
aware of the Attorney General’s view in this regard, and
implicitly approved it, when it reenacted the Voting Rights
Act in 1982”). The Attorney General’s inclusion of the word
“petition” in the definition of “written materials” is consistent
with the Justice Department’s position that the Act’s purpose
is to “enable members of applicable language minority groups
to participate effectively in the electoral process.”10 28 C.F.R.
§ 55.2(b).
According to the district court, however, “[t]he private
recall petition process does not involve ‘voting’ because
inherent in the concept of ‘voting’ is the exercise of a choice
between two or more alternatives that has an effect on the out-
come of an election. No voting or election occurs with the cir-
culation of a recall petition.” There are several problems with
the district court’s analysis.
[9] First, the district court’s decision is inconsistent with
the plain language of section 203 and Congress’s intent. Sec-
tion 203 does not say that it is limited to an actual election.
See 42 U.S.C. § 1973aa-1a(c). If Congress had intended to
limit the Voting Rights Act’s scope, it could have simply used
10
Defendants argue that these regulations are not a “requirement”
because the same regulations also provide that “[t]he determination of
what is required for compliance with section . . . 203[(c)] is the responsi-
bility of the affected jurisdiction. These guidelines should not be used as
a substitute for analysis and decision by the affected jurisdiction.” See 28
C.F.R. § 55.2(c). But, the defendants place too much importance on this
language. First, nothing in the record suggests that defendants engaged in
any analysis regarding the applicability of section 203 to the Recall Peti-
tion. Second, the language cited by defendants does not diminish that reg-
ulation’s minimum requirement that affected jurisdictions are “required to
publish in the language of the . . . minority group materials distributed to
. . . the electorate generally . . . for example . . . petitions.” See 28 C.F.R.
§ 19(a) (emphasis added).
15506 PADILLA v. LEVER
the word “ballot” or “election.” But it did not. Instead, Con-
gress determined that section 203 applied to “any registration
or voting notices, forms, instructions, assistance, or other
materials or information relating to the electoral process,
including ballots.” Id. (emphasis added). Under the district
court’s reading, the meaning of this language would be
entirely stripped away, leaving only “voting” and “ballots” as
operative words. Such a result would be completely at odds
with the general rule of statutory construction requiring that
every word in a statute be given full effect. See Shelby v.
Bartlett, 391 F.3d 1061, 1064 (9th Cir. 2004) (“We must
‘interpret statutes as a whole, giving effect to each word and
making every effort not to interpret a provision in a manner
that renders other provisions of the same statute inconsistent,
meaningless or superfluous.’ ”) (quoting Boise Cascade Corp.
v. U.S. Envntl. Prot. Agency, 942 F.2d 1427, 1432 (9th Cir.
1991)). The district court does just this by reading “other
materials . . . relating to the electoral process” right out of the
statute.
[10] Second, the district court’s conclusion that the Voting
Rights Act applies only when a vote is cast between two or
more alternative choices relies on too restricted a reading of
Congress’s intent in requiring bilingual voting materials. Such
a narrow and crabbed reading of this statute is contrary to the
general rule that such remedial statutes are to be broadly con-
strued. See Allen, 393 U.S. at 565-66; see also Tcherepnin,
389 U.S. at 336. The Supreme Court’s decision in Allen is
instructive here. There the Court concluded that the petition
process to place a candidate’s name on an electoral ballot con-
stituted a “standard, practice, or procedure with respect to vot-
ing” under section 5 of the Voting Rights Act, 42 U.S.C.
§ 1973c. Allen, 393 U.S. at 569-70. The recall petition process
is comparable to the nomination process at issue in Allen as
both are preliminary steps to an election. While we are con-
cerned with section 3 of the Voting Rights Act, the language
specifically at issue here — “materials . . . related to the elec-
toral process” — is at least as broad as that of section 5 —
PADILLA v. LEVER 15507
“standard, practice, or procedure with respect to voting” —
construed by the Court to include the nomination process.
Compare 42 U.S.C. § 1973aa-1a(c) (emphasis added), with 42
U.S.C. § 1973(c) (emphasis added).
[11] Finally, the district court’s reasoning ignores the sim-
ple fact that recall petitions do implicate a decision between
two alternatives, i.e., a choice between (1) recalling the
officeholder by signing, and (2) not recalling the officeholder
by not signing the petition. California election law requires
that a certain percentage of registered voters join in a call to
recall an official by signing a valid, pre-approved petition. See
Cal. Elec. Code § 11221. An effective way to choose to keep
a challenged incumbent in office is to refuse to sign the prof-
fered petition, thereby reducing the likelihood that the recall
election will occur. Thus, the choice whether to sign or not
sign a recall petition can have a tremendous impact on the fate
of the incumbent.11 Indeed, in the First Amendment context,
the right to vote is inextricably tied to the right to petition and
petition signatures are treated the same as votes for constitu-
tional purposes. See Green v. City of Tucson, 340 F.3d 891,
893 (9th Cir. 2003); see also Buckley v. Am. Constitutional
Law Found., 525 U.S. 182, 186 (1999) (noting that under
First Amendment, petition circulation “is core political speech
11
The dissent suggests that people who circulate recall petitions do not
have any incentive to exclude others from signing their petitions.
Although to some extent this is true, groups like the Recall Proponents in
this case have an incentive to misrepresent the character of the petition.
Signature gatherers, for personal political reasons or because their com-
pensation for circulating the petition is based on the number of signatures
gathered, might induce individuals unwittingly to sign the recall petition.
Here, the Recall Proponents disingenuously claimed their petition was an
innocuous request by those who signed the petition for additional informa-
tion concerning Nativo Lopez, the officeholder whose ultimate recall was
the goal of the signature gatherers. The dissent also claims that a victim
of such misrepresentation could rescind her signature, thereby remedying
the injury. That assumes, however, that the non-English speaker would at
some point be cognizant of the misrepresentation, which seems unlikely
except in rare occasions.
15508 PADILLA v. LEVER
because it involves interactive communication concerning
political change” (internal quotations omitted)); Meyer v.
Grant, 486 U.S. 414, 421 (1988) (“The circulation of an ini-
tiative petition of necessity involves both the expression of a
desire for political change and a discussion of the merits of
the proposed change.”).
2. “Provided By” the Orange County Elections Department
Although we conclude that recall petitions relate to the
recall process, the Recall Petitions would still only fall under
the Act’s bilingual requirements if they were “provided by”
the Orange County Elections Department. See 42 U.S.C.
§ 1973aa-1a(c). As discussed more fully below, the broad
construction requirements for the Act’s remedial provisions
militates in favor of a conclusion that there was sufficient
state involvement to trigger the bilingual requirements.
[12] Recall petitions in California are subject to extensive
regulations that go beyond imposing mere ministerial duties
upon elections officials. See Cal. Elec. Code § 11000 et seq.
Under these regulations, the state, or in this case the Orange
County Elections Department, has the authority and obliga-
tion to authorize and approve the form and content of pro-
posed recall petitions, verifying collected signatures, and
setting election dates. Cal. Elec. Code § 11042. No signatures
may be collected on a recall petition unless and until the
Orange County Elections Department notifies the petition’s
proponents that the form and wording of the proposed petition
comply with the Elections Code. § 11042(d).
California’s Elections Code mandates a specific format for
recall petitions that must be used by recall proponents. Cal.
Elec. Code § 11041(a) (“[P]roponents shall use the recall peti-
tion format provided by the Secretary of State.”). While pri-
vate persons may print the actual recall petitions, the form
must adhere to the statutory requirements, which regulate the
content and even the typeface to be used on such petitions.
PADILLA v. LEVER 15509
See id. The proponents must file, within ten days of receipt
the recall target’s answer, two blank copies of the recall peti-
tion with the jurisdiction’s elections officials. Cal. Elec. Code
§ 11042(a). Elections officials are charged with ensuring that
the proposed petition conforms to the requirements of the
Elections Code in both form and content. See id. If elections
officials determine that a proposed petition does not comply,
they must issue written findings. Cal. Elec. Code § 11042(b).
In such cases, officials must notify the proponents of the alter-
ations necessary for the petition’s approval. Cal. Elec. Code
§ 11042(c).
The Elections Code also dictates the contents of a recall
petition, requiring that each page of the petition include: (1)
a request that an election be called to recall an officeholder;
(2) a copy of the Notice of Intention; (3) a written statement
of the grounds for the recall; (4) the names of at least ten
recall proponents that appear on the Notice of Intention; (5)
any answer filed by the officer sought to be recalled or a state-
ment that the official did not answer; and (6) the name and
title of the officer sought to be recalled. Cal. Elec. Code
§§ 11020(a)-(d), 11023(a), 11041(a). California elections offi-
cials must also approve the content of the recall petition. See
Cal. Elec. Code § 11042(a) (charging elections officials with
“ascertain[ing] if the proposed form and wording of the peti-
tion meets the requirements of this chapter” (emphasis
added)). Indeed, recall proponents are statutorily required to
alter their recall petition as directed by elections officials until
elections officials are satisfied that no further alterations are
required. See Cal. Elec. Code § 11042(c) (mandating that
recall proponents correct recall petition as directed by elec-
tions officials within ten days until elections official deter-
mines that no further alterations are required).
[13] California law prohibits any private party from circu-
lating a recall petition until the petition receives state
approval. See Cal. Elec. Code § 11042(d) (“No signature may
be affixed to a recall petition until the elections official or, in
15510 PADILLA v. LEVER
the case of the recall of a state officer, the Secretary of State,
has notified the proponents that the form and wording of the
proposed petition meet the requirements of this chapter.”).
Signed petitions must be submitted to the proper elections
officials for certification. Cal. Elec. Code §§ 11222, 11224,
11227. If enough signatures have been collected, the recall
election is called and scheduled by elections officials. See
§§ 11222, 11224, 11227.
Considering this extensive regulation, it is reasonable to
conclude that recall petitions are not the same as fliers or can-
didate literature wholly created and controlled by private par-
ties. See Zaldivar, 780 F.2d at 833 (“That the state or a
political subdivision has mandated by law that certain prelimi-
nary steps be taken by the would-be voter, the candidate for
office, or the proponents of an issue does not in any sense
absolve the governmental entity of its responsibility under the
Voting Rights Act. Such compelled acts are far removed from
those voluntarily undertaken by a candidate, such as the print-
ing of campaign literature.”). Rather, they are more akin to
ballots or initiative materials that are distributed by voting
districts or to the nomination petition at issue in Allen.
[14] Here, the Recall Petitions, in English only, were sub-
mitted to the Orange County Elections Department as
required by California election law. By reviewing and approv-
ing the Recall Petition for circulation, the Orange County
Elections Department officially sanctioned the content and
format of the petition, including its printing only in English.12
Elections officials could have altered the text of the petition
or demanded that the Recall Proponents publish it in Spanish
12
Defendants argue that the Recall Petition is not “provided by” the
Orange County Elections Department because the Recall Proponents
drafted the Petition’s content, with the exception of Lopez’s response.
This seems to take too narrow a view of “provided.” If we were to adopt
such a definition, then ballots would also not have to be translated, as the
candidates’ names, occupations, and political party affiliations are not
drafted by the state.
PADILLA v. LEVER 15511
as well as English, but chose not to do this and instead
approved the petitions in their English-only form. This state
approval, together with the extensive state regulation of the
form of the petitions is sufficient state involvement to trigger
application of the bilingual requirements and to conclude that
the state “provided” the Recall Petition within the meaning of
the Voting Rights Act. See Zaldivar, 780 F.2d at 833. This
conclusion is further bolstered by the requirement that the
Voting Rights Act be given broad construction. See Allen, 393
U.S. at 565-66.
D. “Chilling Effect”
Defendants argue that a conclusion that recall petitions fall
within section 203’s requirements would result in a “chilling
effect” on voters by imposing too heavy a burden on recall
proponents because of the increased printing costs necessary
to distribute petitions in assorted minority languages. We do
not believe that such considerations should outweigh the right
of every voter to participate in the electoral process. Or, that
this is a sufficient reason to justify leaving non-English speak-
ing voters in the dark about the petitions they are solicited to
sign. In amending the Voting Rights Act, Congress was
responding to a history of language discrimination in voting.
It did not suggest that its remedy should be undone because
of an increased financial burden on the states or political sub-
divisions required to comply with its provisions.13 See 42
U.S.C. § 1973aa-1a.
CONCLUSION
[15] “[T]he purpose of the bilingual provisions of the [Vot-
ing Rights] Act is to end the language disability of some citi-
13
Furthermore, section 203 does not affect every political subdivision.
It only applies to those districts that have significant limited-English profi-
cient populations, as defined by the statute. See 42 U.S.C. § 1973aa-1a(b)
(2)(A)(i), (ii).
15512 PADILLA v. LEVER
zens to full participation in the electoral process; and to this
end, the Act requires information relating to the electoral pro-
cess to be brought to their attention in both English and the
minority language.” Zaldivar, 780 F.2d at 833. Holding that
these bilingual provisions do not apply to recall petitions
would deny minority language speakers the right to fully par-
ticipate in the electoral process by depriving them of the abil-
ity to consider the written arguments for and against a
particular recall target. See id. Such a result runs counter to
the very purpose of Congress in remedying minority language
discrimination in voting. Accordingly, we hold that section
203 of the Voting Rights Act applies to recall petitions circu-
lated pursuant to California law. The district court’s decision
to the contrary is REVERSED and the cause is
REMANDED to the district court for further proceedings not
inconsistent with this opinion.
CANBY, Circuit Judge, dissenting:
With all due respect, I cannot agree with the outcome
reached by the majority opinion. I must confess that my
approach to the problem is influenced by my conviction that
application of § 1973aa-1a(c) of the Voting Rights Act to ini-
tiative or recall petitions is inherently perverse; it takes too lit-
tle account of the incentives that operate on persons
circulating and signing, or not signing, such petitions.
I certainly agree with the majority’s proposition that “the
Voting Rights Act is to be broadly construed so as to achieve
the Act’s objectives.” Supra, p. 15501. One major objective
is to ensure that citizens of language minorities not be “ex-
cluded from participation in the electoral process.” 42 U.S.C.
§ 1973aa-1a(a). Those who circulate recall petitions, however,
have no incentive to exclude anyone from signing their peti-
tions. There is no way, and no need, to vote “no” on a recall
petition itself; those eligible voters who do not sign, for any
PADILLA v. LEVER 15513
reason, are effectively counted as “no” votes on the question
of whether to have an election.1 The purpose, therefore, of
those who circulate recall petitions is to obtain as many signa-
tures as possible in order to precipitate an election that other-
wise would not occur. To the extent that they fail to provide
translations of their petitions, they take the risk of failure of
their enterprise.
It might be argued, however, that minority language voters
ought to be able to have the opportunity to sign a petition in
their language in order to help precipitate a recall election. It
is difficult to see how such an argument can lead to an
enforceable right, however. Certainly the circulators have no
obligation to present a petition to any particular voter. Again,
the incentive operating on the circulator is to reach as many
potential voters as possible but if, for any number of reasons,
the circulator does not reach an eligible voter and provide an
opportunity for that voter to sign the petition, it is hard to see
how there has been a violation of voting rights remediable by
the Voting Rights Act and the courts. It is equally hard to see
how the failure to reach potential signers in their own lan-
guage gives rise to an enforceable right that can stop an other-
wise successful recall effort in its tracks.
The plaintiffs in this case present an unusual variant of an
eligible voters’ argument. They allege that they signed the
petition because of a misrepresentation that it was a request
for information rather than a recall petition. This situation is
sufficiently extraordinary that it ought not to outweigh the
practicalities that will govern most solicitation of signatures
for a recall election. There are ample remedies short of
enjoining an election to remedy the plaintiffs’ alleged injury.
One remedy, employed by one of the plaintiffs here, was to
rescind her signature. Another, of course, is to vote “no” in
1
The number of signatures needed to precipitate a recall election is cal-
culated as a percentage of the total number of registered voters. Cal. Elec.
Code § 11221.
15514 PADILLA v. LEVER
the recall election, where the ballots are required to be printed
in both English and Spanish.
The downside of application of § 1973aa-1(a) to initiative
and recall petitions is the chilling effect on recalls and initia-
tives. As the defendants point out, if the Voting Rights Act
were to be applied to recall petitions for an office of Orange
County, California, petitions would have to be presented in
English, Spanish, Vietnamese, Korean and Chinese. It is not
at all clear who is to bear the expense of such translation and
printing; presumably it would be those who seek the recall.
Even aside from the expense, the sheer burdensomeness of the
effort is likely to chill petition campaigns and make their suc-
cess extremely unlikely. If, for example, a substantial minor-
ity community has enough members to precipitate a recall
election by themselves, it is questionable that they should be
burdened with the unnecessary duty to solicit numbers of
other minority language speakers in their own languages.
Those not solicited will have their chance to participate in the
recall election. I fear that the majority’s ruling here, rather
than opening the electoral process in accord with the intent of
the Voting Rights Act, will have a tendency to close it. And
the lawsuits it will engender will not be brought by those
seeking access to sign a recall petition; they will be brought
by plaintiffs like those before us who seek to prevent an elec-
tion when sufficient signatures have been gathered to precipi-
tate one.
Of course, all of these considerations would not carry
weight if it were clear that Congress intended § 1973aa-1a(c)
to apply to initiative and recall petitions. That intent is not
clear, however; indeed, the words of the statute and the deci-
sions of two of our sister circuits point firmly in the opposite
direction. As the majority opinion recognizes, § 1973aa-1a(c)
imposes its requirement only on a State or political subdivi-
sion subject to the applicable provisions of the Voting Rights
Act when that State or subdivision “provides . . . any . . .
materials of information relating to the electoral process . . . .”
PADILLA v. LEVER 15515
(Emphasis added). It is only those materials provided by the
State or subdivision that must be translated into the language
of the applicable minority groups. Id.
It strains the meaning of these statutory terms to hold, as
the majority does, that the State or subdivision “provided” the
recall materials merely because they approved them as to
form. The petitions themselves originated with, and were sup-
plied by, the non-governmental defendants who caused the
petitions to be circulated. Thus the Tenth Circuit held in Mon-
tero v. Meyer, 861 F.2d 603, 609-10 (10th Cir. 1988), that ini-
tiative petitions were not subject to the requirements of
§ 1973aa-1(c) because they were not provided by the State.
The Eleventh Circuit came to the same conclusion in Delgado
v. Smith, 861 F.2d 1489, 1496 (11th Cir. 1988). I would fol-
low the lead of these two circuits and hold that § 1973aa-1(c)
does not apply to the circulation of recall petitions in the pres-
ent case.
The majority opinion chooses instead to follow the lan-
guage of our circuit in Zaldivar v. City of Los Angeles, 780
F.2d 823, 833-34 (9th Cir. 1986), opining that a statutorily-
required notice of intent to precipitate a recall election was
subject to § 1973aa-1a. But the issue in Zaldivar was whether
plaintiffs who brought such a claim and their attorneys were
subject to sanctions under Fed. R. Civ. P. 11 for filing a frivo-
lous lawsuit. Indeed, the lead sentence of the paragraph of
Zaldivar on which the majority relies stated: “Giving section
1973aa-1a the ‘broadest possible scope,’ . . . we have no diffi-
culty in concluding that a competent attorney, after reasonable
inquiry, could argue in good faith that a notice of intention to
recall an office holder provides information relating to the
electoral process.” Id. at 833 (citation omitted). Zaldivar’s
language, therefore, is subject to interpretation as a statement
of the attorney’s good faith argument. Moreover, the discus-
sion was confined to the notice of intent, not the recall peti-
tions themselves, and dealt only with the requirement of
§ 1973aa-1a that the materials in issue “relat[ed] to the elec-
15516 PADILLA v. LEVER
toral process.” Our case, in contrast, concerns the petitions
themselves and the requirement that they be “provided” by
the State or its subdivision. See id. Zaldivar is therefore dis-
tinguishable.
In any event, the language of Zaldivar relied on by the
majority clearly was dictum. The majority points out that
views of the scope of dictum vary, and that our court’s solemn
pronouncements ought not easily to be disregarded as dictum.
With that principle I heartily agree. In the case of Zaldivar,
however, there is really no room for dispute. The district court
in Zaldivar had ruled in a summary judgment that § 1973aa-
1a did not apply to the recall process, and it added Rule 11
sanctions against the plaintiffs and their attorneys. By the time
the appeal was decided by our court, the election had occurred
and it appears to have been undisputed that the case on the
merits was moot. If there had been any doubt that our Zaldi-
var opinion dealt with the merits of the complaint, it was
utterly dispelled by the closing words of our discussion. We
said:
The district court was not persuaded by plaintiffs’
arguments. Under the proper legal standard, we do
not review the court’s decision on the Voting Rights
issue for legal error. We hold only that plaintiffs’
argument is not frivolous under the first prong of
Rule 11.
Zaldivar, 780 F.2d at 834.
I have no difficulty accepting the holding of Zaldivar; I
would not consider the plaintiffs in this case or their attorneys
to be subject to Rule 11 sanctions for having brought a frivo-
lous claim. I am convinced, however, that we should join the
Tenth and Eleventh Circuits in holding that § 1973aa-1a does
not apply to recall (or in their cases initiative) petitions, for all
of the reasons I have set forth. I therefore respectfully dissent
from the majority’s opinion.