Padilla v. Lever

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Padilla v. Lever is a California-based lawsuit that originated in an attempt in 2002 in Orange County to recall Nativo Lopez, a school board member of the Santa Ana Unified School District school board.[1] The plaintiffs were Sandra Padilla, Victor Sanchez and Rosa Andrade. They filed the lawsuit against Rosalyn Lever and Suzanne Slupsky in their official capacities as election officials for Orange County.

Vivian Martinez and other initiators of the recall action against Nativo Lopez had already collected sufficient signatures to place the recall on the ballot. Orange County elections officials had scheduled the recall election for February 4, 2003. The plaintiffs wanted the court to enjoin and restrain Orange County from holding the recall election. The primary contention of the plaintiffs was that the petitions that had been circulated to recall Lopez were only in English. The three plaintiffs spoke Spanish as a primary language and had signed the recall petition. Their contention was that the recall petition violated the Minority Language Requirement of the 1965 federal Voting Rights Act because the recall petition was only printed in English. The request of plaintiffs to halt the recall was unsuccessful; the election proceeded, and Lopez was recalled.

Minority Language Requirement of Voting Rights Act

The federal law upon which the plaintiffs relied were the minority language requirements (MLR) of the Voting Rights Act of 1965. Under MLR, certain political subdivisions or jurisdictions are legally required by the federal government to conduct elections, provide materials, and assist voters in languages other than English. The MLR requirements come into play for any particular jurisdiction when the jurisdiction:

  • Has more than 10,000 voters whose first language is the same, and is not English;
  • More than 5% of all voting age citizens share a common language that is not English;
  • On an Indian reservation, more than 5% of residents speak a common language that is not English;
  • Includes a language-group whose illiteracy rate is higher than the national illiteracy rate.

Circuit court agrees with Orange County, upholds recall

The district court that first heard the case disagreed with the plaintiff. That court cited Delgado v. Smith and Monterey v. Meyer. Those two cases, one from Colorado and one from Florida, held that privately circulated petitions are not "provided" by the government and are not "voting materials" and therefore do not fall under the MLR requirement of the 1965 Voting Rights Act.

Padilla appeals to Ninth Circuit

The plaintiffs appealed the district court's decision to the United States Court of Appeals for the Ninth Circuit.

In a 2–1 decision issued in 2005 and written by Judge Harry Pregerson, the original three-judge panel of the Ninth Circuit issued a decision overturning the district court.[2] The panel held that the VRA does apply to recall petitions circulated by private citizens because the involvement of the government in the recall process is substantive enough to trigger the provisions of the VRA. Specifically, the government is involved in recall petitions to the extent that elections officials were required to approve the form and wording of the petition before it was circulated.

Orange County asks for en banc rehearing; 9th circuit reverses 3-judge panel

Orange County, the defendant, then asked the full Ninth Circuit for an en banc rehearing of the decision of its three-judge panel. The petition for an en banc rehearing was granted, and the en banc panel reversed the decision of the three-judge panel, finding that recall petitions are not "provided by" the state, but rather by private citizens, so the requirements of the VRA do not apply.[3][4]

Impact of Padilla on initiatives and recalls

External links


  1. Voting Rights Act halts initiatives: land use ballot measures blocked in Monterey County, Loma Linda (dead link)
  2. Padilla v. Lever, the text of the decision by the 3-judge panel of the Ninth Circuit.
  3. Wendy Phillips, Bringing the Ninth Circuit into Line: Voting Rights Act Minority Language Requirements Do Not Apply to Privately Circulated Petitions
  4. Padilla v. Lever, text of the 9th Circuit's en banc decision to uphold the original district court ruling against the plaintiffs