landWatch: Are the initiative, referendum and recall in jeopardy?

Published Wednesday, May 17th, 2006
in the Sacramento Bee

All political power is inherent in the people. Government is
instituted for their protection, security, and benefit, and they have
the right to alter or reform it when the public good may
require.

-Article 2 of the California Constitution

An injustice is taking place in Monterey County, where a citizen initiative and a referendum measure recently were excluded from next month's ballot, based on their alleged inconsistency with the federal Voting Rights Act. The issues involved affect the entire state -- it's fair to call what's happening a constitutional crisis for California.

A decision by a panel of the 9th U.S. Circuit Court of Appeals (Padilla v. Lever, 2005) has jeopardized use of California's constitutionally guaranteed initiative, referendum and recall powers. Various federal district courts have applied that decision in California. Monterey County has been particularly hard hit. The 9th Circuit has recently voted to rehear the Padilla case with the full 9th Circuit present. That is schedules for next month -- controversy is not over.

But throughout California, meanwhile, based on the Padilla ruling, federal judges have removed citizen initiatives, referendums and recalls from ballots on the grounds that the petitions were circulated only in English. The 9th Circuit panel held in the Padilla ruling that a recall petition was invalid because it should have been circulated in Spanish as well as English, and therefore was in violation of Section 203 of the Voting Rights Act, a federal law. Section 203 requires that voting materials be provided in one or more minority languages under certain circumstances. Yet California election law requires that ballot petitions be circulated only in English.

In Monterey County, the two measures excluded from next month's ballot complied with California election law, with sufficient signatures and proper format to place on the June ballot. One deals with a community-developed general plan and the other is a challenge to a Board of Supervisors' approval of a subdivision. The supervisors refused to place them on the ballot, citing the Voting Rights Act.

But consider that in Monterey County, the excluded initiative proposes to amend an existing local law, a highly technical document more than 1,000 pages long. The law is available only in English, like virtually every other local law in California. If the 9th Circuit's ruling is about full participation in the electoral process, then do all the laws that may be changed in the initiative process need to be translated into many languages?

The real issue is land use controls that could mean $2 billion less in profits for land developers and their political allies in Monterey County.

Federal courts must address the fundamental difference between qualifying a measure for the ballot and voting. Qualifying a measure offers the opportunity for everyone to vote. When the actual vote takes place, materials must be provided in one or more minority languages to offer the opportunity for all citizens to understand the issue. We support the Voting Rights Act. But we oppose its misapplication to qualifying a measure for the ballot. It restricts the rights of all voters, both English and non-English speaking, the opportunity to vote on the initiative.

In Monterey County, and we suspect elsewhere, the real issue isn't voting rights. That challenge is merely a novel strategy to ensure that voters won't have a chance to weigh in on sensible growth management measures. The plaintiffs who brought suit against the initiative and the referendum in Monterey County aren't challenging other ballot measures, or arguing that all government documents should be multilingual.

Until the current conflict has been resolved, local and statewide citizen petitions will be hamstrung by the courts. With billion of dollars in profits at stake for developers, it's not hard to understand why this recent attack on citizen democracy has been launched.

Michael D. DeLapa is a business consultant and founder of LandWatch Monterey County. Reach him at mdelapa@mdelapa.com Gary A. Patton is executive director of the Planning and Conservation League, a nonprofit lobbying organization. He served as an elected member of the Santa Cruz County Board of Supervisors for 20 years. Reach him at gapatton@pcl.org. Web site: www.pcl.org

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posted 05.18.06