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Must Initiative Petitions Be Distributed in Many Different Languages?

Some federal district court decisions recently have said "yes," applying the federal Voting Rights Act and extending a Ninth Circuit decision from late last year. Lawprof Rick Hasen (generally something of a liberal) urges the Ninth Circuit to issue an emergency stay of one such decision that's currently being appealed.

Hasen sets forth his arguments in this column from last December (following the original Ninth Circuit decision). Sacramento Bee columnist Dan Weintraub seems to agree. I'm not a Voting Rights Act maven, but my sense is that Rick is probably quite right.

UPDATE: The Ninth Circuit refuses to issue the emergency stay (in a short decision by Judges Kozinski and Rymer).

Cornellian (mail):
I've never understood why anything related to a federal or state election should be in anything other than English. You need to be a citizen to (legally) vote, and if you're a citizen by birth, you've spent 18 years here and can undoubtedly speak English. If you're a citizen by naturalization, you had to demonstrate proficiency in English to become a citizen (or so I assume) so why waste a lot of money translating everything into half a dozen different languages?
4.5.2006 12:50am
Lev:
So if I am the typical Californian who is monolingual in Spanish, and someone is trying to get my signature on an initiative petition, I have to be offered a petition in English, and the other 352 non-Spanish languages/dialects of which I no comprendo any?

The Circus strikes again.
4.5.2006 1:34am
W.J.Hopwood (mail):
Cornellian, right on! As I understand the sequence of events, last week Senator Imhofe introduced an amendment to one of the immigration bills now being argued in the Senate, said amendment being to make English the only "Official" language of the U.S. government, thereby eliminating bilingual services, foreign language ballots and other nonsense such as discussed above. Whether it gets off the ground is another matter, but hope springs eternal.
4.5.2006 1:47am
dafydd (mail) (www):
Hmmm... This is one of those areas where I don't think sending out petitions in multiple languages is necessary, but not doing so is stupid.

Suppose you want to start a CA Initiative to support [illegal aliens|undocumented workers]. So, you put out a bunch of petitions in Spanish and come up with a sufficient number of signatures to get the petition on the ballot.

Then, the Initiative goes down in flames from all the "No" votes from non-Spanish speakers.

(I'm being semi-hyperbolic.)

If a "committee" honestly wants to get a good feel for the appeal of its proposed initiative, it needs to test several language groups. The committee then gets better feedback as to the willingness of people to sign the petition.

On the other hand, failure to produce petitions in several languages to cover several demographics gives the committee's opponents ammunition for a claim that the committee is trying to force through a law that only benefits a small group of people.

That's the justification for why it should be done. But, a petition is not the vote. And, the vote is what matters. So, I don't see any compelling need for legislation mandating petitions in multiple languages.
4.5.2006 3:59am
David M. Nieporent (www):
I've never understood why anything related to a federal or state election should be in anything other than English. You need to be a citizen to (legally) vote, and if you're a citizen by birth, you've spent 18 years here and can undoubtedly speak English. If you're a citizen by naturalization, you had to demonstrate proficiency in English to become a citizen (or so I assume) so why waste a lot of money translating everything into half a dozen different languages?
In general, I agree with you, but

1) You're forgetting about Puerto Ricans, who are native-born citizens whose native language is Spanish.
2) For some strange reason, old people who have resided in the U.S. for a long period of time who are applying for naturalization don't need to demonstrate English proficiency.

Given the numerous people in category #1, requiring voting information in English and Spanish is defensible. (Although, as Prof. Hasen points out, it doesn't make sense for privately-circulated ballot initiatives.) But there's no reason I can see why voting information should be translated into all the other languages.
4.5.2006 3:59am
Aukahe:
Doesn't the wording of the petition have to exactly match the initiative?
What is the threshold for requiring petitions in a given language?
4.5.2006 9:55am
4th Circuit. (mail):
Wait, the 9th Circuit? Might as well just ignore it until those fruitcakes are overturned.
4.5.2006 9:59am
Robert West (mail) (www):
Aukahe - it's been a while since the last time i've read the relevant portions of California election law. However, the gigantic voter pamphlet which contains the text of initiatives, and sample ballots, are already provided in multiple languages (in San Mateo County, for example, everything is available in English, Spanish, and Chinese), so there must be some provision for translated text to be considered identical for the purposes of whatever rule we're talking about. Presumably the same rules that are used for initiatives which have already qualified could also eb used for petitions at the time of circulation.
4.5.2006 12:53pm
Bill Beeman (mail):
I recall a number of fights over the past 25 years in Santa Clara County over both the question of which languages are required on election materials, and on the accuracy of translations.

Additionally, the language requirements vary from one county to another. Do we require anyone wishing to put forth an initiative to provide petitions in all possible languages? Just the cost of this would be yet another barrier to the initiative process.

I think I tend to side with those who feel that we should stick with English. I suspect that the requirement for English proficiency has fallen by the wayside for poor enforcement.
4.5.2006 1:39pm
Todd K (mail):
The multilingual requirements of sec. 203 of the Voting Rights Act applies if there are more than 10,000 speakers of a language other than English in a jurisdiction, or if non-English speakers comprise over 5 percent of the voting age population [not necessarilly five percent of the actual eligible voters or five percent of the registered voters] and if English literacy rates are below the national average.

Cornellian: The level of English proficiency you need to demonstrate for U.S. citizenship is pretty low, definitely not at the high school level. And, obviously, laws are written in "legal-ese," so you need a much higher level of literacy to understand an initiative than you would need to demonstrate for citizenship.

Lev: For a statewide or countywide initiative or recall, you'd [probably] be presented with a petition in the applicable langauges for your county. For a citywide initiative or recall, you'd be presented with the applicable languages for your city.

dafydd: You're forgetting about the cost. Using state-certified translators will cost you $750 every time you consult with them [one for each language]. The actual translation fee would be in addition to that. Also, when you place your notice of intent in the appropriate newspaper of record, your advertising costs would double, triple, quadruple, or whatever [depending on how many applicable languages are spoken in your political jurisdiction].

Most grassroots organizations are already pressed for cash. Requiring them to pay for the increased translation and publishing costs has a chilling effect on the use of the initiative and recall. It won't stop a Wal-Mart or other large corporation from gaining access to the ballot box, but it will place another barrier against smaller, poorer interest groups from effectively challenging decisions made by their elected officials.

Also, as I note below, it may be impossible to meet the legal requirements of CA election law and still provide "official" translations. And doing "unofficial" translations, while perhaps persuassive to voters, will not meet the apparent requirements of Padilla v. Lever an CA election law.

Aukahe: The distinction for the Ninth Circuit is that they want the translations to be done before you can start circulating the petition rather than after it has been qualified for the ballot.

Another distinction is that CA election law [on recalls] requires that the argument for removal and the target's reply must both appear on the same page, with space for signatures below the two arguments. The problem is that if you take a 200 word [English] argument for recall and a 200 word [Engllish] argument against, then translate them into [say, Vietnamese or Chinese], it is not uncommon that the translated text will take up a lot more space than the English version. Indeed, our experience in Rosemead says that you can't fit the Vietnamese or Chinese translations on to a single legal-sized piece of paper at all, never mind leaving space for signatures below the arguments. In other words, you can not simultaneously meet CA election law and also comply with the holding of Padilla v. Lever.

4th Circuit: Apparently, that's the direction being taken by "the powers that be" in CA and the rest of the Ninth Circuit. The Padilla v. Lever decision came down in late November 2005. Since then, the only discussion of its impact appeared as a few news story back in November [immediately after the decision was released], in an op-ed piece by Prof. Hasen that appeared in the L.A. Times back in mid-December, and Mr. Weintraub's op-ed piece of earlier this week.

In the interim, dozens of statewide initiative petitions continue to be circulated, as well as a number of countywide initiative petitions and at least one citywide recall petition. At least four county initiatives have been pushed off the June ballot, as was Rosemead's February recall election. Yet, I haven't seen any discussion of this on television, and, as I said, it's been just the two op-ed pieces in the major papers of the state [a number of additional articles have appeared in the regional papers serving the areas directly affected by the court decisions on county-wide and city-wide issues].

So I'm glad people are finally paying attention to this issue. It is not hyperbole to say that every initiative or recall petition currently in circulation will be subject to disqualification from the ballot unless the Ninth Circuit clarifies what it intends Padilla v. Lever to require, and/or California election law is amended to make it possible to meet the Padilla requirements without violating California election law.
4.5.2006 1:41pm
Robert West (mail) (www):
Bill - ISTM that, at least for Statewide initiatives, you could ameliorate the cost barrier by requiring that the state provide official translations as part of the AG's certification process, at no extra charge. That would impose a substantial cost on the AG's office, but that's probably a cost the state should bear. Of course, that doesn't help with *local* initiatives.
4.5.2006 3:09pm
Robert West (mail) (www):
Todd K - I think it would be incredible if, given the situation as you have described it, the CA Supreme Court were to not carve out an exception to the space rule. The result of failing to create that exception would be to make it impossible for recalls to be held at all, and it seems fairly clear that a judicially created exception would be more in line with the intent of the state constitution than an invalidation of all recalls.
4.5.2006 3:09pm
Robert West (mail) (www):
I'm also curious about a small point, and hope someone can enlighten me. How is postponing the recall election compliant with California Elections Code Section 11242? It says:

"The election shall be held not less than 88, nor more than 125, days after the issuance of the order ...". Is the trick here that the city clerk hasn't certified the sufficiency of the signatures, so the city council hasn't been required to order an election? Or are they just ignoring the elections code and hoping the recall proponents don't sue them?
4.5.2006 3:15pm
Houston Lawyer:
Apparently its time to bring back literacy tests. Preferably in English.
4.5.2006 3:32pm
Fishbane (mail):
Ah, the ever popular "speak english or die" makes a comeback.

Noting that Switzerland is very pro-gun is one thing, but noting the complete lack of problems caused by the four official languages is clearly another.

I'm personally of the view that Spanish should be promoted to an Official National Language. A less compelling case could be made for others; I realize the fact that I hear more Korean on a daily basis in my neighborhood than English is not typical.

Also not typcial, I suppose, is I'm not very nationalist, and enjoy learning other languages. Sigh.

Apparently its time to bring back literacy tests. Preferably in English.

How about a poll tax? Grandfathered, of course.
4.5.2006 4:14pm
Todd K (mail):
Mr. West: Apparently, in this case, federal law trumps state law.

There may eventually be carved out various exceptions to make federal and state law compliant with each other. But that's something that places everyone now involved in a recall or initiative effort in "no man's land." No matter what you do, your opponents will be able to challenge your action and tie you up in court [either federal or state court].

So, again, if you're a well-financed interest group trying to keep something off the ballot, you win. And if you're a not-so-well financed interest group trying to qualify something for the ballot, the odds are long that you can even get your issue to a vote, never mind actually winning an election.
4.5.2006 4:19pm
Robert West (mail) (www):
Todd K: it doesn't surprise me that federal law trumps state law in this case, and I would expect that any judicially invented exceptions be alterations to state law, not federal law.

That said, it's also probably time for those of us concerned about this to start pestering our legislators.
4.5.2006 4:23pm
Cornellian (mail):
I'm personally of the view that Spanish should be promoted to an Official National Language. A less compelling case could be made for others; I realize the fact that I hear more Korean on a daily basis in my neighborhood than English is not typical.

And what would the implications be of making Spanish and official language? Could you be issued a valid speeding ticket only in Spanish? Could a local or state government enact laws in Spanish and expect you to adhere to them? If laws have to be in both English and Spanish, which will prevail in the case of a discrepancy? Will judges and lawyers all have to be bilingual?

We need only look to our neighbors to the north to see the problems of having one nation with two official languages.
4.5.2006 5:56pm
Fishbane (mail):
We need only look to our neighbors to the north to see the problems of having one nation with two official languages.

The overhead of translators would be a tiny drop in a massive governmental bugdet. Cable companies, phone companies and energy suppliers do a perfectly capable job of functioning with customers speaking multiple languages; why should government be any different?
4.5.2006 7:20pm
hey (mail):
Fishbane: Nations should be unilingual. As someone who is multilingual and is from Canada, I can say that official bilingualism is a very, very, very bad idea. There can be some justification for official bilingualism in a small territory with historic language traditions (Puerto Rico, Quebec), but applying that to an entire country where it is a minimal issue creates massive costs for no general benefit.

Offical bilingualism tends to be used as a sword by the minority language group to extract high economic and political rents. Mandatory bilingualism in federal government in Canada leads to dramatic expense and a severe to overwhelming preference for francophones at senior levels (being that essentially only those from the minority language group will be usefully bilingual). You tend to see serious problems along these lines in all officially multilingual polities (Belgium, South Africa...).

De facto multilingualism as practiced by many states and cities, especially with their police departments, is a good thing. De jure multilingualism serves only to alienate the public, feed the lawyers and bureaucrats, and cement differences amongst language communities. A great example is that William's Sonoma puts a french directions and ingredients sticker on its food products delivered to its Canadian store. Only the French will complain if their language isn't on a box, so WS saves the cost of a very small text bilingual sticker and just makes a french one to fit over its English label. This alienates almost all of its customers, as there are no WS stores in Quebec, but it keeps WS out of legal trouble. Now tell me that there are minimal costs.

The US needs to cement into law (preferably the Constitution) that Englsih is the only language that a government is required to operate in, and that all agents be capable of acting in that language. States, agencies, and localities should be free to provide other services, but only required to provide information in English. Any movement on this is very dangerous and is to be desperately avoided.
4.6.2006 1:25am
Shangui (mail):
it is not uncommon that the translated text will take up a lot more space than the English version. Indeed, our experience in Rosemead says that you can't fit the Vietnamese or Chinese translations on to a single legal-sized piece of paper at all

This can't possibly be the case, at least for Chinese. In almost 20 years of reading, writing, and translating back and forth with Chinese I don't think I've even seen a case where a Chinese translation of English would take up more printed spaces than the original, unless it's put in a much larger font. Chinese is a much more compact langauge in terms of the ratio of characdters to meaning than is English.
4.6.2006 9:34am
Todd K (mail):
Shangui: Yes, it has to go in a much larger font. The English can legally be presented on the petition in as small as 8-point font. Chinese in 8-point font is obviously illegible.
4.6.2006 4:02pm