RITA MONTERO, ET AL., PETITIONERS V. NATALIE MEYER, ET AL. No. 88-6376 In The Supreme Court Of The United States October Term, 1988 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States As Amicus Curiae This brief is filed in response to the Court's invitation to the Solicitor General to express the views of the United States. TABLE OF CONTENTS Question Presented Statement Discussion Conclusion QUESTION PRESENTED Whether the use of initiative petitions written only in English violates the language minority provisions of the Voting Rights Act, Sections 4(f)(4) and 203(c), 42 U.S.C. 1973b(f)(4) and 1973aa-1a(c). STATEMENT 1. Colorado permits its citizens to place proposed constitutional amendments on the general election ballot through an initiative process. Colo. Const. art. V, Section 1; Colo. Rev. Stat. tit. 1, art. 1 (1980 & Supp. 1988). Prior to circulation, proponents must submit a draft petition to various State bodies for comment and approval as to format, style, and content. See Meyer v. Grant, 108 S. Ct. 1886, 1889 (1988) (describing Colorado's initiative process); Pet. App. 20a-21a (same). In the spring of 1987, certain of the respondents and the Official English Committee submitted a proposed petition to the State Legislative Council and the Legislative Drafting Office, as required by law, for review and comment. Pet. App. 22a. The petition called for a ballot measure to amend the State Constitution to make English the official state language. Id. at 20a-21a. The State bodies suggested several changes in the petition, which its proponents incorporated in a new draft. That draft was then submitted to the Colorado Secretary of State. Id. at 22a. The Secretary of State, after a title-board hearing and preparation of a summary of the petition, approved it for circulation throughout Colorado. Id. at 22a-23a. The petitions were printed only in English. Id. at 23a. On November 13, 1987, after receiving signed petitions, the Secretary of State verified that the petitions contained sufficient signatures to put the proposed constitutional amendment on the ballot in the November 1988 election. Pet. App. 23a-24a. On November 27, 1987, petitioner Montero protested the initiative to the Secretary of State, objecting that the circulation of petitions written only in English violated the language minority provisions of the Voting Rights Act of 1965, Sections 4(f)(4) and 203(c), 42 U.S.C. 1973b(f)(4) and 1973aa-1a(c), which require electoral materials to be provided in both English and the applicable minority language in counties that meet the coverage formulas of those provisions (hereafter "covered counties"). Pet. App. 24a. /1/ Considering only Montero's protest to the validity of signatures on the petitions, the Secretary of State dismissed the protest. Ibid. 2. Petitioners filed a complaint in the United States District Court for the District of Colorado claiming, inter alia, that the circulation of petitions that were not bilingual violated the language minority provisions of the Voting Rights Act. Pet. App. 25a-26a. Petitioners alleged that more than 61,000 of the submitted signatures were invalid, as they were obtained on petitions written only in English and circulated in counties in which bilingual petitions (in English and Spanish) were required. Id. at 25a. Petitioners sought a declaratory judgment that the petitions violated the Constitution and the Voting Rights Act and requested injunctive relief prohibiting any election based on these petitions, and other appropriate relief. Id. at 4a, 25a. After a hearing, the district court preliminarily enjoined state election officials from holding an election on the initiative "based on initiative petitions circulated in the (covered) counties." Pet. App. 38a. Relying on Sections 4(f)(4) and 203, as well as Department of Justice Voting Rights Act guidelines, see 28 C.F.R. 55.19(a), the court held that the language minority provisions of the Voting Rights Act cover initiative petitions. Pet. App. 27a-28a. The court found that initiative petitions are part of the "electoral process," id. at 31a-33a, and that, given the degree of control the State officials exercised over the preparation and approval of the petitions here, they were "provide(d)" by the State for purposes of the Voting Rights Act. Id. at 33a. The preliminary injunction included procedures intended to eliminate from consideration only those signatures collected in the covered counties. Id. at 38a-39a. The court did not bar an election based on the petitions if there were sufficient signatures from noncovered counties. Id. at 35a, 38a-39a. 3. The court of appeals reversed, holding that initiative petitions are not covered by the language minority provisions of the Voting Rights Act. Pet. App. 5a-12a. The court of appeals first stated that petitions would be subject to the Act only if they were "materials 'required by law prerequisite to voting.'" Id. at 6a, quoting 42 U.S.C. 1973l(c)(1). According to the court, "(i)mplicit in both the statutory and the common definitions of the concept of voting is the presence of a choice to be made" at a special, primary, or general election. Pet. App. 7a. Because an initiative petition does not give the prospective signer the choice to vote "against" the petition, the court reasoned, the circulation of a petition is not "voting" and therefore is not part of the "electoral process" under the Voting Rights Act. Ibid. The court of appeals accorded no deference to the Attorney General's view, expressed in Justice Department guidelines (28 C.F.R. 55.19(a)), that petitions are covered by the Act. Pet. App. 10a. The court of appeals also concluded that the petitions are not "provide(d)" by the State. Pet. App. 11a-12a. The court believed that the State's role in the initiative process was merely "ministerial," and that the circulation of a petition was thus properly viewed as the exercise of "an individual right solely for the circulator and not for the state." Id. at 11a. The court therefore vacated the preliminary injunction and dismissed petitioners' motion for further evidentiary proceedings as moot. Id. at 12a. Judge Baldock concurred only in the judgment vacating the preliminary injunction, believing that the appeal was not ripe without further factual findings and was likely to be moot in any event. Pet. App. 12a-15a. Judge Baldock observed that the initiative needed 50,668 valid signatures to be placed on the ballot. Subtracting the signatures on petitions that the district court had presumed to be invalid, only 36,874 valid signatures were left. Id. at 13a. Judge Baldock noted, however, that after the district court's injunction, the proponents of the initiative had resubmitted petitions, as permitted by state law, containing 35,407 signatures. Ibid. Moreover, the parties had incorrectly listed El Paso County as one of the covered counties, resulting in the improper invalidation of 29,158 signatures. Id. at 14a n.1. Either way, there appeared to be enough signatures to allow the election on the ballot measure to proceed. Believing that the district court would have time before the election to determine whether there were enough valid signatures, Judge Baldock stated that such findings should be required before reaching the merits. Id. at 15a. DISCUSSION We believe that the petitions approved by the State in this case were covered by the language minority provisions of the Voting Rights Act, and that the court of appeals erred in holding to the contrary. In view of the frequency with which petition drives are conducted and the fact that many jurisdictions are covered by the bilingual provisions of the Voting Rights Act, the issue is an important one warranting review by this Court. This case, however, is not an appropriate vehicle for the Court's review of the issue. Not only are there significant unresolved questions concerning the lower courts' jurisdiction, there is also a strong likelihood that the case is moot. 1. In 1975, Congress enacted Sections 203 and 4(f)(4) of the Voting Rights Act in order to afford American citizens who speak little or no English a greater opportunity to participate in the political process. Congress found that "through the use of various practices and procedures, citizens of language minorities have been effectively excluded from participation in the electoral process." Section 203(a), 42 U.S.C. 1973aa-1a(a). "(B)ilingual election materials would facilitate voting on the part of language minority citizens and would at last bring them into the electoral process on an equal footing with other citizens." S. Rep. No. 295, 94th Cong., 1st Sess. 32 (1975). Accordingly, Congress required that, "Whenever any (covered jurisdiction) provides any registration or voting notices, forms, instructions, assistance, or other materials or information 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." Section 4(f)(4), 42 U.S.C. 1973b(f)(4); Section 203(a), 42 U.S.C. 1973aa-1a(a). The Act's coverage of "any" materials "relating to the electoral process" is broad enough to encompass initiative petitions. In other contexts this Court has made clear that procedures used to place issues directly on the ballot are part of the electoral process. Smith v. Allwright, 321 U.S. 649 (1944); see Terry v. Adams, 345 U.S. 461 (1953) (a party primary is an integral part of the electoral process because it results in placing a candidate on the ballot). Indeed, the court of appeals' reading of Section 203 to exclude petitions is directly contrary to this Court's interpretation of comparable language in Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. Section 5 applies, in broad terms similar to those used in Sections 4(f)(4) and 203, to any "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting." In Allen v. State Board of Elections, 393 U.S. 544, 551, 570 (1969), this Court held that state regulations applicable to petitions were covered by the preclearance requirement of Section 5. The court of appeals made no effort to square its narrow view of the language minority provisions with the Court's contrary reading of Section 5 of the Voting Rights Act. /2/ Moreover, in finding petitions outside the Voting Rights Act because they do not involve the casting of a vote, the court of appeals misconceived the nature and function of the petition process and its relation to the objectives of the Voting Rights Act. The purpose of a petition drive is to bring a proposed measure before the entire electorate and to attract the attention of voters. See Meyer v. Grant, 108 S. Ct. at 1891-1892. In order to participate in this process, voters who speak a minority language must be given the chance to read initiative petitions in their own language. Without bilingual petitions, language minority citizens will be hindered in supporting or opposing a petition, and may be effectively locked out of a state-regulated process leading up to the submission of a ballot measure to the electorate. The court of appeals' artificial removal of initiative petitions from the language minority provisions is thus inconsistent with this Court's guidance to interpret the Voting Rights Act to protect all aspects of the electoral process. See, e.g., Allen, 393 U.S. at 565-566. The court of appeals also erred in holding that the petitions in this case were not voting materials "provide(d)" by the State for purposes of Sections 4(f)(4) and 203. Pet. App. 11a. Colorado extensively regulates both the form and language of the petition -- indeed, the petition may not be lawfully circulated until the State officials have reviewed it, edited it, named it, and provided their own summary of the proposed constitutional amendment which must be printed on the petition itself. See Colo. Rev. Stat. Sections 1-40-101, 1-40-107 (1980 & Supp. 1988)). This degree of regulation effectively makes the petition a document that the State "provide(s)." /3/ The fact that the State may not initiate or determine the substance of the proposed amendment does not detract from the extensive control it asserts over the form and content of the petition to be circulated. /4/ The court of appeals' characterization of the State's actions as "ministerial functions in the process of preparing petitions," Pet. App. 11a, ignores the point that Sections 4(f)(4) and 203 do not regulate the substance of electoral materials, but their form. Finally, the court of appeals erred in disregarding the Attorney General's view that petitions are covered by the Act. Pet. App. 10a. The Justice Department has consistently taken the position that petitions, such as those involved here, are materials covered by the language minority provisions of the Voting Rights Act and, therefore, must be provided bilingually in covered jurisdictions. This position is embodied in the Attorney General's Voting Rights Act guidelines, 28 U.S.C. 55.19(a), which this Court has held are entitled to considerable deference. City of Pleasant Grove v. United States, 479 U.S. 462, 468 (1987). Such deference is particularly warranted where, as here, Congress has been made aware of the Attorney General's interpretation of those provisions, and has extended the statutory provisions at issue without change. /5/ Ibid. 2. Despite our view that the court of appeals erred in holding that petitions fall outside of the Act's coverage, there is a significant jurisdictional obstacle to this Court's review of the question. This case should have been, but was not, heard by a three-judge district court. Petitioners challenged the circulation of initiative petitions in counties subject to the language minority provisions of Section 203(c). The enforcement authority for Section 203 is contained in Section 204, which states that the Attorney General may file an action to enforce Section 203, and that "(a)n action under this subsection shall be heard and determined by a court of three judges." 42 U.S.C. 1973aa-2. The private enforcement action implied under this provision should likewise have been filed before a three-judge district court, but petitioners did not do so. Accordingly, both the district court and the court of appeals were without jurisdiction. The requirement that this case be heard by a three-judge court follows from this Court's analysis in Allen v. State Board of Elections, supra. There, the Court held that the provision for a three-judge court in express actions under Section 5 of the Voting Rights Act also applies in implied private actions brought under that section. Section 5 requires covered jurisdictions to preclear changes in voting procedures by obtaining from a district court in the District of Columbia a declaratory judgment that the change does not have a racially discriminatory purpose or effect, /6/ and requires a three-judge court for those actions. In Allen, this Court held that there is an implied private right of action to enjoin covered jurisdictions from implementing voting changes that have not been precleared and concluded that such an action should also be heard by a three-judge court. In drafting Section 5, Congress apparently concluded that if the governing authorities of a state differ with the Attorney General of the United States concerning the purpose or effect of a change in voting procedures, it is inappropriate to have that difference resolved by a single district judge. The clash between federal and state power and the potential disruption to state government are apparent. There is no less a clash and potential for disruption when the disagreement concerns whether a state enactment is subject to Section 5. The result of both suits can be an injunction prohibiting the State from enforcing its election laws. Although a suit brought by the individual citizen may not involve the same federal-state confrontation, the potential for disruption of state election procedures remains. 393 U.S. at 562-563 (emphasis added). As with Section 5, Congress intended that private individuals be able to enforce Section 203 as a necessary complement to enforcement actions by the Attorney General. /7/ And as in Allen, either type of court action -- by the Attorney General or by a private citizen -- carries a potential to disrupt state electoral procedures. Consequently, the Court's holding in Allen that a three-judge court is required for implied private actions under the Voting Rights Act should govern the interpretation of Sections 203 and 204 as well. /8/ The failure to convene a three-judge court below to hear petitioners' action is a serious jurisdictional obstacle to this Court's review of the merits. See 12 J. Moore, H. Bendix & B. Ringle, Moore's Federal Practice Paragraphs 422.02, 426.03, 426.05 (2d ed. 1988); 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Section 4040, at 144-145 & n.26 (2d ed. 1988). 3. In addition, there appears to be a substantial likelihood that this case is moot. As Judge Baldock explained in his concurring opinion, at the time the court of appeals issued its opinion in this case, there may have been a sufficient number of valid signatures from noncovered counties on file with the Secretary of State's office to require an election on the proposed amendment. The private respondents, in their brief to the court of appeals (at 47), stated that they intended to resubmit some petitions with proof that they were not circulated in covered counties. Judge Baldock's opinion states that sufficient valid signatures had been resubmitted and certified by the Secretary of State on October 5, 1988, before the court of appeals held oral argument. Pet. App. 13a-14a. If those additional signatures were valid, then there was a sufficient number of signatures, regardless of the prohibitions of the Voting Rights Act, to place the proposed initiative on the ballot. In addition, as Judge Baldock stated, the parties apparently erred in including El Paso County as one of the bilingual counties, resulting in the erroneous invalidation of over 29,000 signatures. Pet. App. 14a n.1. /9/ These incorrectly excluded signatures were also enough to bring the total above the number needed to place the initiative on the ballot. /10/ Accordingly, it appears that the proponents of the measure collected sufficient signatures from noncovered counties to qualify the proposed amendment for placement before the voters. Since petitioners' prayer for relief was limited to a request for declaratory relief and an injunction prohibiting the holding of an election based on the use of English-only petitions in covered counties, it would appear that their claim became moot prior to the time the court of appeals rendered its judgment. See Defunis v. Odegaard, 416 U.S. 312 (1974). Accordingly, this Court should vacate the judgment below and remand for the convening of a three-judge court and a determination whether the case should be dismissed as moot. /11/ See United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950); American Foreign Service Ass'n v. Garfinkel, 109 S. Ct. 1693, 1697-1698 (1989) (per curiam); Frank v. Minnesota Newspaper Ass'n, 109 S. Ct. 1734 (1989) (per curiam). CONCLUSION The Court should grant the petition for writ of certiorari, vacate the decision of the court of appeals, and remand the case for the convening of a three-judge court and a determination with regard to mootness. Respectfully submitted, KENNETH W. STARR Solicitor General JAMES P. TURNER Acting Assistant Attorney General THOMAS W. MERRILL Deputy Solicitor General MICHAEL R. DREEBEN Assistant to the Solicitor General JESSICA DUNSAY SILVER MARK L. GROSS Attorneys JUNE 1989 /1/ The two minority language provisions of the Voting Rights Act, Sections 203(c) and 4(f)(4), 42 U.S.C. 1973aa-1a(c) and 1973b(f)(4), contain the same substantive standard expressed with nearly identical language, but each provides a different coverage formula. In Colorado, 11 counties -- Alamosa, Archuleta, Bent, Conejos, Costilla, Huerfano, Las Animas, Otero, Pueblo, Rio Grande, and Saguache counties -- were covered by Section 203(c). See 53 Fed. Reg. 736 (Jan. 12, 1988). No counties in Colorado were covered by Section 4(f)(4). See 53 Fed. Reg. 736 (Jan. 12, 1988). /2/ Petitioners contend (Pet. 12-13) that the decision below conflicts with Zaldivar v. City of Los Angeles, 780 F.2d 823 (9th Cir. 1986). We do not agree, as the Ninth Circuit in Zaldivar held only that, under Fed. R. Civ. P. 11, it was not frivolous to argue that petitions are covered by the Voting Rights Act. /3/ Thus, whether a state "provides" a petition may vary depending on the degree and type of regulation governing the use of petitions. /4/ Contrary to the court of appeals, Pet. App. 12a, we do not believe that the issue here is whether circulating petitions is "state action," but whether actions taken by state officials to regulate the petition are sufficient to bring the petition within the coverage of the Voting Rights Act. This Court's "state action" cases are not relevant to interpretation of the Voting Rights Act in this setting. /5/ See Voting Rights Act: Hearings on S. 53, S. 1761, S. 1975, S. 1992, and H.R. 3112 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 97th Cong., 2d Sess. 1790 (1982) (referring to language minority regulations); Extension of the Voting Rights Act: Hearings on Extension of the Voting Rights Act Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 97th Cong., 1st Sess. 2323-2330 (1981) (Justice Department letter stating that Section 5 of the Voting Rights Act applies to petitions). See also Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, Section 2, 96 Stat. 131. /6/ Section 5 also provides an alternative means of obtaining preclearance from the Attorney General. /7/ Congress clearly intended to authorize private enforcement of the language minority provisions. Six years before enactment of those provisions in 1975, this Court held in Allen v. State Board of Elections, supra, that Congress intended to create a private right of action to enforce Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, despite its failure expressly to authorize private enforcement. 393 U.S. at 554-557. In enacting Section 203 and Section 4(f)(4) in 1975, Congress noted the existence of such private enforcement actions, specifically citing Allen, and approved of their use in this context. Title III (containing Section 203) authorizes the Attorney General to bring suit against any state or political subdivision which fails or refuses to comply with its prohibitions. Of course, private persons who are injured by the failure or refusal of a state or political subdivision to comply would also have the right to bring suit. Allen v. State Board of Elections. H.R. Rep. No. 196, 94th Cong., 1st Sess. 32 (1975); see also S. Rep. No. 295, 94th Cong., 1st Sess. 40 n.40 (1975) (referring to the importance of private actions and specifically actions to enforce the rights of Spanish-speaking voters). /8/ The only conceivable distinction between this case and Allen is that in Section 5 the substantive prohibitions and the three-judge court requirements are in the same section, whereas here the substantive prohibitions are in Section 203 but the three-judge court requirement is in Section 204. This, however, is simply a by-product of the statute's historical development and has no substantive import. In 1970, Congress enacted Title II of the Act, which included Section 201, 42 U.S.C. 1973aa, prohibiting the use of literacy tests, and Section 202, 42 U.S.C. 1973aa-1, prohibiting certain residency requirements in presidential elections. At the time, Section 203 (now Section 204) of Title II contained the provision allowing the Attorney General to enforce Sections 201 and 202 and requiring a three-judge court. Instead of repeating these requirements twice -- once in Section 201 and once in Section 202 -- they were placed in a single procedural section, then Section 203. Similarly, when Congress enacted the current Section 203 in 1975, rather than including the Attorney General's enforcement language in the same section Congress simply inserted new Section 203 into Title II of the Act, and added enforcement of Section 203 to the Attorney General's existing enforcement authorization for Sections 201 and 202, renumbering the enforcement section as Section 204. We note that Section 4(f)(4) does not have a comparable three-judge court requirement, and that private actions under that provision may be heard by a single district judge. However, Section 4(f)(4) is not involved in this case because no Colorado counties were covered under it. See note 1, supra. /9/ The parties may have erroneously included El Paso County as a covered county by relying on an earlier listing of bilingual counties which included El Paso County as covered under both Section 4(f)(4) and Section 203. 45 Fed. Reg. 44,268 (July 1, 1980), reprinted in Appendix to 28 C.F.R. Pt. 55 (July 1, 1987). However, on July 30, 1984, El Paso County was released from coverage under Section 4(f)(4) pursuant to the "bail-out" provision of Section 4(a) of the Voting Rights Act, 42 U.S. C. 1973b(a) (Board of County Commissioners of El Paso County, Colo. v. United States, No. 84-1626 (D.D.C.)). El Paso County was no longer subject to Section 203 coverage after Congress changed the coverage formula for Section 203 in 1982. See 49 Fed. Reg. 25,888 (June 25, 1984). /10/ Respondent Official English Committee suggests (Br. in Opp. 4-5) that because the election was held, this case is now moot. We disagree. If a court determines that an election was held in violation of the Voting Rights Act, post-election relief may be available, especially when suit was brought prior to the election. That relief could take the form of invalidating the election or of requiring compliance with the Act in the future. This is not to say that the circumstances in this case justify either form of relief. Our point is only that the fact that the election was held does not automatically moot a challenge to the conduct of the election. See, e.g., Reynolds v. Sims, 377 U.S. 533, 585 (1964). /11/ There is another petition pending in this Court that presents the same issue as Montero. In Delgado v. Smith, 861 F.2d 1489 (1988), petition for cert. pending, No. 88-1327, a divided panel of the Eleventh Circuit refused to apply the bilingual provisions of the Voting Rights Act to initiative petitions for essentially the same reasons as stated by the Tenth Circuit in Montero. Because of our interest in enforcement of the Voting Rights Act, the government filed an amicus brief in Delgado urging reversal of the district court's judgment based on that court's view that petitions were not covered. The Eleventh Circuit affirmed, with Judge Anderson dissenting (see 861 F.2d at 1489-1502). (Our amicus brief in Delgado is partially set forth in an appendix to petition in Montero (at 41a-55a). We are lodging a copy of the entire brief with the Clerk of this Court and providing the parties with a copy.) Delgado does not have the jurisdictional defects of Montero. In Delgado, the invalidation of petitions circulated in covered counties in Florida would have invalidated the initiative petition entirely, and a three-judge court was not required because that case could have proceeded fully through a challenge only to petitions circulated in counties subject to the language minority provisions of Section 4(f)( 4), 42 U.S.C. 1973b(f)(4), which does not require a three-judge court for enforcement proceedings. See Section 12(d), 42 U.S.C. 1973j(d). Moreover, the court of appeals in Delgado also discussed more extensively than did the Tenth Circuit here the First Amendment and state action considerations that the court believed supported its holding that initiative petitions are not covered by the Voting Rights Act. For that reason, Delgado is a better vehicle than this case for addressing the issue at hand. We note, however, that in Delgado petitioners delayed filing their challenge until shortly before the scheduled November 1988 election. If this Court were to grant plenary review in Delgado and hold that the Voting Rights Act was violated, this delay would raise significant questions about petitioners' equitable entitlement to relief that would overturn the results of the November 1988 election. Nonetheless, although the focus of the litigation in the lower courts was on petitioners' efforts to enjoin the November 1988 election, petitioners might still be entitled to prospective injunctive relief aimed at requiring compliance with the Voting Rights Act with respect to future initiative petitions.