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.