the question before the court is whether section two or three of the voting rights act applies to that part of the electoral process in which owners decide whether to place on the ballot the recall of an elected official statutory interpretation section two hundred three requires that voters be allowed to read and consider a translated recall petition form for three reasons first deciding whether a recall injunctive relief is moot because a subsequent election has already been held but with respect to the claim for declaratory relief because the issue is likely to arise again it is capable of repetition yet defeating review but how does that election direct the removal of the replacement from the school board and order a new election with fully translated material you know your honor we are not that would be the injunctive relief portion of the case no there is no recall petition before us now that you're talking about a hypothetical recall for tissue that is not currently being circulated it is our position that it is not hypothetical because it is capable of repetition and evading review meaning that it is quite likely at say they're not moving because they're capable of repetition you know they didn't review we also have a large number of election challengers where we review them and they don't even get review i guess the california recall w which is which well because this was a local election it is unlikely that it would have had the kind of visibility that it would have been able to move through the entire process including on bank review if necessary i don't know i to the election being touted and so here we are today with what we believe is a very live and compelling issue with respect to whether or not the petitions are must be translated and provided to the voters so that they can make an informed decision at this critical point in the process but the problem we have is is that we don't have a petition before us how do we know that the next petition that comes down the road won't be transcribed in more languages than english are we to assume  practices will be followed in the future well there are no new practices that have replaced the old practices in the sense that the covered jurisdictions are not at this point translating the registrars are not making these  suit in december of two thousand and two and received a denial of their request for a t r o i believe on christmas eve two thousand and two december twenty fourth and then in january  attorney general commentary which refers to petitions the justice department in this case never expressed any interest or where they asked to about the fact that the voting rights act was  particular litigation i find not sure if they were asked to have a fairly small number of lawyers who do enforcement work under all of the statutes that they enforce and we would certainly urge the court not to interpret the other languages than english yes that would certainly be the case if california decided to make changes in its petition process it would have to pre clear those changes under section five of the voting rights act that wouldn't be something that would be done by the challenger only can be brought by private parties when the state or the jurisdiction has made some kind of change and not pre cleared and because here we were challenging an ongoing practice a failure to provide translations there wouldn't have been the grounds for section five enforcement action that that's something that would happen later on if there were a change i'd like to if i might move to the merits and address the question whether or not recall petition fans are related to the electoral process when congress enacted this language it did not stop at voting documents but it actually continues on and it sends it's more than just registration or voting notices and forms it also includes something  process because in the voters themselves have the right to participate at this point in the process because a recall can only happen if register voters decide that it will happen this is a very important part of the electoral process that everybody has an equal right to participate in which means that if a petition is being circulated and you as a voter are punched you should have the same opportunity as any other voter to read and evaluate and decide whether or not to  n that is activity in the electoral process under that theory in order to circulate in effect of fishing you would have to approach every registered voter within the jurisdiction with the petition in order to get the on we don't think the petition would ever be allowed to be circulated if it were only written in spanish right now you cannot go to your registrar with a petition exclusively in korean and have that certified for circulation but you this would be that question would have to be translated into at least english as well as spanish that would be required as a voting rights act it would certainly be required by common sense and probably by california election code which is just about what as a matter freedom of speech canvassers typically try to talk to people they think will agree with them so they won't start opposition and i'll just get turnout by biassed supporters and i'm thinking this matter freedom of speech  fishnets would would want to do something like that circulators do target different kinds of people when they're seeking to get signatures and that's not really the issue that's been raised in this case the issue in this case is whether the petition form what the voter sees when ultimately approached and agrees to read and consider the question whether that is acceptable or accessible i would think if i was trying to sell something to petitional back you know before the thought and it were something appealing to spanish speaking people but not many anglos have a whole lot of posterboard with all the stuff written in spanish on it next to my car away well i don't know if the english would say way they might speak spanish too but that would certainly be within the realm of permissible private conduct is targeting certain people or maybe targeting people in the neighborhood where you know an undesired development is going to go those kinds of activities are different from what we're focusing on in this case which is does that petition form which is so strictly regulated by the state related to some voters having been misled but putting aside the question of having been misled i think the root claim is that the plaintiffs would have wanted to participate on an equal footing with first yes there is a very important rights of a first amendment exercise here as well as participation in the voting process that are used in this case but california regulates in so many ways how these rights are carried out within a framework of regulation and what we seek is an additional aspect to that not the the circulators would have to do the translation themselves we believe the burden is on the jurisdiction but that now circulators in addition to all of regulations on the right to petition that are embodied in the california election code rights that are raised by the circulators of the petitioners we don't want to lose focus on the rights of the voters and the people who the counties that do these translations in these languages so to speak for just my last moments on the practicalities of the issue anything submitted in korean for example as opposed to just a by the court would be to a county registrar's office that a statement not exceeding two hundred words in light of the reasons for the proposed recall two part question one if that were spanish i was the certification will not be allowed that's certainly as you're suggesting that complies in both the length and structure and format and the other parts of the form as well and i'm sure you have about two and a half minutes i'd like to use or the rest of my time to find that give a brief overview to the core of our intended division of the argument i plan to take approximately fifteen minutes to address primarily the interpretation of the voting rights act and why we as respondents believe that minority language requirement does not attach to the circulation of petitions by private citizens mr the santa ana unified school district will speak briefly with regards to this remedy that he sees as appropriate in this case as it and nobody plans to talk about movements and that's actually what interests me most so let me ask you as it is i mentioned to your adversary we have a whole bunch of election cases where we say alexion challenges or are moot even though the election's over because they're capable of repetition yearly baiting review and we have a whole bunch of electorate cases where they come up on short notice and we review them get them all done before the election and i can tell what the sorting mechanism is there must be some doctrine that says when you use a capable of repetition you get evading review exception to movements and i can't figure out what the doctorate is can you help me and tell me case your honor i wish i bright line rule or not and that's an unfortunate thing that the plaintiffs don't get that decision here in their favor or don't get any decision that the next election the petitions are going to look the california state law and i believe federal interpretation courts are usually very wraps actually set aside an election and lastly i'm not talking about judicial reluctance i'm talking about at which point in law is all that you know we to go that far back to go four years in the past and do the election and the will of the people is doing ok i thought you were challenge but this is your position was this is not a challenge to the election process at all i'm sorry i thought your argument on the net i'm trying to kind of get us into the math so we can hear them we don't have an unlimited amount of time i thought that your position on the merits was that this is really got a challenge to the election process at all wanted a timeline and there were some time frames that were in question it was march of two thousand and two when the notice of intention to recall happens the petitions began to be circulated in april of two thousand  that the standard that the cases seem to apply is as expressed by appellants counsel that it is subject and beating review and that is does appear to be overwhelming standard in most cases and we do believe that it is not issue that we believe that the petition itself are not voting materials the voting rights act goes to the core of fact of your right to a vote and have your vote counted and the language of the voting rights act focuses on from the start of the registration process through notification about when of though will occur through the ballots provided by the local elections official but it doesn't speak to private petitioners being burdened with circulating five languages when they're in different issue the question of whether it relates to the process have to have three separate points one that is not provided by the state and through that it doesn't relate to the process i'm asking about your second point  seems to me that if you wanted to limit material to something directly part of the process you wouldn't say anything that relates to the number of an election process is colloquially known as the election itself it's not the entire process that could be operated by qualified for the election itself does not relate to the election but there's no there's no guarantee that it will qualify for election and it's based sole california that would address that and it could very well fall upon the petitioners because they're the ones who are circulating it and they're the ones who would have to provide it and the minority language if the minority language requirement does  individuals have the right to vote and receive all materials on the ballot before they go and vote in their own language my name is bill schaper i'm here on behalf of the anneke standing unified school district and its participation we support the athletes argument that's been presented in their briefs we will focus our portion on the argument on the particular concerns cause a petition to be circulated and that any type of election to occur resulting from there from the request the court to specifically hold that no remedy for the violation can invalidate the original recall jurisdiction where there's only one language that needs to be translated into nobody's going to say that getting that translation is a huge burden financially or even time wise elephant of course is that yes we have here that is the case that we have here the burden here was no we told them tremendous burdens and i think the council mentioned there was a petition and loma linda one of the jurisdictions where had to be translated into so many different languages that it would cost sixty thousand dollars and would literally take six months and what she said was she talked to or at least ten and the proponents serve on the officers thought to be recalled they are notice of intent to recall and then file that with the county office now is that a document presumably one would argue judge it relates to the electoral process in the same way that the petitions themselves are is that the document itself needs to be translated if that's the case how does it get to the states to perform that translation at the time it's also has to begin a process by being  completely private transaction between two individuals the timing can be critical in a lot of these respects and i think this also relates to the movements issue that was that there were questions on the internet i yes i believe that in most instances the although not in this particular case in most instances these types of disputes will be capable of repetition certainly and will evade  review and the reason is that for initiatives and referenda for example there is a very short time period under which a determination must be made as to whether or not an object is a proposed measure is going to go on the ballot or not so this case is moo but i want to get back to the burden issue as well because i do think in this particular case it does not it's not a great burden in this case the issue we wanted to i'm sorry you have three points to make up on i know what three second was the timing and that is reconstruction have to occur and who does all right and the third is related and that is the uncertainty of how this whole process would fit in with the state process for not only the recall but the notion of a referendum for example a referendum has to be the petition has to be drafted and have to be circulated and submitted within thirty days from the date that the ordinance is an acted by the city council at a local level  that in fact would be in many instances completely impossible deadline to reach if for example you're in the city county of los angeles where you need to have a translation of what could be a very lengthy ordinance itself and under the full text requirement of california law you have to not only have in your petition the actual text of the ordinance but any other materials there reference in that order and so a lot of these referenda petitions are literally sixty one hundred fifty to two hundred pages long if you have to tr te that into six different languages that just simply cannot physically be accomplished within the thirty day period excuse i'm sorry five that i want to try make it initially and that is congress you know it has a role in this debate here and there's been no mention in the thirty minutes up until now about the congressional roll judge fisher asked and pointed out what has the position of the department of justice been in the thirty years since the provision was added to the voting rights act and the position has been that they have never challenged the not only not only filed a lawsuit they never indicated that there is any reason to believe the voting rights requires  no matter how small the staff i believe the department of justice was aware that in california a year and a half ago there was a recall election going on i don't think you can attribute their lack of interest in this issue their lack of action essential to the fact that they were not aware of it or their staff was to small but more importantly recall petitions are provided by the government because the question really turns on what the voter sees when presented with the recall petition and who determines what the voter sees it's not as much whose hand is showing th essentially don't want to copy and don't want to carry translated we call physicians the burden is quite minimal in fact to cop to photocopy something that isn't very much longer and maybe carry one extra sheet of the translated information not have it on every petition let's say across a and korean and then have that extra piece of paper the burdens are not great they were all raised by opponents of two zero three when congress decided to enact the statute they were raised and rejected and for that reason we urge the court to follow the pla