Opinion
Case No. C-03-03584 JF
August 15, 2003
ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION; TEMPORARY ORDER RESTRAINING MAILING OF OVERSEAS BALLOTS
Plaintiffs seek a temporary restraining order and preliminary injunction prohibiting Defendants from going forward with the special election on Proposition 54 (also known as the Classification by Race, Ethnicity, Color or National Origin (CRECNO) Initiative) currently scheduled for October 7, 2003 and from conducting any election to decide Proposition 54 other than on March 2, 2004. The Court has read and considered the legal briefing submitted on behalf of the parties as well as the oral arguments presented by counsel at a hearing on August 15, 2003.
Defendants concede that the state's decision to place Proposition 54 on the same statewide ballot as the vote on the recall of the Governor is a change in voting procedures within the meaning of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c ("Section 5"); that Monterey County is a covered jurisdiction pursuant to the Voting Rights Act,see Lopez v. Monterey County, 519 U.S. 9, 12 (1996); that accordingly Monterey County must obtain preclearance of such changes from the United States Department of Justice or the United States District Court for the District of Columbia prior to enacting or seeking to administer them; and that in the absence of such preclearance neither Monterey County nor the state may proceed with the October 7, 2003 election. Plaintiffs ask the Court to restrain any further preparations for the election immediately; Defendants ask that the Court refrain from entering any order based upon their expectation that the Department of Justice will act on their request for preclearance "well before" the election.
Three other California counties — Kings, Merced and Yuba — also are covered jurisdictions but are not parties to the instant case. Counsel for the state advises that a request for preclearance on behalf of these jurisdictions is pending.
Plaintiffs argue that permitting Defendants to obtain Section 5 preclearance after the changes in question already have been implemented undermines a primary purpose of the Voting Rights Act, which is to ensure that covered jurisdictions do not implement changes in voting procedures until preclearance has been obtained. They assert that permitting preparations for the October 7, 2003 election to go forward improperly rewards Defendants for their alleged lack of diligence in seeking preclearance and subjects the Department of Justice to undue pressure to grant preclearance and that even preparatory actions being undertaken by Defendants in anticipation of the election violate the extremely broad provisions of the Voting Rights Act. They acknowledge, however, that the Department of Justice has authority to entertain Defendants' current effort to obtain preclearance and that the basis for any injunctive relief from this Court will dissipate if and when such preclearance is obtained.
Defendants contend that the public interest in allowing the electoral process to proceed is compelling, that even a temporary interruption of their preparations for the October 7, 2003 election by this Court would have the practical effect of delaying the election even if preclearance ultimately is obtained, that they in fact sought preclearance as soon as it was practicable to do so following the certification of the special election on the recall of the Governor, and that allowing the Department of Justice a reasonable time within which to consider their request while at the same time allowing election preparations to go forward appropriately balances the interests at stake.
In a case such as this, the role of the district court is limited to a determination of 1) whether a change in voting procedures triggers the preclearance requirement of Section 5, 2) whether preclearance has been obtained, and 3) what temporary remedy, if any, is appropriate. Lopez v. Monterey County, 519 U.S. at 23. The Court's goal "must be to ensure that the covered jurisdiction submits its election plan to the appropriate federal authorities for preclearance as expeditiously as possible." Id. at 24. It is clear in the present case both that the preclearance requirement of Section 5 applies and that Defendants have not yet obtained preclearance. The only question, therefore, is the appropriate extent of equitable relief.
This Court is extremely reluctant to intervene in or disrupt the electoral process unless it clearly is compelled to do so. At the same time, permitting voting or other forms of direct political participation to be affected by changes in voting procedures implemented in contravention of the Voting Rights Act cannot be countenanced. Having considered the practical realities of the election process in light of these principles, the Court finds for present purposes that the interests at risk if the election process is permitted to proceed up to the point at which actual voting or other direct participation is implicated are substantially outweighed by a compelling public interest in proceeding with the election as presently scheduled, but that thereafter injunctive relief will be warranted in the absence of Section 5 preclearance. In the case of Proposition 54, voting is implicated first by Defendant Monterey County's stated intention to mail absentee ballots to registered voters residing overseas as soon as possible and thereafter by the commencement of general absentee voting on September 8, 2003. Direct participation is implicated by the August 31, 2003 deadline established by the state for public review of the ballot pamphlet that will contain the arguments for and against Proposition 54.
Accordingly, and good cause therefor appearing, Defendants shall appear before this Court at 3:00 PM on Friday, August 29, 2003, there and then to show cause, if any they have, why they, their agents, servants, employees and those in active concert or participation with them, should not be restrained and enjoined pending trial of this action from accepting any ballots, including absentee ballots, or operating any polling place in connection with the special election on Proposition 54 currently scheduled for October 7, 2003. Counsel for Defendants shall advise the Court and opposing counsel immediately of the substance of any and all communications from the United States Department of Justice concerning the status of Defendants' request for Section 5 preclearance.
Pending the hearing, Defendant Monterey County is restrained from mailing absentee ballots to overseas voters registered to vote in Monterey County until Section 5 preclearance has been obtained or until further order of the Court. An undertaking shall not be required.
The purpose of this limited restraining order is to ensure that no person who casts a vote with respect to the October 7, 2003 election does so pursuant to voting procedures that have not been precleared pursuant to Section 5 of the Voting Rights Act. The Court notes that Monterey County already has missed the statutory deadline for mailing absentee ballots to overseas voters and that this order will further shorten the time available for mailing ballots to the voters in question, but it concludes that it has no other alternative in view of the fact that the October 7, 2003 election cannot proceed in the absence of Section 5 preclearance. The Court expresses no opinion as to what remedies, if any, may be available to such voters under California law.
This Order shall be served on Defendants on or before August 18, 2003, and proof of service must be filed on or before August 20, 2003. Any response or opposition must be filed and served by facsimile on Plaintiffs' counsel on or before August 26, 2003; any reply to such response or opposition must be filed and served by facsimile on Defendants' counsel on or before August 28, 2003. Because counsel have submitted substantial briefing and provided the Court with extended legal argument in connection with Plaintiffs' application for a temporary restraining order, briefing with respect to this Order to Show Cause shall be limited to the response, if any, that Defendants have received from the United States Department of Justice to their request for preclearance pursuant to Section 5 of the Voting Rights Act of 1965 and the legal effect of such response or lack thereof on the issues presented by the instant case.
IT IS SO ORDERED.