Delgado v. Smith

• Decision Date: 04 November 1988
• Docket Number: No. 88-6068,88-6068
• Citation: 861 F.2d 1489
• Parties: Pedro DELGADO, Elia Gregorio, Marcelo Llanes and Marta R. Torres, Plaintiffs- Appellants, v. Jim SMITH, in his official capacity as Secretary of State of the State of Florida, and David Leahy, in his official capacity as the Supervisor of Elections of Dade County, Florida and as a representative of a defendant class of all County Supervisors of Elections in the State of Florida, Defendants- Appellees, and Florida English Campaign, U.S. English Legislative Task Force, Inc., and U.S. English Foundation, Inc., Intervenors-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1489

861 F.2d 1489

57 USLW 2296

Pedro DELGADO, Elia Gregorio, Marcelo Llanes and Marta R Torres, Plaintiffs- Appellants, v. Jim SMITH, in his official capacity as Secretary of State of the State of Florida, and David Leahy, in his official capacity as the Supervisor of Elections of Dade County Florida and as a representative of a defendant class of all County Supervisors of Elections in the State of Florida Defendants- Appellees and Florida English Campaign, U.S. English Legislative Task Force, Inc., and U.S. English Foundation, Inc., Intervenors-Appellees.

No. 88-6068.

United States Court of Appeals, Eleventh Circuit.

Nov. 4, 1988.

Rehearing and Rehearing In Banc Denied Dec. 19, 1988.

Donald M. Middlebrooks, Steel, Hector & Davis, Steven A. Zalesin, Weil, Gotshal & Manges, Miami, Fla., for plaintiffs-appellants.

George L. Waas, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for Smith.

Murray Greenburg, Miami, Fla., for Leahy.

Mark A. Dienstag, Miami, Fla., for Florida English Campaign.

Expedited Appeal from the United States District Court for the Southern District of Florida.

Before FAY and ANDERSON, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

FAY, Circuit Judge:

This is an expedited appeal from a federal district court judgment dismissing a complaint which sought to enjoin certain State of Florida officials from conducting an election on a citizen initiative to amend the state constitution planned for November 8, 1988. The proposed amendment to the Florida Constitution would make English the official language of the State of Florida. As required by Florida law, proponents of the amendment circulated a petition to gather signatures in support of placing the proposed amendment on the ballot. The issue on appeal is whether the circulation of the petition, written only in English, in designated bilingual political subdivisions violated Sec. 203(c) of the Federal Voting Rights Act. The controlling provision of the Voting Rights Act requires a state which distributes "materials or information relating to the electoral process" to certain bilingual political subdivisions to provide them "in the language of the applicable language minority group as well as in the English language." 42 U.S.C.A. Sec. 1973b(f)(4) (1981 & Supp.1988). Because we find that the Voting Rights Act does not apply to initiative petitions and the involvement by the state officials in the initiative process does not constitute state action, we affirm the district court's denial of the injunction.

I. BACKGROUND

On October 11, 1988, the plaintiffs/appellants, four registered voters whose primary language is Spanish, filed a complaint in federal district court seeking declaratory and injunctive relief under the Voting Rights Act of 1965, 42 U.S.C.A. Secs. 1971 et seq. (1981 & Supp.1988) ("Act"). The appellants sought to restrain the Secretary of State of Florida and the Supervisors of Elections of Florida from conducting a vote on a proposed constitutional amendment in an election planned for November 8, 1988. ¹ The proposed amendment to the Florida Constitution (the "Official English Initiative") provides:

(a) English is the official language of the state of Florida.

(b) The Legislature shall have the power to enforce this section by appropriate legislation.

The Florida Constitution sets forth several methods for amending its provisions, including voter initiative. Citizens who wish to amend the constitution may initiate a petition and circulate it throughout the state gathering signatures in support of the amendment. If enough signatures are collected with the proper geographic distribution, the amendment will be placed on the general ballot for Florida voters' consideration. Fla.Const. art. XI, Sec. 3. In addition to the signature requirements established by the Florida Constitution, various state statutes charge state officials with limited duties in the course of the initiative process.

For example, the Secretary of State must determine that the petition signatures meet the number and geographic distribution requirements, approve the form of the petition and submit it to the Attorney General of Florida specifying that the petition sponsors have fulfilled certain formal requirements. See Fla.Stat. Secs. 100.371(4) & 15.21 (1987). Upon receiving the petition, the Attorney General of Florida must petition the Florida Supreme Court for an advisory opinion on whether the amendment addresses only one subject matter, as required by the state constitution, and whether the amendment's form and style meet specified requirements. Fla.Stat. Sec. 16.061 (1987). Finally, the Florida Supervisors of Elections are charged with verifying and validating the petition's form and signatures. Fla.Stat. Sec. 100.371(3) and (5) (1987). The district court found that the appellees fully complied with the prescribed state process to amend the constitution.

In complying with the prescribed procedure, the Official English Initiative sponsors circulated a petition written only in English to obtain the requisite number of signatures to put the amendment on the ballot. The appellants contend this circulation violated the Voting Rights Act section which provides that whenever a state subject to rules prohibiting discrimination against citizens of language minorities,:

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....

42 U.S.C.A. Sec. 1973aa-1a(c) (1981 & Supp.1988). Florida has six counties identified under the Act as language minority political subdivisions.

The appellants argued before the district court that the amendment was improperly on the ballot because the Act applied to the initiative petitions and required that the sponsors circulate both English and Spanish copies of the petition in the special bilingual areas. The appellants contended that the Act applied to the initiative process since the state officials' involvement constituted state action under the Act, and the initiative petitions were materials relating to the electoral process within the language of the Act. The district court disagreed, finding the involvement by state officials in the initiative process did not constitute state action. Therefore, it refused to enjoin a vote on the amendment.

On October 26, 1988, plaintiffs filed an expedited appeal contesting the denial of the injunction. The question before this court is whether the district court erred in denying the injunction. A district court ruling on a preliminary injunction is reviewable only for abuse of discretion. Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.1985). That discretion is guided by four elements which must be established before a preliminary injunction is proper. Id. One element the movant must show is probable success on the merits. Id. To satisfy this element, the appellants must make a showing that the petitions are within the language "other materials or information relating to the electoral process" and that the role of the state officials here constituted state action. We will deal with these two issues respectively.

II. INITIATIVE PETITIONS ARE NOT MATERIAL COVERED BY THE ACT.

A. History

In examining whether or not these initiative petitions come within the Voting Rights Act, we should begin with the language of the statute and the legislative intent behind the words used. Section 1973b(f)(4) states:

Whenever any State or political subdivision subject to the prohibition [against discrimination against citizens of language minorities] 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 language minority group as well as in the English language. ²

It is clear that Congress intended the Act to be given "the broadest possible scope." Allen v. State Bd. of Elections, 393 U.S. 544, 567, 89 S.Ct. 817, 832, 22 L.Ed.2d 1 (1969). However, an examination of the legislative history demonstrates that in enacting the Act and its amendments, Congress was concerned exclusively with the ability of all citizens to exercise effectively their right to vote.

The Voting Rights Act of 1965 was enacted to remedy the systematic exclusion of blacks from the polls by the use of poll taxes, literacy tests, and similar devices:

To assure that the right of citizens of the United States to vote is not denied or abridged on account of race or color, no citizen shall be denied the right to vote in any Federal, State, or local election because of his failure to comply with any test or device....

42 U.S.C.A. Sec. 1973b(a)(1) (1981 & Supp.1988). There is no question that the sole purpose of this legislation was to ensure the integrity of the registration and voting process by eradicating barriers which had previously prevented blacks from voting.

The amendments to the Act passed in 1975 extended the Act's coverage to four other minority groups, including Hispanics. For the first time, Congress prohibited English-only elections in jurisdictions where more than five percent of the voting age citizen population was made up of any single language minority group, and the jurisdiction had a low voter registration or turnout in the 1972 presidential election. Title 3 of Section 203 required that any jurisdiction covered by the Act, which provides official registration or election materials, must make the materials available in the language of the particular minority language group as well as in English. The Committee on the Judiciary emphasized that minority language groups were being obstructed from exercising the franchise since they were unable to understand the ballot and other materials provided...