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November 4, 1994


The opinion of the court was delivered by: JAMES L. BUCKLEY; ROYCE C. LAMBERTH; PAUL L. FRIEDMAN


 I. Facts

 Section 5 of the Voting Rights Act of 1965 requires any state or political subdivision covered by the Act to obtain preclearance of proposed changes to voting laws before those changes are implemented. Preclearance may be obtained in one of two ways. A state may seek judicial preclearance by filing a declaratory judgment action in the United States District Court for the District of Columbia, or it may seek administrative preclearance by submitting the proposed change to the Attorney General of the United States. 42 U.S.C. § 1973c. The purpose of the preclearance requirement is to ensure that proposed changes to voting laws "do[] not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." Id.

 The State of New York has sought from the Attorney General preclearance for the creation of 15 new judgeships on the state's trial court of general jurisdiction, the Supreme Court of New York. Some of these judgeships were created as early as 1982, some in 1990 and one as recently as 1994. New York has been trying to obtain administrative preclearance from the Attorney General for 14 of the judgeships for just over a year and has recently filed its request for preclearance with respect to the judgeship created by the 1994 New York State Legislature. *fn2" The Attorney General has refused to grant such preclearance until she has received sufficient information from New York to determine whether the state has met its burden of establishing that the new judgeships will not have a negative impact on minority voters. The Attorney General continues to demand additional information, which New York continues to provide.

 Elections which would fill two of the proposed new judgeships subject to preclearance authorization (including the one created by the 1994 legislation) are scheduled for November 8, 1994. Ballots for the November 8 election have already been printed with candidates for the two unprecleared judgeships listed, and we are advised that absentee ballots have already been cast. Concerned that it would not receive preclearance from the Attorney General in time to permit the new judgeships to be filled during the regular November 8 elections, New York filed suit in this Court seeking a declaratory judgment that the new judgeships do not violate section 5 of the Voting Rights Act of 1965. While recognizing that a lawsuit for declaratory judgment is an appropriate way to obtain preclearance as an alternative to the Attorney General's preclearance, the United States argues that additional discovery is necessary in order to provide this Court with the information necessary for it to make an accurate section 5 determination. It also opposes the issuance of the injunction urgently requested by New York State.

 II. Analysis

 The Supreme Court has unequivocally stated that "no new voting practice or procedure may be enforced unless the State or political subdivision has succeeded in its declaratory judgment action or the Attorney General has declined to object." United States v. Board of Supervisors of Warren County, 429 U.S. 642, 645, 51 L. Ed. 2d 106, 97 S. Ct. 833 (1977). In the instant case, it is clear that the Attorney General has not "declined to object" to the proposed judgeships. To the contrary, the Attorney General has made it quite clear that administrative preclearance will not be granted until New York has submitted additional information concerning the potential impact of the new judgeships.

 The question raised by New York State's motion for a preliminary injunction was whether the Court may properly direct that the two judgeships on the ballot for November 8 must be included in the November 8 elections, pending the outcome of New York's declaratory judgment action before the Court, or, on the other hand, whether section 5 requires the completion of the preclearance authorization process before those elections may be held. The parties have presented a Stipulation and Proposed Order to the Court by which they propose an alternative solution. They propose that the Court permit the election to go forward but enjoin the enforcement or certification of the results of the election until all voting changes associated with the creation of such judgeships by the New York State Legislature have been precleared either by this Court or by the Attorney General. *fn3"

 The Supreme Court considered the question of unprecleared judgeships in Clark v. Roemer, 500 U.S. 646, 114 L. Ed. 2d 691, 111 S. Ct. 2096 (1990). In finding that the District Court should have enjoined elections relating to certain unprecleared judgeships, the Court held that "a voting change in a covered jurisdiction will not be effective as law until and unless [pre] cleared." Id. at 652 (internal quotations omitted). "Failure to obtain either judicial or administrative preclearance renders the change unenforceable." Id. (internal quotations omitted). In the circumstances before the Court in Clark v. Roemer, the Court expressly stated: "Section 5's prohibition against implementation of unprecleared changes requires the district court to enjoin the election." Id. at 654 (emphasis added).

 It would be anomalous for this Court to grant the injunctive relief originally requested by New York because it would require by judicial fiat that an election go forward before the completion of the preclearance authorization process. Both before and after the Supreme Court's decision in Clark v. Roemer, courts presented with the converse of the situation before us, namely, whether to enter an injunction preventing an election rather than one permitting one, have invariably granted the request for an injunction. In the absence of preclearance authorization, in each case the courts concluded that such injunctive relief was mandatory and absolutely fundamental to effectuate the purposes of section 5. This Court has invariably granted an injunction enjoining an election from going forward in such cases. See State of Texas v. United States, Civil Action No. 94-1529 (D.D.C. Sept. 27, 1994) (three-judge court); Busbee v. United States, 549 F. Supp. 494 (D.D.C. 1982) (three judge court). To enter an injunction requiring an election to go forward would run counter to Clark and all precedents in this Court. For these reasons, the Court must deny New York's motion for a preliminary injunction. See Clark v. Roemer, 500 U.S. at 654.

 In submitting their Stipulation and Proposed Order, the parties seem now to start with a mutual understanding that Clark v. Roemer directs that judgeships must be precleared in order to be lawful. Plaintiff contends, however, that the Supreme Court in Clark recognized that an injunction preventing an election for an unprecleared seat is not always the appropriate solution when such an election is scheduled to take place. New York points out that the Supreme Court in Clark noted that "an extreme circumstance might be present if a seat's unprecleared status is not drawn to the attention of the State until the eve of the election and there are equitable principles that justify allowing the election to proceed." Clark v. Roemer, 500 U.S. at 654. The Court is reluctant to characterize New York's predicament as such an exigent situation. New York has been aware of the need to seek preclearance authorization since either 1986 or 1990 *fn4" and has known that the Attorney General has been unwilling to preclear its new judgeships for the past year. There are, however, other equitable principles that do concern the Court.

 New York State's judicial election ballots do not designate which seats are the unprecleared seats. Indeed, candidates do not run for a particular seat but run at-large in a large field in which the four individuals in Bronx County and the eight individuals in Kings County with the highest vote totals will be elected. Thus, it is not so simple as saying that the candidates who are running for judgeships A, B and C are legitimate candidates, while those running for judgeship D are not. All (or none) may be legitimate candidates for three of the seats in Bronx County, but not the fourth, and for seven of the seats in Kings County but not the eighth. In Clark v. Roemer, 500 U.S. 646, 114 L. Ed. 2d 691, 111 S. Ct. 2096, State of Texas v. United States, Civil Action No. 94-1529 and United States v. Arizona, CIV-94-1845-PHX-EXC (D. Ariz. Oct. 14, 1994) (three-judge court), the judicial elections involved designated seats and individual candidates for those seats could be removed from the ballot. That is not the case here. In these circumstances, neither ...

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