accurate section 5 determination. It also opposes the issuance of the injunction urgently requested by New York State.
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.
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
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 the Department of Justice nor the Court could currently determine which judgeships are in violation of section 5. Furthermore, in most of the seats at issue, there are no incumbents seeking reelection and thus the candidates are not currently holding judicial office.
For these reasons, the parties have asked the Court to permit the November 8 election to go forward, but to enjoin certification of the results until after preclearance of the judgeships has been obtained. The Department of Justice concedes that it has never before asked a court to adopt this approach to an election involving unprecleared judgeships. It says, however, that New York's judicial elections present a unique situation. Cognizant that an injunction against the election proceeding would be extremely costly and disruptive, the parties are proposing a narrow injunction that they say would preserve the status quo by precluding certification or enforcement of the election results until after preclearance is obtained. In a case involving a section 5 challenge, the Voting Rights Act provides the mechanism for preventing the implementation of a voting change that has not been precleared. The Court cannot sua sponte decide to enjoin an election. A party must first come before the Court and request relief. No party has petitioned this Court to prohibit the November 8 election from going forward. All we have been asked to do is prevent the election from having any effect until the judgeships are precleared. The Court is permitted to prevent the certification of election results for unprecleared judges, and it does so today.
For the foregoing reasons, the plaintiff's request for a preliminary injunction is denied and the parties' Stipulation is approved. Pursuant to the Stipulation, the Court has fashioned its own Order rather than adopting the parties' Proposed Order.
Accordingly, upon consideration of the motion for preliminary injunction and the opposition thereto, oral argument before the Court, and the parties' Stipulation, it is hereby
ORDERED that Plaintiff's motion for a preliminary injunction is DENIED; and it is further
ORDERED that the November 8, 1994, election is enjoined to the extent that the plaintiff, its agents, employees, attorneys and all others acting in concert with it shall not take any steps to enforce or certify the results of the November 8, 1994, election for judgeships in the Second and Twelfth Judicial Districts created by legislation that has not been precleared by the Attorney General or by the Court as required by section 5 of the Voting Rights Act of 1965, unless and until preclearance of all voting changes associated with the creation of judgeships in New York Laws of 1982, chapter 500, New York Laws of 1990, chapter 209, and New York Laws of 1994, chapter 440, is obtained from this Court or from the Attorney General; and it is further
ORDERED that plaintiff is enjoined from certifying the results of the November 8, 1994 election for each of the Supreme Court judgeships in the Second and Twelfth Judicial Districts subject to election on November 8, 1994, until (1) preclearance of the voting changes identified above has been obtained from the Attorney General or this Court, or (2) a hearing has been held and a determination made by this Court regarding which judicial candidates should be subject to the jurisdiction ordered above, whichever is earlier; and it is further
ORDERED that further proceedings in this action are stayed pending a Section 5 administrative determination by the Attorney General on the voting changes at issue in this proceeding; plaintiff New York State may file a summary judgment motion on November 21, 1994, if a Section 5 determination has not been made by the Attorney General by that date; defendant United States' response to such motion shall be due on December 5, 1994; and it is further
ORDERED that, subject to final order of this Court, the judgeships referred to above shall not, after November 9, 1994, be declared vacant; and it is further
ORDERED that this order shall not affect any other pending litigation, and that the order herein is limited to the certification of the results of the election.
James L. Buckley
United States Circuit Judge
Royce C. Lamberth
United States District Judge
Paul L. Friedman
United States District Judge
DATE: November 4, 1994