administration of justice is a goal of paramount importance. New York's decision to apply existing election procedures to the new judgeships is unremarkable--the Supreme Court has recognized that a state has a legitimate interest in maintaining the continuity of an existing electoral system. Houston Lawyers' Ass'n v. Attorney General of Texas, U.S. , 111 S. Ct. 2376, 2381, 115 L. Ed. 2d 379 (1991).
Furthermore, it appears that some legislators (including some minority legislators) believed that increasing the number of Supreme Court judges would actually improve the ability of minorities to gain access to the bench. See, e.g., Affidavit of Clarence Norman P 11.
Finally, many of the affidavits submitted by New York state legislators contain affirmative representations that the decision to create additional judgeships was not motivated by any discriminatory purpose. E.g., Affidavits of Helene Weinstein, Clarence Norman, and Roberto Ramirez. In a previous section 5 proceeding, this Court found such uncontested statements by state legislators sufficient to establish an absence of discriminatory purpose. State of Texas v. United States, 802 F. Supp. 481, 486 (D.D.C. 1992).
The defendant has failed to identify a single fact which would suggest that the decision to create additional judgeships was motivated by a discriminatory purpose. Instead, defendant relies upon its theory, described and rejected above, that this Court may infer discriminatory intent on the part of the legislators because of the fact that in creating these new judgeships, they chose to perpetuate a voting scheme which defendant believes is discriminatory. The defendant is perfectly correct in arguing that discriminatory intent may be inferred from circumstantial evidence, including "evidence of historical discrimination," Busbee, 549 F. Supp. at 517 (quoting Rogers v. Lodge, 458 U.S. 613, 625, 73 L. Ed. 2d 1012, 102 S. Ct. 3272 (1982)); however, defendant offers not one single piece of evidence which suggests that this particular decision--that is, the decision to add new trial court judges who will be elected in the same way as existing judges--was itself motivated by a discriminatory purpose.
Indeed, during oral argument, counsel for the defendant was asked repeatedly by members of this Court what information the United States had (or would be able to develop with additional discovery) that would reveal invidious intent on the part of the plaintiff. Each time, counsel responded with facts and arguments pertinent to New York's existing voting system, but never with facts concerning the specific decision to create new judgeships.
It is quite clear that defendant's real complaint is that New York's decision to create the additional judgeships was not a step towards ameliorating what defendant perceives to be a discriminatory electoral system. Defendant argues that at the time the decision was made to create these new judgeships, New York state legislators knew or should have known that the State's system of electing trial court judges was discriminatory.
Thus, any change in the voting laws which fails to mitigate the effects of this inequality to defendant's satisfaction must, ipso facto, be animated by a discriminatory purpose. As existing case law makes abundantly clear, however, there is absolutely no requirement that proposed changes to voting laws place minority voters in a better position relative to the existing system. See Lockhart, 460 U.S. at 134; Beer, 425 U.S. at 141; see also Ketchum v. Byrne, 740 F.2d 1398, 1402 n.2 (7th Cir. 1984), cert. denied sub nom. City Council of the City of Chicago v. Ketchum, 471 U.S. 1135, 86 L. Ed. 2d 692, 105 S. Ct. 2673 (1985); State of Mississippi v. United States, 490 F. Supp. 569, 583 (D.D.C. 1979), aff'd, 444 U.S. 1050, 62 L. Ed. 2d 739, 100 S. Ct. 994 (1980). Defendant's contention that it has raised material facts suggesting the existence of a discriminatory purpose rests entirely upon the proposition that the legitimacy (under section 2) of New York's existing electoral scheme is an issue before this Court. Since we have concluded that it is not, we find that the defendant has failed to raise an issue of material fact as to whether New York's decision to create additional judgeships was motivated by a discriminatory purpose.
Defendant maintains that even if the Court rejects its legal argument, New York's summary judgment motion should be denied because there has been no discovery in this action and because summary judgment is generally inappropriate for issues of intent. We are mindful of the serious concerns raised by these arguments; however, we are convinced that the unique circumstances of this case provide ample basis for the Court's decision to grant summary judgment.
B. Further Discovery
First, while it may technically be true that there has been no discovery "in this action," the defendant has been requesting and receiving information concerning the proposed creation of new judgeships from the State of New York for almost a year as part of an administrative preclearance proceeding. New York has furnished the Court with a detailed list describing the volumes of information it has sent the defendant as part of this administrative preclearance procedure. Although it is true that Justice Department lawyers have not had the opportunity to conduct formal depositions of New York State legislators, at oral argument New York's Attorney General informed the Court that defendant was given a waiver which permitted defendant's lawyers to speak with and obtain statements from any state official. Notably, the defendant's submissions to this Court did in fact contain statements from various New York officials, including legislators. Thus, it appears that New York has made every effort to cooperate with defendant's numerous requests for information.
Defendant's assertion that it lacks sufficient information to evaluate the proposed addition of judges is dubious for other reasons as well. First, on December 5 of this year the Assistant Attorney General sent the State of New York a letter formally denying administrative preclearance for the laws creating the new judgeships and describing in great detail her basis for concluding that the proposed legislation did not pass muster under section 5.
Second, during oral argument the Court asked counsel for the United States what further discovery would be necessary in the event this Court rejected its theory that section 2 issues were relevant to this section 5 proceeding. Counsel responded that should this Court reject defendant's section 2/section 5 theory, no further discovery would be necessary. For these reasons, we think defendant's argument that it must be given a further opportunity to conduct discovery insupportable.
C. Summary Judgment on Issues of Intent
Defendant correctly notes that "an inquiry into purpose or intent is particularly unsuited for resolution by summary judgment." State of Texas v. United States, No. 94-46, mem. op. at 15 (D.D.C. Oct. 20, 1994). However, this general rule does not operate to completely relieve the defendant of the burden of identifying some evidence of discriminatory intent on the part of New York State legislators. A party resisting summary judgment is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. U.S. Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987). As discussed above, defendant's factual allegations pertain to its argument that discriminatory purpose can be inferred from the legislature's decision to add judges to an electoral system which is allegedly illegitimate under section 2. Despite several queries from this Court during oral argument, defense counsel was unable to identify even a scintilla of evidence, not related to defendant's section 2/section 5 theory, which would support a finding of discriminatory intent. Accordingly, this Court finds that defendant has failed to establish a genuine issue as to any material fact. New York, therefore, is entitled to judgment as a matter of law that its decision to create the additional judgeships at issue in this proceeding does not have the purpose and will not have the effect of denying or abridging the right of racial minorities to vote.
For the forgoing reasons, plaintiff's motion for summary judgment will be GRANTED in a separate Order issued this date.
FOR THE COURT, CIRCUIT JUDGE BUCKLEY AND DISTRICT JUDGE FRIEDMAN, CONCURRING.
Royce C. Lamberth
United States District Judge
Plaintiff State of New York having moved for summary judgment upon plaintiff's complaint, which seeks a declaratory judgment pursuant to section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c, that Chapter 500 of New York laws of 1982, Chapter 209 of New York laws of 1990, and Chapter 440 of New York laws of 1994, insofar as they create new judgeships on the New York State Supreme Court, do not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, color, or language minority group status, it is hereby
ORDERED that plaintiff's motion is GRANTED; and it is further
ORDERED, ADJUDGED AND DECLARED that Chapter 500 of New York laws of 1982, Chapter 209 of New York laws of 1990, and Chapter 440 of New York laws of 1994, insofar as they create new judgeships on the New York State Supreme Court, do not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, color, or language minority group status under section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c.
FOR THE COURT, SO ORDERED
Royce C. Lamberth
United States District Judge