The opinion of the court was delivered by: ROYCE C. LAMBERTH
On November 4, 1994, this Court issued an Order prohibiting the State of New York from certifying the results of the November 8, 1994 state judicial elections in the Second and Twelfth Judicial Districts (Bronx and Kings Counties) until New York had obtained preclearance for the newly created judgeships from the Attorney General or from this Court as required by section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973c. On December 5, 1994 the Attorney General denied administrative preclearance on the grounds that New York had failed to establish that its plan to create the additional judgeships would not have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. Id. Pursuant to the procedure established by section 5 of the Voting Rights Act, plaintiff State of New York now seeks a declaratory judgement from this Court that the decision to add new judges to the New York Supreme Court does not have the purpose and will not have the effect of discriminating against minority voters. This case comes before the Court on plaintiff State of New York's motion for summary judgment. The United States opposes summary judgment and contends that it requires further discovery in order to establish that New York's decision to create the new judgeships was motivated by a discriminatory purpose. For the reasons set forth below, New York's motion for summary judgment will be granted.
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 may be implemented.
42 U.S.C. § 1973c. 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. Id. 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" or membership in a minority language group. 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 recently filed its request for preclearance with respect to the judgeship created by the 1994 New York State legislature. On December 5, 1994, the Acting Assistant Attorney General for the Civil Rights Division of the United States Department of Justice, acting on behalf of the Attorney General, sent the State of New York a letter formally denying preclearance for the proposed addition of judges.
Elections that would fill two of the judgeships subject to preclearance authorization were held on November 8, 1994. Candidates who were elected to judgeships on November 8 are scheduled to take office on January 1, 1995. As noted above, however, an earlier Order of this Court enjoined the State of New York from certifying the results of the November 8 elections until the legislation creating the new judgeships receives preclearance. Efforts to resolve the preclearance issue with the Department of Justice proved unsuccessful, and plaintiff moved for summary judgment in this Court, with the hope that a decision might be made in time to swear in the newly elected judges on January 1.
II. The Proper Scope of a Section 5 Inquiry
The Voting Rights Act of 1965 was passed by Congress in an effort finally to make real the promise of the Fifteenth Amendment that "the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." U.S. Const. amend. XV, § 1. Section 2 of the Act prohibits any voting practice "which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color," or language minority status. 42 U.S.C. § 1973(a). A section 2 plaintiff may challenge an existing voting system on the grounds that it denies minority citizens an equal opportunity to participate in the electoral process. In a section 2 proceeding, the plaintiff bears the burden of proving that the challenged voting scheme has a discriminatory effect on minority voters.
Section 5 of the Voting Rights Act was intended to prevent jurisdictions with a history of discrimination from thwarting minority progress by requiring "covered" jurisdictions to submit any proposed electoral changes to the Attorney General or to this Court for preclearance review. See Beer v. United States, 425 U.S. 130, 140-41, 47 L. Ed. 2d 629, 96 S. Ct. 1357 (1976). Analysis of proposed voting changes under section 5 entails a two-pronged inquiry: first, the changes must not result in a discriminatory effect, and second, the changes must not have been motivated by a discriminatory purpose. Under section 5, the jurisdiction seeking preclearance bears the burden of establishing that the proposed changes are free from discriminatory effect and purpose.
A. Discriminatory Effects
The "effects" prong of the section 5 analysis has received by far the greater amount of consideration from the courts, and the Supreme Court has developed a straightforward test for analyzing effects under section 5. According to this so-called "retrogression" analysis, whether a proposed voting change has an impermissible effect under section 5 is determined by comparing the existing voting scheme with the scheme that would result from the proposed changes. If the position of minority voters is no worse under the new scheme than it was under the old scheme, then the proposed change is entitled to preclearance under section 5. See Lockhart v. United States, 460 U.S. 125, 132-35, 74 L. Ed. 2d 863, 103 S. Ct. 998 (1983); Beer, 425 U.S. at 141. Defendant concedes, and we agree, that the creation of new judgeships in New York would not have a retrogressive effect. Defendant contends, however, that a change which does not have a retrogressive effect may nevertheless have an effect which is impermissible under section 5, Beer and Lockhart notwithstanding.
Defendant maintains that the amendments to the Voting Rights Act enacted by Congress in 1982 were intended to alter the retrogression test applied by the Supreme Court in Beer and Lockhart. This theory has its genesis in Justice Marshall's dissenting opinion in Lockhart in which he argued that the 1982 amendments changed the substantive content of section 5--in effect incorporating the substantive provisions of section 2--despite the fact that section 5's language was not changed by the amendments. According to Justice Marshall, the legislative history of the 1982 amendments reveals that "Congress repeatedly stressed that § 5 is intended to prevent covered jurisdictions from adopting voting schemes that perpetuate existing discrimination." Lockhart, 460 U.S. at 146 (Marshall, J., dissenting). In support of this conclusion, Justice Marshall quoted a footnote in the Senate Report which accompanied the 1982 amendments, a footnote on which the United States relies in this case: "In light of the amendment to section 2, it is intended that a section 5 objection also follow if a new voting procedure itself so discriminates as to violate section 2." Id. at 145 (quoting S. Rep. No. 97-417, 97th Cong., 2nd Sess. at 12, n.31 (1982)). The majority in Lockhart noted that the district court had not ruled on the possibility that the 1982 amendments altered the substantive content of section 5 and therefore declined to review the question. Id., 460 U.S. at 133 n.9.
We are unaware that any court has embraced the theory suggested by Justice Marshall and urged here by the defendant. Indeed, the Supreme Court has recently reaffirmed that section 2 and section 5 "differ in structure, purpose, and application" and that under section 5 "the proposed voting practice is measured against the existing voting practice to determine whether retrogression would result from the proposed change." Holder v. Hall, U.S. , 114 S. Ct. 2581, 2587 (1994) (emphasis added). In light of this recent language, and because in 1982 Congress reenacted section 5 without change, we are not inclined to accept defendant's invitation to abandon the retrogression test which has been consistently applied by the Supreme Court since its original formulation in Beer v. United States. Because defendant concedes, and we agree, that the proposed addition of judgeships will not have a retrogressive effect, the only remaining question is whether the decision to add new judges was motivated by a discriminatory purpose.
B. Discriminatory Purpose
In addition to the "effects" argument described above, defendant seeks to import section 2's substantive standards into preclearance inquiries by means of section 5's "discriminatory purpose" prong. Although the defendant recognizes that simply creating additional judges who will be elected in exactly the same manner as existing judges has no retrogressive effect, defendant does contend that the creation of the new judgeships was motivated by a discriminatory purpose. As described above,
defendant maintains that the system by which judges are elected in New York disadvantages minority voters in violation of section 2 of the Voting Rights Act.
Given the existence of this allegedly discriminatory system, defendant argues that the Court may infer a discriminatory motive on the part of the New York State legislature in adding the new judgeships: Since the New York State legislature is aware that the existing system of electing judges discriminates against minorities, and since the new judges will be elected in the same way as existing judges, it follows (according to defendant) that legislation creating the new judgeships must have been partly motivated by a discriminatory purpose. Thus, defendant argues that it is permissible--indeed that it is necessary--for this Court to analyze the existing system ...