The opinion of the court was delivered by: TATEL; JOHNSON; URBINA
This case is before the court on plaintiff Arizona's motion for summary judgment or, in the alternative, partial summary judgment on the issue of effect, and on its motion to limit discovery on the issue of purpose. The United States opposes summary judgment, arguing that disputed issues of material fact remain and that it needs additional discovery on both issues. The court heard oral argument on May 2, 1995. For the reasons set forth below, we deny plaintiff's motion for summary judgment, grant plaintiff's alternative motion for partial summary judgment on the issue of effect, and deny plaintiff's motion to limit discovery.
The State of Arizona and both Coconino and Navajo counties are covered jurisdictions under section 4 of the Voting Rights Act, 42 U.S.C. § 1973b(b) (1988). As such, they cannot enforce any "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972" unless they either obtain the approval of the Attorney General or a declaratory judgment from a three-judge court of the United States District Court for the District of Columbia declaring that the change does not have the "purpose" and will not have the "effect" of denying or abridging the right to vote on account of race, color, or membership in a language minority group. See Voting Rights Act § 5, 42 U.S.C. § 1973c; see also 28 C.F.R. § 51.10 (1994).
Both Coconino and Navajo counties added two judgeships, known as "divisions," to their branches of the Arizona Superior Court -- Coconino in May 1980 and August 1990; Navajo in 1975 and 1988 -- without obtaining either preclearance from the Department of Justice or a declaratory judgment from this court, as required by section 5. The new judgeships were filled in the same manner as those in existence in November of 1972: each seat on the Superior Court appears separately on the ballot and is selected by majority vote in a county-wide election.
In April of 1993, following Clark v. Roemer, 500 U.S. 646, 114 L. Ed. 2d 691, 111 S. Ct. 2096 (1991), where the Supreme Court rejected the argument that section 5's requirements did not apply to the addition of seats to a court in a covered jurisdiction, see id. at 653, the Department of Justice contacted county officials to inform them that they would have to obtain clearance for the new judgeships. Shortly thereafter, Arizona submitted the additional seats in both counties to the Department for clearance.
In the spring of 1994, the Department notified Arizona that it would not approve the new judgeships. Citing evidence that both counties were characterized by racially polarized voting, the Department stated that the county-wide elections appeared to restrict the ability of Native American voters to elect the candidates of their choice and observed that if the counties instead used a multi-district scheme, Native Americans would likely constitute a majority of the voters in at least one district in each county. See Letters from Deval Patrick, Asst. Att'y Gen., Civil Rights Div. to Terence C. Hance, Coconino County Att'y 1-2 (Apr. 8, 1994) and to D. Rand Henderson, Dep. County Att'y, Navajo County 1-2 (May 16, 1994), in Def. Mem. Opp. Summ. J. Ex. K.1 & K.2. Arizona filed a complaint in this court seeking a declaratory judgment that the additional seats had neither the purpose nor the effect of discriminating on account of race or color. In November of 1994, the Attorney General obtained an injunction from the United States District Court for the District of Arizona enjoining the November 1994 general election for the Superior Court in both counties and ordering the judges currently holding those seats to remain in their positions until proceedings in this court are concluded. See United States v. Arizona, No. 94cv1845, 1994 U.S. Dist. LEXIS 17606 (D. Ariz. Oct. 17, 1994) (order granting preliminary injunction).
Congress enacted the Voting Rights Act "to rid the country of racial discrimination in voting. The heart of the Act is a complex scheme of stringent remedies aimed at areas where voting discrimination has been the most flagrant." South Carolina v. Katzenbach, 383 U.S. 301, 315, 15 L. Ed. 2d 769, 86 S. Ct. 803 (1966) (footnote omitted). Section 5 of the Act imposes strict oversight on those states and jurisdictions that as recently as 1964 used the most overtly discriminatory tests and devices to prevent minorities from fully participating in the electoral process. See 42 U.S.C. § 1973b(b)&(c) (1988). By "'freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory,'" Beer v. United States, 425 U.S. 130, 140, 47 L. Ed. 2d 629, 96 S. Ct. 1357 (1976) (quoting H.R. Rep. No. 196, 94th Cong., 1st Sess. 58 (1975)), Congress intended to ensure that gains in minority political participation were not eroded through the establishment of new discriminatory procedures and techniques. See Beer, 425 U.S. at 140-41; H.R. Rep. No. 196 at 57-58. Under section 5, it is the state or political subdivision thereof that bears the burden of proving that its change did not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. See 42 U.S.C. § 1973c; Katzenbach, 383 U.S. at 335.
We begin with Arizona's motion for summary judgment on the issue of discriminatory effect. The Supreme Court has held that "'the purpose of [section] 5 has always been to insure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.'" See City of Lockhart v. United States, 460 U.S. 125, 134, 74 L. Ed. 2d 863, 103 S. Ct. 998 (1983) (quoting Beer, 425 U.S. at 141). Thus any change which would place a protected minority group in a position worse than its position on November 1, 1972 -- the benchmark for these counties -- does not merit clearance. Both Arizona and the United States agree that the addition of these judgeships did not bring about any retrogression in the position of Native American voters.
The Department, however, argues that even a non-retrogressive change cannot be approved under section 5 if that change violates the results test of section 2 of the Act. Section 2 prohibits any political subdivision, not just those subject to the preclearance requirements of section 5, from imposing any voting qualification or procedure "which results in a denial or abridgment of the right . . . to vote on account of race or color or [on account of membership in a language minority group]." Voting Rights Act, § 2, 42 U.S.C. § 1973(a) (1988). Section 2 thus encompasses practices and procedures which may not be retrogressive but still prevent minorities from participating equally in the political process. In an action under section 2, the complainant, not the political jurisdiction, bears the burden of demonstrating that the challenged practice violates the statute. See Thornburg v. Gingles, 478 U.S. 30, 46, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986).
The Department has made its Section 2 incorporation argument, without success, in three previous cases in this court. See Texas v. United States, Civ. No. 94-1529, at 2 (D.D.C. April 24, 1995) (memorandum order on scope of discovery); Georgia v. Reno, 881 F. Supp. 7 (D.D.C. 1995); New York v. United States, 874 F. Supp. 394 (D.D.C. 1994). While we are not bound by the decisions in those cases, see In Re Korean Air Lines Disaster of September 1, 1983, 265 U.S. App. D.C. 39, 829 F.2d 1171, 1176 (D.C. Cir. 1987), aff'd sub nom. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 104 L. Ed. 2d 113, 109 S. Ct. 1676 (1989) (binding precedent for a district court within a circuit is set only by the Supreme Court and the court of appeals for that circuit), we of course give the highest level of consideration to the deliberation and judgment of nine of our colleagues. Since our own review convinces us that those decisions were correct, we too hold that ...