that a political subdivision that does not violate either the "effect" or the "purpose" prong of section 5 cannot be denied preclearance because of an alleged section 2 violation.
Defendant puts before us many arguments for the inclusion of section 2 in this section 5 action. Defendant contends that the statutory language of section 2 and section 5 are in significant part so indistinguishable as to require the importation of section 2 into section 5. It is also argued that the legislative history of section 2 makes clear that Congress, in amending section 2, intended that voting practices be denied section 5 preclearance where those voting practices violate section 2. Defendant finally contends that this court should defer to defendant's own regulations, which interpret section 5 as requiring denial of preclearance where a proposed change violates section 2.
Defendant has presented many, if not all, of these arguments to other courts and to other panels of this court without any success. Defendant acknowledges these prior cases, but claims that they are distinguishable from the one before us. We, like our predecessors, reject defendant's latest--and by now rather shopworn--effort to squeeze section 2 into section 5.
We are unconvinced by defendant's casual effort to equate the standards of section 2 and section 5. In its brief, defendant asserts that "there is no meaningful distinction between the plain meaning of the term [sic] 'effect' and 'result.'" [Def. Br. at 28.] To reach this facile conclusion, one must willfully blind oneself to the fact that the term "results" in subsection (a) of section 2 is defined by reference to the language set forth in subsection (b) of section 2. 42 U.S.C. § 1973. None of the language that modifies "results" in section 2 appears in section 5.
Not only are the two sections drafted with different language, even a cursory review of the case law applying the two statutory sections as written and as applied over the years makes clear that the two sections serve very different functions.
Section 5 of the Voting Rights Act establishes an extraordinary procedure in our federal system. Before a "covered jurisdiction"--i.e., a State or one of its political subdivisions which is subject to section 5--may change a "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting," it must have the change precleared by either this court or the Attorney General.
Id. § 1973c. Preclearance in this court comes in the form of "a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does 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 in contravention of the guarantees set forth in . . . this title." Id. § 1973c.
The Supreme Court has read the "effect" prong of section 5 to require 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." Beer v. United States, 425 U.S. 130, 141, 47 L. Ed. 2d 629, 96 S. Ct. 1357 (1976). This "nonretrogression" interpretation has repeatedly been reasserted by the Supreme Court, most recently in Miller v. Johnson, 515 U.S. 900, 132 L. Ed. 2d 762, 115 S. Ct. 2475, 2493 (1995).
This formulation relates directly to section 5's function. Section 5 was enacted in response to the efforts of jurisdictions to avoid compliance with the Voting Rights Act by adopting new, violative schemes as quickly as the old ones could be struck down. See Beer, 425 U.S. at 140. "'By freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory,' section 5 ensures that a plaintiff seeking to challenge an existing voting scheme in federal court under section 2 will have a stationary target to attack." New York v. United States, 874 F. Supp. at 394, 400 (D.D.C. 1994) (quoting Beer, 425 U.S. at 140 (internal citations omitted)).
Section 2 of the Voting Rights Act uses plainly different language and serves a different function from that of section 5. Under section 2, a "voting qualification or prerequisite to voting or standard, practice, or procedure" in any political subdivision (not just a covered jurisdiction) may be challenged where it "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. § 1973(a). Subsection (b) of section 2 provides that a voting procedure has the prohibited result where
based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
Id. § 1973(b). Subsection (b) contains a different standard from the retrogression standard found by the Supreme Court in section 5; as courts have since recognized, section 2 can be violated without any discriminatory purpose and irrespective of whether the disputed voting practice is better or worse than whatever it is meant to replace. See Thornburg v. Gingles, 478 U.S. 30, 42-47, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986). Sections 2 and 5 are substantially different, both on their face and in the manner in which they have been interpreted and applied. See Holder v. Hall, 512 U.S. 874, 129 L. Ed. 2d 687, 114 S. Ct. 2581, 2587 (1994) ("To be sure, if the structure and purpose of section 2 mirrored that of section 5, then the case for interpreting sections 2 and 5 to have the same application in all cases would be convincing. But the two sections differ in structure, purpose, and application." (footnote omitted)).
Moreover, the two sections differ as to the allocation of the burden of proof. In an action under section 5, the burden of proof is on the political subdivision seeking to enact a voting change. In a section 2 action, on the other hand, the burden of proof is on the party challenging a voting practice. See, e.g., Hall v. Holder, 955 F.2d 1563, 1573-74 (11th Cir. 1992), rev'd on other grounds, 512 U.S. 874, 129 L. Ed. 2d 687, 114 S. Ct. 2581 (1994); Solomon v. Liberty County, 899 F.2d 1012, 1036 (11th Cir. 1990) (en banc) (Tjoflat, J., specially concurring); cert. denied, 498 U.S. 1023, 111 S. Ct. 670, 112 L. Ed. 2d 663 (1991); see also Burton v. Sheheen, 793 F. Supp. 1329, 1351-52 (D.S.C. 1992) (declining to import section 2 into section 5 because, inter alia, of the differing burdens of proof), vacated on other grounds sub nom., Statewide Reapportionment Advisory Comm. v. Theodore, 508 U.S. 968, 125 L. Ed. 2d 656, 113 S. Ct. 2954 (1998); City of Port Arthur v. United States, 517 F. Supp. 987, 1005 n.119 (D.D.C. 1981) (rejecting claim that section 2 action can collaterally estop section 5 action because, inter alia, burdens of proof in each case are different), aff'd, 459 U.S. 159, 74 L. Ed. 2d 334, 103 S. Ct. 530 (1992). That crucial procedural difference strongly suggests the inappropriateness of importing section 2 standards into section 5.
Defendant's reliance on the legislative history of the amendments to section 2 is similarly unavailing. Where the language of a statutory regime is unambiguous, as it is here, we need not resort to that regime's legislative history. See Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 117 L. Ed. 2d 391, 112 S. Ct. 1146 (1992). Even if the language of sections 2 and 5 did not plainly contemplate two different and independent inquiries, we would not be persuaded that what little legislative history defendant has discovered is sufficient to justify the radical expansion of an already significant encroachment on the prerogatives of States and their subdivisions. Defendant bases its recourse to legislative history in a footnote from the Senate Report that accompanied the 1982 amendments to section 2: "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." S. REP. No. 97-417, 97th Cong., 2d Sess. at 12 n.31 (1982). Defendant also provides quotes to this effect from two sponsors of the 1982 amendments. The footnote appears in a report that accompanied the 1982 overhaul of section 2 that was precipitated by and intended to repudiate Mobile v. Bolden, 446 U.S. 55, 64 L. Ed. 2d 47, 100 S. Ct. 1490 (1980). Georgia v. Reno, 881 F. Supp. 7, 13 (D.D.C. 1995). In Mobile, a plurality of the Supreme Court held that proof of discriminatory purpose was required for a section 2 violation. "The [footnote] cited by the defendants was intended merely to emphasize that proof of the requisite unlawful effect is in itself sufficient under either section, regardless of motive." Id. At that time, section 2 was wholly rewritten to provide that no proof of discriminatory purpose is required in actions brought under it; section 5 remained--and remains today--as it had been written in 1975. In the face of the palpably different standards plainly embodied in sections 2 and 5, we think it not plausible that Congress would indicate its desire to raise the hurdle to preclearance by adding the requirements of section 2 to section 5 in a Senate Report footnote. Accord Arizona v. Reno, 887 F. Supp. 318, 321 (D.D.C. 1995). Had Congress plainly expressed this intention, we would be bound to follow. It did not and we are not.
The Department argues in its brief--although it appeared to retreat from this contention at closing argument--that an additional reason for the court to import section 2 into section 5 is that the Department of Justice has promulgated regulations stating that preclearance under section 5 ought to be denied where the proposed voting change violates section 2. See 28 C.F.R. § 51.55(b)(2) ("In those instances in which the Attorney General concludes that, as proposed, the submitted change is free of discriminatory purpose and retrogressive effect, but also concludes that a bar to implementation of the change is necessary to prevent a clear violation of amended section 2, the Attorney General shall withhold section 5 preclearance."). The Department asserts that "the Attorney General's interpretations of the Act are entitled to great deference." [Def. Br. at 31.] Wherever else the Attorney General's interpretation of section 5 of the Voting Rights Act may be entitled to deference, it certainly is not in this court. We will not defer to the Attorney General where, under the statute, an action seeking preclearance may be brought here in the first instance. See Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 203, 115 L. Ed. 2d 177, 111 S. Ct. 2215 (1991) (citing Local Union 1395, Int'l Brotherhood of Elec. Workers v. NLRB, 254 U.S. App. D.C. 360, 797 F.2d 1027, 1030-31 (D.C. Cir. 1986)); Kelley v. EPA, 304 U.S. App. D.C. 369, 15 F.3d 1100, 1108 (D.C. Cir. 1994) ("Even if an agency enjoys authority to determine such a legal issue administratively, deference is withheld if a private party can bring the issue independently to federal court under a private right of action."), cert. denied sub nom., American Bankers Ass'n v. Kelley, 513 U.S. 1110, 130 L. Ed. 2d 784, 115 S. Ct. 900 (1995); cf. Michigan Citizens for an Indep. Press v. Thornburgh, 276 U.S. App. D.C. 130, 868 F.2d 1285, 1293 (D.C. Cir.), aff'd, 493 U.S. 38, 107 L. Ed. 2d 277, 110 S. Ct. 398 (1989).
As we have noted, all courts to have considered the question have decided that section 2 may not be imported in section 5. See Texas v. United States, Civ. Act. No. 94-1529, Mem. Op. at 1-3 (D.D.C. July 10, 1995); Arizona v. Reno, Mem. Op. at 6-7; Georgia v. Reno, 881 F. Supp. at 13-14; New York v. United States, 874 F. Supp. 394 (D.D.C. 1994); see also Burton v. Sheheen, 793 F. Supp. at 1350-53. Defendant would distinguish these cases, insisting that the other panels refused to import section 2 into section 5 cases because the only alleged section 2 violation was the addition of judgeships to an already existing, already violative system for the election of judges.
See Texas; Arizona; Georgia; New York. [Def. Br. at 34.] In this case, defendant contends that the proposed voting change is itself a violation of section 2 and that preclearance must therefore be denied. We are not persuaded. The reasoning used by the prior courts is just as applicable here, regardless of whether a given voting change is styled as an addition to a system that allegedly violates section 2 or a violation of section 2 itself. The statute does not provide for importation of section 2 into section 5, and the particular circumstances of a given section 5 preclearance action can make no difference whatsoever.
In its discussion of the importation of section 2 into section 5, defendant makes no mention of Miller v. Johnson. In Miller, the Attorney General denied preclearance for the Georgia General Assembly's congressional redistricting plan until it provided for three majority-black districts. 115 S. Ct. at 2489. In finding that the General Assembly had made race the "predominant factor" in its redistricting and thereby violated the Equal Protection Clause, the Court held that the manner in which the Attorney General had employed section 5 of the Voting Rights Act was "insupportable," and that the Attorney General's incorrect interpretation of section 5 could not be a compelling state interest sufficient to survive strict scrutiny. Id. at 2492. Although much of the discussion in Miller concerns the Equal Protection clause, Miller is very much a statutory interpretation case. The Supreme Court, rather than decide the constitutional question of whether compliance with the Voting Rights Act could serve as a compelling state interest, expressly repudiated the Department's interpretation of section 5. Id. at 2490-91. The Court noted that the purpose of section 5 is to avoid retrogression in the position of minority voters, and stated that the "Justice Department's maximization policy seems quite far removed from this purpose." Id. at 2493. "In utilizing § 5 to require States to create majority-minority districts wherever possible, the Department of Justice expanded its authority under the statute beyond what Congress intended and we have upheld." Id. The Supreme Court further observed that it had upheld section 5 in South Carolina v. Katzenbach, 383 U.S. 301, 15 L. Ed. 2d 769, 86 S. Ct. 803 (1966), as a
necessary and constitutional response to some states' "extraordinary stratagem[s] of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees." . . . But [its] belief in Katzenbach that the federalism costs exacted by § 5 preclearance could be justified by those extraordinary circumstances does not mean they can be justified in the circumstances of this case.