                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 STATE OF ARIZONA,

         Plaintiff,
                v.                                         Civil Action No. 11-1559 (JDB)
 ERIC H. HOLDER, Jr., in his official
 capacity as Attorney General of the United
 States,

         Defendant.


                           MEMORANDUM OPINION & ORDER

       Section 5 of the Voting Rights Act ("the VRA" or "the Act"), 42 U.S.C. § 1973c,

prohibits certain "covered" jurisdictions from implementing any change to state election

practices or procedures unless and until the jurisdiction demonstrates to federal authorities that

the change "neither has the purpose nor will have the effect of denying or abridging the right to

vote on account of race or color." 42 U.S.C. § 1973c(a). Section 4 of the VRA determines

which jurisdictions are "covered" by Section 5. 42 U.S.C. § 1973b(b). In this case, Arizona has

brought constitutional challenges to both Sections 4 and 5. Now before the Court is [11]

Arizona's request to have those challenges adjudicated by a three-judge court. For the reasons

given below, the Court will deny the motion.

                                            Background

       The Voting Rights Act was enacted in 1965 primarily to protect the rights of racial

minorities. At that time, Section 4 provided that covered jurisdictions were those that (1)

maintained a voting "test or device" on November 1, 1964; and (2) had registration or turnout

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rates below fifty percent of the voting age population in November 1964. 1965 Act § 4(b), 79

Stat. at 438 (codified as amended at 42 U.S.C. § 1973b(b)). In 1975, Congress amended the

Voting Rights Act to protect "language minorities" in addition to racial minorities. 1975

Amendments §§ 203, 207, 89 Stat. at 401-02 (codified as amended at 42 U.S.C. §§ 1973b(f),

1973l(c)(3)). Accordingly, Congress also amended Section 4 to provide that covered

jurisdictions were those that had "maintained on November 1, 1972 any test or device, and with

respect to which . . . less than 50 per centum of the citizens of voting age were registered on

November 1, 1972, or that less than 50 per centum of such persons voted in the Presidential

election of November 1972." Id. § 202, 89 Stat. at 401 (codified at 42 U.S.C. § 1973b(b)). The

definition of "test or device" was amended to include "any practice or requirement by which any

State or political subdivision provided any registration or voting [materials] only in the English

language, where . . . more than five per centum of the citizens of voting age residing in such

State or political subdivision are members of a single language minority." Id. § 203, 89 Stat at

401-02. This version of Section 4's coverage formula is still in place today. 42 U.S.C. §

1973b(b), (c), (f)(3).

        Arizona, a state where more than five percent of the citizens of voting age are defined as

"members of a single language minority," implemented bilingual voting in 1974. Am. Compl. ¶

18. Nonetheless, because Section 4 looks to whether a state had implemented bilingual voting

by 1972, Arizona is a covered jurisdiction. Hence, the state and its political subdivisions must

comply with Section 5. On August 30, 2011, Arizona filed this suit in an attempt to end that

obligation to comply with Section 5. In its amended complaint, Arizona alleges that (1) on its

face, Section 5 unconstitutionally exceeds Congress's enforcement authority under the


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Fourteenth and Fifteenth Amendments because it is not even rationally related to the problem of

discrimination in voting, Am. Compl. ¶¶ 63-67; (2) on their face and as applied to Arizona,

Sections 4(b) and 5 exceed Congress's enforcement authority under the Fourteenth and Fifteenth

Amendments because they irrationally discriminate between states, id. ¶¶ 74-82; and (3) as

applied to Arizona, Section 4 exceeds Congress's enforcement authority under the Fourteenth

and Fifteenth Amendments because the 1972 benchmark is "not connected to any rational

purpose," id. ¶¶ 68-73.

       If these challenges fail, Arizona requests in the alternative that it be allowed to "bail out"

of Section 5 coverage. Id. 83-89. A covered jurisdiction can avoid the requirements of Section 5

if a court or the Attorney General grants it "bailout" pursuant to Section 4(a) of the Voting

Rights Act. See 42 U.S.C. § 1973b(a); see also Nw. Austin Mun. Utility Dist. No. One v.

Holder, 557 U.S. 193, 129 S. Ct. 2504, 2516 (2009). In order to successfully "bail out" of the

requirements imposed by Section 5, a jurisdiction must obtain a declaratory judgment from a

three-judge court confirming that for the previous ten years the jurisdiction and its political

subdivisions have not used a forbidden voting test, have not been subject to any valid objections

under Section 5, and have not been assigned federal observer election coverage. 42 U.S.C.

§1973b(a)(1)(A)-(E). The state and its political subdivisions must also show that they have

"eliminated voting procedures . . . which inhibit or dilute equal access to the electoral process"

and have engaged in "constructive efforts" to expand the ability to vote. Id. § 1973b(a)(1)(F).

Arizona concedes that it cannot meet all of the statutory requirements for bailout because the

Attorney General has interposed objections to changes made by Arizona and its political

subdivisions within the last ten years. Am. Comp. ¶¶ 54-55. Additionally, Arizona's complaint


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implies, though it does not directly state, that federal observers have been sent to monitor

elections in Arizona in the last ten years. Am. Compl. ¶ 51. Arizona contends, however, that it

is unconstitutional to make bailout dependent on discretionary acts of the Attorney General.

Hence, it asks this Court to "declare the particularized requirements set out in 42 U.S.C. §

1973b(a)(1)(A)-(F) unconstitutional" and to "declare that, pursuant to 42 U.S.C. § 1973b(a)(1),

the preclearance requirements of § 5 no longer apply to the State of Arizona and its political

subdivisions." Am. Compl. ¶ 89; Prayer for Relief D.

                                            Discussion

       Several types of voting rights suits are heard by three-judge courts. First, the Voting

Rights Act provides that suits brought "under" Section 5 "shall be heard and determined by a

court of three judges . . . and any appeal shall lie to the Supreme Court." 42 U.S.C. § 1973c(a).

Declaratory judgment suits by jurisdictions seeking preclearance of election changes are the

most common type of suit brought "under" Section 5. In addition, the Supreme Court has held

that two implied causes of action can also be brought "under" Section 5 for purposes of section

1973c(a)'s three-judge court requirement. First, "the Attorney General may bring an injunctive

action to prohibit the enforcement of a new regulation because of the State's failure to obtain

approval under § 5." Allen v. State Bd. of Elections, 393 U.S. 544, 561 (1969). Second, a

private citizen "may bring a suit for declaratory judgment and injunctive relief, claiming that a

state requirement is covered by § 5, but has not been subjected to the required federal scrutiny."

Id.; see also id. at 563. The Allen Court noted that sound policy in addition to the statutory text

supported three-judge court adjudication of such claims:

       [i]n drafting § 5, Congress apparently concluded that if the governing authorities
       of a State differ with the Attorney General of the United States concerning the

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       purpose or effect of a change in voting procedures, it is inappropriate to have that
       difference resolved by a single district judge. The clash between federal and state
       power and the potential disruption to state government are apparent. There is no
       less a clash and potential for disruption when the disagreement concerns whether
       a state enactment is subject to § 5. The result of both suits can be an injunction
       prohibiting the State from enforcing its election laws. Although a suit brought by
       the individual citizen may not involve the same federal-state confrontation, the
       potential for disruption of state election procedures remains.

Allen, 393 U.S. at 562-63. Finally, in addition to these three types of "arising under" suits heard

by three-judge courts, Section 4(a) specifies that bailout requests are heard by a three-judge

court: "An action pursuant to this subsection shall be heard and determined by a court of three

judges . . . and any appeal shall lie to the Supreme Court." 42 U.S.C. § 1973b(a)(5).

       "[C]ongressional enactments providing for the convening of three-judge courts must be

strictly construed." Allen, 393 U.S. at 361 (citing Phillips v. United States, 312 U.S. 246

(1941)). Nonetheless, as Arizona correctly points out, if any part of this case should be before a

three-judge court, the three-judge court would be able to hear the whole case under a theory of

pendant jurisdiction. See Rome v. United States, 472 F. Supp. 221, 236 (D.D.C. 1979).

       Arizona advances two alternative theories for why its challenge should be heard by a

three-judge court. First, Arizona argues that its constitutional challenge to Section 5 involves an

even stronger "clash between federal and state power" than normal preclearance suits do, so

there is all the more reason to have a three-judge court hear those challenges. The Court

considered and rejected an identical argument LaRoque v. Holder, No. 10-561, 2010 WL

3719928, at *2-3 (D.D.C. May 12, 2010). The Court observed that the argument was "not

without some merit," but that "Congress's federalism concerns do not apply to this challenge to

Section 5's constitutionality." Id. Congress was concerned with minimizing clashes between

federal courts and state governments, see Allen, 393 U.S. at 562-63, but invalidating Section 5

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on constitutional grounds "would curtail federal, not state, power." LaRoque, 2010 WL

3719928, at *3. In this case, as in LaRoque, upholding Section 5 would not invalidate or disrupt

the state's election procedures; Arizona has not asked the Court to preclear any specific election

changes or procedures. See id. Hence, in this case as in LaRoque, "a decision affirming Section

5's constitutionality would preserve the very balance between federal and state power that

Congress struck through enactment of that provision." Id.

       Arizona argues in the alternative that its bailout request must be heard by a three judge

court, which would then also hear the constitutional challenges. Arizona notes that Northwest

Austin was heard by a three-judge court for precisely this reason. As the government points out,

however, the bailout request in this case is different than the bailout request in Northwest Austin.

There, the plaintiff contended that it qualified for bailout under the terms of the bailout statute;

here, plaintiff concedes that it does not qualify for bailout under Section 4(a), but rather argues

that the provisions that disqualify it are unconstitutional. In other words, this Court must

adjudicate the constitutional challenge to the bailout standard and rule in Arizona's favor before

it can adjudicate the statutory bailout request. The government argues that this is merely a

constitutional challenge thinly disguised as a bailout request, and that, like Arizona's other stand-

alone constitutional challenges, it should be adjudicated by a single-judge court. Arizona replies

that it may eventually be litigating a straightforward statutory bailout challenge that would

normally be before a three-judge court, and that there is no reason to force it to bring that case

separately from its constitutional challenge to the bailout procedure.

       Whether a three-judge court should be convened to hear a case if it may never be able to

reach the only claim that merits a three-judge court is a difficult question, and the Court has


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found no cases addressing it. The Court need not answer that difficult question, however,

because it concludes that even if Arizona succeeds on its constitutional claim here, it will not

result in the type of straightforward bailout request that is heard by a three-judge court. If

Arizona's constitutional challenge succeeds, the Court would not simply proceed to apply the

bailout statute as currently written. Nor would it surgically excise the bailout requirements that

Arizona has not met and apply the remaining criteria. Instead, Arizona has requested that the

Court declare all of the requirements in § 1973b(a)(1)(A)-(F) unconstitutional and then grant it

bailout pursuant to § 1973b(a)(1). But if all of those "particularized requirements" are struck,

nothing remains of subsection (a)(1), and this Court would have to invent an entirely new bailout

standard.1 It is true that 42 U.S.C. § 1973b(a)(5) requires three-judge courts for actions

"pursuant to this subsection," but inventing and applying a bailout standard would not be "[a]n

action[ ] pursuant to this subsection." Plaintiffs' "statutory" bailout challenge is more like their

sweeping constitutional challenges than a traditional statutory bailout action. Hence, 42 U.S.C.

§ 1973b(a)(5) does not apply, and there is no statutory basis for having a three-judge court

adjudicate this claim. See Allen, 393 U.S. at 361 (statutes providing for three-judge courts "must

be strictly construed").

       Unlike the LaRoque plaintiffs, Arizona has not asked this Court to convene a three-judge

Court voluntarily. See 2010 WL 3719928, at *3. Even if this Court had the authority to do so, it

would decline to exercise that authority for the reasons given in the opinion in LaRoque. Id.



       1
          Arguably, 42 U.S.C. § 1973b(a)(2) - (4) could provide a standard for adjudicating
bailout requests if § 1973b(a)(1)(A)-(F) are struck down. But applying only subsections (2) - (4)
would make little sense without the other provisions, and in any event, Arizona has only asked
the Court to grant bailout under § 1973b(a)(1).

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Accordingly, it is hereby ORDERED that [11] Arizona's application for a three-judge court is

DENIED.

                                                               /s/
                                                         JOHN D. BATES
                                                    United States District Judge


Dated: January 11, 2012




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