concurring and dissenting;
I agree that the controversy is not moot (section II), that the organizations have standing (section III), and that the defendants are entitled to good faith immunity from damages under 42 U.S.C. § 1983 (section IX). I dissent from the holdings that Olagues lacks standing (part of section III), that “extraordinary circumstances” are required to enjoin an investigation that infringes upon First Amendment rights (section IV), that heightened scrutiny is not warranted for the equal protection claim (section V), that declaratory and injunctive relief should be judged under the same
*807standards (section VI), and that the plaintiffs have no claims under the Voting Rights Act (sections VII and VIII). I would remand on the injunction and one Voting Rights Act claim, and reverse the denial of a declaratory judgment which provides that the investigation violated the Equal Protection Clause. For clarity and brevity, I will limit my comments on this complex case to these issues.
Standing should not be denied to Olagues. Neither rationale employed by the majority is convincing. The prudential analysis speaks of “equitable relief” but then considers solely the request for an injunction, ignoring the declaratory relief sought. The majority concedes that Olagues has alleged an injury, but then categorizes the harm as “subjective” and therefore nonjusticiable under Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). Yet Laird recognizes that when the complainant is subject to the challenged exercise of government power, whereby the government improperly imposed an affirmative obligation likely to have a deterrent effect on the exercise of his rights, Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965), the requirements of standing are met. Laird, 408 U.S. at 11-13, 92 S.Ct. at 2324-25 (citing Lamont).
Olagues satisfies the requisites of standing under the very case upon which the majority relies. See McMichael v. County of Napa, 709 F.2d 1268, 1269-70 (9th Cir. 1983). The burden which Olagues alleges upon his exercise of the franchise — that his request for a bilingual ballot triggered an investigation of him by the INS, the FBI, and the United States Attorney, and an interview with the local District Attorney at which he was to prove his citizenship — is concrete. He has a personal stake in the controversy and the relief requested would prevent the injury from recurring. Moreover, the majority’s suggestion that any stigma attributable to the government’s action was Olagues’ own fault, because all publicity concerning the investigation resulted from the filing of this lawsuit, has neither legal support nor a factual basis in the record.
The majority accords standing to the organizations because the investigation threatened their members. The identical threat is posed to the group of voters to which Olagues belongs — Hispanic citizens who request bilingual ballots. This language minority group is explicitly protected against voting discrimination. See 42 U.S.C. § 1973b(f)(2). The injury to Olagues as a member of this group is another ground for his standing under the Equal Protection Clause. See United Jewish Organizations of Williamsburgh, Inc. v. Wilson, 510 F.2d 512, 522 (2d Cir.1975).
The majority-misstates the standard for injunctive relief in this context. Instead- of the' “extraordiñafjnñ^ threshol drnlráwñ~fróm _federaIisnL_and__criminal cases-1 this-m-vestigation.....should-haviUbeen enjoined if it lacked a reasonable basis or was' initlated-in^bad ..faith.- See Branzburg v. Hayes, 408 U.S. 665, 699-701, 707-08, 92 S.Ct. 2646, 2665-2666, 2669-2670, 33 L.Ed.2d 626 (1972); Reporters Committee for Freedom of the Press v. American Telephone & Telegraph, 593 F.2d 1030, 1064 (D.C.Cir.1978), cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979); Pollard v. Roberts, 283 F.Supp. 248, 256-58 (E.D.Ark.), aff'd, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968) (per curiam). The First Amendment protects citizens from investigations which do not meet this *808“reasonable basis” standard. Pollard, 283 F.Supp. at 258; Reporters Committee, 593 F.2d at 1064. See also Branzburg v. Hayes, 408 U.S. 665, 699-01, 707-08, 92 S.Ct. 2646, 2665-66, 2669-70, 33 L.Ed.2d 626 (1972).
The organizations alleged that the United States Attorney lacked a reasonable basis for initiating the investigations. The district court should have made a finding on this issue. See La Rouche v. Webster, 566 F.Supp. 415, 418 (S.D.N.Y.1983); Pollard, 283 F.Supp. at 258. The relief sought by the organizations was not anticipatory, since the investigation presented a current case or controversy. Cf. Jett v. Castaneda, 578 F.2d 842, 845 (9th Cir.1978) (no case or controversy); Reporters Committee, 593 F.2d at 1065. The denial of the preliminary injunction should be affirmed, therefore, only if the organizations failed to show that the investigation was not reasonable or initiated in bad faith. The question should be remanded.
Contrary to the majority’s view, declaratory relief raises different concerns than an injunction. To quote one case cited by the majority, “critical distinctions make declaratory relief appropriate where injunctive relief would not be.” Steffel v. Thompson, 415 U.S. 452, 481, 94 S.Ct. 1209, 1226, 39 L.Ed.2d 505 (1974) (Rehnquist, J., concurring). The majority echoes the mistake of the panel which was reversed in Steffel for holding that a failure to demonstrate irreparable injury precluded the granting of declaratory relief. Id. at 471-72, 94 S.Ct. at 1221-22. It reasons that where injunctive relief is inappropriate, declaratory relief should also be denied, because “an award of declaratory relief in favor of the organizations could later provide grounds for seeking injunctive relief against the same officials should the organizations believe they are again the targets of a similar investigation.” This concern is misplaced, because an injunction should issue if the government so flouts a judgment declaring certain action unconstitutional. Declaratory relief is a separate remedy to be awarded when warranted, even if an injunction under the same circumstances would be denied. Steffel, 415 U.S. at 471-72, 94 S.Ct. at 1221-22.
This case warrants the award of a declaratory judgment under the Constitution. The investigation fails before the scrutiny required for a classification which burdens the voting rights of a suspect class.
The majority recognizes that the investigation targeted “recently registered, foreign-born voters who requested bilingual ballots,” at -, but then analyzes the class as if it were defined solely by language ability. The classification was of those who requested bilingual ballots, not just of individuals who speak more than one language, and it included two other factors — foreign birth and recent registration to vote. The class should be analyzed as defined by these three characteristics.
Foreign birth is “an immutable characteristic determined solely by an accident of birth,” Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973), and is similar to a national origin classification. Together with the requirement of recent registration, the target class appears composed of immigrants who have recently obtained United States citizenship but prefer Spanish or Chinese-language ballots. Like the class of Hispanics in Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), these characteristics taken together define a suspect class. The investigation by the FBI and INS, together with the interviews requiring proof of citizenship, amount to “different treatment” of these citizens. Such additional requirements imposed on voters “solely because of their ancestry are by their very nature odious to a free people.” Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943).
The fundamental right to vote was burdened by this investigation. The majority finds otherwise, perhaps because it equates “burden” with outright denial of the right *809to vote. Precedent does not define “burden” so narrowly, however. See, e.g., Harper v. Virginia Board of Elections, 383 U.S. 663, 666-67, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966) (poll tax constitutes burden). Nor is “denial” of the right to vote the only behavior prohibited under the Voting Rights Act. See 42 U.S.C. § 1973 (“no voting qualification or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge ... ”); 42 U.S.C. § 1973i(b) (“intimidate, threaten, or coerce”).
The opinion states that “it is difficult to see how any ‘burden’ was placed,” but I do not share this difficulty. An investigation by the FBI and INS and a summons to the district attorney to prove one’s citizenship, as I noted above concerning the injury to Olagues, constitutes a burden on the exercise of the right to vote in this case. The impact of the investigation on the class went beyond any ordinary inconvenience caused to witnesses. These individuals are not fluent in English, are new to this country, and through their recent acquisition of citizenship have experienced the INS bureaucracy, which misrepresented the citizenship status of more than half of those investigated. When a citizen’s request for a bilingual ballot — which is specifically made available by Congress to eliminate voting discrimination against those more comfortable in another language, Chinese for Affirmative Action v. Lequennec, 580 F.2d 1006,1008 (9th Cir.1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979) — triggers such consequences, a burden has been imposed. The Voting Rights Act forbids intimidation of voters, and in my view this investigation intimidated those foreign-born, recently registered voters who requested bilingual ballots.
Having examined the character of the classification in question and the importance of the individual interests at stake, Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 183, 99 S.Ct. 983, 989, 59 L.Ed.2d 230 (1979), we
examine the interests asserted in support of the classification. Id. The classification must be necessary to serve a compelling interest, and it must employ the least drastic means to achieve that end. Id. at 184-85, 99 S.Ct. at 990. This investigation cannot withstand such scrutiny. It was not narrowly tailored to catch those wrongly registered, because it targeted recently registered citizens, who are required by law to be literate in English. It assumed that individuals who speak Spanish or Chinese are likely not to be citizens, though the statistical predominance of Spanish— and Chinese-speaking citizens is the very reason why provision of bilingual ballots was required under federal law. The investigation was unconstitutional under the Equal Protection Clause, and a declaratory judgment should be granted.
Relief may also be required under the Voting Rights Act. I would remand the issue of potential violation of 42 U.S.C. § 1973aa-la. See Lequennec, 580 F.2d at 1008-09. Good faith is not a defense under this provision, which does not require intent to discriminate. Id.
Finally, even absent its legal infirmities, this investigation violated the spirit behind the Voting Rights Act, which charges the Attorney General with eradicating discrimination against language minority voters and discrimination based upon national origin. Instead, this U.S. Attorney’s efforts engendered such discrimination. I cannot join the majority’s wholesale affirmance of the district court’s judgment.
. See Rizzo v. Goode, 423 U.S. 362, 379, 96 S.Ct. 598, 608, 46 L.Ed.2d 561 (1976) (federalism issues in injunction of municipal police); Jett v. Castaneda, 578 F.2d 842, 845 (9th Cir. 1978) (no immediate controversy on discovery until prosecution had commenced); United States v. Chañnen, 549 F.2d 1306, 1313 (9th Cir.) (prosecutor’s choice of evidence to present to grand jury), cert. denied, 434 U.S. 825, 98 S.Ct. 72, 54 L.Ed.2d 83 (1977); United States v. Cox, 342 F.2d 167, 171 (5th Cir.) (en banc) (United States Attorney arrested for contempt for refusing to sign a grand jury indictment), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); In re Grand Jury of the Southern District of Alabama, 508 F.Supp. 1210, 1214 (S.D.Ala.1980) (prosecutorial vindictiveness); In re Grand Jury Subpoena to Central States, 225 F.Supp. 923, 925 (N.D. 111.1964) (motion to quash grand jury subpoenas).