dissenting.
On the record before us, I conclude that South Dakota’s 2001 legislative redistricting plan is not a change “in voting” with respect to the two South Dakota counties that are covered jurisdictions under § 5 of the Voting Rights Act of 1965. Moreover, even if the 2001 Plan is a covered change that must be precleared in accordance with § 5, I conclude the statute does not authorize this court to affirmatively order the State of South Dakota, a noncovered juris*1158diction, to submit the 2001 Plan for pre-clearance. For these reasons, I respectfully dissent.
I. Whether Preclearance Is Required.
South Dakota concedes, as it must, that a voting change in Shannon or Todd county must be precleared under § 5. I agree with the majority that a reapportionment plan is a “voting procedure, standard or practice” within the meaning of § 5, and that the baseline to determine whether a change has occurred for purposes of § 5 is “the status quo that is proposed to be changed,” here, the precleared 1991 Plan. See Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 334, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000). Like the 1991 Plan, the 2001 Plan places Shannon and Todd counties in Senate District 27. Thus, the question is whether .the 2001 Plan includes a change “in voting” that has the potential for “backsliding,” that is, retrogressive discrimination in Shannon and Todd counties. See Presley v. Etowah County Comm’n, 502 U.S. 491, 501-03, 112 S.Ct. 820, 117 L.Ed.2d 51 (1992); City of Lockhart v. United States, 460 U.S. 125, 129 n. 3, 103 S.Ct. 998, 74 L.Ed.2d 863 (1983).
Plaintiffs and the United States argue that legislative reapportionment plans always relate to voting and therefore always must be precleared. I disagree, for this contention reads the requirement of change out of the statute. Many States require that the legislature be reapportioned every ten years. Given our mobile and dynamic society, I share the Attorney General’s working assumption that every decennial reapportionment plan adopted in a covered State will include changes that could impact voting in a manner that requires § 5 preclearance. But the issue is more problematic in an uncovered State which has covered subdivisions. Here, for example, only two South Dakota counties are covered by § 5, and those counties lie entirely within one of thirty-five legislative districts. In these circumstances, it is quite possible that a state-wide decennial reapportionment would effect no change “in voting” with the potential for § 5 discrimination in those covered counties.
Plaintiffs press three more fact-intensive arguments for requiring preclearance of the 2001 Plan. Only one is discussed by the majority. In my view, all are unsound.
1. Though the 2001 Plan left all of Shannon and Todd counties in District 27, it made one change to the District 27 boundaries, removing a small portion of Bennett County that was in District 27 under the 1991 Plan. Plaintiffs argue this change is enough to require preclearance. I disagree. Defendants submitted uncontroverted evidence that the parcel in question is owned by the City of Martin and is used as a fire station and polling place. The parcel has no resident voters and no prospect of residential development. This boundary change did not affect Shannon and Todd counties and did not add to or subtract from the potential voters in District 27. Thus, it was not a change “in voting” for purposes of § 5. As the Supreme Court reminded us in Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), “Legislators represent people, not trees or acres.”
2. Plaintiffs next argue — and the majority agrees — that two demographic changes in District 27 require submission of the 2001 Plan for § 5 preclearance. First, Native Americans’ share of the voting-age population in District 27 increased from 82 percent in the 1990 census, upon which the 1991 Plan was based, to 86 percent in the 2000 census, upon which the 2001 Plan was based. *1159Second, District 27 was underpopulated by 4.1 percent-in the 1991 Plan but is overpopulated by 4 percent in the 2001 Plan. Plaintiffs and the majority cite no authority for the proposition that these demographic shifts render the new District 27 a change “in voting” for purposes of § 5. These de minimis demographic changes are not a “standard, practice, or procedure with respect to voting different from” the 1991 Plan that triggers the preclearance requirement under § 5. They cannot possibly be the basis for a finding of retrogressive discrimination against the voters of Shannon and Todd counties.
3. Finally, plaintiffs argue that the 2001 Plan is subject to § 5 preclearance because “a covered jurisdiction has the burden of proving that a voting change does not have a discriminatory purpose.” But this argument begs the question whether a change in voting has occurred. Moreover, absent specific facts suggesting bad motive, the argument proves too much. One may always speculate that a legislature has acted from bad motive. Here, plaintiffs have come forward with no evidence of a prohibited legislative purpose, whereas defendants have submitted uncontroverted evidence that a Native American legislator from District 27 was a member of the Legislature’s 2001 Redistricting Committee and urged the Committee to keep all of Shannon and Todd counties within District 27.
In Bossier Parish, the Supreme Court held (over the Attorney General’s objection) “that § 5 does not prohibit preclearance of a redistricting plan enacted with a discriminatory but non-retrogressive purpose.” 528 U.S. at 341, 120 S.Ct. 866. The Department of Justice has since announced that it will closely examine the purpose of a plan “[i]n those instances in which a plan is found to have a retrogressive effect, as well as in those cases in which a proposed plan is alleged to have a retrogressive effect but a functional analysis does not yield clear conclusions about the plan’s effect.” Department of Justice, Guidance Concerning Redistricting and Retrogression Under Section 5, 66 Fed.Reg. 55412, 55413 (Jan. 18, 2001). Thus, plaintiffs’ categorical argument as to legislative purpose is inconsistent with both Bossier Parish and the Attorney General’s application of that decision.
For these reasons, I conclude that the 2001 Plan does not work a change in voting in Shannon and Todd counties that requires § 5 preclearance. In Bossier Parish, the Supreme Court declined to read § 5 in a manner that would “exacerbate the substantial federalism costs that the preclearance procedure already exacts.” 528 U.S. at 336, 120 S.Ct. 866 (quotation omitted). I would dismiss plaintiffs’ § 5 claim.
II. The Appropriate Remedy.
Even if § 5 preclearance is required, I disagree with the injunctive relief ordered by the majority. “If a voting change subject to § 5 has not been precleared, § 5 plaintiffs are entitled to an injunction prohibiting implementation of the change.” Lopez v. Monterey County, 519 U.S. at 20, 117 S.Ct. 340. Accordingly, plaintiffs are entitled to an order enjoining defendant Joyce Hazeltine in her official capacity as Secretary of State from implementing the 2001 Plan in Shannon and Todd counties.
However, in this case, broader injunctive relief is clearly unwarranted. “In § 5 pre-clearance proceedings — which uniquely deal only and specifically with changes in *1160voting procedures — the baseline is the status quo that is proposed to be changed: If the change ‘abridges the right to vote’ relative to the status quo, preclearance is denied, and the status quo (however discriminatory it may be) remains in effect.” Bossier Parish, 528 U.S. at 334, 120 S.Ct. 866 (emphasis in original). Applying this standard, the 2001 Plan is virtually certain to be precleared because the prior 1991 Plan was precleared, the geographic boundaries of District 27 in the 2001 Plan are unchanged with respect to voting, and the demographic changes in District 27 have no more than a minimal impact on Native American voters in Shannon and Todd counties. In-these circumstances, I agree with the majority that we should not enjoin implementation of the entire 2001 Plan, as urged by the United States as amicus,2 and that our injunction should not include Senate District 26, as urged by plaintiffs. But I disagree with the decision to order the State of South Dakota to submit the 2001 Plan for preclearance. In my view, such relief is neither authorized by the statute nor appropriate.
South Dakota is not a jurisdiction covered by § 5, that is, it is not “a State or political subdivision with respect to which the prohibitions set forth in section 1973b ... are in effect.” 42 U.S.C. § 1973c. The majority conveniently excises the italicized portion in quoting a portion of the statute, ante at p. 1155; inclusion of that limiting phrase destroys the majority’s contention that the statute’s plain language authorizes a mandatory injunction requiring a noncovered State to submit its legislative enactments for preclearance. The statute itself imposes no affirmative § 5 preclearance obligation on uncovered jurisdictions.
In search of supporting precedent where none is to be found, the. majority next converts the Supreme Court’s background discussion in United Jewish Org. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 148-49, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977), into a “holding” that in that case it was “necessary for New York,” an uncovered State like South Dakota, to obtain preclearance of a reapportionment statute because of its impact on covered counties. In fact, New York had elected to act on behalf of the covered counties in earlier § 5 litigation, so the Supreme Court’s decision did not establish that an uncovered State may be compelled by a federal court to do so. See New York ex rel. Bronx and Kings Counties v. United States, 419 U.S. 888, 95 S.Ct. 166, 42 L.Ed.2d 134 (1974); United Jewish Org. of Williamsburgh, Inc. v. Wilson, 510 F.2d 512, 516-17 (2d Cir.1975). Likewise, as the majority acknowledges, the Supreme Court’s second decision in Lopez v. Monterey County, 525 U.S. 266, 119 S.Ct. 693, 142 L.Ed.2d 728 (1999), left this an open issue. Though the Court held that § 5 preclearance is required for “a covered county’s nondiscretionary efforts to implement a voting change required by state law, notwithstanding the fact that the State is not itself a covered jurisdiction,” the Court was careful to note that only the covered county was required to seek preclearance be*1161fore implementing the state law. 525 U.S. at 278, 282, 119 S.Ct. 693.3
Affirmatively requiring South Dakota to comply with a federal statute which does not apply to that State is a far more intrusive equitable remedy than enjoining the State from implementing a statute to the extent it effects a voting change in the covered counties. Given the lack of express authority for this extraordinary remedy in § 5, I conclude we do not have it. And even if we have the authority to issue such an injunction, I would decline to exercise it in this case. “[T]he sole consequence of failing to obtain preclearance is continuation of the status quo.” Bossier Parish, 528 U.S. at 335-36, 120 S.Ct. 866. The status quo in District 27 is the pre-cleared 1991 Plan for Shannon and Todd counties, which the State may or may not find to be an acceptable basis for conducting future elections.4 That makes this case very different from Lopez v. Monterey County, where there was no practical status quo alternative to preclearance. See 519 U.S. at 22, 117 S.Ct. 340.
The majority justifies its extraordinary mandatory injunction because “there is no incentive for the State to comply with federal law by seeking preclearance.” Ante at p. 1154. But there is little if any basis for this concern given the State’s voluntary submission of the 1991 Plan on behalf of its covered counties. Moreover, if both the State and the covered counties did decline to submit the 2001 Plan for pre-clearance, and if the 2002 elections in South Dakota were then conducted with Senate District 27 governed by the 1991 Plan, that would simply confirm my conclusion that no change in voting has occurred and § 5 preclearance should not have been required.
Based upon a legislative reapportionment that has, at most, a de minimis effect on voters in the only two counties covered by § 5, the majority issues a mandatory injunction compelling the State of South Dakota to take action under a federal statute that does not apply to the State. There is no hint in the record that this remedy is needed to fulfill the original purpose of § 5 — to prevent South Dakota from “staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down.” Beer v. United States, 425 U.S. 130, 140, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976) (quoting from the statute’s legislative history). I respectfully dissent.
. The United States asserts without case law support that we may enjoin the entire 2001 Plan because, if the Plan is submitted for § 5 preclearance and the Attorney General objects to its purpose or effect in District 27, "[t]he effect of such an objection is to render the entire plan unenforceable.” This assertion is beyond the scope of our present inquiry, but I find it dubious. The Supreme Court noted nearly thirty years ago that, even when an entire State is the covered jurisdiction, "a State might establish that a reapportionment plan left some districts unaffected by even a minor change with the potential for diluting the value of the Negro vote.” Georgia v. United States, 411 U.S. 526, 535 n. 7, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973):
. Accord LaRouche v. Fowler, 77 F.Supp.2d 80, 86 (D.D.C.1999) ("There has never been a suggestion in Lopez or any other decision that any state with covered political subdivisions must preclear all changes; instead, only covered jurisdictions must apply in order to implement changes”).
. Plaintiffs argue there is no alternative to preclearance because state and federal law would bar future elections conducted under all or any part of the 1991 Plan. But state law issues are for the state courts to decide; and the asserted federal law issues do not involve § 5 and hence are not for this three-judge court to decide. Plaintiffs elected not to join appropriate officials of Shannon and Todd counties as defendants, so we may not order them to submit all or any part of the 2001 Plan for § 5 preclearance. Thus, in my view, if § 5 preclearance is required, we should simply enjoin the State from implementing its 2001 Plan in Shannon and Todd counties.