Dean Butch Wilson v. John W. Jones, Jr. , 220 F.3d 1297 ( 2000 )


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  •                                                                   [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                  FILED
    U.S. COURT OF APPEALS
    ________________________         ELEVENTH CIRCUIT
    AUGUST 4, 2000
    THOMAS K. KAHN
    No. 99-11145                     CLERK
    ________________________
    D. C. Docket No. 96-01052-CV-BH-M
    DEAN BUTCH WILSON,
    JOHNNY MIDDLEBROOKS,
    Plaintiffs-Appellees,
    versus
    ERSKINE MINOR, PERRY VARNER, ROY MOORE,
    CURTIS WILLIAMS, KIMBROUGH BALLARD, in their
    official capacity as Dallas County Commissioners,
    UNITED STATES OF AMERICA,
    Defendants-Appellants.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Alabama
    _________________________
    (August 4, 2000)
    Before CARNES, BARKETT and MARCUS, Circuit Judges.
    MARCUS, Circuit Judge:
    Defendants the Dallas County Commission, various county officials,1 and
    the United States appeal the district court’s order vacating its 1988 injunction
    which established a new election scheme2 for the County Commission of Dallas
    County, Alabama as a remedy for a violation of section 2 of the Voting Rights Act.
    The district court found that the 1988 injunction changed the size of the County
    Commission and was therefore an impermissible remedy for a voting rights
    violation in light of recent Supreme Court and Eleventh Circuit precedent.
    Because the district court did not clearly err in finding that the 1988 injunction
    changed the size of the County Commission, and because the law prohibiting
    changes in the size of a governing body in order to remedy a section 2 violation is
    plain, we conclude that the district court did not abuse its discretion in vacating the
    1988 injunction and affirm its order.
    I.
    1
    The named Defendants are: John W. Jones, Jr., in his official capacity as Probate Judge of
    Dallas County, Alabama; Harris Huffman, in his official capacity as Sheriff of Dallas County,
    Alabama; W.A. Kynard, in his official capacity as Circuit Court Clerk of Dallas County, Alabama;
    Erskine Minor, in his official capacity as a Dallas County Commissioner; John Lide, in his official
    capacity as a Dallas County Commissioner; Perry Varner, in his official capacity as a Dallas County
    Commissioner; Deans E. Barber, Jr., in his official capacity as a Dallas County Commissioner; and
    Ed Vancil, Barbara Sweat, and Thomas Craig, in their official capacities as members of the Dallas
    County Board of Registrars. Although named in the lawsuit as Defendants, John W. Jones and W.A.
    Kynard both agree with the district court order and have filed separate Appellee briefs in this action.
    2
    The scheme is called the Lichtman plan and was described in United States v. Dallas County
    Comm’n, 
    850 F.2d 1433
    (11th Cir. 1988).
    2
    The facts underlying this case are reasonably straightforward although the
    case has had a protracted procedural history. Prior to 1978, the Dallas County
    Commission was composed of four commissioners elected from at-large residency
    districts to concurrent four year terms. Dallas County commissioners served, and
    continue to serve, in a part-time capacity. The Dallas County probate judge acted
    as the chairperson of the Commission in an ex officio capacity.3 The probate
    judge held a full-time position and was elected at-large to six year terms. In his
    capacity as the ex officio chairperson of the Commission, the probate judge
    presided over Commission meetings but, notably, voted only in the event of a tie
    among the four commissioners.4 See United States v. Dallas County Comm’n, 
    850 F.2d 1430
    , 1432 (11th Cir. 1988). In his capacity as probate judge, the probate
    3
    The Alabama Court of Appeals has said that ex officio “means by virtue of the office.” Macon
    County v. Abercrombie, 
    62 So. 449
    , 450 (Ala. Ct. App. 1913). Black’s Law Dictionary 597 (7th
    ed. 1999) provides a more expansive definition explaining that an ex officio justice is: “A judge who
    serves on a commission or board only because the law requires the presence of a judge rather than
    because the judge was selected for the position.”
    4
    The origins of the current Dallas County Commission are found in a 1901 act of the Alabama
    legislature. Alabama Act No. 328 established “the court of county revenues for Dallas county” “to
    be composed of the judge of probate as principal judge, and four commissioners.” Section 1 of the
    Act provided that the four commissioners “shall hold office for four years.” Section 2 of the Act
    provided that “when the court hereby established shall be in session, the judge of probate shall be
    the presiding judge thereof when he is present . . ., upon a tie vote the presiding judge shall give the
    casting vote.” Section 6 of the Act divided the county “into four commissioner’s districts” and
    required that “one commissioner shall be elected from each of said districts . . .; provided, that all
    of said commissioners shall be elected by all of the qualified voters of said county.” Act No. 328,
    1900-01 Ala. Acts 890-92. In 1970, each court of county revenue was designated as the county
    commission. Act No. 26, 1970 Ala. Acts 2628, now codified at Ala. Code § 11-1-5.
    3
    judge also had authority to vote with the Commission in filling certain local office
    vacancies. See Act No. 196, 1949 Ala. Acts 227; Act No. 197, 1949 Ala. Acts
    228; Jones v. Dallas County, No. 92-6104 (11th Cir. Jan. 6, 1993) (holding that the
    1988 injunction did not preclude the probate judge from continuing to vote to fill
    the position of Dallas County tax collector in accordance with Act No. 197).
    In 1978, the United States challenged the at-large method of electing
    members to the Dallas County Commission under section 2 of the Voting Rights
    Act of 1965, as amended, 42 U.S.C. § 1973, on the grounds that the at-large
    elections diluted the strength of black voters. See United States v. Dallas County
    Comm’n, 
    548 F. Supp. 875
    , 877 (S.D. Ala. 1982), aff’d in part, rev’d in part,
    vacated and remanded, 
    739 F.2d 1529
    (11th Cir. 1984). In 1982, the district court
    held that the at-large method of electing county commissioners did not violate
    section 2 because the United States had not proved that the statute under which the
    at-large method of election was established was motivated by discriminatory intent
    or that it diluted black voting strength in Dallas County. See Dallas County
    
    Comm’n. 548 F. Supp. at 919
    . We affirmed in part, reversed in part, and remanded
    the case to the district court with specific instructions to consider the role of
    racially polarized voting and the lingering effects of discrimination in Dallas
    County. See United States v. Dallas County Comm’n, 
    739 F.2d 1529
    (11th Cir.
    4
    1984). On remand, the district court found that the at-large election scheme for the
    Dallas County Commission diluted minority voting strength in violation of section
    2. See United States v. Dallas County Comm’n, 
    636 F. Supp. 704
    , 710 (S.D. Ala.
    1986).
    To remedy the section 2 violation, the district court ordered the county to
    adopt an election scheme that created four single-member districts. The district
    court retained the probate judge, still elected at-large, as the ex officio chairperson
    of the Commission. See United States v. Dallas County Comm’n, 
    661 F. Supp. 955
    , 958-59 (S.D. Ala. 1987). We again reversed holding that the continued
    inclusion of the at-large elected probate judge as the ex officio chairperson of the
    Commission did not fully cure the Commission’s section 2 violation. See United
    States v. Dallas County Comm’n, 
    850 F.2d 1430
    , 1432 (11th Cir. 1988), cert.
    denied, 
    490 U.S. 1030
    , 
    109 S. Ct. 1768
    , 
    104 L. Ed. 2d 203
    (1989). We ordered
    Dallas County to adopt a five single-member districting plan for the County
    Commission with the chairperson of the Commission to be chosen from among the
    five commissioners. 
    Id. See also
    United States v. Dallas County Comm’n, 
    850 F.2d 1433
    (11th Cir. 1988) (describing the Lichtman plan).
    The plan established two districts containing black voter majorities of 72.4
    percent and 70 percent, two districts containing white voter majorities of 65
    5
    percent and 64 percent, and a fifth swing district containing a black voter majority
    of 61.3 percent. See Dallas County 
    Comm’n, 850 F.2d at 1440
    . The plan required
    that the Commission be composed of five full members5 serving the same term of
    four years and with the same full voting rights. The probate judge no longer
    served as the ex officio chairperson of the Commission; he no longer presided over
    meetings and did not vote in the event of a tie.6 However, the probate judge
    retained authority to vote with the other commissioners when filling certain
    vacancies in local office just as he had prior to the 1988 injunction. See Jones, No.
    92-6104 (11th Cir. Jan. 6, 1993). In short, the injunction replaced the role of the
    probate judge as ex officio chairperson of the Commission with a full
    commissioner elected specifically to that position. The role of the probate judge as
    probate judge, however, remained intact. On July 13, 1988, the district court
    directed that the election of the Dallas County Commission be conducted pursuant
    to the Eleventh Circuit’ s plan.7
    5
    Dallas County commissioners continued to serve, as they had prior to the injunction, in a part-
    time capacity.
    6
    The office of the probate judge continued to be a full-time position, as it was prior to the
    injunction. However, the post injunction probate judge devoted all his time to the responsibilities
    of that office and no longer spent any of his time acting as the ex officio chairperson of the
    Commission.
    7
    In March 1992, the Dallas County Commission adopted a new redistricting plan that
    maintained under the 1990 Census figures approximately the same racial population breakdown as
    the 1988 court-ordered plan.
    6
    On October 25, 1996, Plaintiffs Dean Butch Wilson and Johnny
    Middlebrooks, white residents of Dallas County, Alabama, filed suit against the
    Dallas County Commission, various county officials, and the United States
    alleging that the court- ordered election scheme changed the size of the County
    Commission and was, therefore, an improper remedy for a section 2 violation.
    Specifically, Plaintiffs argued that the removal of the probate judge as ex officio
    chairperson of the County Commission and the creation of a fifth full
    commissioner, with the same voting rights and serving the same term of years as
    the other commissioners, changed the size of the Commission from four members
    (plus the probate judge acting as chairperson in an ex officio capacity) to five full
    members. Plaintiffs sought declaratory and injunctive relief from the court-ordered
    plan. Plaintiffs also alleged that the districting plan then in place violated section 5
    of the Voting Rights Act because it had not been precleared, and that the 1988
    injunction violated the Tenth Amendment. On October 17, 1997, Plaintiffs
    amended their Complaint to add claims alleging that the 1988 injunction violated
    the Voting Rights Act and the Fourteenth Amendment.
    The district court conducted a four day bench trial in May 1998. On March
    29, 1999, the district court entered judgment for the Plaintiffs. The court held that
    the 1988 injunction “impermissibly altered the size” of the Dallas County
    7
    Commission and was “both illegal and unjustified under the applicable law as well
    as the circumstances of this case.” Order at 3. The court terminated the 1988
    injunction and ordered the development and implementation of a four single-
    member district plan. The district court also ordered the probate judge to resume
    his position as chairman ex officio with the sole duties of presiding over the
    Commission’s meetings and casting a vote in the event of a tie. Both the County
    Commission and the United States appealed the district court’s order.8
    II.
    We review the district court’s findings of fact for clear error, and we review
    its conclusions of law de novo. See Dekalb County School District v. Schrenko,
    
    109 F.3d 680
    , 687 (11th Cir.), cert. denied, 
    117 S. Ct. 79
    (1996). The decision to
    modify an injunction is subject to an abuse of discretion standard, and it is an
    abuse of discretion to fail to make modifications required by applicable law. See
    Ensley Branch, NAACP v. Seibels, 
    31 F.3d 1548
    , 1563 (11th Cir. 1994); Godfrey
    v. Bell South Telecomm., Inc., 
    89 F.3d 755
    , 757 (11th Cir. 1996).
    8
    In late March 2000, after oral argument had been heard in this case, the Dallas County
    Commission and the United States filed Emergency Motions for Stay asking this Court to stay the
    district court’s March 29, 1999 Order and proceedings to enforce that Order pending our judgment
    on appeal, or alternatively for an order staying the primary elections for Dallas County
    commissioners until we ruled on the appeal. On April 5, 2000, we denied Appellants’ Motions for
    Stay.
    8
    A.
    As an initial matter, the Defendants argue that the district court improperly
    allowed the Plaintiffs to challenge the 1988 injunction through an independent
    action rather than requiring them to intervene in the action in which the judgment
    was entered. The Defendants argue that because the Plaintiffs are trying to amend
    a judgment issued in a previous case, they should be forced to seek relief from the
    same court that entered the original judgment. Indeed, as a general matter,
    intervention pursuant to Fed. R. Civ. P. 24 is the appropriate way for an outsider
    with an interest in an existing lawsuit to come in as a party. See 7C Wright, Miller
    & Kane, Federal Practice and Procedure: Civil 2d § 1901, at 228 (1986).
    Intervention in the original action is also generally the proper mechanism for a
    nonparty to seek relief from an existing judgment. See 11 Wright, Miller & Kane,
    Federal Practice and Procedure: Civil 2d § 2863, at 350 (1995); see also Hines v.
    Rapides Parish School Board, 
    479 F.2d 762
    , 765 (5th Cir. 1973) (holding that “the
    proper course for parental groups seeking to question current deficiencies in the
    implementation of desegregation orders is for the group to petition the district
    court to allow it to intervene in the prior action”).9
    9
    Fifth Circuit decisions issued prior to October 1, 1981 are binding precedent in the Eleventh
    Circuit. See Bonner v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc).
    9
    The Plaintiffs respond that as private citizens who were not parties to the
    previous action they were not obliged to intervene in that action when a personal
    right such as voting was at stake. Plaintiffs rely for support on Martin v. Wilks,
    
    490 U.S. 755
    , 762-67, 
    109 S. Ct. 2180
    , 2184-87, 
    104 L. Ed. 2d 835
    (1989). In
    Wilks, the Supreme Court rejected the argument that because the plaintiff white
    firefighters failed to timely intervene in the initial court proceedings, their current
    challenge to actions taken under the consent decree arising out of the initial action
    constituted an impermissible collateral attack. 
    Id. at 762,
    109 S.Ct. at 2185.
    Instead, the Court held that the white firefighters could challenge employment
    decisions made pursuant to the consent decree through an independent action. 
    Id. at 762-69,
    109 S.Ct. at 2185-88. In rejecting a rule of mandatory intervention, the
    Supreme Court explained that it made more sense to place the burden on the party
    bringing a lawsuit to join all interested parties rather than to place on all potential
    additional parties the duty to intervene. 
    Id. at 765,
    109 S.Ct. at 2186. Because the
    plaintiffs were not joined in the original action, their independent claims were not
    therefore precluded. 
    Id. at 761,
    109 S.Ct. at 2184.10
    10
    Congress responded to Wilks in the Civil Rights Act of 1991 by explicitly limiting the ability
    of third parties to challenge consent decrees resolving claims of employment discrimination through
    a civil rights action. Section 108 of the Civil Rights Act provides that a consent degree may not be
    challenged under the civil rights laws by a person who prior to the entry of the judgment had actual
    notice of the proposed judgment “sufficient to apprise such person that such judgment or order might
    adversely affect the interests and legal rights of such person and that an opportunity was available
    10
    While Wilks offers some support for the Plaintiffs’ argument that the district
    court properly allowed them to bring an independent action challenging the 1988
    injunction, we find even more compelling the fact, which both sides recognize, that
    in this case the Plaintiffs’ collateral attack was for all practical purposes the same
    as an intervention in the original action. Notably, this independent action arose in
    the same district court and was heard by the same district judge who handled the
    original case. Moreover, the parties to the independent action include all of the
    parties to the original action, including the United States which was named in this
    case because of its status as a party to the prior proceeding, and the district court
    took judicial notice of those portions of the original proceedings on which the
    parties announced an intention to rely. For these reasons, this case does not
    implicate the potential problems and prejudice that can arise when plaintiffs are
    permitted to challenge relief entered by one court through a wholly independent
    action commenced in a different court and before a different judge. In short,
    to present objections to such judgment or order by a future date certain.” 42 U.S.C. 2000e-2(n)(1).
    While the Civil Rights Act greatly curtailed the circumstances in which a nonparty can challenge
    a consent decree entered in a previous action, it does not address or undermine the portion of Wilks
    that is most relevant to our case; namely, the Civil Rights Act does not have anything to say about
    whether a nonparty, in cases where it may challenge a previous judgment, must do so through
    intervention or an independent action. The Supreme Court’s logic that such a challenge may be
    made through an independent action rather than through intervention remains unaffected by the Civil
    Rights Act. Moreover, this case does not fall within the set of third party actions curtailed by the
    Civil Rights Act because this case involves a challenge to an injunction remedying a Voting Rights
    Act violation rather than a challenge to a consent decree arising in an employment discrimination
    case.
    11
    Plaintiffs’ independent action in this case raises no danger that different courts will
    levy competing and contradictory judgments upon the Defendants. As a result, we
    have little difficulty in concluding that in this case the district court did not err by
    allowing the Plaintiffs to bring their challenge to the 1988 injunction through an
    independent action.11
    11
    The dissent contends that the Plaintiffs lack Article III standing to assert their claims because
    they have failed to demonstrate that they have suffered any concrete and particularized injury
    stemming from the 1988 injunction. As an initial matter, we note that neither Defendant saw fit to
    challenge the Plaintiffs’ standing on appeal. Of course, a federal court has an independent obligation
    to ensure that it has jurisdiction over any claim brought before it even if jurisdictional questions are
    not raised by either party. See United States v. Hays, 
    515 U.S. 737
    , 742, 
    115 S. Ct. 2431
    , 2435, 
    132 L. Ed. 2d 635
    (1995) (noting that “[t]he question of standing is not subject to waiver . . . . ‘The
    federal courts are under an independent obligation to examine their own jurisdiction, and standing
    is perhaps the most important of [the jurisdictional] doctrines.’”) (quoting FW/PBS, Inc. v. Dallas,
    
    493 U.S. 215
    , 230-31, 
    110 S. Ct. 596
    , 607-08, 
    107 L. Ed. 2d 603
    (1990)) (internal quotation marks
    omitted); University of South Alabama v. American Tobacco Co., 
    168 F.3d 405
    , 410 (11th Cir.
    1999) (emphasizing that “it is well settled that a federal court is obligated to inquire into subject
    matter jurisdiction sua sponte whenever it may be lacking”). Therefore, while the Defendants’
    silence does not absolve us of the responsibility to do our own standing analysis, we find it
    significant that neither the United States nor the Dallas County Commission found this argument
    worthy of mention on appeal.
    In support of its standing argument, the dissent suggests that this Circuit’s decision in Meek
    v. Metropolitan Dade County Florida, 
    985 F.2d 1471
    (11th Cir. 1993), which is directly on point,
    has been overruled by more recent Supreme Court cases. In Meek, this Court affirmed the standing
    of voters to participate in an action challenging the constitutionality of the voting scheme to which
    they were subject. The plaintiffs, black and Hispanic residents of Dade County, challenged a voting
    scheme in which the eight County Commissioners were selected from eight districts but each
    commissioner was elected at-large. The plaintiffs argued that the at-large election scheme violated
    section 2 of the Voting Rights Act. Two residents of Dade County who were registered voters
    sought to intervene to defend the existing election scheme. The district court denied the intervenors’
    motions to intervene holding that their interests were identical to the defendants’ and adequately
    represented by them. After a bench trial, the district court ruled that the election scheme did violate
    section 2, and the defendants decided not to appeal the decision. The intervenors filed new motions
    to intervene in order to pursue the defendants’ appeal. The district court denied these motions
    without explanation. On appeal the plaintiffs argued that the intervenors lacked standing to
    intervene because they “lack[ed] sufficiently substantial legally protectible interests.” 
    Meek, 985 F.2d at 1480
    . This Court reversed making clear that the intervenors had suffered an injury
    12
    sufficiently concrete not only to permit them to intervene in the action but also sufficient to give
    them standing to defend the general election scheme on appeal. We explained that:
    The intervenors sought to vindicate important personal interests in maintaining the
    election system that governed their exercise of political power, a democratically
    established system that the district court’s order had altered. As such, they alleged
    a tangible actual or prospective injury and did not merely challenge unlawful conduct
    in the abstract. See generally, e.g. Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , ---,
    
    112 S. Ct. 2130
    , 2144, 
    119 L. Ed. 2d 351
    (1992). Moreover, we reject appellees’
    contention that the intervenors had only nonjusticiable generalized grievances simply
    because they asserted interests widely shared by others. Allen v. Wright, 
    468 U.S. 737
    , 756-60, 
    104 S. Ct. 3315
    , 3327-29, 
    82 L. Ed. 2d 556
    (1984).
    
    Id. at 1480.
    See also Clark v. Putnam County, 
    168 F.3d 458
    , 462 (11th Cir. 1999) (holding that six
    black voters were entitled to intervene to defend a court-ordered single-member-district voting plan
    because they had an interest at stake in the action and that interest was not adequately represented
    by the existing defendant in the action). Like the intervenors in Meek, the Plaintiffs in this case seek
    to protect their interests in being free from an illegal court-imposed electoral system.
    Instead of addressing Meek head on, the dissent suggests that its holding has been overruled
    or somehow eviscerated by the Supreme Court in Arizonans for Official English v. Arizona, 
    520 U.S. 43
    , 
    117 S. Ct. 1055
    , 
    137 L. Ed. 2d 170
    (1997), and Hays, 
    515 U.S. 737
    , 
    115 S. Ct. 2431
    . The
    dissent relies on these cases for two broad assertions: first, that in order to have standing “a person
    must show . . . an invasion of a legally protected interest that is concrete and particularized and
    actual or imminent,” Arizonans for Official 
    English, 520 U.S. at 64
    , 117 S.Ct. at 1067 (citing Lujan
    v. Defenders of Wildlife, 
    504 U.S. 555
    , 560, 
    112 S. Ct. 2130
    , 2136, 
    119 L. Ed. 2d 351
    (1992))
    (internal quotation marks omitted); and second, that “a generalized grievance against allegedly
    illegal governmental conduct” is not sufficient to establish standing, 
    Hays, 515 U.S. at 743
    , 115
    S.Ct. at 2435 (citations omitted). A more detailed and critical analysis of these cases, however,
    makes clear that neither offers support for the dissent’s position in this case.
    In Arizonans for Official English, a state employee, Maria-Kelly F. Yniguez, sued the State
    and its Governor, Attorney General, and Director of the Department of Administration seeking an
    injunction against enforcement of a state constitutional amendment making English the state’s
    official language. Both the district court and the court of appeals ruled that the English only
    amendment was unconstitutional. The Supreme Court vacated these opinions and held that because
    Yniguez had resigned from her position with the state while the case was on appeal the case had
    become moot. In dicta the Court expressed “grave doubts” about whether the sponsors of the
    amendment, Arizonans for Official English Committee (AOE) and its Chairman, Robert Park, had
    standing to intervene to defend the amendment’s constitutionality on appeal. Arizonans for Official
    
    English, 520 U.S. at 66
    , 117 S.Ct. at 1068. AOE and Park argued that as the initiative proponents
    they had a quasi-legislative interest in defending the constitutionality of the measure they sponsored.
    The Court noted that while it has “recognized that state legislators have standing to contest a
    decision holding a state statute unconstitutional if state law authorizes legislators to represent the
    13
    State’s interests,” 
    id. at 65,
    117 S.Ct. at 1068, AOE and its members were not elected representatives
    and the Court was “aware of no Arizona law appointing initiative sponsors as agents of the people
    of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the
    State,” 
    id. The Court
    also cast doubt on AOE’s assertion of representational or associational
    standing noting that “[t]he requisite concrete injury to AOE members is not apparent.” Id. at 
    66, 117 S. Ct. at 1068
    .
    The question of whether AOE and Park had standing as the sponsors of particular legislation
    to represent the state’s interest in defending that legislation provides no guidance on whether voters
    who live within a governing unit have standing to challenge an allegedly illegal voting scheme to
    which they are subject by virtue of their residence. Moreover, the Court in Arizonans for Official
    English did not even resolve the standing issue because of its conclusion that the case was moot.
    
    Id. In Hays,
    the Supreme Court held that the appellees lacked standing to challenge a Louisiana
    redistricting plan when none of the appellees resided in the district that was the primary focus of
    their racial gerrymander claim. 
    Hays, 515 U.S. at 739
    , 115 S.Ct. at 2433. The Court emphasized,
    however, that voters who lived in the allegedly gerrymandered district would have suffered an injury
    sufficient to establish standing. According to the Court, “Where a plaintiff resides in a racially
    gerrymandered district [ ] the plaintiff has been denied equal treatment because of the legislature’s
    reliance on racial criteria, and therefore has standing to challenge the legislature’s action.” 
    Hays, 515 U.S. at 744-45
    , 115 S.Ct. at 2436 (citations omitted). The dissent relies on Hays to argue that
    because the Plaintiffs allege only that they are residents of Dallas County, rather than of a particular
    racially gerrymandered district, they have not satisfied the requirements of standing. Dissenting Op.
    at 6. This argument misapplies the holding of Hays.
    Hays lays down a bright-line standing rule for a particular class of cases alleging illegal
    racial gerrymandering with respect to voting districts: if the plaintiff lives in the racially
    gerrymandered district, she has standing; if she does not, she must produce specific evidence of
    harm other than the fact that the composition of her district might have been different were it not for
    the gerrymandering of the other district. There is no suggestion in Hays--or any subsequent decision
    that we are aware of--that the district-by-district analysis adopted in that decision applies to a case
    such as this or Meek which does not have anything to do with gerrymandering and relates instead
    to an allegedly illegal electoral scheme covering an entire election area.
    This is not a case in which the plaintiffs are alleging racial gerrymandering in one particular
    voting district where they do not reside. In this case, the Plaintiffs contend that all of Dallas County
    is being subjected to an illegal election scheme that expands the size of the County Commission
    from four members to five members thereby altering the voting strength of each voter within the
    County. Unlike in Hays, the Plaintiffs in this case are residents of the area governed by the
    challenged illegal election scheme and their voting powers plainly are affected by that scheme.
    Moreover, we emphasize that Hays’ narrow holding regarding standing in the
    gerrymandering context is entirely consistent with our broader holding in Meek. In Hays, the
    Supreme Court held that plaintiffs had standing to bring their racial gerrymandering claim if they
    lived in the allegedly gerrymandered district. In Meek we held that respondents had standing to
    defend the election scheme to which they were subject when that entire election scheme had been
    14
    B.
    The law relevant to the Plaintiffs’ challenge to the 1988 injunction is by now
    clear and undisputed. A federal court cannot modify the size of an elected
    governing body in order to remedy a section 2 violation because there is no
    principled reason to choose a legislative body of one size over one of a different
    size for the purposes of determining whether there has been vote dilution. See
    generally Holder v. Hall, 
    512 U.S. 874
    , 
    114 S. Ct. 2581
    , 
    129 L. Ed. 2d 687
    (1994);
    White v. Alabama, 
    74 F.3d 1058
    (11th Cir. 1996); Nipper v. Smith, 
    39 F.3d 1494
    (11th Cir. 1994) (en banc), cert. denied, 
    514 U.S. 1083
    , 
    115 S. Ct. 1795
    , 131
    challenged as illegal. In both cases the essential point remains that in order to have standing one
    must reside in the area directly affected by the allegedly illegal voting scheme. Hays is in no way
    inconsistent with our holding in Meek.
    Simply put, the case at hand is squarely controlled by this Court’s holding in Meek. Meek
    has neither been explicitly overruled nor implicitly undermined by the Supreme Court’s decisions
    in Arizonans for Official English, or Hays, and we are bound to follow it. See United States v.
    Hogan, 
    986 F.2d 1364
    , 1369 (11th Cir. 1993) (explaining that “it is the firmly established rule of
    this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue
    of law, unless and until that holding is overruled en banc, or by the Supreme Court”). Moreover,
    our decision in Meek is altogether consistent with the holdings of other circuits granting voters
    standing to challenge election schemes to which they are subject. See League of United Latin
    American Citizens, Council No. 4434 v. Clements, 
    999 F.2d 831
    (5th Cir. 1993) (finding judges who
    had intervened as defendants had Article III standing as voters affected by the challenged judicial
    election scheme to pursue the case independently on appeal); United Jewish Organizations of
    Williamsburgh, Inc. v. Wilson, 
    510 F.2d 512
    (2nd Cir. 1975) (holding that white voters had standing
    as voters to challenge New York’s legislative redistricting plan designed to comply with the Voting
    Rights Act).
    
    15 L. Ed. 2d 723
    (1995). In Holder, black voters argued that the size of the county
    commission of Bleckley County, Georgia violated section 2 of the Voting Rights
    Act. Bleckley County always had a single-commissioner form of government, but
    in 1985 the state legislature authorized the county to adopt by referendum a
    multimember commission consisting of five members elected from single-member
    districts and a chair elected at-large. Voters, however, defeated the proposal
    thereby prompting a challenge by black voters. A majority of the Supreme Court
    held that the size of a governing body is not subject to a vote dilution challenge
    under section 2. The plurality opinion, written by Justice Kennedy and joined by
    Chief Justice Rehnquist and Justice O’Connor, explained that in order to find
    liability in a section 2 case, a court must find a reasonable alternative practice as a
    benchmark against which to measure whether the existing voting practice results in
    vote dilution. 
    Holder, 512 U.S. at 880
    , 114 S.Ct. at 2585. The plurality then
    explained that “the search for a benchmark is quite problematic when a § 2 dilution
    challenge is brought to the size of a government body” because “[t] here is no
    principled reason why one size should be picked over another as the benchmark for
    comparison.” 
    Id. at 881,
    114 S.Ct. at 2586. The plurality therefore concluded that
    “a plaintiff cannot maintain a § 2 challenge to the size of a government body, such
    as the Bleckley County Commission.” 
    Id. at 885,
    114 S.Ct. at 2588. Justices
    16
    Thomas and Scalia agreed with the holding that “the size of a governing body
    cannot be attacked under § 2" but rested their concurrence on other grounds.12 See
    
    Id. at 891,
    114 S.Ct. at 2591 (Thomas, J., concurring in judgment).
    We have since held twice that Holder limits the remedial powers of the
    federal courts under section 2 and prohibits district courts from changing the size
    of a county governing body. In Nipper we rejected a section 2 vote dilution
    challenge brought by black registered voters and an association of black attorneys
    to the at-large election system used to elect the judges of Florida’s Fourth Judicial
    Circuit Court. The plaintiffs contended that the use of at-large elections diluted
    black voting strength. They sought the creation of subdistricts that would ensure
    their ability to elect black judges of their choice. 
    Nipper, 39 F.3d at 1496-97
    . In
    rejecting the plaintiffs’ claim for relief, we emphasized that “under Holder, federal
    courts may not mandate as a section 2 remedy that a state or political subdivision
    alter the size of its elected bodies. . . . Federal courts may not [] alter the state’s
    form of government itself when they cannot identify ‘a principled reason why one
    [alternative to the model being challenged] should be picked over another as a
    12
    Justice Thomas emphasized that “[o]nly a ‘voting qualification or prerequisite to voting, or
    standard, practice, or procedure’ can be challenged under § 2" and concluded that the size of a
    governing body is not a “standard, practice, or procedure” within the terms of section 2. 
    Holder, 512 U.S. at 892
    , 114 S.Ct. at 2591
    17
    benchmark for comparison.’” 
    Id. at 1532
    (quoting Holder, 512 U.S. at 
    881, 114 S. Ct. at 2586
    ).
    Similarly, in White, we vacated the district court’s approval of a settlement
    agreement entered into between a class of black voters in Alabama and the State of
    Alabama which would have increased the size of the Alabama courts of appeals.
    
    White, 74 F.3d at 1061
    . In White, a class composed of all black voters in Alabama
    argued that the at-large election process used to elect members of Alabama’s
    appellate courts diluted the voting strength of black voters in violation of section 2
    of the Voting Rights Act. 
    Id. at 1059.
    The parties entered an agreement, which the
    United States Department of Justice precleared, that would have restructured the
    Supreme Court of Alabama, the Court of Criminal Appeals, and the Court of Civil
    Appeals by increasing the size of those courts and creating a selection process that
    would ensure that the black voters of Alabama had at least two “representatives of
    their choice” on each court. 
    Id. at 1061.
    The district court approved the agreement
    and made it part of the final judgment. 
    Id. at 1061.
    Again, we held that in
    approving such relief the district court exceeded its authority under section 2 and
    vacated the district court’s judgment. 
    Id. at 1061.
    We emphasized that under
    Holder and Nipper, the district court “lacked the authority to require Alabama to
    increase the size of its appellate courts.” 
    Id. at 1072.
    18
    No one disputes that this is binding authority applicable in this case. The
    primary issue, then, is the factual one of whether the 1988 injunction imposed by
    the district court changed the size of the Dallas County Commission.13 More
    specifically, the question boils down to this: whether the pre-injunction probate
    judge acting in his role as ex officio chairperson of the Commission should be
    13
    Just as the determination of whether there has been vote dilution in a section 2 Voting Rights
    Act case is a finding of fact, so too is the determination of whether there has been a change in the
    size of the Dallas County Commission an ultimate finding of fact subject to clear error review. See
    Thornburg v. Gingles, 
    478 U.S. 30
    , 78-79, 
    106 S. Ct. 2752
    , 2780-81, 
    92 L. Ed. 2d 25
    (1986)
    (affirming that ultimate finding of vote dilution is a question of fact subject to the clearly erroneous
    standard of review). In Gingles, the Supreme Court explained that the “ultimate finding of vote
    dilution” is a question of fact because the trial court’s determination is necessarily based on a
    consideration of the totality of the circumstances and is “‘peculiarly dependent upon the facts of
    each case.’” 
    Id. at 79,
    106 S.Ct. at 2781 (quoting Rogers v. Lodge, 
    458 U.S. 613
    , 621, 
    102 S. Ct. 3272
    , 3277, 
    73 L. Ed. 2d 1012
    ). Cf. United States v. DeVaron, 
    175 F.3d 930
    , 938 (11th Cir. 1999)
    (en banc) (holding that determination of defendant’s role in the offense is an ultimate finding of fact
    subject to the same clear error review as were the subsidiary facts on which it was based); Tinkler
    v. United States, 
    982 F.2d 1456
    , 1466 (10th Cir. 1992) (noting that ultimate findings “like
    ‘subsidiary’ fact-findings, are subject nevertheless to the rule that findings of fact are not to be set
    aside unless clearly erroneous”). Similarly, in De Varon, we held that a district court’s
    determination of a defendant’s role in the offense is a finding of fact to be reviewed for clear error.
    De 
    Varon, 175 F.3d at 937
    . We explained that the determination regarding role in the offense was
    based directly and without legal intermediation or interpretation on the district court’s subsidiary
    factual findings regarding “the defendant’s role in her relevant conduct and the relative degrees of
    culpability of the other participants in that conduct.” 
    Id. at 938.
    In this case, as in Gingles and
    DeVaron, the ultimate question about whether the size of the Commission changed is derived
    directly from the district court’s subsidiary factual findings regarding the differences in voting
    power, term in office, and duties of the probate judge as ex officio chairperson and the full
    Commission member with whom he was replaced. We add that this determination is not a mixed
    question of law and fact because the question about the size of the Commission flows directly from
    the subsidiary factual findings and is unmediated by any intervening legal standard or definition.
    See Suburban Realty Co. v. United States, 
    615 F.2d 171
    , 181 (5th Cir. 1980) (explaining that a
    question that involves the application of legal standards to facts is best characterized as a mixed
    question of fact and law); Stevens v. United States, 
    302 F.2d 158
    , 165 (5th Cir. 1962) (noting that
    a mixed question of law and fact involves the application of a legal standard to a particular
    situation).
    19
    counted as a full member of the Commission for the purposes of determining the
    pre-injunction size of the Commission. If the probate judge acting as chairperson
    of the Commission in an ex officio capacity had essentially the same duties, power,
    and purpose as the full Commission member with whom he was replaced, then we
    must find that the size of the Commission did not change. If however, the probate
    judge acting as ex officio chair of the Commission played a significantly different
    role on the Commission than did the full Commission member with whom he was
    replaced then the size of the Commission did change. We conclude that because
    the differences between the role of the probate judge acting as chairperson of the
    Commission in an ex officio capacity and the role of a full Commission member
    are indeed substantial and important, the district court did not clearly err in finding
    that the 1988 injunction changed the size of the Dallas County Commission.
    Defendants argue simply that the 1988 injunction did not change the size of
    the Commission because before the injunction the probate judge in his role as ex
    officio chairperson acted as a full Commission member. They contend that both
    before and after the 1988 injunction the Commission should be viewed as having
    five members, and only the manner of electing the officials changed. Defendants
    contend that the fact that the probate judge was an ex officio member of the
    Commission does not mean that he was not a full member. They stress that
    20
    historically the probate judge played an active role in the Commission.14
    Moreover, they argue that the differences in voting rights between the pre-1988
    probate judge as ex officio chairperson and the current chairperson do not indicate
    that the probate judge/chairperson was not a full Commission member. While they
    concede, as they must, that the pre-injunction probate judge/chairperson did not
    have full voting rights, they observe that he was the deciding vote in the event of a
    tie and therefore voted in every situation in which his vote would have made a
    difference. The Defendants add that the probate judge/chairperson’s tie-breaking
    voting power indicates that the probate judge played as significant a role in policy-
    making as did the other four commissioners and shows that Commission policy
    before the 1988 injunction was set by five, rather than four Commission members.
    Defendants also point to Dillard v. Crenshaw County, Ala., 
    831 F.2d 246
    (11th Cir. 1987) in support of their contention that the pre-1988 probate judge
    acting in his capacity as the ex officio chairperson of the Commission should be
    considered a full Commission member. Dillard involved a section 2 challenge to
    the at-large election of the commissioners of the Calhoun County Commission in
    Calhoun County, Alabama. The Calhoun County Commission was originally
    14
    Appellants point out that Probate Judge John W. Jones, the Commission Chairperson before
    1988, represented the Commission in meetings and on various committees and was a spokesperson
    for the Commission at private and public functions.
    21
    composed of two associate commissioners and a chairperson, all elected at-large.
    The district court issued an injunction against the at-large election of the
    commissioners and ordered Calhoun County to respond with proposals as to how
    to solve the section 2 violation. Calhoun County responded with a proposal to
    increase the membership of the commission to five but to retain the position of an
    at-large commission chairperson. The district court rejected the at-large chair
    position and ordered instead that the chair rotate among the five associate
    commissioners. On appeal, we considered whether the district court correctly
    ruled that the at-large position proposed by Calhoun County failed to correct the
    original section 2 violation. Calhoun County tried to distinguish the new proposed
    chairperson elected at-large, from the old position in an effort to argue that the new
    chairperson really held an independent office and should not be subject to the
    proportional representation issues of section 2. Calhoun County emphasized that
    the proposed commission chairperson would have only a limited legislative role;
    he would preside over commission meetings but would have no vote except in the
    case of a tie. Calhoun County argued that because the new chairperson would
    serve primarily an administrative, not a legislative role, the chairperson should not
    be considered a full member of the commission. Instead, the County argued, the
    22
    proposed chairperson position should be treated as a separate single-member
    office.
    We rejected the County’s argument and held that because of the historical
    and practical overlap between the roles of the commission and the chairperson, the
    chairperson could not be considered a separate single-member office position. See
    
    Dillard, 831 F.2d at 251
    . We held that the chairperson was a full member of the
    commission subject to proportional representation issues and that the district court
    correctly ruled that electing the chairperson at-large failed to correct the original
    section 2 violation. 
    Id. at 252-53.
    Appellants contend that because the proposed chairperson in Dillard was
    considered a full commission member for the purposes of a section 2 remedy, the
    pre-injunction probate judge acting in his capacity as ex officio chairperson also
    should be considered a full member of the Commission since the two had similar
    roles and the same voting capacity. However, we do not find Dillard a helpful
    model for the present case. There are critical differences between the two cases
    which undermine Dillard’s usefulness in helping us determine whether the pre-
    injunction probate judge acting in his capacity as ex officio chairperson in the
    present case should be counted as a full commission member.
    23
    In Dillard, the chairperson had historically been a full member of the
    commission. The commission was originally composed of two associate
    commissioners and a chairperson, all of whom were elected at-large from the
    whole county and all of whom had full and equal voting power. See 
    id. at 247.
    The historical status of the chairperson as a full commission member with full and
    equal voting power was critical to our conclusion in Dillard that the proposed
    chairperson should also be treated as a full commission member for section 2
    purposes. See 
    id. at 251
    (explaining that “[b]oth historically and practically, the
    overlap between the roles of the commission and the chairperson do not allow us to
    consider this office as a separate, single-office position”). Notably, Dillard did not
    involve the question raised in the present case of whether a probate judge acting as
    a chairperson in an ex officio capacity, with substantially different voting powers, a
    different term of office, and different responsibilities from the other
    commissioners, should be considered a full commission member for the purposes
    of determining the size of the governmental body. The fact that we previously held
    that a proposed commission chairperson designed to replace a position historically
    filled by a full commission member must be treated as a full member for purposes
    of a section 2 challenge, does not shed light on whether in this case the pre-
    injunction probate judge acting in his capacity as the ex officio chairperson of the
    24
    Commission, who was not historically treated as a full Commission member,
    should be counted as a full member for the purposes of determining the size of the
    commission.
    Plaintiffs emphasize what appear to us to be several critical differences here
    between the pre-injunction probate judge acting in his capacity as the ex officio
    chairperson of the Commission and the full Commission member with whom he
    was replaced after the injunction. First, the probate judge was elected as a probate
    judge, not as a Commission member. The probate judge simply acted as
    chairperson of the Commission in an ex officio capacity but was never elected to a
    position on the Commission. Second, the probate judge was chosen in different
    elections and served a different term of years than did the commissioners.
    Therefore, while the commissioners served concurrent four year terms on the
    Commission, the probate judge, who was elected to six year terms, served as the ex
    officio chairperson of the Commission for a longer term of years. Third, in his
    capacity as ex officio chairperson of the Commission, the probate judge did not
    possess the same voting rights as did the other commissioners. Instead of voting
    25
    on all matters, the probate judge acting as chairperson ex officio voted only in
    cases of a tie.15
    We emphasize that the issue before us is the narrow and discrete factual
    question of whether the change from a Commission composed of four full
    commissioners plus a probate judge acting as chairperson in an ex officio capacity-
    -who was elected to a different position, holds office for a different term of years,
    and has different voting powers on the Commission than the full members--to a
    Commission composed of five full Commission members (one of whom is
    designated as chairperson)--who were all elected specifically to that office, all hold
    office for the same term of years, and all possess the same voting powers--is
    significant enough for us to conclude that a change in the size of the Commission
    occurred. We recognize that real arguments exist on the other side and that the
    determination of whether the probate judge acting as ex officio chairperson looks
    like a full Commission member for purposes of comparing the sizes of the pre and
    post injunction Commissions is largely a judgment call. However, we find that the
    15
    We note, however, that both before and after the 1988 injunction, the probate judge in his role
    as probate judge had authority to vote with the Commission when filling certain vacancies in local
    office. See Act No. 196, 1949 Ala. Acts 227; Act No. 197, 1949 Ala. Acts 228; Jones v. Dallas
    County, No. 92-6104 (11th Cir. Jan 6, 1993) (holding that the 1988 injunction did not preclude the
    probate judge from continuing to vote to fill the position of Dallas County tax collector in
    accordance with Act No. 197). Therefore, the role of the probate judge as probate judge remained
    largely the same both before and after the injunction.
    26
    differences in role, purpose, and power between the probate judge acting as
    chairperson of the Commission in an ex officio capacity and a full Commission
    member are significant and compel us to conclude that the 1988 injunction
    effectively changed the size of the Dallas County Commission.
    Perhaps even more important than our own finding, however, is the fact that
    the district court made a clear and unequivocal factual finding that the 1988
    injunction changed the size of the Dallas County Commission and we must review
    this finding for clear error. See Thornburg v. Gingles, 
    478 U.S. 30
    , 78-79, 
    106 S. Ct. 2752
    , 2780-81, 
    92 L. Ed. 2d 25
    (1986) (affirming that ultimate finding of vote
    dilution is a question of fact subject to the clearly erroneous standard of review);
    United States v. DeVaron, 
    175 F.3d 930
    , 938 (11th Cir. 1999) (en banc)
    (explaining that ultimate factual findings like the subsidiary facts on which they are
    based are entitled to clear error review); Tinkler v. United States, 
    982 F.2d 1456
    ,
    1466 (10th Cir. 1992) (noting that ultimate findings “like ‘subsidiary’ fact-
    findings, are . . . not to be set aside unless clearly erroneous”). According to the
    district court, the 1988 injunction “impermissibly altered the size of [the Dallas
    County Commission] [] by expelling the chairman ex-officio simply because he
    was also the Probate Judge who must be elected at-large and by creating a
    27
    previously unauthorized commissioner position . . . .” Order at 3.16 Indeed, the
    district court’s finding is consistent with our own prior understanding of the effect
    of the 1988 injunction. In this Court’s 1988 decision instructing the district court
    to impose the 1988 injunction, we explicitly recognized that the result of the
    injunction was an alteration of the size of the Commission. We stated: “The court
    is aware that its adoption of a five single-member district plan results in the
    creation of an additional elected official.” Dallas County 
    Comm’n, 850 F.2d at 1432
    n.2.
    After thoroughly reviewing all of the evidence before us, we conclude that
    the 1988 injunction is most accurately understood as changing the size of the
    Dallas County Commission. The district court found as much and we hold that this
    finding was not clear error. In light of this factual finding and the clear precedent
    from both the Supreme Court and this Circuit establishing that a change in the size
    of a governing body is not a proper remedy for a section 2 violation, the district
    court’s conclusion that the 1988 injunction was an impermissible remedy for a
    section 2 violation was essential. Accordingly, we conclude that the district court
    16
    The district court concluded that Appellants’ attempt to equate the pre-injunction probate
    judge/chairperson with a regular commission member is comparing “apples with oranges in an effort
    to avoid the limitations which are now recognized as legitimate proscriptions against judicial
    overreaching.” Order at 19.
    28
    did not abuse its discretion in vacating the 1988 injunction and affirm its March 29,
    1999 Order.
    AFFIRMED.
    29
    BARKETT, Circuit Judge, dissenting:
    I dissent because I do not believe that the plaintiffs have standing in this
    case. Wilson and Middlebrooks filed suit to terminate an injunction entered in an
    earlier case in which they never participated, either as plaintiffs, defendants or
    intervenors. Because they fail to demonstrate that they have suffered any concrete
    and particularized injury stemming from this earlier injunction, they have also
    failed to demonstrate that they have standing under Article III of the Constitution
    to bring these claims. See Federal Election Comm’n v. Akins, 
    524 U.S. 11
    , 23-24
    (1998); Arizonans for Official English v. Arizona, 
    520 U.S. 43
    , 64 (1997); Lujan v.
    Defenders of Wildlife, 
    504 U.S. 555
    , 560 (1992). On this record there is no basis
    for concluding that Wilson and Middlebrooks satisfy the elements of standing,
    either as plaintiffs in this independent action or in order to intervene in the earlier
    lawsuit.
    Before a federal court may exercise jurisdiction over a claim brought before
    it, the court must determine that the litigants have standing to bring that suit. As
    the Supreme Court has emphasized repeatedly,
    [t]he question of standing is not subject to waiver, however: ‘[We] are
    required to address the issue even if the courts below have not passed on it,
    and even if the parties fail to raise the issue before us. The federal courts
    30
    are under an independent obligation to examine their own jurisdiction, and
    standing is perhaps the most important of the jurisdictional doctrines.
    United States v. Hays, 
    515 U.S. 737
    , 742 (1995) (emphasis added) (citing
    FW/PBS, Inc. v. Dallas, 
    493 U.S. 215
    , 230- 231 (1990)); see also 
    Arizonans, 520 U.S. at 73
    . The Supreme Court has “made clear that it is the burden of the party
    who seeks the exercise of jurisdiction in his favor clearly to allege facts
    demonstrating that he is a proper party to invoke judicial resolution of the dispute.”
    United States v. Hays, 
    515 U.S. 737
    , 743 (1995) (citations and internal quotation
    marks omitted). Wilson and Middlebrooks have not borne this burden.
    In order “[t]o qualify as a party with standing to litigate, a person must
    show, first and foremost, an invasion of a legally protected interest that is concrete
    and particularized and actual or imminent.” 
    Arizonans, 520 U.S. at 64
    (citing
    
    Lujan, 504 U.S. at 560
    ) (internal quotation marks omitted). As the Court made
    clear in Lujan, in order to be “particularized,” the injury “must affect the plaintiff
    in a personal and individual way.” 
    Id. at 560-61
    & n.1.      The Supreme Court has
    “repeatedly refused to recognize a generalized grievance against allegedly illegal
    governmental conduct as sufficient for standing to invoke the federal judicial
    power.” 
    Hays, 515 U.S. at 743
    (citations and internal quotation marks omitted).
    31
    In its footnote, the majority relies on Meek v. Metropolitan Dade County,
    
    985 F.2d 1471
    , 1480 (11th Cir. 1993), to support standing in the instant case.
    Meek, an Eleventh Circuit case decided prior to the Supreme Court’s decisions in
    Arizonans and Hays, stated that individuals have a private right “to vindicate
    important personal interests in maintaining the election system that governed their
    exercise of political power, a democratically established system that the district
    court’s order had altered.” 
    Id. However, in
    light of more recent Supreme Court
    pronouncements on standing, I do not think that such an ill-defined interest is
    sufficiently concrete to support standing under Article III.1
    In Hays, the Supreme Court expressly affirmed the rule against generalized
    grievances, holding that the mere fact that appellees in that case were residents and
    voters of Louisiana was not sufficient to give them standing to challenge
    Louisiana’s congressional redistricting plan. The Court rejected appellees’
    position that “anybody in the State has a claim,” 
    Hays 515 U.S. at 743-44
    , and
    restricted standing to “those who are personally denied equal treatment” by the
    challenged discriminatory conduct. 
    Id. (emphasis added).
    The Court contrasted
    the generalized grievance asserted by appellees in that case with the type of
    concrete equal protection injury that would be sufficient to sustain standing. The
    1
    The two decisions of other circuits which the majority cites in support of standing were also
    decided prior to Arizonans and Hays. See League of United Latin American Citizens, Council No.
    4434 v. Clements, 
    999 F.2d 831
    (5th Cir. 1993); United Jewish Organizations of Williamsburgh, Inc.
    v. Wilson, 
    510 F.2d 512
    (2nd Cir. 1975).
    32
    Court found that residents of a racially gerrymandered district would have standing
    to challenge the redistricting because “[v]oters in such districts may suffer the
    special representational harms racial classifications can cause in the voting
    context.” 2 
    Id. at 745.
    The panel in Meek rejected the contention that the intervenors had only
    nonjusticiable generalized grievances on the grounds that “if we accepted such an
    argument, we would be forced to conclude that most of the plaintiffs also lack
    standing, a conclusion foreclosed by the many cases in which individual voters
    have been permitted to challenge election practices,” citing as precedent Whitcomb
    v. Chavis, 
    403 U.S. 124
    (1971), and Baker v. Carr, 
    369 U.S. 186
    (1962). The
    recent Supreme Court cases make clear that this reasoning misconceives the nature
    of the injury alleged in voting rights cases. Plaintiffs’
    standing to assert their claims against the challenged election practices in
    
    Whitcomb, 403 U.S. at 128-29
    , and 
    Carr, 369 U.S. at 207-8
    , derived not from their
    status as individual voters, but from the fact that they were personally denied equal
    treatment in violation of the Fourteenth Amendment. Similarly, the plaintiffs in
    Meek alleged a concrete injury in the form of vote dilution under Section 2 of the
    2
    The Hays Court stated that a voter would have standing “[w]here a plaintiff resides in a
    racially gerrymandered 
    district,” 515 U.S. at 745
    explaining that in such a situation “the plaintiff
    has been denied equal treatment because of the legislature’s reliance on racial criteria, and therefore
    has standing to challenge the legislature’s action.” 
    Id. (emphasis added).
    33
    Voting Rights Act. See Meek v. Metropolitan Dade County, 
    908 F.2d 1540
    , 1541-
    42 (11th Cir. 1990). Those plaintiffs, as Hays recognizes, alleged cognizable
    injury to their statutory or constitutional rights.
    In the instant case, plaintiffs fail to allege in their complaint either the exact
    nature of the alleged injury suffered or that they have any “personal stake” in the
    outcome of this litigation. See 
    Lujan, 504 U.S. at 583
    . We are left to speculate in
    what personal and individual way they have been injured.3 Plaintiffs’ claim that
    the Court’s injunction in the earlier suit was ultra vires in light of Holder is no
    more specific than an assertion of the generalized right to have the government
    “act in accordance with law,” a right which the Supreme Court rejected in Allen v.
    Wright, 
    468 U.S. 737
    , 754 (1984). Nor do plaintiffs articulate any cognizable
    theory of harm under equal protection or vote dilution jurisprudence. To the
    contrary, the majority writes that Wilson and Middlebrooks “seek to protect their
    interests in being free from an illegal court-imposed electoral system.” This
    characterization, and the concomitant implication that all of Dallas County would
    3
    Based on this record, plaintiffs have not demonstrated standing to bring any of their claims.
    Plaintiffs fail to allege any injury stemming from the alleged violation of the Tenth Amendment.
    Nor do they allege any injury to their constitutional or statutory rights under the Fourteenth
    Amendment and the Voting Rights Act. In contrast, for example, to the original Dallas plaintiffs,
    these plaintiffs do not allege that their vote is diluted, or that they have suffered injury “as a direct
    result of having personally been denied equal treatment.” 
    Id. Their asserted
    right “not to be
    governed by public officials not chosen under state law using race-based selection criteria” is not
    a cognizable injury in the Article III sense. Merely sharing an interest generally with the public at
    large in the proper application of the Constitution and laws is insufficient to allege an injury. See
    
    Arizonans, 520 U.S. at 64
    .
    34
    have standing to bring suit because “all of Dallas County is being subjected to an
    illegal election scheme,” only serves to underscore the generalized nature of
    Wilson and Middlebrook’s grievance. As the Hays court explained,
    Appellees insist that they challenged Act 1 in its entirety, not District 4 in
    isolation. That is true. It is also irrelevant. The fact that Act 1 affects all
    Louisiana voters by classifying each of them as a member of a particular
    congressional district does not mean–even if Act 1 inflicts race-based injury
    on some Louisiana voters–that every Louisiana voter has standing to
    challenge Act 1 as a racial classification. Only those citizens able to allege
    injury ‘as a direct result of having personally been denied equal treatment,’
    
    Allen, 468 U.S. at 755
    , may bring such a challenge, and citizens who do so
    carry the burden of proving their standing as well their case on the merits.
    
    Hays, 515 U.S. at 746
    . The election scheme currently in place in Dallas County
    affects the voters of Dallas County to the same extent that the Louisiana districting
    scheme affected appellees in Hays. However, as that case makes clear, Article III
    requires something more than merely being affected in order to assert a cognizable
    injury. The racial classification suffered by those residents of a racially
    gerrymandered district meets this requirement; mere “residence in the area directly
    affected by the allegedly illegal voting scheme,” maj. op. at 16, n.11, does not.
    35
    Just as Wilson and Middlebrooks have not demonstrated that they have
    standing to bring this independent action, I do not believe that they could have
    overcome their standing problem by moving to intervene in the earlier suit. “The
    decision to seek review is not to be placed in the hands of concerned bystanders,
    persons who would seize it as a vehicle for the vindication of value interests.”
    
    Arizonans, 520 U.S. at 64
    (citations and internal quotations marks omitted). If the
    only bar to plaintiffs’ standing in this case were, as the majority suggests, the
    technical requirement that they intervene pursuant to Federal Rule of Civil
    Procedure 24 instead of bringing this lawsuit as an independent action, I agree that
    the case, under the circumstances presented here, might not warrant reversal.4
    However, “[a]n intervenor cannot step into the shoes of the original party unless
    the intervenor independently ‘fulfills the requirements of Article III.’” 
    Arizonans, 520 U.S. at 64
    (internal citation omitted). Nothing in this record supports a
    conclusion that Wilson and Middlebrooks could do so here.
    Because plaintiffs have failed to allege an injury which satisfies the
    requirements of Article III, I believe this suit should be dismissed for lack of
    jurisdiction, and accordingly, I dissent.
    4
    The majority makes reference to Martin v. Wilks, 
    490 U.S. 755
    , 762-67 (1989), a Title VII
    race discrimination case. Wilks is not helpful on the issue of plaintiffs’ Article III standing to bring
    an independent action, as it addressed only the issue of mandatory intervention. There was no
    question in that case as to whether plaintiffs alleged a cognizable injury.
    36
    

Document Info

Docket Number: 99-11145

Citation Numbers: 220 F.3d 1297

Filed Date: 8/4/2000

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (31)

Baker v. Carr , 82 S. Ct. 691 ( 1962 )

ensley-branch-naacp-donald-nixon-william-moss-alvin-mahaffey-jr , 31 F.3d 1548 ( 1994 )

Federal Election Commission v. Akins , 118 S. Ct. 1777 ( 1998 )

Whitcomb v. Chavis , 91 S. Ct. 1858 ( 1971 )

jesse-l-nipper-donald-a-carter-annie-ruth-williams-selendra-williams , 39 F.3d 1494 ( 1994 )

league-of-united-latin-american-citizens-council-no-4434-and-jesse , 999 F.2d 831 ( 1993 )

United States v. Hays , 115 S. Ct. 2431 ( 1995 )

Pens. Plan Guide (Cch) P 23,924 Barbara Carol Godfrey v. ... , 89 F.3d 755 ( 1996 )

united-states-of-america-samson-crum-sr-edwin-moss-frederick-d-reese , 850 F.2d 1430 ( 1988 )

john-dillard-v-crenshaw-county-alabama-etc-calhoun-county-alabama-qua , 831 F.2d 246 ( 1987 )

linda-k-tinkler-jason-p-tinkler-a-minor-by-his-parent-and-guardian , 982 F.2d 1456 ( 1992 )

M. S. Stevens and Wife, Margurette Stevens v. United States , 302 F.2d 158 ( 1962 )

United States v. Isabel Rodriguez De Varon , 175 F.3d 930 ( 1999 )

DeKalb County School District v. Schrenko , 109 F.3d 680 ( 1997 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

United States v. Dallas County Commission , 636 F. Supp. 704 ( 1986 )

Martin v. Wilks , 109 S. Ct. 2180 ( 1989 )

united-states-of-america-samson-crum-sr-edwin-moss-frederick-d-reese , 850 F.2d 1433 ( 1988 )

Cicero Eugene Hines, Etc. v. Rapides Parish School Board ... , 479 F.2d 762 ( 1973 )

University of South Alabama v. American Tobacco Co. , 168 F.3d 405 ( 1999 )

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