Document Info

DocketNumber: 08-50581

Judges: Reavley, Barksdale, Garza

Filed Date: 2/18/2009

Status: Non-Precedential

Modified Date: 11/5/2024

  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    February 17, 2009
    No. 08-50581                    Charles R. Fulbruge III
    Clerk
    LULAC OF TEXAS; MEXICAN AMERICAN BAR ASSOCIATION OF
    HOUSTON, TEXAS (MABAH); ANGELA GARCIA; BERNARDO J GARCIA;
    ELVIRA RIOS; ROGER ROCHA; ROSARIO VERA; RAYMUNDO VELARDE
    Plaintiffs-Appellants
    v.
    STATE OF TEXAS; TEXAS DEMOCRATIC PARTY
    Defendants-Appellees
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 5:08-cv-00389
    Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
    PER CURIAM:*
    Plaintiffs-Appellants LULAC of Texas, the Mexican American Bar
    Association of Houston, Texas, and several individuals who reside in various
    Texas senatorial districts appeal from the dismissal by a single-judge district
    court of their claims under Section 5 of the Voting Rights Act against
    Defendants-Appellees the State of Texas and the Texas Democratic Party (the
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    No. 08-50581
    “Party”), contending that the judge should have referred their claims to a three-
    judge court. Plaintiffs’ suit challenges the Party’s method of allocating delegates
    to its nominating conventions based on raw voter turnout, a procedure that was
    not precleared by the United States Attorney General or the District Court for
    the District of Columbia. Reviewing the dismissal de novo, see In re Katrina
    Canal Breaches Litig., 
    495 F.3d 191
    , 205 (5th Cir. 2007), we AFFIRM the
    dismissal for the State, REVERSE the dismissal for the Party, and REMAND for
    the following reasons:
    1.    We agree with Plaintiffs that the district judge’s finding of no
    discrimination against Latino voters resulting from the Party’s delegate-
    allocation method does not support dismissal of their § 5 claim against the
    Party. Section 5 preclearance actions generally must be resolved by a
    three-judge court, whose decision is appealable only to the Supreme Court.
    See 42 U.S.C. § 1973c; LULAC v. Texas, 
    113 F.3d 53
    , 55 (5th Cir. 1997)
    (per curiam).    Since the challenged practice was not precleared, the
    inquiry by a three-judge district court is limited to whether § 5 covers a
    contested change, and, if so, the appropriate remedy. Lopez v. Monterey
    County, 
    519 U.S. 9
    , 23, 
    117 S. Ct. 340
    , 349 (1996).       The coverage issue
    turns on: (1) whether the delegate-allocation method is a “‘standard,
    practice, or procedure with respect to voting’ within the meaning of § 5,”
    Dougherty County, Ga., Bd. of Educ. v. White, 
    439 U.S. 32
    , 33–34, 
    99 S. Ct. 368
    , 370 (1978); (2) whether the method constitutes a “change” to the
    covered jurisdiction’s baseline, i.e., “the most recent practice that was both
    precleared and ‘in force or effect’—or, absent any change since the
    jurisdiction’s coverage date, the practice that was ‘in force or effect’ on that
    date,” Riley v. Kennedy, — U.S. —, 
    128 S. Ct. 1970
    , 1982 (2008) (internal
    citation omitted); and (3) whether the Party is a “political subdivision”
    subject to § 5, Dougherty 
    County, 439 U.S. at 34
    , 99 S. Ct. at 370. Thus,
    2
    No. 08-50581
    even a three-judge court cannot assess the discriminatory impact of the
    challenged method; that determination is reserved for the United States
    Attorney General or the District Court for the District of Columbia. See
    
    Lopez, 519 U.S. at 23
    , 117 S. Ct. at 348–49 (“On a complaint alleging
    failure to preclear election changes under § 5, th[e] [three-judge district]
    court lacks authority to consider the discriminatory purpose or nature of
    the changes.”).
    2.   Nor can dismissal be affirmed on the alternative ground that the Party is
    not a “political subdivision” subject to § 5’s preclearance requirement.
    When determining whether to convene a three-judge court, a single
    district judge may dismiss a § 5 claim that is “‘wholly insubstantial’ and
    completely without merit, such as where the claim[ ] [is] frivolous,
    essentially fictitious, or determined by prior case law.” 
    LULAC, 113 F.3d at 55
    (internal citation omitted). As the Party concedes, the Supreme
    Court has not resolved whether and under what circumstances the Voting
    Rights Act requires a political party to obtain preclearance of internal
    party rules, and in fact has extended § 5’s requirement to a political
    party’s imposition of a registration fee for delegates to the party’s state
    nominating convention. See generally Morse v. Republican Party of Va.,
    
    517 U.S. 186
    , 
    116 S. Ct. 1186
    (1996) (plurality opinion). Without binding
    precedent clearly foreclosing Plaintiffs’ contention that § 5 applies to the
    Party’s delegate allocation method, it cannot be said that the claim is
    wholly insubstantial or frivolous. See Goosby v. Osser, 
    409 U.S. 512
    , 518;
    
    93 S. Ct. 854
    , 859 (1973) (“A claim is insubstantial only if its soundness so
    clearly results from the previous decisions of [the Supreme Court] as to
    foreclose the subject . . . .” (internal quotation marks and citation
    omitted)); cf. LaRouche v. Fowler, 
    152 F.3d 974
    , 975–77, 983–86, 998 (D.C.
    Cir. 1998) (concluding that Morse did not clearly and inescapably foreclose
    3
    No. 08-50581
    the plaintiff’s § 5 challenge to a party rule conditioning eligibility as a
    presidential nominee on the chairman’s determination that the candidate
    is a bona-fide party member, and reversing its dismissal by a single-judge
    district court).
    3.   For similar reasons, we reject the Party’s assertion that its delegate-
    selection process is not justiciable. None of the authorities cited by the
    Party involves a § 5 challenge, and the Party’s assertion that its internal
    procedures are exempt from judicial review merely reprises its contention
    that the preclearance requirement does not apply to its delegate-allocation
    rule—an issue that must be resolved by a three-judge district court.
    4.   Plaintiffs have not waived their present request for a three-judge court by
    failing to move for one below. Section 5 incorporates 28 U.S.C. § 2284,
    which prescribes, “[a] district court of three judges shall be convened when
    otherwise required by Act of Congress . . . .” 28 U.S.C. § 2284(a) (emphasis
    added). We agree with our sister circuits that the term “shall” in § 2284
    is mandatory and jurisdictional. See Kalson v. Paterson, 
    542 F.3d 281
    , 287
    (2d Cir. 2008) (apportionment case); Armour v. Ohio, 
    925 F.2d 987
    , 989
    (6th Cir. 1991) (en banc) (same). Although the 1976 amendment to § 2284
    reduced the categories of cases subject to the three-judge requirement,
    nothing in the legislative history suggests an intent to alter its
    jurisdictional nature. See 
    Kalson, 542 F.3d at 287
    . The absence of a
    formal request for a three-judge court does not constitute waiver.
    4.   Lastly, whether Plaintiffs unreasonably delayed their challenge to a
    procedure adopted by the Party in 1988 arguably affects the appropriate
    remedy if coverage is found by the three-judge court, but it does not
    provide grounds for dismissal. See Brooks v. State Bd. of Elections, 775 F.
    Supp. 1470, 1474–75, 1481 (S.D. Ga. 1989) (three-judge court) (per curiam)
    (concluding that equitable arguments can be considered “only in the
    4
    No. 08-50581
    limited context of fashioning an appropriate remedy,” and refusing to
    “equitably preclear” the changes based on laches), aff’d mem., 
    498 U.S. 916
    , 
    111 S. Ct. 288
    (1990). Having found no basis in the record supporting
    the district judge’s ruling, we reverse the dismissal of Plaintiffs’ § 5 claim
    against the Party and remand for the convening of a three-judge court.
    5.   Plaintiffs’ § 5 claim against the State for a voting procedure that it neither
    enacted or administered, however, was properly dismissed. Section 5
    states, “[w]henever a [covered] State or political subdivision . . . shall enact
    or seek to administer any . . . standard, practice, or procedure with respect
    to voting different from that in force or effect” on the relevant coverage
    date, “such State or subdivision” must obtain preclearance either by
    instituting an action in the District Court for the District of Columbia, or
    from the United States Attorney General. § 1973c (emphasis added). The
    statute plainly imposes a preclearance obligation only on the particular
    “State or political subdivision” that “enact[s]” or “seek[s] to administer”
    the disputed change.      In this case, the challenged delegate-allocation
    procedure was enacted and administered by the Party, not the State.
    Texas law requires the Party to adopt rules, consistent with state law,
    governing the conduct of its conventions, mandates that such rules be filed
    with the State, and provides a mechanism for their enforcement. See T EX.
    E LEC. C ODE A NN. §§ 163.002; 163.003; 163.005; 163.007.           But these
    provisions do not impute to the State the Party’s obligation, if any, to
    preclear those rules under § 5. We affirm the dismissal of Plaintiffs’
    wholly insubstantial claim against the State.
    AFFIRMED IN PART; REVERSED IN PART; CAUSE REMANDED FOR
    FURTHER PROCEEDINGS.
    5
    No.
    EMILIO M. GARZA, concurring in part and dissenting in part.
    I concur with the majority’s holding that LULAC’s Section 5 claim against
    the Texas Democratic Party should be remanded to a three-judge panel for
    consideration. However, I respectfully dissent from the majority’s affirmance of
    the district court’s dismissal of LULAC’s claim against the State of Texas.
    Because the question of whether the Democratic Party’s internal voting
    procedures can be imputed to the State of Texas is not “‘wholly insubstantial’
    and completely without merit, such as where the claim[] [is] frivolous,
    essentially fictitious, or determined by prior case law,” LULAC v. Texas, 
    113 F.3d 53
    , 55 (5th Cir. 1997), it should be considered by a three-judge panel.1
    1
    I am unaware of any case in this C ircuit or any other dealing with the issue. The Supreme
    Court’s Voting Rights Act jurisprudence does not foreclose the possibility that political party activities
    may be give rise to some obligation on the part of the state, especially where, as here, state law mandates
    that the party rules be filed with the state and provides a m echanism of enforcement for those rules.
    See T E X . E L E C . C O D E A N N . §§ 163.002, 163.005 (requiring political parties to adopt rules that are
    consistent with state law); § 163.007 (making political party rules enforceable by writ of mandam us).
    Thus, while I make no statement as to the merits of this claim, it does not m eet the “w holly
    insubstantial” standard so as to be excluded from remand to a three-judge panel for review.
    6