United States Court of Appeals,
Fifth Circuit.
No. 94-41152.
CONCERNED CITIZENS FOR EQUALITY, Plaintiff-Appellant,
v.
John McDONALD, County Judge, Joe Ware, Commissioner, Marcelle
Adams, Commissioner, J.R. Burns, Commissioner, and Kell Bradford,
Commissioner, Defendants-Appellees.
Sept. 11, 1995.
Appeal from the United States District Court for the Eastern
District of Texas.
Before SMITH, WIENER and DeMOSS, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Concerned Citizens For Equality (CCE)
brought this suit against Defendants-Appellees the County
Commissioners of Orange County, Texas (Commissioners), alleging
that the current four-precinct, single-member structure used to
elect Constables and Justices of the Peace in Orange County (JP
Precincts) dilutes black voting strength and thus violates § 2 of
the Voting Rights Act (VRA).1
The Commissioners moved for summary judgment, contending that,
as blacks were not a majority in any of the four existing JP
Precincts, CCE could not satisfy requirements of Thornburg v.
Gingles.2 CCE countered that if Orange County were divided into
five JP Precincts (rather than the four that presently exist), CCE
1
42 U.S.C. § 1973 (1988).
2
478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).
1
could, under these hypothetical facts, satisfy the Gingles
preconditions. The district court agreed with the Commissioners'
contention that, under the existing system, CCE could not satisfy
the first Gingles precondition, and reasoned further that the
Supreme Court's recent decision in Holder v. Hall3 foreclosed
consideration of CCE's hypothetical five-precinct model as an
alternative way around that aspect of Gingles. The district court
therefore granted partial summary judgment in favor of the
Commissioners and against CCE, dismissing its § 2 voting rights
claim. On appeal from the court's Rule 54(b) judgment, CCE asks us
to reverse the district court for erroneously applying Holder to a
dilution claim involving a judicial election. We decline CCE's
request, and, instead, affirm the district court's judgment.
I.
FACTS AND PROCEEDINGS
The facts and proceedings in this case were elaborately and
articulately set forth by the district court.4 Thus, we highlight
only the essential facts.
A. PROCEDURAL POSTURE
CCE, an unincorporated association of black voters residing in
Orange County, brought this suit against the Commissioners. CCE's
complaint alleged that the current judicial precinct structure,
consisting of four single-member JP Precincts, minimized black
3
--- U.S. ----, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994).
4
See Concerned Citizens For Equality v. McDonald, 863
F.Supp. 393 (E.D.Tex.1994).
2
voters' opportunity to participate in the political process and to
elect representatives of their choice, and thus diluted their
voting strength in violation of § 2 of the VRA5 and the Fourteenth
and Fifteenth Amendments.6 The Commissioners answered and moved
for summary judgment on the § 2 voting rights claim, explaining
that, under the current system, blacks did not constitute a
majority in any of the JP Precincts. As a consequence, urged the
Commissioners, CCE failed to satisfy the first of the three Gingles
preconditions.7 CCE responded by filing its own motion, seeking
summary judgment on its § 2 voting rights claim and arguing that if
a hypothetical fifth JP Precinct (a majority-black precinct) were
created, CCE could then satisfy the first Gingles precondition and
state a claim for dilution under § 2 of the VRA. In essence, CCE
challenged the Commissioners' decision to retain the four-precinct
system rather than change to CCE's hypothetical five-precinct
electoral system for electing Constables and Justices of the Peace
in Orange County.
B. THE DISTRICT COURT'S OPINION
As the Supreme Court had a similar case under advisement at
5
28 U.S.C. § 1973.
6
U.S. Const.Amend. XIV & XV.
7
Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92
L.Ed.2d 25 (1986), requires a showing that (1) "the minority
group ... is sufficiently large and geographically compact to
constitute a majority in a single-member district," 478 U.S. at
50, 106 S.Ct. at 2766, (2) that the minority group is politically
cohesive, and (3) that the majority group "votes sufficiently as
a bloc to enable it—in the absence of special circumstances ...
usually to defeat the minority's preferred candidate." Id. at
51, 106 S.Ct. at 2766-2767.
3
the time of these cross-motions for partial summary judgment, the
district court delayed its ruling until the Court issued its
opinion in Holder v. Hall.8 Interpreting Holder, the district
court held that, absent a benchmark, "[n]o vote dilution claim
exists under § 2 of the Voting Rights Act if expansion of the size
of the existing governing body must occur to satisfy the first
Gingles factor."9 As CCE's § 2 voting rights claim had thus run
aground and foundered on the rocks and shoals of Holder, the
district court entered partial summary judgment pursuant to
Fed.R.Civ.P. 54(b) in favor of the Commissioners, dismissing CCE's
voting rights claim.10 CCE timely appealed.
C. CCE'S ARGUMENTS ON APPEAL
On appeal, CCE advances two arguments in an effort to salvage
its foundered ship. First, CCE attempts to distinguish Holder in
the following manner: (1) Holder applies to a "governmental body";
(2) the Constables and Justices of the Peace in Orange County are
not a "governmental body"; (3) therefore Holder is inapplicable.
Second, CCE contends that even if Holder were applicable, the Texas
Constitution supplies that opinion's necessary "benchmark,"
allowing us to consider whether the size of the governmental
authority dilutes black voting strength in Orange County.
8
--- U.S. ----, 114 S.Ct. 2581, 129 L.Ed.2d 687 (1994).
9
Concerned Citizens, 863 F.Supp. at 404 (citing Holder, ---
U.S. at ----, 114 S.Ct. at 2586).
10
The separate claims under the Fourteenth and Fifteenth
Amendments have yet to be addressed by the district court. These
constitutional claims are not before us and we neither express
nor imply an opinion on the merits of these claims.
4
II.
ANALYSIS
A. STANDARD OF REVIEW
We review the district court's grant of a motion for summary
judgment de novo, applying the same standard as the district court
applied.11 The parties have raised no questions of fact; this
appeal involves only questions of law. Questions of law are
decided just as they are outside of the summary judgment context:
de novo.12
B. SECTION 2 OF THE VOTING RIGHTS ACT
Section 2 of the VRA prohibits any "qualification or
prerequisite to voting or standard, practice, or procedure ...
which results in a denial or abridgement of the right of any
citizen of the United States to vote on account of race or color"
or membership in a language minority group.13 To prove that using
a multimember district dilutes minority votes in violation of § 2,
members of a protected minority group must establish three
"necessary preconditions."14 "First, the minority group must be ...
sufficiently large and geographically compact to constitute a
11
Berry v. Armstrong Rubber Co., 989 F.2d 822, 824 (5th
Cir.1993); Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th
Cir.) (citations omitted), cert. denied, --- U.S. ----, 113 S.Ct.
462, 121 L.Ed.2d 371 (1992).
12
Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th
Cir.1988).
13
42 U.S.C.A. § 1973(a).
14
Thornburg v. Gingles, 478 U.S. 30, 50, 106 S.Ct. 2752,
2766, 92 L.Ed.2d 25 (1986).
5
majority in a single-member district."15 "Second, the minority
group must be ... politically cohesive."16 And third, the majority
must vote "sufficiently as a bloc to enable it ... usually to
defeat the minority's preferred candidate."17 Each of these
preconditions is necessary; the absence of any one of them
precludes a § 2 dilution violation.18
As blacks do not constitute a majority in any of the four
extant JP Precincts in Orange County, CCE cannot satisfy the first
Gingles precondition. In an attempt to avoid this fatal defect,
CCE argues that if a hypothetical fifth, majority-black precinct
were created, CCE could then satisfy the Gingles preconditions.
This argument, however, is precluded by Holder.
C. HOLDER V. HALL
Holder involved a challenge to the size—in number of
Commissioners—of a multimember county commission which performed
all the legislative and executive functions in a Georgia county.
A five-justice majority of the Supreme Court concluded that a
voting rights plaintiff cannot maintain a § 2 challenge to the size
of a governmental body unless an "objective and workable standard
for choosing a benchmark by which to evaluate a challenged voting
practice" can be identified.19 The Court reasoned that without such
15
Id. at 50, 106 S.Ct. at 2766.
16
Id. at 51, 106 S.Ct. at 2766.
17
Id.
18
Brewer v. Ham, 876 F.2d 448, 451 (5th Cir.1989).
19
--- U.S. at ----, 114 S.Ct. at 2588, 129 L.Ed.2d at 695.
6
a benchmark, the size of a governmental body cannot be challenged
as dilutive under § 2 because "[t]here is no principled reason why
one size should be picked over another...."20 We write today to
answer two supplemental questions posed by the instant case.
First, does Holder apply to a county-wide, multiple precinct
structure for electing judicial officers? Second, if so, does the
Texas Constitution provide an "objective and workable" benchmark
that would allow us to consider whether the numerical size of that
structure dilutes minority voting strength?
1. Holder and the JP Precincts
CCE contends that Holder is inapplicable to judicial
elections. In Holder, the Supreme Court held that challenges to
the numerical size of a "governmental authority" or a "governmental
body" are precluded.21 Locking in on those terms, CCE observes that
this case involves judicial precincts, not a "governmental body",
and submits that to apply Holder to a county's judicial precincts
would be an error. We disagree.
Both Supreme Court and Fifth Circuit precedent state that
judicial elections are subject to § 2 of the VRA.22 Holder is a
20
Id.
21
Id. at ---- - ----, 114 S.Ct. at 2586-88, 129 L.Ed.2d at
694-96.
22
See Chisom v. Roemer, 501 U.S. 380, 403, 111 S.Ct. 2354,
2368, 115 L.Ed.2d 348 (1991) (state judicial elections are
covered by § 2); Houston Lawyers' Ass'n v. Attorney General of
Texas, 501 U.S. 419, 424, 111 S.Ct. 2376, 2380, 115 L.Ed.2d 379
(1991) (section 2 of the VRA applies to "executive officers and
... judges whose responsibilities are exercised independently in
an area coextensive with the districts from which they are
elected"); League of United Latin Am. Citizens v. Clements, 999
7
controlling Supreme Court precedent and, a fortiori, must be
considered in our review of § 2 vote dilution claims. The question
remains, however, just how does Holder apply to the instant case.
In its narrowest sense, Holder stands for the proposition that
when challenging the numerical size of a multimember, collegial
county commission, a plaintiff may not, absent a "benchmark", posit
a hypothetical expansion of the size of that multimember body.23
Thus, Holder is not a perfectly congruent precedent, factually
replicating and surgically resolving the precise issue now before
us. Nevertheless, in the teachings of Holder we discern a broader
and more generally applicable proposition: In a § 2 vote dilution
claim, grounded in the numerical size of a governmental body, the
plaintiff cannot beg the first prong of Gingles. In other words,
when the existing size of the governmental body precludes a
plaintiff from satisfying the first prong of Gingles, that
plaintiff may not invoke hypothetical mutations and
transfigurations of the existing political structure to circumvent
that Gingles prerequisite. Such a use of hypotheticals would
nullify the first prong, for whenever the first Gingles prong
presented a problem, a plaintiff would only need to hypothesize
some other political structure under which the first Gingles
precondition would be met. The preconditions set forth in Gingles
are necessary: Voting rights plaintiffs may not employ a
self-serving thought experiment to leap-frog one of the "necessary"
F.2d 831, 838 (5th Cir.1993).
23
--- U.S. at ----, 114 S.Ct. at 2588, 129 L.Ed.2d at 697.
8
Gingles preconditions.
Based on this lesson of Holder, we acknowledge that when a
state elects its judges, as Texas has done in its JP Precincts, 24
those elections must be conducted in compliance with the VRA and
the Supreme Court's interpretations of the VRA, including Holder.
CCE's judiciary-exclusive interpretation of "governmental body" is
spuriously narrow and simply wrong. We find nothing in Holder
indicating that the Supreme Court's use of the term "governmental
body" overruled, modified, or otherwise changed its consistent
position that the VRA applies to judicial elections. Neither do we
discern in Holder anything to indicate that its teachings are
limited to elections of "representatives" from single-member
districts or precincts who, together with similarly elected
colleagues from other such districts, function as a multimember
deliberative body, such as appellate courts, county commissions,
school boards, or boards of aldermen.
Following Supreme Court precedent as well as our own, we hold
that, in general, Holder does apply to the election of "judges
whose responsibilities are exercised independently in an area
coextensive with the districts from which they are elected."25 In
this particular case, Holder applies to the election of Justices of
the Peace and Constables from Orange County's existing four JP
24
At oral argument, counsel for CCE stated that under the
Texas system, the geographical jurisdiction of a Justice of the
Peace is coextensive with the boundaries of its electoral
precinct.
25
Houston Lawyers', 501 U.S. at 424, 111 S.Ct. at 2380.
9
Precincts and forecloses consideration of CCE's hypothetical
five-precinct arrangement.
2. Is "For The Convenience of the People" a Benchmark?
In Holder, the Supreme Court observed that if a "benchmark"—a
principled reason why a given number of precincts or districts is
preferable to another—against which to test a challenged voting
practice can be identified, a voting rights plaintiff may challenge
the numerical size of a governmental body.26 CCE argues that the
Texas Constitution provides such a benchmark for determining the
number of JP Precincts for a given county.
The Texas Constitution states that "for the convenience of the
people," counties with a population of 30,000 or more "shall be
divided into not less than four and not more than eight [Justice of
the Peace] precincts."27 The Texas Constitution offers no guidance
whatsoever for determining whether a covered county should have
four, five, six, seven, or eight JP Precincts, yet CCE urges that
the phrase "for the convenience of the people" supplies the
necessary benchmark. We must disagree.
As the Supreme Court stated, a benchmark must be derived from
an "objective and workable standard" that allows a court "to
evaluate a challenged voting practice."28 Although at this juncture
the precise contours of the term "benchmark" have yet to be
described, we are confident that the elastic and amorphous phrase,
26
--- U.S. at ----, 114 S.Ct. at 2588, 129 L.Ed.2d at 697.
27
Texas Constitution art. 5, § 18.
28
--- U.S. at ----, 114 S.Ct. at 2586, 129 L.Ed.2d at 695.
10
"for the convenience of the people," cannot supply the type of
"objective and workable standard" that the Supreme Court envisions.
In the for-the-convenience-of-the-people benchmark suggested by
CCE, we are simply unable to discern any standard, much less an
"objective and workable" one, by which to evaluate the dilutive
effect of the four-precinct system.
III.
CONCLUSION
In closing, we reiterate that Holder controls, dictating that
a dilution claim under § 2 of the VRA, challenging the size of an
elected "governmental body"—whether it be legislative, executive,
or judicial—cannot be maintained absent a readily identifiable
"benchmark by which to evaluate a challenged voting practice."29
The state constitutional provision proffered by CCE cannot supply
the requisite benchmark; and, without such a benchmark, CCE's
hypothetical five-precinct model cannot pass muster under Holder.
Accordingly, we AFFIRM, in all respects, the judgment of the
district court dismissing CCE's § 2 voting rights claim, and REMAND
this case for further proceedings concerning CCE's remaining
claims.
AFFIRMED and REMANDED.
29
Id.
11