1 42 U.S.C. § 1973 (1988).

2 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).

1 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), CCE3 --- 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 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

S upreme Court's recent decision in Holder v. Hall 3 forecl osed

consideration of CCE's hypothetical five-precinct model as an

alternative way around that aspect of Gingles. The district court

t herefore granted partial summary judgment in favor of th e

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 judic ial 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. P ROCEDURAL P OSTURE

CCE, an unincorporated association of black voters residing in

Orange County, brought this suit against the Commissioners. CCE's

complaint alleged that t he current judicial precinct structure,

consisting of four single-member JP Precinc ts, minimized black5 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 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 VRA 5 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 c h ange to CCE's hypothetical five-precinct

electoral system for electing Constables and Justices of the Peace

in Orange County.

B. T HE D ISTRICT C OURT ' S O PINION

As the Supreme Court had a similar case under advisement at8 --- 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 the time of these cross-motions for partial summary judgment, the

district cour t delayed its ruling until the Court issued its

opinion in Holder v. Hall. 8 Interpreting H older, 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 en tered 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 A RGUMENTS O N A PPEAL

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) H older 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 t o consider whether the size of the governmental

authority dilutes black voting strength in Orange County.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 II.

ANALYSIS

A. S TANDARD OF R EVIEW

We review the district court's grant of a motion for summary

judgment de novo, applying the same standard as the district court

applied. 1 1 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. S ECTION 2 OF THE V OTING R IGHTS A CT

Section 2 of the VRA prohibits any "qualif ication or

prerequisite to voting or standard, practice, or procedure

...

which results in a denial or abri dgement 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 minori ty group must establish three

"necessary preconditions." 14 "First, the minority group must be ...

sufficiently large and geographically compact to const i tute a15 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 maj ority in a single-member district." 1 5 "Second, the minority

group must be

... politically cohesive." 16 And third, the majority

must vote "sufficiently as a bloc to ena ble it ... usually to

defeat the minority's preferred c andidate." 1 7 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 majori ty 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 precondit ions.

This argument, however, is precluded by Holder.

C. H OLDER V

. H ALL

Holder involved a challenge to the size—in number of

Commissioners—of a multimember county commission which performed

all the legislative a nd executive functions in a Georgia county.

A five-justice majority of the Suprem e 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 such20 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 a benchmark, the size of a governmental body cannot be challenged

as dilutive under § 2 because "[t]here is no principled reason why

o ne size should be picked over another...." 2 0 We write today to

answer two supplemental questions posed by the instant case.

First, does H older apply to a county-wide, multiple precinct

structure for electing judicial officers? Second, if so, does the

Texas Constitutio n 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 t o judicial

elections. In H older, 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

j udicial elections are subject to § 2 of the VRA. 2 2 H older is aF.2d 831, 838 (5th Cir.1993).

23 --- U.S. at ----, 114 S.Ct. at 2588, 129 L.Ed.2d at 697.

8 controlling Supreme Court precede nt 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 nume rical 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 H older 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

pla intiff from satisfying the first prong of G ingles, that

plaintiff may not invoke hypothetical mutations and

transfigurations of the existing political structure to circumvent

that Gingles pr erequisite. Such a use of hypotheticals would

nullify the first prong, for whenever the first Gingle s prong

presented a p roblem, 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 G ingles

are necessary: Voting rights plaintiffs may not employ a

self-serving thought experiment to leap-frog one of the "necessary"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 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, 2 4

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 H older

indicating that the Supreme Court's use of the term "governmental

body" o verruled, 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

dist ricts or precincts who, together with similarly elected

colleagues from other such districts, funct ion as a multimember

deliberative body, such as appellate courts, coun ty 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 JP26 --- 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 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 governmen tal body. 2 6 CCE argues that the

Texas Constitution provid es 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 de termining 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,29 Id.

11

"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 challen ged voting practice." 2 9

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.