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REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-50714.

LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC) OF TEXAS,

Plaintiff-Appellant,

v.

STATE OF TEXAS, Defendant-Appellee.

May 27, 1997.

Appeal from the United States District Court for the Western

District of Texas.

Before DAVIS, STEWART and PARKER, Circuit Judges.

PER CURIAM:

The sole issue on appeal is whether the single-judge district

court erred in determining that LULAC's claim under § 5 of the

Voting Rights Act of 1965, 42 U.S.C. § 1973c (1994), is "wholly

insubstantial" and, thus, undeserving of the attention of a

three-judge court. Because we conclude that neither the legal nor

the factual aspects of LULAC's claim is wholly insubstantial, we

reverse and remand for the convening of a three-judge court.

I.

On June 20, 1996, Associate Justice Phil Hardberger of the

Fourth District Court of Appeals for the State of Texas tendered

his resignation, effective January 1, 1997, to Texas Governor

George W. Bush. The practice in Texas had been that if an elected

state official other than a judge submitted a written resignation

during an election year, then, under § 201.023 of the Texas
 

1Tex. Elec.Code § 201.023 (West 1986 & Supp.1997) provides:

If an officer submits a resignation, whether to be

effective immediately or at a future date, a vacancy

occurs on the date the resignation is accepted by the

appropriate authority or on the eighth day after its

receipt by the authority, whichever is earlier. 

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Election Code,1 the submission triggered an election to fill that

office, even though the official intended to occupy the position

until after the election. The parties dispute whether such a

practice ever existed for state judicial positions.

Governor Bush, however, determined that his acceptance of

Justice Hardberger's resignation created an immediate vacancy on

the Fourth District Court of Appeals to which he appointed Karen

Angelini to serve on an interim basis until the November elections.

Justice Hardberger refused to step down, and the State of Texas

sought an emergency writ of quo warranto in the Texas Supreme Court

barring Justice Hardberger from interfering with Angelini's

appointment.

On August 30, 1996, the Texas Supreme Court handed down its

decision in State ex rel. Angelini v. Hardberger, 932 S.W.2d 489

(Tex.1996). The court held, first, that because the Texas

Constitution prescribes the term judges hold office, no vacancy

could occur for election or constitutional purposes until Justice

Hardberger vacated his office on January 1, 1997. Second, the

court held that any interpretation of § 201.023 that permits an

incumbent judge to trigger an election to fill his vacancy by

tendering his resignation prior to a general election while holding

office until after the election unlawfully abridges the governor's
 

2Article V, § 28 provides in relevant part:

Vacancies in the office of judges of the Supreme Court,

the Court of Criminal Appeals, the Court of Civil Appeals

and the District Courts shall be filled by the Governor

until the next succeeding general election. 

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appointment power under Article V, § 28 of the Texas Constitution.2

Hardberger, 932 S.W.2d at 495. As a result, although both the

Democratic and Republican parties had nominated candidates to run

for Hardberger's position on November 5, 1996, no election was

held, and Angelini was appointed to the position shortly after

Hardberger's departure. The next succeeding general election is in

November 1998.

LULAC filed this action to require the "new rules" in Texas's

election laws announced in Hardberger to be precleared pursuant to

§ 5 of the Voting Rights Act, 42 U.S.C. § 1973c, before they are

implemented. The district court, without convening a three-judge

court, ruled on the state's motion to dismiss, concluded that no

election change had occurred since the constitutional provision

interpreted by the Texas Supreme Court pre-dated the applicability

of § 5 to Texas, and dismissed appellants claims pursuant to

Fed.R.Civ.P. 12(b)(6). This appeal ensued.

II.

Generally, actions by private individuals seeking declaratory

and injunctive relief against violations of § 5 must be referred to

a three-judge court for the determination of whether the political

subdivision has adopted a change covered by § 5 without first

obtaining preclearance. Allen v. State Board of Elections, 393
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U.S. 544, 554-63, 89 S.Ct. 817, 825-31, 22 L.Ed.2d 1 (1969);

Trinidad v. Koebig, 638 F.2d 846 (5th Cir.1981); Sumter County

Democratic Executive Comm. v. Dearman, 514 F.2d 1168, 1170 (5th

Cir.1975). However, where § 5 claims are "wholly insubstantial"

and completely without merit, such as where the claims are

frivolous, essentially fictitious, or determined by prior case law,

a single judge may dismiss the claims without convening a

three-judge court. See, e.g., United States v. Saint Landry Parish

Sch. Bd., 601 F.2d 859, 863 (5th Cir.1979); Broussard v. Perez,

572 F.2d 1113, 1118 (5th Cir.), cert. denied, 439 U.S. 1002, 99

S.Ct. 610, 58 L.Ed.2d 677 (1978); Carr v. Edwards, 1994 WL 419856

(E.D.La. Aug. 8, 1994).

Texas advances two arguments for why LULAC's claim was

properly dismissed as wholly insubstantial. First, it argues that

state court interpretations of previously precleared state law are

not subject to § 5 preclearance. Second, it argues that the Texas

Supreme Court's ruling in Hardberger does not effect a change in

Texas' practice or procedure for filling a vacancy left by a judge

who resigns prior to the expiration of his elected term.

A.

The district court rejected Texas's contention that state

court interpretations of precleared state law are not subject to §

5 preclearance, concluding that the Supreme Court's decision in

Hathorn v. Lovorn, 457 U.S. 255, 102 S.Ct. 2421, 72 L.Ed.2d 824

(1982), overruled a well-developed line of cases holding that state

court constructions of precleared state law generally do not invoke
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§ 5's preclearance requirement. See, e.g., Gangemi v. Sclafani,

506 F.2d 570, 572 (2nd Cir.1974); Williams v. Sclafani, 444

F.Supp. 895, 904 (S.D.N.Y.1977); Webber v. White, 422 F.Supp. 416,

427 (N.D.Tex.1976); Eccles v. Gargiulo, 497 F.Supp. 419, 422

(E.D.N.Y.1980). While arguably the Supreme Court's holding in

Hathorn need not be read so broadly, one three-judge district court

appears to have reached the same conclusion as the district court,

see Gresham v. Harris, 695 F.Supp. 1179, 1183-84 (N.D.Ga.1988),

aff'd sub nom., Poole v. Gresham, 495 U.S. 954, 110 S.Ct. 2556, 109

L.Ed.2d 739 (1990). Under the circumstances, we cannot conclude

that from a legal standpoint LULAC's claim is "wholly

insubstantial." See Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct.

854, 859, 35 L.Ed.2d 36 (1973) ("[C]laims are constitutionally

insubstantial only if the prior decisions inescapably render the

claims frivolous; previous decisions that merely render claims of

doubtful or questionable merit do not render them

insubstantial...."); Armour v. Ohio, 925 F.2d 987, 989 (6th

Cir.1991) ("A claim is unsubstantiated only when it is obviously

without merit or clearly determined by previous case law.").

B.

The same conclusion applies to the factual basis for LULAC's

claim. The district court concluded that no change had occurred in

Texas's election practices because the Texas Supreme Court's

decision in Hardberger, 932 S.W.2d 489 (Tex.1996), merely confirmed

what had always been true about the governor's constitutional

appointment powers. However, in determining whether a voting
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change has occurred, a court must look to the state's actual

practices, not to what those practices should have been under a

correct application of the state's voting law. See Perkins v.

Matthews, 400 U.S. 379, 394, 91 S.Ct. 431, 439-40, 27 L.Ed.2d 476

(1971); City of Lockhart v. United States, 460 U.S. 125, 132-33,

103 S.Ct. 998, 1002-04, 74 L.Ed.2d 863 (1983).

It is undisputed that an election was held in almost identical

circumstances in 1988 after the Texas Supreme Court handed down its

decision in Texas Democratic Executive Comm. v. Rains, 756 S.W.2d

306 (Tex.1988). In that case, the court held that Tex. Elec.Code

§ 201.023 prevented the governor from refusing to accept the

resignation of a judge in Justice Hardberger's position, thus

triggering an election for the position. Rains also makes it clear

that the resigning judge remained in office until after the

election. It is also undisputed that at the time the Texas Supreme

Court decided Hardberger, the major political parties already had

selected candidates for the ballot to fill Justice Hardberger's

vacancy and the state was prepared to elect Justice Hardberger's

replacement. Under these circumstances, LULAC's claim as to the

existence of the practice is not wholly insubstantial.

III.

Because we conclude that neither the legal nor the factual

basis for LULAC's § 5 claim is "wholly insubstantial," we reverse

the district court's order dismissing LULAC's claim and remand for

the convening of a three-judge court pursuant to 42 U.S.C. § 1973c.

REVERSED and REMANDED.
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