UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES E. RAGAN, III,
Plaintiff-Appellee,

and

REPUBLICAN PARTY OF NORTH
CAROLINA; MARVIN K. GRAY; BRUCE
BRIGGS; FREDERIC M. GALLAGHER;
LLOYD FOWLER; JOE R. WILSON;
R. WALTER WHITE; RALPH A.
WALKER; EDGAR A. READLING, JR.;
R. HOWARD RIDDLE; WILLIAM R.
SIGMON,
Plaintiffs,

v.

JAMES R. VOSBURGH,
Defendant-Appellant,
                                   No. 96-2621
JAMES B. HUNT, Governor of North
Carolina; JUNE K. YOUNGBLOOD;
EDWARD J. HIGH; JEAN H. NELSON;
LARRY LEAKE; DOROTHY PRESSER;
NORTH CAROLINA STATE BOARD OF
ELECTIONS,
Defendants-Appellees,

and

NORTH CAROLINA ASSOCIATION OF
BLACK LAWYERS; DURHAM COUNTY
BOARD OF ELECTIONS; FORSYTH
COUNTY BOARD OF ELECTIONS;
GUILFORD COUNTY BOARD OF
ELECTIONS; CARL L. TILGHMAN,
Defendants.
JAMES E. RAGAN, III,
Plaintiff-Appellee,

and

REPUBLICAN PARTY OF NORTH
CAROLINA; MARVIN K. GRAY; BRUCE
BRIGGS; FREDERIC M. GALLAGHER;
LLOYD FOWLER; JOE R. WILSON;
R. WALTER WHITE; RALPH A.
WALKER; EDGAR A. READLING, JR.;
R. HOWARD RIDDLE; WILLIAM R.
SIGMON,
Plaintiffs,

v.

JAMES B. HUNT, Governor of North
Carolina; JUNE K. YOUNGBLOOD;
                                   No. 96-2687
EDWARD J. HIGH; JEAN H. NELSON;
LARRY LEAKE; DOROTHY PRESSER;
NORTH CAROLINA STATE BOARD OF
ELECTIONS,
Defendants-Appellants,

JAMES R. VOSBURGH, CARL L.
TILGHMAN,
Defendants-Appellees,

and

NORTH CAROLINA ASSOCIATION OF
BLACK LAWYERS; DURHAM COUNTY
BOARD OF ELECTIONS; FORSYTH
COUNTY BOARD OF ELECTIONS;
GUILFORD COUNTY BOARD OF
ELECTIONS,
Defendants.

                2
JAMES E. RAGAN, III,
Plaintiff-Appellee,

and

REPUBLICAN PARTY OF NORTH
CAROLINA; MARVIN K. GRAY; BRUCE
BRIGGS; FREDERIC M. GALLAGHER;
LLOYD FOWLER; JOE R. WILSON;
R. WALTER WHITE; RALPH A.
WALKER; EDGAR A. READLING, JR.;
R. HOWARD RIDDLE; WILLIAM R.
SIGMON,
Plaintiffs,

v.

CARL L. TILGHMAN,
Defendant-Appellant,
                                   No. 96-2739
JAMES B. HUNT, Governor of North
Carolina; JUNE K. YOUNGBLOOD;
EDWARD J. HIGH; JEAN H. NELSON;
LARRY LEAKE; DOROTHY PRESSER;
NORTH CAROLINA STATE BOARD OF
ELECTIONS,
Defendants-Appellees,

and

NORTH CAROLINA ASSOCIATION OF
BLACK LAWYERS; DURHAM COUNTY
BOARD OF ELECTIONS; FORSYTH
COUNTY BOARD OF ELECTIONS;
GUILFORD COUNTY BOARD OF
ELECTIONS; JAMES R. VOSBURGH,
Defendants.

                 3
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CA-88-263-5-F)

Argued: March 3, 1997

Decided: April 10, 1997

Before RUSSELL, WILKINS, and HAMILTON, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished opinion. Judge Wilkins wrote the opinion,
in which Judge Russell and Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: George Gray Cunningham, CUNNINGHAM & GRAY,
P.A., Wilkesboro, North Carolina; Carl Lewis Tilghman, Beaufort,
North Carolina, for Appellants. Norman Smithwick Harrell, Special
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina; James Edward Ragan, III, Orien-
tal, North Carolina, for Appellees. ON BRIEF: Michael F. Easley,
North Carolina Attorney General, Edwin M. Speas, Jr., Senior Deputy
Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Following a remand by this court, the district court reaffirmed its
prior holding that the statewide method of electing superior court

                    4
judges in North Carolina that was in effect when this lawsuit was filed
in 1987 constituted a political gerrymander intended to deprive mem-
bers of the Republican Party, and those aligned with it, of rights guar-
anteed under the Equal Protection Clause of the Fourteenth
Amendment. In addition, the district court considered a measure,
known as Chapter 9, enacted by the North Carolina General Assem-
bly while this action was pending before the district court on remand.
Chapter 9 prospectively altered the method of election for superior
court judges and confirmed that the results of the 1994 elections for
superior court judges were properly decided on the basis of a district-
wide vote. The district court ruled that Chapter 9 mooted this action
with respect to elections subsequent to 1994 and was not violative of
the due process or equal protection guarantees of the United States
Constitution to the extent that it purported to determine retroactively
the victors of the 1994 elections. James R. Vosburgh and Carl L.
Tilghman appeal, urging us to hold that the statewide election scheme
in effect when this litigation was filed was constitutional and that the
retroactive aspect of Chapter 9 is unconstitutional. Because Vosburgh
and Tilghman are judicially estopped from asserting the constitution-
ality of the election scheme in effect when this litigation was filed, we
conclude that this action is moot. Thus, we dismiss this appeal.

I.

The Republican Party of North Carolina and others (collectively,
"RPNC") brought this action in 1987 against the North Carolina State
Board of Elections and others (collectively, "NCSBE"), challenging
the method in effect at that time for electing superior court judges in
North Carolina. That scheme involved partisan, districtwide primaries
followed by partisan, statewide elections. RPNC claimed that this
method of election constituted a political gerrymander intended to
deprive members of the Republican Party, and those aligned with it,
of rights guaranteed under the First Amendment and the Equal Protec-
tion Clause of the Fourteenth Amendment. RPNC sought declaratory
and injunctive relief.

In an earlier appeal, we reversed a decision of the district court dis-
missing RPNC's complaint on the basis that it raised a nonjusticiable
controversy. See Republican Party of N.C. v. Martin, 980 F.2d 943
(4th Cir. 1992) (RPNC I). After concluding that the controversy was

                     5
justiciable, we determined that the complaint failed to state a claim
for which relief could be granted for violations of the First Amend-
ment, but that the complaint adequately stated a claim under the Four-
teenth Amendment. See id. at 961. Specifically, we held that RPNC
sufficiently alleged a prima facie case of vote dilution brought about
by political gerrymandering, i.e., it alleged "`intentional discrimina-
tion against an identifiable political group and an actual discrimina-
tory effect on that group.'" Id. at 955 (quoting Davis v. Bandemer,
478 U.S. 109, 127 (1986)); see id. at 955-58. Accordingly, we
reversed in part and remanded for further proceedings. See id. at 961.

On remand, RPNC sought preliminary injunctive relief. Applying
the balancing of hardships test set forth in Blackwelder Furniture Co.
of Statesville v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977), the dis-
trict court concluded that preliminary relief was appropriate. See
Republican Party of N.C. v. Hunt, 841 F. Supp. 722, 726-33
(E.D.N.C. 1994). In considering NCSBE's appeal from that order, we
concluded that the district court had not abused its discretion in deter-
mining that some form of preliminary injunctive relief was appropri-
ate; however, we held that the preliminary relief ordered by the
district court went too far by requiring that the winners of the elec-
tions be determined by the districtwide results. See Republican Party
of N.C. v. North Carolina State Bd. of Elections, 27 F.3d 563 (4th Cir.
June 17, 1994) (unpublished table decision) (RPNC II). We explained
that this requirement created a situation in which, if NCSBE prevailed
on the merits after newly elected judges had been seated, it would be
necessary to unseat judges who were elected on a districtwide basis
and replace them with the statewide winners. We were convinced that
this prospect established more than a likelihood of minor harm. Fur-
ther, we specifically noted that the requirement imposed by the dis-
trict court that the winners of the elections be determined by
districtwide results would deprive North Carolina, through its legisla-
ture, of the first opportunity to determine how to remedy the constitu-
tional violation, if one was found. Accordingly, we modified the
preliminary relief ordered by the district court to omit the requirement
that the prevailing candidates in the districtwide elections be declared
the winners of the elections. Instead, we ordered that if the November
1994 elections produced a situation in which the winners in the state-
wide elections were not the winners as tallied by the other methods
required under the district court order, the judges who held those seats

                    6
were to holdover in office until such time as the litigation and appro-
priate relief, if required, was finally resolved.

On remand, the district court heard the merits of the case based on
311 stipulations submitted by the parties and documentary evidence.
Thereafter, on November 3, 1994, just five days before scheduled
elections, the district court entered an order ruling in favor of RPNC
on the merits. The district court found that RPNC had proven that the
electoral system for superior court judges was implemented and main-
tained with a discriminatory motive of promoting the political agenda
of the Democratic Party. Further, the court found that RPNC had ade-
quately demonstrated discriminatory effects that were more than de
minimis. The district court explained that NCSBE had proffered four
justifications for the electoral system: (1) that the electoral base
should reflect the jurisdictional base of the judges (i.e., that superior
court judges possessed statewide jurisdiction and so should be
selected statewide); (2) districtwide elections would deprive persons
outside the district, but in the division where the judge regularly sits,
the opportunity to vote for the judge who regularly holds court in their
division; (3) statewide elections foster independence of the judiciary
by preventing judges from having to rely on a small constituency for
election; and (4) districtwide elections would be inconsistent with
rotation within the division. Although the court found the proffered
goals to be facially valid, it concluded that none were rationally
related to the statewide election system. Accordingly, the court deter-
mined that the proffered justifications were pretextual in nature and
did not justify the "egregious discrimination." J.A. 5317a.

Having thus decided the merits of the litigation in RPNC's favor,
the district court ordered a permanent injunction. The court required
that tallies of the November 1994 election results be maintained for
the state, division, and district, but ordered that judicial elections
would be conducted, and the winners of the elections would be
declared, based on the district election results"until such time as the
North Carolina General Assembly takes steps to fashion an alternative
remedial plan for the election of superior court judges that meets with
applicable constitutional requirements." J.A. 5320a. Further, the court
enjoined the defendants from reinstituting the statewide election sys-
tem in the future.

                    7
When elections went forward on November 8, 1994, all eight of the
Republican candidates vying for superior court judgeships were
elected at the state level. These startling results were directly at odds
with the prediction of the district court only five days earlier that
Republican electoral exclusion would continue into the future under
the statewide election scheme. NCSBE, however, did not move the
district court to reconsider its decision in light of the results of the
1994 elections pursuant to Federal Rules of Civil Procedure 59 or
60(b). Instead, NCSBE appealed.

As a result of the November 1994 elections, five Republican candi-
dates for superior court judgeships were seated. Two Republican can-
didates, James R. Vosburgh and Carl L. Tilghman, were defeated at
the district level, and the candidacy of a third was invalidated in a
separate proceeding because he failed to comply with a residency
requirement. The Democrat incumbent judges who prevailed in the
elections at the district level were seated and commissioned for eight-
year terms pursuant to the injunctive relief ordered by the district
court.

In considering NCSBE's appeal from the decision of the district
court that the statewide election scheme was unconstitutional, we
became convinced that the results of the 1994 elections should be
taken into account and that the district court should be given the
opportunity to reconsider its decision in light of those results in the
first instance. Therefore, we remanded to permit the district court to
reconsider its decision in light of the results of the 1994 elections. See
Republican Party of N.C. v. Hunt, 77 F.3d 470 (4th Cir. 1996) (per
curiam) (unpublished table decision) (RPNC III ).

While the action was pending before the district court on remand,
Judge James E. Ragan, III--one of the Democrat incumbents who
retained his seat because he had prevailed at the district level, but who
had not been victorious in the statewide election--was permitted to
intervene. In addition, Vosburgh and Tilghman--the two Republican
judges who won at the state level, but were not seated because they
lost at the district level--were permitted to intervene. The district
court, however, indicated that it was not inclined to rule until the
North Carolina legislature had had an opportunity to act.

                     8
On August 2, 1996, the North Carolina General Assembly enacted
legislation addressing the method for electing superior court judges.
Referred to as Chapter 9 throughout this litigation, the legislation pro-
vided that in the future superior court judges would be elected by dis-
trict; elections after 1996 would be conducted on a nonpartisan basis.
Furthermore, Chapter 9 ratified and confirmed the 1994 election of
judges by district.1

Vosburgh and Tilghman maintained that the district court should
declare Chapter 9 unconstitutional to the extent that it purported to
alter retroactively the method of electing superior court judges. They
asserted that to the extent that Chapter 9 professed to determine the
results of the 1994 elections, it deprived them of the due process and
equal protection guarantees encompassed in the Fourteenth Amend-
ment. Furthermore, they contended that the statewide method of elec-
tion was constitutional and that, accordingly, as victors at the state
level in the 1994 elections, they were entitled to be seated as superior
court judges.

The district court disagreed. It concluded that Chapter 9 was consti-
tutional, and indicating that it had reconsidered its prior merits ruling
in light of the results of the 1994 elections in accordance with our
mandate, it reaffirmed the conclusions in its November 1994 order as
they "relate[d] to historic practices in the election of superior court
judges in North Carolina through the 1994 election." S.J.A. 489. The
district court, however, failed to offer any reasoning in support of this
holding. The court then lifted the injunction it had imposed following
its November 4, 1994 merits decision, reasoning that"the issue has
been mooted by the enactment and preclearance of Chapter 9." Id.

Vosburgh and Tilghman appeal from that decision, challenging the
holdings of the district court both with respect to the constitutionality
of the statewide election scheme and the retroactive application of
Chapter 9.2 NCSBE maintains that this litigation has become moot
_________________________________________________________________
1 Chapter 9 subsequently received preclearance by the United States
Department of Justice. See 42 U.S.C.A. § 1973c (West 1994).
2 RPNC is not involved in the proceedings before this court because it
no longer has any stake in the outcome of this litigation, having obtained
that which it sought--modification of the method of electing superior
court judges--through legislative channels.

                     9
because the method of election that was under consideration has been
amended. Alternatively, it claims that although the district court was
incorrect in holding that the statewide election scheme constituted an
unconstitutional political gerrymander, the ratification in Chapter 9 of
the propriety of seating the candidates for superior judge who pre-
vailed at the district level in the 1994 elections was constitutional, so
Vosburgh and Tilghman are not entitled to be seated as superior court
judges. Finally, Ragan maintains that the statewide election scheme
was unconstitutional and that Chapter 9 is constitutional.

II.

Federal courts are empowered by the United States Constitution to
adjudicate only actual, ongoing controversies. See Nebraska Press
Ass'n v. Stuart, 427 U.S. 539, 546 (1976); Preiser v. Newkirk, 422
U.S. 395, 401 (1975). That a live controversy existed when an action
was filed will not suffice--a dispute must continue to exist at each
successive stage of the proceedings to permit a federal court to rule
because "a federal court has neither the power to render advisory
opinions nor `to decide questions that cannot affect the rights of liti-
gants in the case before them.'" Preiser, 422 U.S. at 401 (quoting
North Carolina v. Rice, 404 U.S. 244, 246 (1971)); see Steffel v.
Thompson, 415 U.S. 452, 459 n.10 (1974). Litigation challenging the
validity of legislation and seeking only prospective relief ordinarily
is rendered moot if during the pendency of the action the legislation
is repealed or amended in a significant way such that the allegedly
offensive provision ceases to exist. See, e.g. , United States Dep't of
the Treasury v. Galioto, 477 U.S. 556, 559-60 (1986) (explaining that
a challenge to federal firearms statute was moot after Congress
amended the statute to eliminate the allegedly discriminatory provi-
sion); Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (per
curiam) (holding that a substantial amendment to a regulation ren-
dered litigation challenging its validity moot); New Orleans Flour
Inspectors v. Glover, 160 U.S. 170 (1895) (repeal of provision under
attack rendered litigation moot). However, because"a defendant's
voluntary cessation of a challenged practice does not deprive a federal
court of its power to determine the legality of the practice," even
when an allegedly unconstitutional provision has been repealed or
amended, a live controversy might continue to exist if the legislation
was not altered significantly, if a possibility exists that the legislature

                     10
may reenact the provision, or if relief other than prospective relief
were requested. Northeastern Fla. Chapter of the Assoc. Gen. Con-
tractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 & n.3
(1993) (internal quotation marks omitted); see City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 478 n.1 (1989); City of Mesquite v.
Aladdin's Castle, Inc., 455 U.S. 283, 289 n.10 (1982).

The parties before us do not dispute that, except for the elections
for superior court judges conducted in November 1994, no live con-
troversy remains concerning the constitutionality of the statewide,
partisan, election scheme in place prior to the enactment of Chapter
9. Excluding the possible impact that the prior scheme may have on
the 1994 elections, the parties agree that the prior election scheme
was altered to omit the allegedly unconstitutional defect, that virtually
no possibility exists that the North Carolina legislature will reenact
the challenged election scheme, and that only prospective relief was
requested. Consequently, it is clear that this case is moot except to the
extent that the constitutionality of the statewide election scheme in
effect prior to the enactment of Chapter 9 may affect the result of the
1994 elections.

As noted above, a different result was obtained between the state-
wide and districtwide tallies in the 1994 elections in only two instances.3
The only parties proceeding before this court that maintain that a live
controversy remains with respect to the 1994 election are the two can-
didates who would have been seated under the statewide election
scheme--Vosburgh and Tilghman.4 They contend that this action is
_________________________________________________________________
3 Although three judges were elected at the statewide level who were
not elected at the districtwide level, the candidacy of the third affected
individual was invalidated due to his failure to comply with a residency
requirement. Therefore, the only two candidates affected are Vosburgh
and Tilghman.
4 NCSBE included a section in its brief asserting that the statewide
scheme for election of superior court judges in effect prior to the enact-
ment of Chapter 9 was constitutional. NCSBE acknowledges, however,
that it has no stake in asserting this position inasmuch as the North Caro-
lina legislature has modified the election scheme prospectively and
Chapter 9 ratified the appropriateness of deciding the victors of the 1994
elections based on the districtwide vote.

                     11
not moot with respect to the 1994 elections because if the statewide
election scheme is declared constitutional by this court, as victors
under that constitutional scheme, they are entitled to be seated as
superior court judges. Furthermore, their argument continues, the pro-
vision in Chapter 9 purporting to ratify the election results does not
alter their entitlement to their rightful seats because application of that
provision would violate their rights to due process and equal protec-
tion guaranteed by the Fourteenth Amendment. Because Vosburgh
and Tilghman are judicially estopped from asserting that the statewide
election scheme is constitutional, however, we conclude that this liti-
gation is moot in its entirety.

The doctrine of judicial estoppel prevents a party from attempting
to assert a position that is inconsistent with a factual stance that he
previously intentionally and successfully asserted. See Lowery v.
Stovall, 92 F.3d 219, 223-24 (4th Cir. 1996), cert. denied, 117 S. Ct.
954 (1997); John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d
26, 28-29 (4th Cir. 1995). "Judicial estoppel is properly defined as a
bar against the alteration of a factual assertion that is inconsistent with
a position sworn to and benefitted from in an earlier proceeding."
Lowery, 92 F.3d at 223 (internal quotation marks omitted). The doc-
trine of judicial estoppel seeks to protect the integrity of the courts by
preventing a party "from playing fast and loose" in its dealings with
them. Id. (internal quotation marks omitted); see John S. Clark Co.,
65 F.3d at 29 ("The vice which judicial estoppel prevents is the cold
manipulation of the courts . . . ."). In order for the bar imposed by
judicial estoppel to apply: (1) the party to be barred must be attempt-
ing to assert a position that is inconsistent with one previously taken;
(2) the position must be one of fact; (3) the position must have been
accepted by the court in the earlier proceeding; and (4) the party to
be barred must have acted intentionally, not inadvertently or by mis-
take, in taking the prior inconsistent position. See Lowery, 92 F.3d at
224.

Application of these factors to the present situation convinces us
that Vosburgh and Tilghman are judicially estopped from asserting
the constitutionality of the statewide election scheme. It is clear that
Vosburgh and Tilghman initially asserted before the district court that
the statewide election scheme amounted to an unconstitutional politi-
cal gerrymander. In support of their position that the statewide elec-

                     12
tion scheme was unconstitutional, they offered their affidavits and
deposition testimony that, as a factual matter, the statewide election
scheme was maintained for the purpose and had the effect of diluting
Republican voting strength--positions sharply inconsistent with the
one they presently assert. For example, Vosburgh stated that "the
statewide system of electing Superior Court judges has been designed
and maintained for the purpose of diluting Republican votes for can-
didates for the office of Superior Court judge." J.A. 4505a. Similarly,
Tilghman stated that "[t]he statewide election system definitely has
the effect of diluting Republican votes for candidates for the office of
Superior Court Judge. I believe that it has been maintained for the
same reason." J.A. 4486a. Furthermore, Vosburgh and Tilghman
stated that they would not have become candidates for the office of
superior court judge except for the preliminary relief ordered by the
district court. Their previous stance was accepted by the district court
in holding the statewide election scheme violative of the Fourteenth
Amendment. And, Vosburgh and Tilghman's previous position was
intentionally taken, not inadvertent or mistaken. It was only after the
1994 elections when they prevailed in the statewide vote, but lost in
the districtwide vote, that Vosburgh and Tilghman changed their posi-
tion to the one they now assert on appeal. Consequently, having pre-
viously encouraged the district court to accept their factual position
that the statewide election system for superior court judges was main-
tained for the purpose and had the effect of diluting Republican vot-
ing strength and was thus unconstitutional, Vosburgh and Tilghman
are judicially estopped from now asserting the constitutionality of that
system.

Because the challenge to the statewide election scheme is unques-
tionably moot with respect to elections subsequent to those conducted
in November 1994, and because no party before the court properly
may assert the constitutionality of the statewide election scheme with
respect to those elections, this action is moot in its entirety. Therefore,
we dismiss this appeal as moot.

DISMISSED

                     13
