           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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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
