              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT

                      ____________________

                           No. 91-6100
                      ____________________



JESSE CAMPOS, W. R. (RESENDEZ) MORRIS,
AND MEXICAN AMERICAN BAR ASSOCIATION
OF HOUSTON,

                                              Plaintiffs-Appellants,

                             versus

CITY OF HOUSTON, ET AL.,

                                              Defendants-Appellees.

__________________________________________________________________

      Appeal from the United States District Court for the
               Southern District of Texas
_________________________________________________________________
                        ( July 31, 1992 )

Before GOLDBERG, JOLLY, and WIENER, Circuit Judges.

PER CURIAM:

     On our own motion, we withdraw our prior opinion reported at

960 F.2d 26, and substitute the following:

     The district court required that the November 1991 Houston

City Council election be conducted under a reapportionment plan

objected to by the Attorney General of the United States.    Because

we find that the district court abused its discretion, we VACATE

the judgment of the district court and REMAND the case for such

further proceedings, if any, that may be necessary.
                                I

     In 1979, the City of Houston adopted a form of government

consisting of a fifteen-member council, including the mayor, who is

also a member of the council ("Plan 9-5-1 #1).   All are elected for

concurrent two-year terms. Nine of the council members are elected

from single-member districts; six, including the mayor, are chosen

at large.

     In April 1991, the Hispanic citizens filed suit against the

City, alleging that the at-large elections for council members

dilute Hispanic voting strength in violation of Section 2 of the

Voting Rights Act of 1965 (as amended), 42 U.S.C. § 1973, and the

Fourteenth Amendment to the United States Constitution.         The

Hispanic citizens asked the district court to enjoin all future

elections under the at-large scheme and to order into effect a 22-

member City Council.     The City of Houston moved for summary

judgment; that motion is pending before the district court.

     Meanwhile, 1990 census data had revealed that the nine single-

member districts in Plan 9-5-1 #1 were significantly unequal in

population, in violation of the one-person, one-vote requirements

of the Fourteenth Amendment.   Accordingly, on June 5, 1991, the

City of Houston adopted a redistricting plan for the nine single-

member districts, using 1990 census data ("Plan 9-5-1 #2").      On

that same day, the City also adopted an alternative redistricting

plan consisting of sixteen single-member districts, which was to be

implemented if an August 10 charter revision election on the issue




                               -2-
was successful.     On July 9, the City submitted both alternative

plans to the Attorney General of the United States, as required by

Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c.                   In the

August 10 City Charter revision election, the sixteen single-member

district alternative reapportionment plan was rejected by the

voters; therefore, the Attorney General did not consider that

alternative.

     On August 21, the Attorney General requested more information

regarding Plan 9-5-1 #2.         The Attorney General requested that the

City respond to specific allegations that the Department of Justice

had received from the Hispanic community in Houston that the plan

discriminated against them. The City made several responses to the

Attorney General's request, but did not complete its submission

until September 27. The City proceeded with steps to implement the

unprecleared   Plan      9-5-1   #2   in   preparation   for   the   scheduled

November 5 election.

     On   October   4,    the    Attorney    General   interposed    a   timely

objection to the proposed Plan 9-5-1 #2 pursuant to Section 5 of

the Voting Rights Act.       On October 7, the City filed a motion for

leave to file a supplemental counterclaim against the Hispanic

citizens in the Section 2 action.            In the counterclaim, the City

asked for a declaration regarding the constitutionality of the

malapportioned Plan 9-5-1 #1, and requested that the district court

order that Plan 9-5-1 #2 (the plan to which the Attorney General

had objected) be used as an interim plan for the November 5 City




                                       -3-
Council elections.       The United States Attorney General moved to

participate as an amicus and filed a detailed brief objecting to

the jurisdiction of the court.       At a hearing on October 9, the City

presented testimony from election officials that it would be

physically impossible to hold the November 5 election under any

plan other than Plan 9-5-1 #2, the one objected to by the Attorney

General. At the conclusion of that hearing, the court directed the

parties to meet and attempt to settle the issues.         The hearing was

continued until October 11.

       A few hours before the October 11 hearing, the Houston City

Council adopted an entirely different plan of apportionment of the

nine    single-member     council   districts   ("Plan   9-5-1   #3),   and

immediately submitted it to the Department of Justice via telefax

for preclearance.       At the hearing that afternoon, counsel for the

City announced to the district court that the City had been unable

to reach an agreement with the Hispanic citizens.           However, the

City urged the court to adopt Plan 9-5-1 #3 as an interim plan

pending preclearance.

       At the conclusion of the hearing, the court stated that it had

three plans before it: (1) the malapportioned Plan 9-5-1 #1, under

which members of the Houston City Council were elected during the

1980s; (2) Plan 9-5-1 #2, to which the Department of Justice had

objected; and (3) Plan 9-5-1 #3, which had been passed by the City

Council only hours before the hearing.          The City urged that the

court not order it to use Plan 9-5-1 #1, because it was based on




                                     -4-
the 1980 census and presumably had large population deviations

among the districts.    The Hispanic citizens opposed Plan 9-5-1 #2,

because it had been objected to by the Department of Justice.                 They

did not support the new Plan 9-5-1 #3, although they acknowledged

that it was an improvement over Plan 9-5-1 #2.

      On October 12, before the district court issued its ruling,

the   Attorney   General   precleared        Plan   9-5-1     #3,   subject    to

reconsideration in the event that new information came to his

attention before the expiration of the sixty-day period within

which he is allowed to object to plans submitted by covered

jurisdictions.    A copy of the preclearance letter was sent by

telefax to the district court.        Later that afternoon, however, the

district court ordered that the November 5 elections be conducted

under unprecleared     Plan   9-5-1    #2.      The   court    reasoned   that,

although Plan 9-5-1 #3 had been precleared, it should not be used,

because the Hispanic citizens objected to it, and the Attorney

General might change his mind.

      On October 16, the Hispanic citizens moved for a stay, which

the district court denied the following day.             On October 18, the

Hispanic citizens sought a stay from this court, which was denied

on October 24.   The Hispanic citizens' request for relief from the

United States Supreme Court was also denied.

      On October 17, the United States filed a separate enforcement

action against the City of Houston seeking to enjoin the November

5 election because it was proceeding under an unprecleared plan of




                                      -5-
apportionment.     United States v. City of Houston, No. H-91-3076

(S.D. Tex.).   In the alternative, the United States requested that

special elections, under a precleared plan, be scheduled as soon as

practicable.   A three-judge panel was convened, and a hearing was

set for October 28.    On October 29, the three-judge panel refused

to grant the injunction, noting:

           The Fifth Circuit's denial of a stay operated on
           the understanding that Judge Hittner's order
           represents a temporary expedient. . . . The City
           cannot plausibly contend on the one hand that Judge
           Hittner's order represents an interim plan and then
           on the other hand, aver that the office holders
           elected in next Tuesday's election will continue in
           office for the entire terms. As far as this court
           is concerned, the interim order of Judge Hittner,
           if affirmed by the Fifth Circuit, will require an
           election under a constitutional, precleared or
           court imposed districting scheme in far less than
           two years.

      The Hispanic citizens timely appealed, and the United States

filed an amicus brief supporting the Hispanic citizens' position.

                                   II

      The Hispanic citizens and the United States argue that the

district   court   lacked   jurisdiction    or   otherwise   exceeded   its

authority in granting relief on the City's counterclaim because (1)

the   counterclaim    did   not   present    a   justiciable    "case   or

controversy"; and (2) the counterclaim is an action under Section

5 of the Voting Rights Act and, therefore, only a three-judge court

authorized to decide Section 5 issues could have ordered the relief

sought by the City.    We conclude that the district court had the

power to grant some form of interim relief, but that it abused its




                                   -6-
discretion    in    ordering    the    election    to     be    conducted   under

unprecleared Plan 9-5-1 #2, to which the Attorney General had

interposed a timely objection.

                                        A

     The Hispanic citizens and the United States contend that the

City's   counterclaim     did    not    present    a    justiciable      case    or

controversy because the Hispanic citizens' Section 2 action related

solely   to   the    at-large    seats,      and   they    had    not   filed     a

malapportionment     challenge    to    Plan   9-5-1      #1.      We   disagree.

Although the procedural context in which the counterclaim was filed

is rather unusual, we conclude that the requirements of Article III

were satisfied.     Under state law, the City was required to conduct

the election as scheduled; but the only precleared apportionment

plan available after the Attorney General objected to Plan 9-5-1 #2

was the malapportioned Plan 9-5-1 #1 used during the 1980s.                     Had

the City chosen to use Plan 9-5-1 #1, it faced the very substantial

likelihood of an injunctive challenge and postponement of the

election, or later vacation of the election results.                It therefore

chose to file the counterclaim against the Hispanic citizens in the

Section 2 action and obtain a declaration that Plan 9-5-1 #1 was

unconstitutionally malapportioned, thus clearing the way for a

court-ordered plan for use in the impending election.                   Under the

circumstances, we cannot say that the course chosen by the City

necessarily was either improper or taken in bad faith, nor did the




                                       -7-
City's lawsuit prevent the Attorney General from proceeding to

consider preclearance matters.

                                  B

                                  1

     Under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c,

covered jurisdictions, such as the City of Houston, may implement

changes in voting procedures in only two ways:   (1) by obtaining a

declaratory judgment from the United States District Court for the

District of Columbia that the proposed change does not have the

purpose or effect of abridging the right to vote on account of

race; or (2) by submitting the proposed change to the Attorney

General for preclearance.     Challenges to an objection by the

Attorney General may be heard only by the District Court for the

District of Columbia.    E.g., Perkins v. Matthews, 400 U.S. 379

(1971).   However, Section 5's "preclearance requirements [do] not

apply to plans prepared and adopted by a federal court to remedy a

constitutional violation."   McDaniel v. Sanchez, 452 U.S. 130, 138

(1981).

     Section 5 states, in pertinent part, that "[a]ny action under

this section shall be heard and determined by a court of three

judges in accordance with the provisions of section 2284 of Title

28 . . . ."   28 U.S.C. § 2284(a) provides:

          A district court of three judges shall be convened
          when otherwise required by Act of Congress, or when
          an    action     is     filed   challenging     the
          constitutionality    of    the  apportionment    of




                                 -8-
           congressional districts or the apportionment of any
           statewide legislative body.

Because this is not an action challenging either a congressional

apportionment scheme or a state-wide apportionment scheme, it falls

within § 2284(a), thus requiring a three-judge court, only if the

action is one "under" Section 5.          Furthermore, we should note that

a three-judge court convened under Section 5 is a court of limited

jurisdiction and limited authority.          In United States v. Board of

Supervisors, 429 U.S. 642, 645 (1977), the Supreme Court held that

"[a]ttempts to enforce changes that have not been subjected to

[section 5] scrutiny may be enjoined by any three-judge district

court in a suit brought by a voter . . . or by the Attorney General

on behalf of the United States."          "Enforcement" only includes the

determinations whether a voting change is covered by Section 5,

whether the preclearance requirements have been met and, if they

have not, what remedy is appropriate.             Id.

                                      2

       The City contends that its counterclaim is not an "action

under" Section 5 because it did not challenge the merits of the

Attorney General's objection to Plan 9-5-1 #2, and did not seek to

have the district court order Plan 9-5-1 #2 to be used as the

permanent plan for the 1990s.         Each underlying point is correct.

Because the City asked that the unprecleared Plan 9-5-1 #2 be used

as an interim plan for the November 5 election, the City did not

seek    relief   that   necessarily       would    circumvent   preclearance




                                  -9-
requirements.   Instead, the City sought to alleviate the difficult

situation it faced after the electorate had rejected the sixteen

single-member district plan and the Attorney General had objected

to Plan 9-5-1 #2.   Thus, we believe the question is not whether the

district court's jurisdiction and the Attorney General's Section 5

responsibility are in conflict; rather, the question is under what

conditions did the court have the authority to order an interim

election, notwithstanding an unresolved Section 2 case and the

absence of a precleared redistricting plan.

     As the Attorney General acknowledges, the district court had

the authority to order some form of emergency relief.            See Brief

for the United States as Amicus Curiae, pp. 18-19 (district court

had power to enjoin election pending preclearance of a new plan; to

devise its own plan, correcting the objections raised by the

Attorney General to the prior submission; or to adopt precleared

Plan 9-5-1 #3); see also Upham v. Seamon, 456 U.S. 37 (1982).           To

hold, as the plaintiffs urge, that the district court "lacked

jurisdiction" to adopt--as only an interim measure--the plan to

which   the   Attorney   General    had   initially   objected     creates

unacceptable tensions with the consistently-recognized discretion

of the district court to formulate and authorize the implementation

of interim election plans in voting rights cases.           See, e.g.,

McDaniel v. Sanchez, 452 U.S. 130 (1981); Connor v. Finch, 431 U.S.

407 (1977).     Such a holding is further objectionable because,

illogically, it would make jurisdiction depend upon the relief




                                   -10-
ultimately ordered by the court.   Courts cannot operate under such

post hoc rules.

     Second, although whether and why the Attorney General has

objected to a certain plan are very relevant factors for the

Section 2 court to consider, alone they cannot preclude the court

from using that plan as an interim measure.   The Attorney General's

objection or lack thereof does not necessarily indicate that the

plan is constitutional or unconstitutional:    it simply means that

the plan has not met the necessary procedural requirements.   Under

appropriate circumstances, even an unconstitutional plan may be

implemented on an interim basis.      Upham v. Seamon, 456 U.S. 37

(1982).   Moreover, as far as Section 5 is concerned, there is no

distinction between a plan to which the Attorney General has

objected and a plan that has not been submitted to the Attorney

General at all:   in either case Section 5 has not been satisfied.

Thus, in deciding whether the court has authority to act, a

determination cannot be rationalized on the basis of the Attorney

General's filing or failure to file an objection.   The plaintiffs'

jurisdictional argument thus stands in conflict with the scope of

authority that Section 2 courts have traditionally possessed.

     Third, in view of the decidedly limited jurisdiction of three-

judge courts, it is unclear why a three-judge court can decide, as

the plaintiffs suggest, what kind of interim relief is necessary

during the pendency of a Section 2 action.    A three-judge court is

required only to decide whether Section 5 applies, and if so,




                               -11-
whether it has been satisfied.          Section 2 does not require three-

judge courts when statewide apportionment schemes are not at issue,

yet the plaintiffs' position would require their intervention in

Section 2 cases on a wide scale.

       Finally, the problems in a "jurisdictional" analysis of a

Section 2 court's interim election order become apparent when one

considers the daunting variety of procedural issues that might

arise   from     interrelating      single-judge      and    three-judge      court

functions.      All of these reasons persuade us of the lack of merit

of a jurisdictional objection to the City's counterclaim.

                                        3

       Notwithstanding that the district court had jurisdiction to

grant interim relief, however, we conclude that on the facts of

this case that it abused its discretion.                     After the Attorney

General objected to Plan 9-5-1 #2, there were several alternatives

available to the district court:             (1) it could have enjoined the

use of Plan 9-5-1 #1 and enjoined the election pending preclearance

of a new plan; (2) it could have devised its own plan, perhaps

responding to the objections raised by the Attorney General to Plan

9-5-1 #2; or (3) it could have ordered that the election be

conducted      under   Plan    9-5-1   #3,    which    the    Attorney     General

conditionally precleared at the last minute, and which the City

supported. The district court offered weak reasons for refusing to

order an election under the belatedly precleared Plan 9-5-1 #3 and

thus    for    ignoring       the   Justice    Department's      role    in    the




                                       -12-
redistricting process.   Contrary to the district court's proffered

rationale, the Hispanic citizens' objection to Plan 9-5-1 #3 cannot

have been significant, because they also objected to Plan 9-5-1 #2,

which the court adopted.      That some changes in local voting

procedures were necessary is likewise no reason to refuse Plan 9-5-

1 #3, because the City agreed to that plan and urged its adoption

notwithstanding such difficulties.        In short, the district court's

preference for Plan 9-5-1 #2, instead of Plan 9-5-1 #3, apparently

was guided more by its preference than by the significant factors

of Justice Department conditional preclearance and City support for

Plan 9-5-1 #3.   We cannot approve the district court's unsupported

choice, given the available alternatives.

                                    C

     Our holding is narrow and fact-bound. We reiterate that a

court-ordered    reapportionment     plan    is     not   subject   to   the

preclearance requirements of Section 5.           See McDaniel v. Sanchez,

452 U.S. at 138.     Further, elections may be held under exigent

circumstances under a plan to which the Attorney General has

objected.   See Clark v. Roemer, ___ U.S. ___, 111 S. Ct. 2096, 2102

(1991). When, however, the district court does not fashion its own

plan as an interim measure, and it rejects, without adequate

reasons, a precleared plan in favor of a legislative plan that has

not been precleared, it abuses its discretion in awarding interim

relief.




                                   -13-
                                III

     The district court abused its discretion in awarding interim

relief and, thus, we VACATE the October 12th order.     The parties

have not requested that we set aside the November 5 election

results.   This opinion should not be construed as having any such

an effect, nor should it be construed as requiring the district

court to order new elections under a different plan.   We REMAND the

case for further proceedings as the district court deems necessary,

which should not be inconsistent with this opinion.

                                             VACATED and REMANDED.




                               -14-
