DOE fails to demonstrate how the election error at issue rises to a federal concern.
DOE makes much of Judge Gilmore’s order finding a constitutional violation with
the 2001 district plan.
There is no doubt that had Harris County proceeded with theelection by intentionally utilizing the unconstitutional plans, federal court intervention bya proper party with standing would be warranted. However, this lawsuit is judged, whenconsidering a Motion to Dismiss, by the factual averments in the Complaint filed byDOE. Nowhere does DOE claim there was an actual policy decision (intentional orotherwise) by Harris County to utilize unlawful redistricting plans.At best, DOE claims it takes no position on whether the error at issue wasintentional or inadvertent.
Resp. at p. 3, fn. 2. The failure by DOE to claimintentional policy choices of the Defendant caused it hard is fatal to the Complaint. DOEmakes no attempt to demonstrate federal courts have jurisdiction over anything other thanintentional, unlawful policy choices. As was demonstrated by HCDP in its earlier brief,erroneous application of election laws are not required to be precleared under Section 5.
See United States v. Saint Landry Parish
, 601 F.2d 859, 864 (5th Cir. 1979). In
Wilson v. Birnberg
, 667 F.3d 991, 996 (5th Cir. 2012), the Fifth Circuit held that a court will
invalidate an election only where there has been “egregious defiance” to the Voting
Rights Act. It further quotes from
Gold v. Feinberg
, 101 F.3d 796, 802 (2d Cir. 1996),
The undersigned sought such order on behalf of his client in the Gilmore case and the order was properly granted.The fact that DOE cites Judge Gilmore 16 times in its Response to the Motion to Dismiss demonstrates, if the case isleft pending, that Judge Gilmore ought to adjudicate this case and fashion the remedy, if one is required.
Case 4:12-cv-02190 Document 22 Filed in TXSD on 08/08/12 Page 3 of 12