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HCDP's Reply_support Motion to Dismiss

HCDP's Reply_support Motion to Dismiss

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Published by Mike Morris

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Published by: Mike Morris on Aug 09, 2012
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08/09/2012

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IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF TEXASHOUSTON DIVISIONHARRIS COUNTY DEPARTMENTOF EDUCATION,
Plaintiff 
,v.HARRIS COUNTY, TEXAS;STAN STANART, HARRIS COUNTYCLERK; AND DON SUMNERS, HARRISCOUNTY TAX ASSESSORCOLLECTOR,
 Defendants
.§§§§§§§§§§§§§§Case No. H-12-2190
HARRIS COUNTY DEMOCRATIC PARTY’S
 REPLY IN SUPPORT OF ITS MOTION TO DISMISSANDMOTION TO TRANSFER
The Harris County Democratic Party and Lane Lewis as Chairman of the Harris
County Democratic Party [“HCDP”
] hereby file this Reply in support of their Motion toDismiss and their Motion to Transfer.
According to the Harris County Department of Education [hereinafter “DOE”] an
election must be invalidated due to the error of Harris County. If that is true, whichHCDP denies, which election should it be? Should the first General Primary Election beinvalidated when we know some of the incorrect citizens were permitted to vote whileother citizens were wrongfully excluded? Or, should we the later Runoff Election beinvalidated that all sides admit had the correct candidates and was run in the proper
Case 4:12-cv-02190 Document 22 Filed in TXSD on 08/08/12 Page 1 of 12
 
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district before the correct citizens? DOE wants this court to invalidate both elections and
hold another. Yet, the “other” remed
ial election just occurred with the correct candidatesin the correct district. At best one of the candidates can claim, though not prove, thatthey
might 
not have been required to be in runoff had the correct voters been givenballots
 — 
there is no way for anyone to know at this point. Even if it were more likelythan not that a runoff was not necessary, what would be the remedy? Would the Courtsimply install a party nominee? More likely, the remedy would be a new election wherethe complaining
candidate could prove they had the support of a majority of the district’s
voters. What DOE fails to make clear is why one would expect the new, court orderedelection to have any different result than the recently held runoff election.Federal law is not so rigid as to require a new election every time an error inelection in administration occurs. Even if the law were so draconian, the facts of thiscase weigh heavily against the Court adopting equitable injunctive relief that requires anew election. There is no denying that there was a failure to comply with Judge
Gilmore’s order finding that the 2001 redistricting plan was now unconstitutional and
could no longer be utilized in an election. This error was unfortunate and elected leadersought to investigate and implement consequences. Failures to comply with court ordersought to have consequences even when allegedly in error so as to ensure on purpose,
inadvertent errors
do not occur. Despite this, federal courts simply do not have jurisdiction over this case and DOE has failed to demonstrate otherwise.
Case 4:12-cv-02190 Document 22 Filed in TXSD on 08/08/12 Page 2 of 12
 
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I.
 
Argument
A.
 
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.
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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.
See
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),
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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

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