Harris County Defendants’ Reply In Support of Motion to Dismiss Page 1 of 5
IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF TEXASHOUSTON DIVISIONHARRIS COUNTY DEPARTMENT §OF EDUCATION, §§Plaintiff, §§v. §§ C. A. No. H-12-cv-02190HARRIS COUNTY, TEXAS; §STAN STANART, HARRIS COUNTY §CLERK; AND DON SUMNERS, HARRIS §COUNTY TAX ASSESSOR §COLLECTOR, §§Defendants. §HARRIS COUNTY DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO DISMISS
Harris County did not purposely violate Judge Gilmore’s interim order. Harris Countyfollowed Judge Gilmore’s interim boundary lines in the County Commissioner primary elections.And Harris County thought it did so in the Harris County Department of Education (HCDE)Board of Trustees’ elections. But the computer was not updated for HCDE’s elections. Blame isnot the issue. Harris County accepts its share of responsibility. The issue is how to fix it.The computer error impinged on two HCDE Primary Elections. In the Position 4Republican Primary race, the Harris County Clerk can subtract wrongly added precincts and theoutcome is the same. Fortunately, the computer did not subtract any eligible voters in thePosition 4 race. In other words, the error denied no eligible voters the opportunity to vote.The Position 6 race is not so easy – the error there caused precincts to be added ANDsubtracted. Therefore, some voters in the Position 6 race that were eligible to vote did not havethat race on their ballot. The Harris County Clerk corrected the error for the July 31, 2012
Case 4:12-cv-02190 Document 23 Filed in TXSD on 08/08/12 Page 1 of 5
Harris County Defendants’ Reply In Support of Motion to Dismiss Page 2 of 5
Democratic runoff election between Ms. Lee and Mr. Johnson. (Ms. Lee won the runoff by 74.93percent, under Judge Gilmore’s interim boundaries.)Harris County has
never
maintained that it was not required to use the court-orderedinterim boundaries in the primary elections – neither in this Court nor in Judge Gilmore’s Court.Harris County discovered the error, admitted it, published it, and spent the first two weeks tryingto get all the parties to agree to a solution. That did not happen. And, that is why we are litigatingin this Court rather than hammering out a solution. Harris County’s consistent goal has been totry to resolve this issue in time to put lawful HCDE candidates on the ballot for the November 6,2012 General Election. The deadline to reach that goal is
August 18, 2012
.Stand-alone special elections are expensive – roughly $500,000 per election perCommissioners Precinct – $2 million per election Countywide. One suggested solution was tostart the process anew – holding primaries on November 6, 2012 (assuming a primary could beheld on General Election Day); then holding an HCDE run-off in late December, and finallyholding HCDE’s general elections in January 2013. Under that scenario the decline in voterexcitement and turnout is foreseeable. Only 3.19 percent of eligible Position 6 voters voted in thehotly contested and widely publicized Position 6 runoff between Mr. Johnson and Ms. Lee onJuly 31, 2012, even when that race was combined with other run-off elections. Delayed, stand-alone elections for HCDE will affect voter participation – and all Harris County taxpayers. It is asledgehammer approach to gnat killing. With due respect, many voters were unaware of HCDE’sexistence before the publicity surrounding this controversy.HCDE’s perceived governance problem can be addressed if it materializes, but the mereprospect of a problem does not give rise to a federal claim. Moreover, if this case is dismissed,HCDE can implore the political parties to take responsibility for their nominees in the November
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Harris County Defendants’ Reply In Support of Motion to Dismiss Page 3 of 5
6
th
General Election. For example, the Republican Party’s candidate for Position 4 can stand asan expression of the corrected voters’ will under Judge Gilmore’s Interim Order; and theDemocratic Party can select their candidate for Position 6 to run in the general election underTexas Election Law. It is difficult to conceive of any other means – under these facts – to addresspotential phantom plaintiffs.Thankfully, there is legal precedent for the above proposal. The Fifth Circuit addressed a1978 El Paso School District primary and runoff election in
Gamza v. Aguirre
,
1
based upon “. . .irregularities [that] arose because of errors in the management and programming of the votingmachines and ballots used in the election.” Some votes in three precincts were incorrectlycounted or not counted at all.
Gamza
at 451. The district court found jurisdiction and ordered the“losing” candidate installed as a member of the Board of Trustees. The Fifth Circuit reversed andremanded with instructions to dismiss, finding no deprivation of federal rights based uponinnocent balloting errors.
Gamza
at 453-454 (“If every state election irregularity were considereda federal constitutional deprivation, federal courts would adjudicate every state election dispute,and the elaborate state election contest procedures, designed to assure speedy and orderlydisposition of the multitudinous questions that may arise in the electoral process, would besuperseded by a section 1983 gloss.”)
See also Wilson v. Birnberg
, 667 F.3d 591, 596 (5th Cir.2012);
U.S. v. Jones
, 57 F.3d 1020, 1023 (11th Cir. 1995).HCDE has suffered no “actual damage,” nor made any allegation of intentionaldeprivation, and thus has no Equal Protection claim under 42 U.S.C. § 1983. The Harris CountyClerk fixed the balloting error to correspond with Judge Gilmore’s Interim Order in the
1
Gamza v. Aguirre,
619 F.2d 449 (5th Cir. 1980).
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