Harris County Defendants’ Reply In Support of Motion to Dismiss Page 3 of 5
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
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.
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.
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
Gamza v. Aguirre,
619 F.2d 449 (5th Cir. 1980).
Case 4:12-cv-02190 Document 23 Filed in TXSD on 08/08/12 Page 3 of 5