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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 on Aug 09, 2012
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Case No. H-12-2190

HARRIS COUNTY DEMOCRATIC PARTY’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS AND MOTION 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 to Dismiss 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, which HCDP denies, which election should it be? Should the first General Primary Election be invalidated when we know some of the incorrect citizens were permitted to vote while other citizens were wrongfully excluded? Or, should we the later Runoff Election be invalidated that all sides admit had the correct candidates and was run in the proper

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district before the correct citizens? DOE wants this court to invalidate both elections and hold another. Yet, the “other” remedial election just occurred with the correct candidates in the correct district. At best one of the candidates can claim, though not prove, that they might not have been required to be in runoff had the correct voters been given ballots — there is no way for anyone to know at this point. Even if it were more likely than not that a runoff was not necessary, what would be the remedy? Would the Court simply install a party nominee? More likely, the remedy would be a new election where the 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 ordered election 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 in election in administration occurs. Even if the law were so draconian, the facts of this case weigh heavily against the Court adopting equitable injunctive relief that requires a new 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 leaders ought to investigate and implement consequences. Failures to comply with court orders ought 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.


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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.1 There is no doubt that had Harris County proceeded with the election by intentionally utilizing the unconstitutional plans, federal court intervention by a proper party with standing would be warranted. However, this lawsuit is judged, when considering a Motion to Dismiss, by the factual averments in the Complaint filed by DOE. Nowhere does DOE claim there was an actual policy decision (intentional or otherwise) by Harris County to utilize unlawful redistricting plans. At best, DOE claims it takes no position on whether the error at issue was intentional or inadvertent. See Resp. at p. 3, fn. 2. The failure by DOE to claim intentional policy choices of the Defendant caused it hard is fatal to the Complaint. DOE makes no attempt to demonstrate federal courts have jurisdiction over anything other than intentional, 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 is left pending, that Judge Gilmore ought to adjudicate this case and fashion the remedy, if one is required.


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which holds that where there “exists a state law remedy to the election irregularities that is fair and adequate, human error in the conduct of elections does not rise to the level of a Fourteenth Amendment constitutional violation actionable under § 1983 in the absence of willful action by state officials intended to deprive individuals of their constitutional right to vote.” DOE fails to distinguish these holding because if this Court were to adopt the theory that inadvertent failure to update election equipment requires preclearance it “could not … avoid thrusting itself into the details of virtually every election, tinkering with the state’s election machinery, reviewing petitions, registration cards, vote tallies, and certificate of election for all manner of error and insufficiency under state and federal law.” Montgomery , 776 F. Supp. 1142, 1146 (N.D. Miss. 1991) (refusing to convene three judge court and dismissing section 5 claims); see also, Citizens Right to Vote v. Morgan, 916 F.Supp 601 (S.D. Miss. 1996) (single judge dismissing section 5 claim alleging city officials failed to comply with precleared election procedures.) B. Plaintiffs lack standing given they have no federally recognized right to control the selection of party nominees. DOE tries to support its standing argument by citing the injury standard to confer standing in typical federal cases. See Resp. at p. 4. Then, DOE cites several cases finding standing by a candidate in an election and by individuals and a business injured by alleged constitutional violations. See Resp. at p. 6. DOE cites to this court no case where a government agency has standing to bring a federal complaint regarding the activities of a private political party in selecting their nominee to the office of the

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governing board for such government agency. Indeed, there is no such authority because such as case amount to the tail wagging the dog. It is arguable whether the board would have standing to file a federal complaint concerning irregularities in the General Election but there is no authority to support intrusion into the political party nomination process by the very government board for which the political party is attempting to select a nominee. C. Plaintiffs have failed to state a claim under federal law. DOE attempts to explain how there would be a federal cause of action in favor of a government agency to interfere with a political party’s nomination process. See Resp. at p. 6. DOE’s only support for this proposition is to try to distinguish Lopez-Torres and to cite Smith v. Allwright. First, Lopez-Torres is treated by DOE as a singular Supreme Court case on the right of political parties to choose their nominees as they see fit. In reality, Lopez-Torres is a case capping a long line of cases protecting a political party’s right to choose its own nominees. In Morse v. Republican Party of Virginia, 517 U.S. 186 (1996), the United States Supreme Court considered the application of the Voting Rights Act to political parties. Fortis Morse and two other law students filed suit against the Republican Party of Virginia alleging, inter alia, that the Virginia Republican Party’s adoption of an entrance fee to its State Convention was an election procedure change that required preclearance under the Voting Rights Act. See Morse, 517 U.S. at 190-92. The Virginia Republican Party selected its nominees at its State Convention rather than conduct a primary election. See Id. Anyone could participate in the State Convention so long as

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they signed a pledge to support the Republican Nominees and paid a registration fee of $35 or $45, depending upon the date of certification. See Id. Morse and others sought an injunction preventing the requirement of the fee on the basis it had not received pre-clearance pursuant to § 5 of the Voting Rights Act. See Id. A three-judge district court was convened to consider these claims. See Morse v. Oliver North for U.S. Senate Comm., Inc., 853 F. Supp. 212 (W.D.VA. 1994). On direct

appeal, the Supreme Court considered the merits of the case. Justice Stevens announced the judgment of the Court and delivered an opinion that was joined by Justice Ginsburg. There were multiple concurring and dissenting opinions. Because of the numerous

opinions and the restrictions each placed on its own analysis, including the “majority opinion,” the only legal clarity from Morse was that five Justices agreed that a prohibition of the poll tax, found in the Constitution supported limited application of the Voting Rights Act to political parties. The Court, in responding to the dissent filed by Justice Kennedy (Id. at 223), characterized its holding as follows: We hold that political parties are covered under § 5 under limited circumstances: here, only in so far as the party exercises delegated power over the electoral process when it charges a fee for the right to vote for its candidates. The “majority opinion” further backtracked when it addressed the serious concerns of the dissenting Justices that application of the Voting Rights Act would violate the political parties’ First Amendment Rights to Speech and Association. See Id. at 223-230. Calling the dissenters’ concerns “hypothetical,” the “majority opinion” did not rule on considerations of the parties’ First Amendment Rights because the litigants in Morse did


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not claim that blocking the imposition of the fee would violate their Associational Rights, but instead claimed other actions by political parties that would be made subject to the Voting Rights Act and would, in the future, hinder the political party’s important constitutional rights. Justices Stevens and Ginsburg stated “We leave consideration of hypothetical concerns for another day.” See Id. at 223. Thus, by the plain language of the Court’s “majority opinion” the holding that § 5 pre-clearance applies to political parties is limited to the instance when a political party charges an entrance fee to vote for the party’s candidates. Lopez-Torres comes a few years later to reinforce the autonomy of political parties to select their nominees. Should this Court not dismiss this case, serious constitutional issues will arise as to whether the government can interfere with a political party’s nomination process. The recent trend in Supreme Court precedents weigh heavily against government intrusion into the nomination process of a private political association. Though it is true the Supreme Court found in Smith v Allwright2 and other White Primary cases, that political parties were state actors under 14th Amendment claims, the Court has been unwilling to go that far in any case except where there was intentional racial discrimination, such as Smith, or when there was a separate constitutional prohibition of a poll tax in Morse.


The keystone of the Court’s opinion in Allwright was that the elections in early 20th century Texas was the primary election. The Republican Party, post-reconstruction, was of no consequence in Texas, thus meaning the general election gave voters little real choice, the Democratic Nominee would always be selected. Today, of course, the situation is much different with legitimate competition between the parties, at least in Harris County. Lastly, in Lopez-Torres, the Supreme Court was unwilling to permit meddling in political party nominations even when the evidence demonstrated that the Democratic Nominee almost always won. 3 DOE tries to claim it has authority to interfere in party nominations because HCDP is obligated to select its nominees by primary election under a provision in the Election Code. HCDP has never had a ripe opportunity to challenge the constitutionality of the state law requiring primary elections by only some political parties but not


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Both of these cases rely upon authority granted in the Reconstruction Amendments to the Constitution. There is simply no authority, and DOE has cited none, that give the government the power to interfere with a political party’s nomination process based upon an error in primary election administration that also happened to be committed by the government. To allow such intrusion would permit an unscrupulous county to

manipulate a party’s nominees by intentionally committing election administration errors. The bottom line is that the only authorities supporting a federal cause of action are those where intentional discrimination is in play. DOE has not pleaded there is

discriminatory intent or effect in the omission caused by Harris County and therefore no federal claim exists. D. The case remains jurisdictionally defective given that the proper parties have not been sued in the case. Federal Rule Civil Procedure 19 requires that the Court must order the inclusion of all parties “who as a practical matter [any court order will] impair or impede the [missing parties’] ability to protect the[ir] interest; or … leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” Both the Republican Party and the Democratic Party are

necessary parties to this case as are each of the candidates seeking the parties’ nominations in the disputed election, assuming the Court finds it has jurisdiction over the controversy. Despite having intervened, the lawsuit has not been amended to seek relief against the political parties and the County has not been dismissed as an improper party.

others because HCDP utilizes primary elections. Nevertheless, the authorities cited make it likely such a provision would be struck down by the federal courts under First Amendment and Equal Protection grounds.


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Because DOE failed to cure the jurisdictional defects in its lawsuit, the case should be dismissed. E. The requested declaratory relief would amount to an election change in violation of Section 5 of the Voting Rights Act (42 U.S.C. § 1973c) for which preclearance would be required. DOE cites a number of cases for the proposition that court ordered redistricting plans need not be pre-cleared. See Resp. at p. 10. Setting aside that these cases involve redistricting plans, DOE completely ignores the clear Supreme Court authority that when such court ordered relief is requested by the government, as DOE requests in its Complaint, court ordered relief along the lines of that requested by the government must be precleared. See Lopez v. Monterey County, Cal., 519 U.S. 9, 23-24 (1996). In order to craft an interim remedial plan, should one be required, the Court must consist of three judges. See 42 U.S.C. § 1973c. Thus, even if the Court believes a federal case exists, no action should be taken until three judges are empanelled or until the case is transferred to the already appointed three-judge court in the Judge Gilmore case. F. The case should be transferred to Judge Gilmore’s Court if not dismissed. Harris County goes on for eight pages in its attempt to prevent this matter from being heard by Judge Gilmore. At no point does Harris County explain why the matter could not be efficiently resolved by Judge Gilmore. Instead, Harris County attempts to establish the case should not be consolidated with Judge Gilmore’s pending redistricting case by confusing the parties and ignoring the obvious similar and collateral issues. It is HCDP’s contention, as well as DOE’s, that this case should be adjudicated by the same judge who invalidated the redistricting plan erroneously used for part of the primary

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election. Judge Gilmore can manage her docket as she sees fit by not consolidating the cases or by requiring separate trials. Harris County simply fails to explain why the first filed rule should not be followed and/or why Judge Gilmore could not competently adjudicate the issues. This case, as DOE has pleaded it, is essentially an enforcement proceeding on Judge Gilmore’s orders. Determination of whether Harris County knowingly,

intentionally or negligently defied Judge Gilmore’s orders should be adjudicated in her Court. If a remedy is required to address wrongful behavior by Harris County, Judge Gilmore should fashion that remedy being mindful of the significant and important evidence presented to her concerning the performing characteristics of protected districts under the Voting Rights Act. Adjudication of this case requires a thorough understanding of the district compositions and their constructions to determine whether a redressable violation has occurred. Whether the earlier order invalidating Harris County districts were issued by Your Honor, Judge Miller or Judge Atlas, the Court that issued the order should adjudicat allegations of its violation. Harris County says nothing in its

protestation to demonstrate why the normal enforcement powers of the District Courts should be disturbed. Since much was said at the recent hearing, and because the authorities supporting transfer were adequately addressed in the earlier HCDP brief, the Reply on this issue was shortened.


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WHEREFORE the proposed defendant intervenors request that their Motion to Dismiss be granted or, alternatively, their Motion to Transfer be Granted.. This the 8th day of August, 2012. Respectfully Submitted, s/ Chad W. Dunn Chad W. Dunn Texas Bar No. 24036507 K. Scott Brazil BRAZIL & DUNN 4201 Cypress Creek Pkwy., Suite 530 Houston, Texas 77068 Telephone: (281) 580-6310 Facsimile: (281) 580-6362 chad@brazilanddunn.com scott@brazilanddunn.com ATTORNEYS FOR PROPOSED DEFENDANT INTERVENORS


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CERTIFICATE OF SERVICE I hereby certify that on this day, August 8, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification to all counsel of record:

s/ Chad W. Dunn


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