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Case 2:1 0-cv-00058-AML Document 1 Filed 09/09/10 Page 1 of 24

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS.

DEL RIO DIVISION

LULAC o/TEXAS, Council 4338; X

Lupita :oe. La Paz; James Fernandez; X

Rosalinda Perez; Jose L. Perez; X

Leticia Orm; Jesus Ortiz; Robert X

. Clubb; VAL VERDE COUNTY' X

DEMOCRATIC PARTY;. Diana . X

Salg ado (In her capacity as Chair of X

The Val Verde County Democratic X

Party) X

PlaintitTs,- X.

X

v. X CIVIL. ACT. NO. 2:1O-cv-58 X

X

GENEROSA G.RAMON,(In·ber'Official X

Capacity as Val Verde County Clerk); X

VAL VERDECOl1N'I'Y, (Byaad,·thnmgh: X:

Mike FenHiIidez, County Judge); State of X Texas; Gove~r Rick Perl)' ffiihisoffidal X

Capacity as GOvernor of Tens} . X

Defendaats X

Defendants

QRIGINAL CQMPLAINT

1. This complaint is an enforcement action under Section 5. of the Voting Rights Act.

42 U. S. C. § 1973c. A three judge court is required and requested to hear this case. This is

also an' action pursuant to Section 2 of the Voting Rights Act, 42 U.S. C. § 1973 .. Plaintiff

challenge the .manner by which a State district Courthas set the date fora Special

Democratic primary eleetioa, set the time period for application for mail-in ballots and

set the time period for early voting. The Court order has also taken the duty authorized by. State statute to the Val Verde Democratic Party of managing its County primary and

. .

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given it to public officials. In this case every major aspect of this Special Democratic primary election is set within 22 days of issuing its Order. There has been inadequate time for proper Notice to the voters and every major portion of the Courts order is contrary to the Texas Election Code. The·dates set out in this Courts order will cause the participation of qnly the highest concentrated Latino voting precincts in ValVerde County with only 3 weeks before early voting begins for the November general election. This Order as implemented has a high potential for voter confusion and voter fatigue to the detriment of the Latino voting strength not only in this Special Election but also in the upcoming November general election. Val Verde. County and the Latino voting strength

in the Latinovoting·precincts are·anintegra1 voting bloc.forallat large county elections but also for the elections of the 23rd Congressional District, the Governors race, State Senatorial. district 19 and all state wide races. This Order as implemented, with the resulting confusion and voter fatigue, has the strong potential, because of the resulting confusion and voter fatigue to not allow Latino voters an equal opportunity to participate in the electoral process. .and select ca.1ididates of thek choice in both the Special Election and the November general election, in violation of Section lofthe Voting Rights Act. Moreover this Special Election was first set and adopted on August 18, 2010 and the most recent Special Election dates were set on September 3, 2010 and None of these changes in the election process and election law have been submitted for, nor have they -receivedthe required- precleranoeparsaant to Section 5 of the Voting Rights Act.

Moreover, as.currently set, the Special Election order and the resultant shortness of time before the election and limited notice will make it difficult to vote in person during the extended time period of September 20 - 24, by mail or under the Uniformed

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and Overseas Citizens Absentee Voting Act ("UOCAVA") 41 u.S.C 1973ff et seq. Extended voting and voting by mail is often -the -only way that the sick -and disabled as well as the elderly are able to vote. Voting by mailis often the only way that persons who temporarily reside in other states or are in the Military are able to vote. Extended voting and mail-in voting with so limited a notice will make it extremely difficult, confusing and perhaps for all intents and purposes impossible for those living abroad or as members of the US Military to participate in this. election.

2. BACKGROUNl): On 'or about March 2,2010, Val Verde County held, among other races, a Democratic Party primary race for County Commissioner, Precinct 4 (the "Primary"). The Primary featured incumbent Precinct 4 County Commissioner, Jesus Ortiz ("Ortiz") against his challenger, Gustavo Flores (''Flores''). Ortiz won the Primary against Flores by twenty-nine (29) votes, Shortly after the Primary, Flores filed a .lawsuit (the."Contest") challenging the results of the Primary due to alleged undue influence by Dora E. Gonzales ("Gonzales"), an Ortiz campaign supporter.

From August 11, 2010 through August 12, 2010, a bench trial was held in the instant case. On or about August 18, 2010, the Court issued an Order and an Amended Order (the. "Judgment"} disposing of aU of the issues. in the case. (Amended Order Exhibit 1)

On September 3,2010, the Court issued an Second Amended Order with specific findings and among the Order included the following (1) "amended to facilitate the County Clerk's administration of the court ordered Special Election", (2) "IT IS TIIEREFORE ORDEED that the Val Ver~eCounty Clerk shall conduct a.new Democratic Primary election for the position of Val Verde .. County Commissioner Court

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Precinct 4, said election to be held on September 25, 2010 with application for ballots by mail to be received by September 17, 2010, and early voting to be . from September 20 - 24th 2010", (3) "The Court does hereby Order that the canvassing for this Special Democratic Primary Election for County Commissioner Precinct No. 4 be held on September 30, 2010", (4) "All cost of the Special Democratic Primary Elections are adjudged and taxed against the Val Verde County Democratic Party". (Second Amended Order Exhibit 2)

On information and belief Defendant, Generosa G. Ramon, procured from the 1981h Judicial District Court the Second Amended Order through ex parte communication with the 'COurt and providing a sample 'order setting out all the above without the input of the Val, Verde County Democratic party or counsel of either candidate. The Order as procured by the County Clerk and issued by the 19Sth judicial district court is in direct violation of Texas Election Code §172.111, §173.001, §221.014, and §231.007(a). (Attached provisions of the TX. Elec. Code)

3. The Second Amended Order will result in retrogression of minority voting strength with the high potential and probability of voter oonfusionand voting fatigue in both this Special Election and leading, up to the November 2,. 2010 general election wherein early voting would begin within 3 weeks of this Special Election. The Second Amended Order as did the Original and Amended Order has failed to secure the requisite approval or preclearance required by Section 5 of the Voting Rights Act, 42 U.S.C.§ 19.73c.

4. Plaintiffs seek . to 'enjoin the Defendants and their successors from conducting

elections pursuant to the Second Amended Order ojSeptember 3,2010.

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JURISDICTION.

5. Jurisdiction of this COurt is invoked pursuant to 42 U.S.C. §1973c, 28 U.S.C.

§1343(3) and (4), and 28 U.S.C. § 2201.

PARTIES

ORGANIZATIONAL PLAINTIFF

6. Plaintiff: LULAC ·Council 4338 is a membership organization whose principle mission is to work to protect the civil rights, including the voting rights of Latino citizens of Val Verde County. LULAC Council 4338 has members who reside within the boundaries. of Val Verde County and specifically, within the boundaries of Val Verde County Commissioner Precinct No. 4 and who are voterswho will be directly impacted by this Second Amended Order.

JNpIVIDUAL PLAINTIFFS

The following named plaintiffs are LULAC members and voters who reside in Val Verde County Comrnissioner.sCourt Precinct 'No, 4. Lupita De La. paz , 307 W. Martin se, DelRio-, TL 78840;. James Fernandez,. 803 W. 6th St, Del Rio, TL 78840;· Rosalinda Perez, 1420 Ave.U, Del Rio, TL 7·8840; Jose -L Perez 1410 Ave., DerRio, TL 78840; Leticia Ortiz, 707 Ave. T, Del Rio, TL 78840; Jesus E. Ortiz, 707 Ave. T, Del Rio, TL 78840; Robert Clubb, 308 Regin, Del Rio, TL78840. ORGANIZATIONAL PLAINTIFF

7. P1ai~ vat Verde ·County Democratic Party is a political party operating -in . Val Verde County, Texas pursuant to the laws of the State of Texas. including but not limited to the Texas Election Code. The Val Verde County Democratic Party is made·up of an executive committee responsible for supervising the overall conduct of its county primary

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pursuant to §§172.111 and 231.007(a) TX E/ec. Code, secures the financing for its primary elections and special primary elections pursuant to §§173.001 and 221.014 TX EIec. Code, together with all other responsibilities of conducting a primary election or Special Election. The offices of the Val Verde Democratic Party are located at 211 Lowe Drive, Del Rio, Texas 78840.

INDIVIDUAL PLAINTIFF

8. Plaintiff. Diana Salgado is a resident of Val Verde County and Chair of the Val Verde County Democratic Party. As 'chair she is responsible for the management of the Val Verde County Democratic Party with respect to the Texas Election Code and its role in Primary and Special elections. Diana Salgado address is 207 Mountain View Dr., Del Rio, TX 78840.

DEFENDANTS

9.. The Defendants are all politicaljurisdictionsthat are covered by the preclearance provisions of Section '5 of the Voting Rights Act, 42 U.S.C. §19723c as well as Section 2 of the Voting.Rights Act, 42 U.S.C. §I973.

10. Defendant, Val Verde County is a political subdivision of the State of Texas. As a political subdivision, organized and existing pursuant to the laws of the State of Texas. As a political subdivision 'of the State of Texas, Val Verde County is subjecttothe requirements. of. Section 5 of.the Voting Rights Act and is responsible. for development of a constitutional and legal plan for election of County 'Commissioner Court Precinct No.4. Pursuant to the Texas Election Code, Val Verde County must allow the local Democratic Party the opportunity to manage and conduct its Democratic Primary and any Special Democratic primary. Val Verde County may be served by service at the office of the Val

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Verde County Judge Mike Fernandez, 400 Pecan Street, Del Rio, Texas 78840

11. Defendant, GENEROSA G. RAMON. the county clerk, who by virtue of the Second Amended Order, is responsible for calling and conducting, or causing to be conducted, the Special Election processes for County Commissioner Court Precinct No. 4 of Val Verde County, scheduled for September 25. 2010, with early voting from September 20 - 24th 2010 and all mail-in ballot applications submitted by September 17, 2010, all in violation or contrary to the.Texas Election Code. Generosa G. Ramon, may be served by service at the office of the Val Verde County Clerk, 400 Pecan Street, Del Rio; Texas 78841.

12. Defendant State of Texas is a political jurisdiction with responsibility and oversight of its State District Courts. The State of Texas and the District Court who Ordered this Special Election are covered by the preclearance provisions of Section 5 of the Voting Rights Act, 42 U.S.C. §1973c 8$ well as Section 2· of the Voting Rights Act; 42 U.S:C. §1973. mky v. Ken.nedy, 128 sa. 1970 (2008). (Voting changesthot originate from (J State ColIn Ortk., are subject to- Section- 5 pneleanmce. The State of Texas may be served by service to the Governor of Texas, Rick Perry by and through the Office of the Texas State AttomeyGeneral.

13. At all times relevant hereto, Defendants were and have been acting under the

color of statutes, ordinances, regulations, customs and usages of the State of Texas.

SECTIONS

STATEMENT OF FACTS

14. In November of 1975, the Voting Rights Act of 1965 was amended and extended to coverthe State.ofTexas.State politicaLsubdivisions covered by the Act must comply

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with certain specified procedures. Among those procedures. is. the requirement that all -qualifications, pr-er-equisit-es, -standards, practices -er -procedures with r-espect to voting different from those in force and effect on November 1, 1972, must be determined, either by the United States Attorney General or a United States District Court for the District of Columbia, not to have the purpose or effect of denying or abridging the right. to vote on account of'rsce, color or membership in a language minority group. More over in 2008 the- United States Supreme Court found that. any voting change that originates from a State Court Order is subject to Section 5 preclearance. Riley, 128 s.a 1970.

15. On or about August 18, 2010 Defendants issued or received an Order and an Amended Order directing a Special Election be held for vat Verde County Commissioner Precinct No.4 robe held in conjunction with- the November 2, 2010. general election. Defendants did not seek the requisite preclearance of these election changes as mandated by Section 5 of the Voting Rights Act, 42 U. S. C. § 1973c.

16. On September 3, 2010, the Court issued and the Defendants received an Second Amended Order making specific findings and among the order included the following (1) "amended to.facilitatethe County Clerk's administration or-the court orderedSpecial Election"; (2) "I'I' IS 'I'HEREl"ORE ORDEED that the- Val Verde County Clerk shall conduct a new Democratic Primary election for the position of Val Verde County Commissioner Court Precinct 4, said election to be held on September 25, 2010 with application for ballots by mail to be received by September 17,2010, and early voting to be from September 20 - 24th 20-10", (3) "The Court does hereby Order that the canvassing for this Special Democratic Primary Election for County Commissioner Precinct No.4 be held on September 30, 20IO"~ (4) "All cost of the Special Democratic

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Primary Elections are adjudged and taxed against the Val Verde County Democratic Party".

Defendants did not seek the requisite preclearance of these election changes as mandated Section 5 of the Voting' Rights Act, 42 U.S.C. §1973c.

CAUSES' OF ACTION

SECTIONS

17. Thealiegations contained in paragraphs 1 through 16 are alleged as if fully set

forth herein.

18. Plaintiffs' cause of action arises under the Voting Rights Act of 1965, as amended, 42 U.S.C. §1973c. Since the Defendants have failed to secure preclearance of the August 18,2010 Amended Order-or the September 3,2010 Second Amended Order, the adoption of said Order by the Defendant is not effective in law and is therefore, void. Any implementation of the changes affecting voting set forth herein and above without Section 5 preclearance violates the rights of Plaintiffs as secured by Section 5 of the Voting Rights Act, 42 U.S.C.§1973c.

19. This. is also an action for declaratory judgment and preliminary and. permanent injunctive relief instituted pursuant to 42 U.S.C. § 1973c and 2~ U.S.C. § 2001. Plaintiffs seek a declaration that the August 18, 2010 and the September 3,2010 Special Election adopted by the Defendants violates their rights as secured by the Voting Rights Act and should be enjoined from implementation.

SECTION 2

20. With respect to this cause of action, Plaintiffs incorporate, reallege and reaver all

of the matters contained in paragraphs 1 - 16 as it fully set forth herein..

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21. The Second Amended Order will result in retrogression of minority voting

strength with the high potential and probability of voter confusion and voting fatigue in both this Special Election and leading up to the November 2, 2010 general election wherein early voting begins within 3 weeks of this Special Election. The resulting high potential and probability of confusion and voter fatigue will not allow Latino voters an equal opportunity to participate in the electoral process and select candidates of their choice in both the Special Election and the November general election,.in violation of Section 2 of the Voting Rights Act.

IMMUNITIES

22. Plaintiffs allege, inter alia that qualified and absolute immunity do not protect the

Defendants because this suit asks only for injunctive relief, declaratory relief and attorney's fees. Plaintiffs also allege that absohrteimmunity does not protect the Defendants because so' far as the scope of this. sui~ Defendants are not acting in any of the capacities which received immunity at common law. The Defendants are not 'entitled to Eleventh Amendment Immunity because Plaintiffs seek only injunctive relief, declaratory relief and attorney's fees.

BASIS FOR EQUITABLE RELIEF

23.. Plaintiffs have no plain, adequate or complete remedy at law to 'redress the wrongs alleged herein and this suit for declaratory judgment and injunctive relief is their only means of securing adequate redress from Defendants' unlawful practices.

24. Plaintiffs will continue to suffer irreparable injury from Defendants' intentional

acts, 'policies, and practices set forth herein unless enjoined by this Court.

25. Plaintiffs have no adequate remedy at law other than the.judicial relief sought

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here. Unless the Defendants are enjoined, they will.persist in this election scheme, which will violate the rights ·of the Plaintiffs, which are secured .underFederal statutory law. No legitimate or compelling government interestrequires the procedure complained. herein.

ATIQRNEYS FEES

26. In accordance with 42 U.S.C. §1973(e) and §1988 Plaintiffs counsel are entitled to recover a reasonable fee and appropriate ·expense, including expert fees as part of the costs in this matter.

PRAYER

Plaintiffs respectfully pray that this Court enter Judgment granting Plaintiffs:

A A declaratory judgment that Defendants' actions preparing to administer or conduct elections, without Section 5 preclearance, violate the rights of Plaintiff as secured by the Voting Rights Act, 42 U. S.C.§ 1973c;

B. A declaratory judgment that Defendants' actions in holding this Special Election as outlined above would violate Plaintiffs rights as secured by Section 2 of the Voting Rights Act

C.Preliminary and permanent injunctive relief enjoining Defendants, their successors in office, agents, employees, attorneys, and those persons acting in, concert with them and/or at their discretion from not taking action to print ballots, conduct early voting, conducting mail-in ballot voting or any activity associated with the September 3, 2010 Second Amended Order or any Order until such time as preclearance is submitted and approved by the United States Department ofJustice ..

D. An order requiring Defendants to comply with Section 5 preclearancce

requirements of the V oting Rights Act;

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E. The costs of this suit and reasonable attorneys fees;

F. An order of this Court retaining jurisdiction over this matter until all

Defendants have complied with. aU orders and mandates of this Court;

G. An immediate hearing on the merits of this claim as the voting changes complained of have started with the mail-in ballot applications due in 8 days with early voting to begins in 11 days and the election day is set 15 days from the filing of this

complaint.

G. Such other and further'reliefas the 'Court may deem just and "proper.

DATED:. September 8, 2020

Respectfully Submitted, Luis Roberto Vera, Jr.

LULAC National General Counsel

The Law Offices of Luis Roberto Vera, Jr. & As_~(!iateS.

111 Soledad, suite 1325

San Antonio, Texas 78205-2260 Ph: (210).22S~3300 Fax: (210)225-2060

By;

o 0 Vera, Jr.

Attorney fur the Plaintiffs

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