Case 4:12-cv-02190 Document 23

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION HARRIS COUNTY DEPARTMENT OF EDUCATION, Plaintiff, v. HARRIS COUNTY, TEXAS; STAN STANART, HARRIS COUNTY CLERK; AND DON SUMNERS, HARRIS COUNTY TAX ASSESSOR COLLECTOR, Defendants.

C. A. No. H-12-cv-02190

HARRIS COUNTY DEFENDANTS REPLY IN SUPPORT OF THEIR MOTION TO DISMISS Harris County did not purposely violate Judge Gilmores interim order. Harris County followed Judge Gilmores 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 HCDEs elections. Blame is not 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 4 Republican Primary race, the Harris County Clerk can subtract wrongly added precincts and the outcome is the same. Fortunately, the computer did not subtract any eligible voters in the Position 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 AND subtracted. Therefore, some voters in the Position 6 race that were eligible to vote did not have that race on their ballot. The Harris County Clerk corrected the error for the July 31, 2012

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Democratic runoff election between Ms. Lee and Mr. Johnson. (Ms. Lee won the runoff by 74.93 percent, under Judge Gilmores interim boundaries.) Harris County has never maintained that it was not required to use the court-ordered interim boundaries in the primary elections neither in this Court nor in Judge Gilmores Court. Harris County discovered the error, admitted it, published it, and spent the first two weeks trying to get all the parties to agree to a solution. That did not happen. And, that is why we are litigating in this Court rather than hammering out a solution. Harris Countys consistent goal has been to try 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 per Commissioners Precinct $2 million per election Countywide. One suggested solution was to start the process anew holding primaries on November 6, 2012 (assuming a primary could be held on General Election Day); then holding an HCDE run-off in late December, and finally holding HCDEs general elections in January 2013. Under that scenario the decline in voter excitement and turnout is foreseeable. Only 3.19 percent of eligible Position 6 voters voted in the hotly contested and widely publicized Position 6 runoff between Mr. Johnson and Ms. Lee on July 31, 2012, even when that race was combined with other run-off elections. Delayed, standalone elections for HCDE will affect voter participation and all Harris County taxpayers. It is a sledgehammer approach to gnat killing. With due respect, many voters were unaware of HCDEs existence before the publicity surrounding this controversy. HCDEs perceived governance problem can be addressed if it materializes, but the mere prospect 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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6th General Election. For example, the Republican Partys candidate for Position 4 can stand as an expression of the corrected voters will under Judge Gilmores Interim Order; and the Democratic Party can select their candidate for Position 6 to run in the general election under Texas Election Law. It is difficult to conceive of any other means under these facts to address potential phantom plaintiffs. Thankfully, there is legal precedent for the above proposal. The Fifth Circuit addressed a 1978 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 voting machines and ballots used in the election. Some votes in three precincts were incorrectly counted 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 and remanded with instructions to dismiss, finding no deprivation of federal rights based upon innocent balloting errors. Gamza at 453-454 (If every state election irregularity were considered a federal constitutional deprivation, federal courts would adjudicate every state election dispute, and the elaborate state election contest procedures, designed to assure speedy and orderly disposition of the multitudinous questions that may arise in the electoral process, would be superseded 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 intentional deprivation, and thus has no Equal Protection claim under 42 U.S.C. 1983. The Harris County Clerk fixed the balloting error to correspond with Judge Gilmores Interim Order in the

Gamza v. Aguirre, 619 F.2d 449 (5th Cir. 1980).

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Democratic Partys Position 6 runoff election. And with all parties now on alert2 this error is not capable of repetition. Simply put, this is not a federal case. PRAYER Harris County, Harris County Tax Assessor-Collector Don Sumners, and Harris County Clerk Stan Stanart respectfully ask the Court to dismiss HCDEs lawsuit for lack of jurisdiction, but alternatively to retain the case to help the parties reach a quick, fair, and final resolution to these unique questions of fact and law. The Harris County defendants further ask for all other relief to which they may be entitled. Respectfully submitted, VINCE RYAN Harris County Attorney /s FRED A. KEYS, JR. Senior Assistant County Attorney State Bar No.11373900 Federal I.D. No. 12524 1019 Congress, 15th Floor Houston, Texas 77002 Telephone: 713-755-3609 Facsimile: 713-755-8924 fred.keys@hctx.net ATTORNEYS FOR HARRIS COUNTY, TEXAS

Texas Election Code 42.0615. A political subdivision that changes it boundaries (or has its boundaries changed by court order) has a duty to notify the voter registrar and provide the voter registrar with a map of the boundary change that is compatible with the mapping format used by the registrars office.

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CERTIFICATE OF SERVICE I hereby certify that on August 8, 2012, a true and correct copy of Harris Countys Reply in Support of its Motion to Dismiss was served electronically to all parties of record. _____/s/___ FRED A. KEYS, JR. Senior Assistant County Attorney

Harris County Defendants Reply In Support of Motion to Dismiss

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