Texas Supreme Court holds election contest moot, but trial court was still in error when it awarded sanctions

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Laura Pressley v Geregorio Casar, 17-0052 (Tex. January 25, 2019)

This is an election contest case for a city council seat where the losing party and her attorney were sanctioned for bringing a frivolous claim. The Texas Supreme Court reversed the award of sanctions and dismissed the case as currently moot.

Gregorio Casar and Laura Pressley finished first and second, respectively, in the 2014 Austin City Council general election for the District 4 council seat. Pressley filed a request for recount, which included a recount of the electronic voting system information. For the manual recount, the CVR file for each voter was printed and counted by hand. The manual recount found no discrepancies with the original canvass and confirmed the original results that Casar won. Pressley next filed an election contest, arguing that CVRs are not “ballot images” or “images of ballots cast,” as the Election Code requires. She also asserted the election officials failed to allow her and the poll watchers the ability to observe the retrieving of the images from the machines. Casar filed traditional and no-evidence summary judgment motions and moved for Chapter 10 sanctions, which the trial court granted and the court of appeals affirmed.

The Court first noted Casar was reelected and began his second term in 2017. Because Pressley’s petition for review was filed after the completion of Casar’s contested term, the Court  decide is whether the election contest is moot.

Casar argued this election contest is moot because no remedy exists to contest an expired term of office. The Court agreed and no exception to the mootness doctrine applied. However, even though the election contest provision is moot, the Court still considered the sanctions holdings. Chapter 10 of the Civil Practice and Remedies Code permits sanctions for pleadings that are filed for an improper purpose or that lack legal or factual support. Pleaded claims must be warranted by existing law or a nonfrivolous argument to change existing law.  The trial court sanctioned Pressley and Rogers for three claims in which they alleged: (1) election irregularities, (2) criminal violation by election officials, and (3) voter disenfranchisement.  After analyzing each, the Court held at least some evidence exists to support the claims asserted. There is nothing frivolous about presenting a statistical analysis showing that the results were unlikely as persuasive support. Pressley’s computer-science and data expert testified that he found at least nine corruption errors in the files, which constitute irregularities and is also an indicator of potential corruption. The seals on the election machines were also broken. Pressley did not need to be right or produce enough evidence to prevail on her entire suit to avoid sanctions. These claims have some evidentiary support and that is enough to make them non-frivolous.  The sanctions order was reversed and the remainder dismissed as moot.

 

If you would like to read this opinion click here. Per Curiam opinion. The docket page with attorney information is found here.

US Supreme Court remands redistricting case to determine if state improperly used race as a basis for redistricting lines

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Bethune-Hill v. Virginia State Bd. of Elections, No. 15-680 (U.S. March 1, 2017)

In this U.S. Supreme Court redistricting case, the Court held the lower courts misapplied the standard for determining whether race was an impermissible factor in redrawing district lines.

This case addresses whether the Virginia state legislature’s consideration of race in drawing new lines for 12 state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment after the 2010 census. Certain voters challenged the new districts as unconstitutional racial gerrymandering.  The trial court panel held 11 of the 12 districts did not deviate from traditional criteria so were constitutional. It also held the 12th, did deviate, but the state had a compelling interest which was narrowly tailored. It is undisputed that the boundary lines for the 12 districts at issue were drawn with a goal of ensuring that each district would have a black voting-age population (BVAP) of at least 55%. In order to make the 12th district work, non-traditional criteria were used and justified as not wanting to dilute the black vote and to avoid diminishing the ability of black voters to elect their preferred candidates, which at the time would have violated §5 of the Voting Rights Act of 1965.  The citizen’s suit was dismissed.

The Supreme Court went through a lengthy analysis. It first held the district court used an incorrect legal standard regarding the first 11 districts. The proper inquiry concerns the actual considerations that provided the essential basis for the lines drawn, not post hoc justifications that the legislature could have used but did not. A legislature “could construct a plethora of potential maps that look consistent with traditional, race-neutral principles, but if race is the overriding reason for choosing one map over others…” unjustified race considerations may be present.  The trial court erred in considering the legislature’s racial motive only to the extent that the challengers identified deviations from traditional redistricting criteria.  The “ultimate object of the inquiry is the legislature’s predominant motive for the district’s design as a whole, and any explanation for a particular portion of the lines must take account of the districtwide context. A holistic analysis is necessary to give the proper weight to districtwide evidence, such as stark splits in the racial composition of populations…”  The Court remanded the determination of the first 11 districts to the trial court to reconsider in light of the Court’s rulings. However, as to the 12th district, the Court held Virginia had a compelling interest to comply with the Voting Rights Act applicable at the time. The State does not have to show its action of race consideration was actually necessary to avoid a statutory violation, but only that the legislature had “ ‘good reasons to believe’ ” its use of race was needed in order to satisfy the Voting Rights Act.  Virginia established its use of race for the 12th district was narrowly tailored and necessary under §5, and the result reflected the good-faith efforts of legislators to achieve an informed bipartisan consensus.  The Court affirmed the dismissal as to the 12th district and remanded the remaining 11.

Justice Alito concurred in part and in the judgment. He concurred as to the 12th district because he believed the law applicable should be the case law from 2012 and not to consider the Court’s holding in Shelby County v. Holder, 570 U. S. ___ (2013).  He concurred with the remand of the 11 districts but believes strict scrutiny should apply to them.

Justice Thomas concurred in the judgment but dissented in part. He concurred with remanding the 11 districts and would hold they must satisfy strict scrutiny requirements. As to the 12th district, he disagrees Virginia satisfied a strict scrutiny analysis.  Since he has previously held §5 of the Voting Rights Act is unconstitutional, using §5 as a reason to consider impermissible grounds does not qualify as a compelling interest. He also believed Virginia did not narrowly tailor its application. And while he sympathizes with the legislature and appears to believe they were trying to comply with §5, he equates the action to “state sponsored race discrimination.”

If you would like to read this opinion click here.  Justice Kennedy delivered the opinion of the court, in which Justices Roberts, Ginsburg, Sotomayor, and Kagan JJ., joined.  Justice Alito filed an opinion concurring in part and concurring in the judgment. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part.

Texas Voter ID statute held unconstitutional by U.S. 5th Circuit.

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Marc Veasey, et al.,  v. Greg Abbott et al.,  v. United States of America, et al.  14-41127 (5th Cir. July 20, 2016)

This is a Voter Rights Act case where the U.S. 5th Circuit Court of Appeals invalidated SB 14 from 2011 which required several forms of photographic identification in order to vote.

When you add the majority opinion, concurring opinions and dissents this is 203 pages worth of analysis. A summary would still take several pages just to encapsulate the reasoning. As a result, this summary is simply hitting the bottom line. The district court held that SB 14 was enacted with a racially discriminatory purpose, has a racially discriminatory effect, is a poll tax, and unconstitutionally burdens the right to vote. The State appealed from that decision, and a panel affirmed in part, vacated in part, and remanded the case for further findings.  The State sought en banc review, which was granted. The full U.S. Court of Appeals for the 5th Circuit held that while some of the evidence relied upon by the district court was “infirm” other evidence supported a discriminatory purpose, so the matter was remanded for an evidence weighing analysis, especially in light of pretextual evidence under a disparate treatment claim. The court then adopted the two-part framework employed by the Fourth and Sixth Circuits to evaluate Section 2 “results” claims (i.e. disparate impact claims). Under this test, the court found the trial court did not error in holding SB 14 imposes significant and disparate burdens on the right to vote. The court remanded for a determination of an appropriate remedy given the severability clause contained within the statute. However, the court rendered a determination that SB 14 does not impose a poll tax. Given direction from the U.S. Supreme Court, the 5th Circuit instructed the trial court to evaluate an intermediate remedy in light of the November 2016 election, and  address full relief after the election.

If you would like to read this opinion click here. The panel includes chief Judge Stewart, Circuit Judge Jolly, Circuit Judge Davis, Circuit Judge Davis, Circuit Judge Jones, Circuit Judge Smith, Circuit Judge Dennis, Circuit Judge Clement, Circuit Judge Prado, Circuit Judge Owen, Circuit Judge Elrod, Circuit Judge Southwick,  Circuit Judge Haynes, Circuit Judge Graves, Circuit Judge Higginson, and Circuit Judge Costa. Per- Curuam. Attorney for Appellant: Scott A. Keller.  Attorney for Appellee: Chad Wilson Dunn.