Opinion
Civil Action No. SA-02-CA-408-EP
December 5, 2002
ORDER REGARDING SUMMARY JUDGMENT
On this date, the Court considered the parties' motions for summary judgment, responses and replies. These motions include the following: (1) Plaintiffs' Motion for Partial Summary Judgment, filed June 25, 2002, and Defendants' response and Cross-Motion for Summary Judgment as to Plaintiffs' First Cause of Action, filed July 26, 2002, and Plaintiffs' response; (2) Defendants' Motion for Partial Summary Judgment as to Plaintiffs' Claims Under Section 2 of the Voting Rights Act, filed August 5, 2002, Plaintiffs' response, and Defendants' reply; and (3) Defendants' Motion for Partial Summary Judgment as to Plaintiffs' Claims Requiring Proof of Intentional Discrimination [Third, Fifth and Sixth causes of action], filed July 24, 2002, Plaintiffs' response and Defendants' reply. After careful consideration, the Court will deny Plaintiffs' motion and grant Defendants' motions.
I. Facts and Procedural History
In the days leading up to the March 12, 2002 Republican Party Primary, the Bexar County Republican Party discovered that it was facing an unexpected shortage of volunteer election judges for the primary election. The shortage was the result of a combination of factors, including delays in setting precinct lines caused by redistricting, the Democratic Party's decision not to hold a joint primary, and a high number of cancellations by volunteers. Defendants maintain that this shortage was not discovered until Sunday, March 10, 2002, when a number of election judges failed to pick up their poll packages. The election staff called the absentee judges through Monday, March 11, 2002, to confirm their status and to try to find replacements.
When the Republican Party realized there would be a shortage of election judges, it decided to co-locate the polling places with absentee election judges to the Bexar County Republican Party headquarters. Fifty-six polling sites, representing 163 precincts, were re-located to the Republican Party headquarters. Some precincts were also co-located to places other than the Republican Party headquarters. The Republican Party election staff contacted the San Antonio Express News and had volunteers place signs at many of the unopened polling places in an effort to notify the public as to which polling locations were changed. As a result, the polling locations published in the newspaper on election day were markedly different than those published on the day before the election.
On election day, many voters experienced problems finding their polling locations. That day, a temporary restraining order was issued by State District Judge Michael Peden, pursuant to which certain polling locations in Bexar County, both Republican and Democrat, were ordered to remain open until 10:00 P.M. The order was intended to give voters affected by the problems related to the polling locations additional time to cast their ballots.
Plaintiffs allege that Defendants' actions violated section 2 and section 5 of the Voting Rights Act. Plaintiffs further allege that Defendants' actions disproportionately affected racial minorities in violation of state and federal law. On April 24, 2002, Plaintiffs filed this lawsuit and moved for a temporary restraining order, which the Court denied on April 29, 2002. On May 21, 2002, Defendants filed a preclearance submission with the Department of Justice, and on July 22, 2002, the Department of Justice granted retroactive preclearance. After a short discovery period, the parties filed several dispositive motions, including the four summary judgment motions considered in this order.
II. Summary Judgment Standard
In the usual case, the party who seeks summary judgment must show by affidavit or other evidentiary materials that there is no genuine dispute as to any fact material to resolution of the motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4 (1986); Lavespere v. Niagra Machine Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990); Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. See Celotex Corp., 477 U.S. at 325; Lavespere, 910 F.2d at 178.
Once the moving party has carried that burden, the burden shifts to the nonmoving party to show that summary judgment is not appropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991). The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nonmoving party's pleadings; rather, that party must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324; Fields, 922 F.2d at 1187. In order for a court to find there are no genuine material factual issues, the court must be satisfied that no reasonable trier of fact could have found for the nonmoving party or, in other words, that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Liberty Lobby, 477 U.S. at 249-50; FED. R. Civ. P. 56(e).
III. Section 5 of the Voting Rights Act
Plaintiffs allege that there is no genuine issue of material fact as to whether Defendants violated § 5 of the Voting Rights Act. Defendants, in their cross-motion, allege that because Plaintiffs' claim has been precleared by the Department of Justice, summary judgment should be granted in Defendants' favor.
"[A] three-judge court convened under Section 5 is a court of limited jurisdiction and limited authority." Campos v. City of Houston, 968 F.2d 446, 451 (5th Cir. 1992) (per curiam). The three-judge court determines "(1) whether a change [is] covered by § 5, (ii) if the change [is] covered, whether § 5's approval requirements were satisfied, and (iii) if the requirements were not satisfied, what remedy [is] appropriate." City of Lockhart v. United States, 460 U.S. 125, 129 n. 3 (1983). In entertaining an action under Section 5 of the Voting Rights Act, a three-judge court does not consider the merits of a plaintiffs claim that the proposed changes are discriminatory. United States v. Bd. of Supervisors, 429 U.S. 642 (1977); Perkins v. Matthews, 400 U.S. 379, 385 (1971).
A. Retroactive Preclearance
Defendants maintain that the Court should grant summary judgment in their favor because Plaintiffs' claim regarding § 5 of the Voting Rights Act has been approved by the Attorney General. In a letter dated July 22, 2002, Joseph D. Rich, Acting Chief of the Voting Section of the Department of Justice, stated that the Attorney General "does not interpose any objection to the specified changes." The changes referred to in the letter include the polling place closures and consolidations and the establishment of a polling place at the Republican headquarters.
The United States Supreme Court has not directly addressed the issue of retroactive preclearance in Voting Rights Act cases. However, in Berry v. Doles, 439 U.S. 190 (1978), the Supreme Court allowed the appellees 30 days in which to submit the changes in election procedure to the Attorney General for approval and found that approval would end the case. "[W]e adopt the suggestion of the United States that the District Court should enter an order allowing appellees 30 days within which to apply for approval of the 1968 voting change under § 5. If approval is obtained, the matter will be at an end. If approval is denied, appellants are free to renew to the District Court their request for simultaneous election of all members of the Board at the 1978 general election." Id. at 192-193. In East Flatbush Election Committee v. Cuomo, 643 F. Supp. 260, 264 (E.D.N.Y. 1986), the voting procedures had been retroactively approved at the time the court was reviewing the § 5 claim. The three-judge court in East Flatbush held that "retroactive federal approval satisfies the preclearance requirements of § 5." Id. Because the new procedures were eventually approved, the East Flatbush court held that the changes did not violate § 5.
The Voting Rights Act of 1965 was enacted to effectuate the provisions of the Fifteenth Amendment and to ensure that no citizen's right to vote is denied or abridged on account of race or color. In his July 22, 2002 letter, Mr. Rich indicated that the Attorney General approved the election day changes. Thus, the Attorney General's retroactive preclearance constitutes a finding that this change did not abridge citizens' right to vote. As a result, the polling closures, consolidations and the opening of a polling place at Republican headquarters does not violate section 5 of the Voting Rights Act. Accordingly, Defendants are entitled to summary judgment on this issue.
B. Subsequent Litigation to Enjoin Enforcement
In their response to Defendants' motion, Plaintiffs note that while preclearance case law suggests that preclearance ends a § 5 enforcement action, it does not bar subsequent civil litigation to enjoin enforcement of the covered changes. Plaintiffs continue to pursue their claims for injunctive relief to enjoin such action from occurring again in the future.
In Morris v. Gressett, the Supreme Court stated, "This Court has recognized that `[o]nce the State has successfully complied with the § 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality; there is no further remedy provided by § 5.'" Morris v. Gressett, 432 U.S. 491 (1977) (quoting from Allen v. State Bd. of Elections, 393 U.S. 544, 549-550 (1969)). Thus, Plaintiffs cannot pursue their claim to enjoin the enforcement of Defendants' actions under § 5.
C. New Election
The Court also finds setting aside the March 12, 2002, election is not an appropriate remedy under § 5. Defendants' actions to relocate and consolidate polling places was a hasty response to alleviate unforeseen election-day problems — not a deliberate attempt to circumvent the preclearance requirements of § 5. Because setting aside a local election is a drastic remedy, the Court will not impose such a remedy in relation to Plaintiffs' § 5 claims.
D. Attorneys' Fees
Both parties have also moved for attorneys' fees under § 5. Section 19731(e) provides in relevant part:
In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
42 U.S.C. § 19731(e).
The Supreme Court in Farrar v. Hobby explained that a plaintiff prevails "when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12 (1992); see also TK's Video, Inc. v. Denton County, Texas, 24 F.3d 705, 711 (5th Cir. 1994). The Court further observed that "no material alteration of the legal relationship between the parties occurs until the plaintiff becomes entitled to enforce a judgment, consent decree, or settlement against the defendant." Farrar, 506 U.S. at 113.
The Court has determined that Plaintiffs cannot prevail on their claims under § 5 of the Voting Rights Act. Although Plaintiffs contend that they are entitled to attorneys fees because their suit caused Defendants to make a preclearance submission, the Court finds that Plaintiffs' lawsuit did not cause Defendants to make a preclearance submission. Defendants made a voluntary "preclearance" submission after the relevant voting change had taken effect. In this particular instance, the Attorney General retroactively ratified the change, finding that it did not abridge citizens' right to vote. Whether Plaintiffs would have been entitled to attorneys' fees had the Attorney General not retroactively approved the change remains an open question. Similarly, the Court need not decide the question of whether Plaintiffs would have been entitled to attorneys' fees had Plaintiffs' suit caused Defendants to submit the change for preclearance in advance of the implementation of the change. On the facts at hand, the Court finds Plaintiffs are not a prevailing party under § 5 of the Voting Rights Act.
The Court also finds that Defendants are not entitled to attorneys' fees on this claim. Had Defendants filed their preclearance submission with the Department of Justice immediately after the election, this matter would have been resolved in a more timely fashion. As a result, the Court finds that each party shall pay its own costs as to Plaintiffs' claim under § 5 of the Voting Rights Act.
IV. Section 2 of the Voting Rights Act
Section 1973(a) applies to any "voting qualification or prerequisite to voting or standard, practice or procedure." 42 U.S.C. § 1973(a). In their motion for summary judgment, Defendants argue that § 1973 is not implicated because their actions do not constitute a standard, practice or procedure. Plaintiffs disagree, maintaining that § 1973 applies to non-permanent barriers to voting as long as the standard, practice or procedure results in denial of equal access to the electoral process. See S. REP. No. 97-417 (1982), reprinted in 1982 U.S.S.C.A.N. 177, 207.
The Eleventh Circuit decided a case involving similar facts in United States v. Jones, 57 F.3d 1020 (11th Cir. 1995) and held that an inadvertent error does not constitute a standard, practice or procedure. In Jones, the County Commission of Dallas County, Alabama adopted a new redistricting plan which provided for five single-member districts, three with African-American majorities and two with Caucasian majorities. Id. at 1021. Prior to the election, county officials attempted to notify voters who were to vote in a new district, but much confusion resulted. As a result, some residents voted in the wrong district in both the primary election and the general election. Id. at 1021-22. In the District 2 County Commission election, the Caucasian candidate defeated the African-American candidate by 10 votes. Id. at 1022. The United States filed a lawsuit under § 2 of the Voting Rights Act, alleging that election officials had permitted 52 Caucasian voters who lived outside District 2 to vote in the District 2 election, therefore depriving African-American voters of an equal opportunity to elect their preferred candidate and participate effectively in the political process. Id. at 1022.
The Eleventh Circuit found that this situation did not constitute a "standard, practice or procedure" for purposes of § 2. To support this finding, the court noted that "the misallocation of voters was not the result of any deliberate act by defendants." Id. The court agreed with the district court's conclusion that the misallocations were "no more than the type of errors one would expect in the normal course of any election, and especially in the circumstances surrounding the necessity of the Board of Registrars focusing in a very short time on relocating some 2,000 to 3,000 voters in the new District 2 alone." United States v. Jones, 846 F. Supp. 955, 962 (S.D. Ala. 1994). The appellate court also noted that two of the three members of the Board of Registrars, including its chairman, were African-American. Jones, 57 F.3d at 1024. The court "found no case holding that an inadvertent error can constitute a standard, practice, or procedure under Section 2." Id.
Plaintiffs submit that Defendants' actions are more analogous to Brown v. Dean, 555 F. Supp. 502, 503 (D.R.I. 1982). In Brown, a district polling place was moved between the primary and general elections from a local community center to a location that plaintiffs alleged was less convenient for minority voters. The court held that the location of a polling place was a "standard, practice or procedure" which violated § 1973. Id. at 505 (citing Perkins v. Matthews, 400 U.S. 987 (1971) (holding that a change in polling location requires preclearance under § 5 of the Voting Rights Act)). The Brown court noted that the Perkins Court "specifically held that the use of polling places at locations remote from black communities, or at places calculated to intimidate blacks from entering (when alternatives were available), was a practice or procedure which violated Section 1973." Id.
The Court finds that Defendants' reactions to the problems that arose in the course of the March Republican primary do not constitute standards, practices, or procedures. The Court finds that the relevant distinction between Brown and the instant case is that the Bexar County officials were responding quickly to problems that arose in the course of several days, whereas in Brown, the plaintiffs were able to challenge the polling location before the election was held. If there had been a standard, practice or procedure in place related to the change in polling locations, Plaintiffs in this case could have challenged that standard, practice or procedure before the election took place. Defendants have testified that the changes in polling locations took place because the Bexar County Republican Party suffered an unexpected shortage of election judges. This situation is similar to the mistakes made in Jones, where the county had a limited time to accomplish redistricting and mistakes were made in the carrying out of the redistricting plan. As in Jones, this Court finds that hurried changes in response to problems that could keep many polling places from opening are not a standards, practices or procedures under § 2 of the Voting Rights Act. Consequently, Defendants are entitled to summary judgment on Plaintiffs' § 2 cause of action.
V. Third and Fifth Causes of Action
In their third cause of action, Plaintiffs allege that Defendants intentionally switched polling place locations with the purpose of denying and abridging the right to vote on account of race, color and membership in a language minority group in violation of the Fourteenth and Fifteenth Amendments to the United States Constitution. In their fifth cause of action, Plaintiffs allege that Defendants' actions had the effect of denying or abridging the right to vote under color of state law in violation of 42 U.S.C. § 1983. Defendants allege that Plaintiffs must have proof of intentional or purposeful discrimination to be successful on each of these claims.
The Supreme Court held that claims under the Fourteenth and Fifteenth Amendments require proof of discriminatory intent in Rogers v. Lodge, 458 U.S. 613, 616-17 (1982). The Fifth Circuit, in Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir. 1980), issued the following guide for determining whether a challenge to a state election practice rises to a level deserving of federal protection:
As Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), requires in tort cases, the determination that particular conduct constitutes a constitutional deprivation rather than a lesser legal wrong depends on the nature of the injury, whether it was inflicted intentionally or accidentally, whether it is part of a pattern that erodes the democratic process or whether it is more akin to a negligent failure properly to carry out the state ordained electoral process and whether state officials have succumbed to `temptations to control . . . elections by violence and by corruption. . . .'Gamza, 619 F.2d at 453 (quoting Ex parte Yarbrough, 110 U.S. 651, 666 (1884)).
The language from Gamza, while not focused exclusively on intentional or purposeful conduct, distinguishes between actions constituting constitutional deprivations, including intentional conduct, patterns of behavior and actions involving violence and corruption, and non-actionable behaviors such as accidental conduct and solitary negligent actions. See id. Other circuits have also distinguished cases requiring federal intervention using these same concepts. In Powell v. Power, 436 F.2d 84 (2d Cir. 1970), the Second Circuit rejected the argument that § 1983 protects against "dilution by illegal voting whether or not the dilution was wilful or knowing." Id. at 86. In Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975), the Seventh Circuit distinguished "irregularities caused by mechanical or human error and lacking in invidious or fraudulent intent" from "wilful conduct which undermines the organic processes by which candidates are elected." Id. at 864. The courts in Powell and Hennings both found that the violation in question did not rise to the level of a constitutional deprivation.
The Gamza court addressed the intent requirement for equal protection cases more specifically, as follows:
Unlike systematically discriminatory laws, isolated events that adversely affect individuals are not presumed to be a violation of the equal protection clause. The unlawful administration by state officers of a non-discriminatory state law, "resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.'Gamza, 619 F.2d at 453 (citing Snowden v. Hughes, 321 U.S. 1, 8 (1944)).
Intentional or purposeful discrimination or denial of rights is more evident in cases where courts have found constitutional deprivations. For example, in Carrington v. Rush, 380 U.S. 89 (1965), the Supreme Court found a violation where servicemen stationed in Texas were prevented from voting in state elections. In Griffin v. Burns, 570 F.2d 1065, 1078 (1st Cir. 1978), the First Circuit found a violation where voters relied on absentee voting procedures announced by state officials only to later have their votes disqualified. The Griffin court found federal intervention justifiable "where the entire election process — including as part thereof the state's administrative and judicial corrective process — fails on its face to afford fundamental fairness." Id. Similarly, in Smith v. Cherry, 489 F.2d 1098, 1102 (7th Cir. 1973) the Seventh Circuit found a conspiracy by ward officials which "effectively disenfranchised the entire electorate." In summary, cases in which a constitutionally-recognized claim is found involve either intentional conduct or a situation where an entire election process fails to afford fundamental fairness.
Plaintiffs cite Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981), to support their proposition that a showing of intent is not required where substantive due process under the Fourteenth Amendment is violated. In Duncan, voters challenged a decision by state officials to appoint a Georgia Supreme Court justice to fill a vacancy, rather than hold a special election as required by state election law. The Fifth Circuit held that this constituted a deprivation of federally-protected rights. Id. Plaintiffs urge the finding that intent is not required in such a case. However, Duncan involved wilful conduct by state officials that resulted in the deprivation of voters' rights. The state officials appointed the justice with the intent that citizens would be denied the right to vote in an election to fill the vacancy.
The intent to deny a group of people the right to vote is not present in the instant case. Defendants consolidated polling places in reaction to the shortage of election judges that would be available to conduct the primary election. Defendant Barrera has attested that he had no intent to discriminate against any minority group and had no intent to deny the right to vote of the Hispanic population or any other minority population. Barrera Aff. ¶ 8. The Honorable Cyndi Taylor Krier attested that she saw no indication of intentional discrimination by any of the Defendants. See Deposition of Cyndi Taylor Krier, p. 93-94. Similarly, Bexar County Republican Party employees charged with conducting the primary election also deny that any intentional discrimination took place. See Affidavits of Carol Van DeWalle and Marian Stanko. Further, individual plaintiffs have conceded that they are not aware of any facts to support an allegation of intentional discrimination. See Deposition of Billie Dean, p. 52, ll. 12-16 and 17-25; Deposition of Miguel Martinez, p. 86, ll. 11-17 and p. 89, ll. 1-6; Deposition of Michelle Jones, pp. 47-51; Deposition of Kathryn Mauthe, p. 66, ll. 8-20. Because no evidence of intentional discrimination exists, and the entire election process did not fail to afford fundamental fairness, Defendants are entitled to summary judgment on Plaintiffs' third and fifth causes of action.
VI. State Election Law Claims
In their sixth cause of action, Plaintiffs allege Defendants violated the Texas Election Code, which had the result of depriving Plaintiffs of their constitutional right to vote in the March 12, 2002, Republican primary. Defendants allege that the sole means of complaining about violations of the Texas Election Code is through an election contest in state court. As a result, Defendants request that Plaintiffs' claims be dismissed.
Section 1367(a), which confers supplemental jurisdiction, provides:
The district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.28 U.S.C. § 1367(a). Section 1367(c) provides that:
The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if —
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.28 U.S.C. § 1367(c).
A federal district court with power to hear state law claims has discretion to keep, or decline to keep, them under the conditions set out in §§ 1367(c). United Mine Workers v. Gibbs, 383 U.S. 715 (1966). Because the Defendants' are entitled to summary judgment on each of Plaintiffs' federal claims, the Court declines to exercise supplemental jurisdiction over Plaintiffs' state election law claims. See 28 U.S.C. § 1367(c)(3). Accordingly, the Court dismisses without prejudice the claims raised in Plaintiffs' sixth cause of action.
VII. Conclusion
For the reasons discussed above,
(1) The Court GRANTS Defendants' motion for summary judgment as to Plaintiffs' § 5 claim and DENIES the parties' requests for attorneys' fees. The Court DENIES Plaintiffs' Motion for Partial Summary Judgment (docket entry # 23) and GRANTS Defendants' Cross-Motion for Summary Judgment as to Plaintiffs' First Cause of Action (docket entry # 52). Each party will pay its own costs as to Plaintiffs' first claim.
(2) The Court GRANTS Defendants' Motion for Partial Summary Judgment as to Plaintiffs' Claims Under Section 2 of the Voting Rights Act (docket entry # 57).
(3) The Court GRANTS Defendants' Motion for Partial Summary Judgment as to Plaintiffs' Claims Requiring Proof of Intentional Discrimination (docket entry #47), such that Plaintiffs' claims under the Fourteenth and Fifteenth Amendments and 42 U.S.C. § 1983 are DISMISSED.
(4) The Court DISMISSES without prejudice Plaintiff' state law claims.