Case 5:08-cv-00389-FB Document 13 Filed 05/20/2008 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION LULAC OF TEXAS, MEXICAN AMERICAN BAR ASSOCIATION OF HOUSTON, TEXAS (MABAH), ANGELA GARCIA, BERNARDO J. GARCIA, ELVIRA RIOS, ROGER ROCHA, ROSARIO VERA, and RAYMUNDO VALVERDE, CIVIL ACTION NO. SA 08 CA 0389 FB Plaintiffs, v. STATE OF TEXAS and TEXAS DEMOCRATIC PARTY, Defendants. DEFENDANT STATE OF TEXAS REPLY TO PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS TO THE HONORABLE FRED BIERY: COMES NOW the State of Texas, Defendant herein, and files this its Reply to Plaintiffs Response to Defendant s Motion to Dismiss and shows respectfully as follows: I. BACKGROUND Plaintiff filed suit alleging that the rules of the Texas Democratic Party governing delegate allocation will work to deprive Latino members of the Democratic Party of an equal opportunity to participate in the electoral process and select candidates of their choice. They also allege that these rules have never been precleared in accordance with the Voting Rights Act. Defendant State of Texas filed a Motion to Dismiss based on standing and on failure to state a claim upon which relief may be granted. That Motion pointed out that Plaintiffs do not have standing as they have failed to State of Texas Reply to Plaintiffs Response to Defendant s Motion to Dismiss Page 1
Case 5:08-cv-00389-FB Document 13 Filed 05/20/2008 Page 2 of 7 allege either causation or redressability with respect to the state because the state did not adopt the rule and does not implement it. Plaintiffs harm is therefore not caused by the state and will not be redressed by an order suspending implementation of the Democratic Party s rule. Defendant State of Texas also seeks to dismiss because Plaintiffs have not alleged that the state is causing their harm, and therefore failed to state a claim upon which relief may be granted. Plaintiff has now responded to that Motion. Plaintiffs Response is essentially that the state of Texas is authorized to make submissions for preclearance to the Department of Justice, that the state did not submit the Democratic Party s rules for preclearance, and that the state therefore is causing Plaintiffs harm and that the harm can be redressed by an order to the state requiring the state to submit the Democratic Party s rules for preclearance. Defendant State of Texas now files this Reply. II. REPLY Plaintiffs argument that they are being harmed by Texas failure to preclear the rules of the Texas Democratic Party is illogical. The harm that Plaintiff is alleging, which is underrepresentation for Latinos at the Democratic Party s state convention, is not being caused by use of a rule that has not been precleared. It is being caused by the way that the rule allocates delegates. If the rule had been precleared, it would still allocate delegates in the same way and Plaintiffs would still allege that they are under-represented. For this reason alone, the state s Motion to Dismiss should be granted. To the extent that Plaintiffs are claiming that, had the state submitted the Party s rule for preclearance, the rule would not have been precleared and would therefore not have been implemented, this reasoning is completely speculative and is insufficient to support causation or State of Texas Reply to Plaintiffs Response to Defendant s Motion to Dismiss Page 2
Case 5:08-cv-00389-FB Document 13 Filed 05/20/2008 Page 3 of 7 redressability. Additionally, even if the failure to preclear the Texas Democratic Party s rules were causing Plaintiffs harm, they still cannot charge the state with causation. Plaintiffs have responded only that the state was authorized to submit the Party s rules for preclearance. However, for the state to be liable, it must have had a duty to submit those rules and must have failed in that duty. Plaintiffs have not argued that the state had such a duty. Furthermore, a review of the relevant law and the Supreme Court s interpretation of that law shows that there is no basis for the Plaintiffs claim that the state was authorized to submit the rules of a completely different entity the Texas Democratic Party and also shows that there was no duty to do so. Plaintiffs cite no authority that the state has an obligation or duty to submit party rules for preclearance. Indeed, it is highly questionable whether a political party s rules must be submitted for preclearance by the Party itself, much less by a state acting on behalf of a Party. A review of the statutory and jurisprudential authority show that political party s rules should generally not be submitted for preclearance unless a court has so held. The plain language of Section 5 governing submission for preclearance refers to a state or political subdivision. 42 U.S.C. 1973c. Political parties are not political subdivisions of the state, and there exists a question of whether or not political parties are covered by the language of Section 5. The Supreme Court examined this issue in Morse v. Republican Party of Virginia, 517 U.S. 186 (1996), and came to no clear conclusion. In a fractured opinion, two justices held that Section 5 applies to political parties, but only in the very limited situation that was immediately before the court, which was a situation in which a political party charged a fee for attendance at its convention. Id. 223. Three justices concurred and joined this result, but stated clearly that they would go no State of Texas Reply to Plaintiffs Response to Defendant s Motion to Dismiss Page 3
Case 5:08-cv-00389-FB Document 13 Filed 05/20/2008 Page 4 of 7 further than ruling on the fee that was at issue in Morse. These three justices, Breyer, O Connor, and Souter, specifically limited their holding by stating: We go no further in this case because as the dissents indicate, First Amendment questions about the extent to which the Federal Government, through pre-clearance procedures, can regulate the workings of a political party convention, are difficult ones, as are those about the limits imposed by the state-action cases. Those questions, however are properly left for a case that squarely presents them. Morse at 239, S. Ct.. In Morse, the Supreme Court expressly refused to state whether or not any rule by a political party must be pre-cleared other than one that charges a fee for attendance at a state convention, and went on to caution against making any other ruling on the issue until the factual case squarely presented itself. Morse thus instructs the state that no political party rule should be pre-cleared except one that charges the same fee as was charged in that case. Thus, neither Section 5 nor Morse demonstrates a duty on behalf of the state to make such a submission on behalf of a political party, and in fact, both the statute and Morse would instruct against it. Logically, without a duty to act and a failure in that duty, the state cannot be liable to Plaintiffs. Despite the clear guidance of Morse against submission of party rules without clear guidance from a court, Plaintiffs claim that the state had the authority to make the submission based on 28 C.F.R 51.23, which provides as follows: (a) Changes affecting voting shall be submitted by the chief legal officer or other appropriate official of the submitting authority or by any other authorized person on behalf of the submitting authority. When one or more counties or other political subunits within a State will be affected, the State may make a submission on their behalf. Where a State is covered as a whole, State legislation (except legislation of local applicability) or other changes undertaken or required by the State shall be submitted by the State. State of Texas Reply to Plaintiffs Response to Defendant s Motion to Dismiss Page 4
Case 5:08-cv-00389-FB Document 13 Filed 05/20/2008 Page 5 of 7 28 C. F. R. 51.23. Plaintiffs argue that this rule gives the state authority to submit rules for preclearance, when the enacted voting procedures affect more than one county. (Plaintiffs Response, p. 4.) However, a more complete reading of the regulation show that the reference is to counties or political subunits. Political subunits do not include political parties. While the Plaintiffs apparently argue that the phrase, more than one county means a statewide rule, the intent of this rule is that when there is a change affecting voting that has its effect in the political subunits of the state, such as counties, cities, villages, or other political subunits, then the state is authorized to make the submission. These words are similar to the words state or political subdivision contained in Section 5 and interpreted in Morse. This regulation by no means makes it clear that a state has the right to submit a political party s rules for preclearance. The state of Texas submits that it did not have authority 28 C.F.R. 51.23 to submit the rule of a political party to the Department of Justice, and that statute clearly does not give the state a duty to make the submission. 28 C.F.R 51.23 only requires submission by the state under specified circumstances. Where a State is covered as a whole, State legislation (except legislation of local applicability) or other changes undertaken or required by the State shall be submitted by the State. The regulation thus requires submission by a state only when there is state legislation or other changes covering the whole state that the state undertakes or requires. Rules by political parties are not changes that the state undertakes or requires. There is therefore no requirement for submission by the state in 28 C.F.R. 51.23. The state s failure to submit the rule of a political party for preclearance is not causing the harm about which Plaintiffs are complaining. In addition, there is no duty on the part of the state to State of Texas Reply to Plaintiffs Response to Defendant s Motion to Dismiss Page 5
Case 5:08-cv-00389-FB Document 13 Filed 05/20/2008 Page 6 of 7 make submissions for political parties, and, contrary to Plaintiffs assertions, the state does not have authority under federal regulations to decide to submit the rule of a political party for preclearance. Without harm being caused by Defendant, Plaintiffs have no injury that can be redressed by an order against the state. They therefore have no standing to sue the state, and as urged in Defendants Motion to Dismiss, without causation, Plaintiffs have failed to state a claim upon which relief may be granted. CONCLUSION The State of Texas deserves to be dismissed from this suit, and respectfully requests that the court grant its Motion to Dismiss, and grant this Defendant further such relief to which it may show itself entitled. Respectfully submitted, GREG ABBOTT Attorney General of Texas KENT C. SULLIVAN First Assistant Attorney General DAVID S. MORALES Deputy Attorney General for Civil Litigation ROBERT B. O KEEFE Chief, General Litigation Division /s/ Kathlyn C. Wilson KATHLYN C. WILSON Texas State Bar No.21702630 Assistant Attorney General General Litigation Division P. O. Box 12548, Capitol Station Austin, Texas 78711 (512) 463-2120 / (512) 320-0667 Fax ATTORNEYS FOR DEFENDANTS State of Texas Reply to Plaintiffs Response to Defendant s Motion to Dismiss Page 6
Case 5:08-cv-00389-FB Document 13 Filed 05/20/2008 Page 7 of 7 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing instrument has been served via th electronic notification, as required by the U.S.D.C. for the Western Division, on this 20 day of May, 2008, on: Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, TX 78209 George Korbel The Law Office of George Korbel 220 Gardenview San Antonio, TX 78213 Luis Roberto Vera, Jr. LULAC General Counsel 1325 Riverview Towers 111 Soledad San Antonio, TX 78205-2260 Chad Dunn Brazil & Dunn 4201 FM 1960 West, Ste. 530 Houston, TX 77068 /s/ Kathlyn C. Wilson KATHLYN C. WILSON Assistant Attorney General State of Texas Reply to Plaintiffs Response to Defendant s Motion to Dismiss Page 7