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Lopez v. Abbott

United States District Court, S.D. Texas, Corpus Christi Division

April 3, 2017

LIONEL LOPEZ, et al, Plaintiffs,
GREG ABBOTT, et al, Defendants.



         Plaintiffs challenge the at-large election of judges serving on the State of Texas's courts of last resort-the Supreme Court of Texas and Texas Court of Criminal Appeals-on the basis of vote dilution under Section 2 of the Voting Rights Act, 52 U.S.C. § 10301. D.E. 24. Before the Court is Defendants' Motion to Dismiss (D.E. 30), challenging Plaintiffs' standing and whether they have adequately alleged a Section 2 claim. For the reasons set out below, the motion is DENIED.


         Defendants, the State of Texas; Greg Abbott, in his official capacity as Governor of Texas; and Carlos Cascos, in his official capacity as Texas Secretary of State, challenge the Court's jurisdiction under Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiffs do not have standing to assert their claims. Also, invoking Rule 12(b)(6), Defendants challenge whether Plaintiffs have properly pled the necessary elements of their Voting Rights Act claim. Each challenge is addressed in turn.

         A. Standing to Support Jurisdiction

         1. Standard of Review

         Federal Rule of Civil Procedure 12(b)(1) requires dismissal for lack of subject matter jurisdiction if the Court lacks statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Standing determines the court's fundamental power to hear the suit. Grant ex rel. Family Eldercare v. Gilbert, 324 F.3d 383, 386 (5th Cir.2002). When a Rule 12(b)(1) motion is filed together with other Rule 12 motions, the court should address the jurisdictional attack before addressing any attack on the merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.2001), cert. denied sub nom., Cloud v. United States, 536 U.S. 960 (2002).

         The burden of proof is on the party asserting jurisdiction-Plaintiffs, here. Ramming, 281 F.3d at 161. The elements of Article III standing “are not mere pleading requirements but rather an indispensable part of the plaintiff's case [and] each element must be supported . . . with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Thus, at the pleading stage, a complaint must contain general factual allegations to indicate that standing is plausible. See id.; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must assume arguendo the merits of the legal claim. See Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007) (citing Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007) (in turn citing Warth v. Seldin, 422 U.S. 490, 501-02 (1975)).

         2. Defendants' Challenges to Standing

         To establish standing, it is well-settled that the plaintiff must allege the following elements: (1) the plaintiff suffered an injury in fact, which is concrete or particularized and actual or imminent; (2) there is a causal connection between the injury and the conduct complained of; and (3) it is likely that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61. Defendants contend that Plaintiffs' pleading suffers defects on each of these elements.


         Defendants claim that a single plaintiff's standing cannot be predicated upon a generalized grievance shared by all or a large class of citizens. For this proposition, they cite Warth, supra at 499. However, the Warth case did not address voting rights or any other injury necessarily shared by all or a large class of citizens. Rather, the claimed injury was a zoning ordinance that excluded certain low income persons from housing. The Warth plaintiffs did not demonstrate that they had been excluded from housing. Instead, they claimed that, because of shared racial or ethnic minority and low income demographics, they could challenge the ordinance on equal protection grounds. Because they had not demonstrated that they were within the class that had actually been injured, they did not have standing.

         At-large voting schemes have been held to impair minority voting rights. Thornburg v. Gingles, 478 U.S. 30, 47 (1986). Thus, individual citizens of the affected minority in the relevant jurisdictions have the necessary injury to satisfy the requirements of standing to challenge a practice allegedly causing dilution of their vote. E.g., Kirksey v. Bd. of Sup'rs of Hinds Cty., 402 F.Supp. 658, 675 (S.D.Miss. 1975), rev'd on other grounds, 554 F.2d 139 (5th Cir. 1977).

If such impairment does produce a legally cognizable injury, they are among those who have sustained it. They are asserting ‘a plain, direct and adequate interest in maintaining the effectiveness of their votes, ' not merely a claim of ‘the right possessed by every citizen ‘to require that the government be administered according to law . . . '.' They are entitled to a hearing and to the District Court's decision on their claims. ‘The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.'

Baker v. Carr, 369 U.S. 186, 208 (1962) (citations omitted) (addressing an equal protection challenge to apportionment). See also, Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999).

         Defendants further suggest that the individual injury of vote dilution is not adequately pled unless the Individual Plaintiffs state a scenario in which their own or their Latino group's preferred, named, candidate was not elected. However, the first amended complaint recites a statistical history of voting for the high courts of Texas and alleges that Latino candidates and other candidates preferred by the Latino community have not been elected in numbers proportionate to the voting class. D.E. 24, pp. 6-8. They have placed the immediate past history of election outcomes in question and further development of the issues requires discovery and the presentation of evidence. The pleading sets out a sufficient factual basis to defeat a Rule 12 motion.


         Defendants also claim that the necessary causal connection cannot be demonstrated because Plaintiffs cannot rule out the significance of independent reasons for electoral defeat, such as party affiliation. Defendants argue that Plaintiffs have to be able to show that the candidate they voted for did not prevail and that there were no other forces at work that might have caused the minority-preferred candidate to lose the election, citing League of United Latin American Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 850 (5th Cir. 1993). However, the Clements opinion discusses alternate causes as revealed through evidence at trial. The opinion does not support pre-litigating such a fact issue in a motion to dismiss at the pleading stage.[1]

         Defendants also cite United States v. Hays, 515 U.S. 737, 745-46 (1995). Likewise, that opinion was based on a fully developed trial record. The Court wrote, “But appellees do not live in the district that is the primary focus of their racial gerrymandering claim, and they have not otherwise demonstrated that they, personally, have been subjected to a racial classification. For that reason, we conclude that appellees lack standing to bring this lawsuit.” Id. at 739. The relevant point to glean from this decision, then, is that individuals who do reside in the district that is the primary focus of their claim do have standing to complain of vote dilution.

         Defendants also cite Bennett v. Spear, 520 U.S. 154, 167 (1997), as requiring proof that vote dilution was the exclusive cause of electoral defeat. However, the causation requirement for standing is that “the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. Allegations that their vote dilution results from the method of conducting elections by the governing jurisdiction is sufficient. Plaintiffs need not expressly exclude other potential causes of their injury. At the pleading stage, the Court takes Plaintiffs' allegations as true. If a party not before the ...

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