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In late 2017, the Committee on Defender Services (Committee) asked the Federal Judicial Center to generate a white paper on the potential effects on the federal courts and the defender services program of a determination that states have “opted in” to special expedited procedures created by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

After a brief discussion of some of the changes under “opt-in,” as Chapter 154’s procedures are called, this white paper discusses the potential impact of opt-in for the federal district and appellate courts with jurisdiction in Arizona and Texas, the two states that have applied for opt-in status thus far.

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Gonzalez Garza v. Starr County (Randy Crane, S.D. Tex. 7:18-cv-46)
A federal district judge declared unconstitutionally vague an apparent proscription against electioneering on county-owned property adjacent to voting locations, finding that the apparent order was expressed merely as a desire. Litigation continued during several amendments to the policy and several amendments to the complaint.
Subject: Campaign activities. Topics: Campaign materials; early voting.

One of many Case Studies in Emergency Election Litigation.

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Petteway v. Galveston (Kenneth M. Hoyt, Emilio M. Garza, and Melinda Harmon, S.D. Tex. 3:11-cv-511)
A federal complaint sought to enjoin the use of new county commission district lines until the new lines could be precleared pursuant to section 5 of the Voting Rights Act. The district judge assigned the case issued a temporary restraining order, but the other two judges of a three-judge district court empaneled to hear the section 5 claim determined that the injunction was unnecessary while preclearance procedures were pending. Preclearance required adjustments to the new districting plan, and the court ordered adjustments to the election calendar to accommodate the late-drawn district lines. The district judge assigned the case awarded attorney fees and costs to the plaintiffs, but the court of appeals determined that plaintiffs were not prevailing parties in the litigation because the injunction did not have an impact on the preclearance process.
Subject: District lines. Topics: Section 5 preclearance; malapportionment; three-judge court; enjoining elections; attorney fees; intervention.

One of many Case Studies in Emergency Election Litigation.

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Harris County Department of Education v. Harris County (Lee H. Rosenthal, S.D. Tex. 4:12-cv-2190)
A county’s department of education filed a federal complaint after a primary election for its board of trustees was held using malapportioned district lines instead of interim lines imposed by a federal judge in another case while preclearance of new lines was pending. The district judge presiding over the new case found no constitutional violation because of a lack of intent, and she found that the equities weighed against the plaintiff because it was unlikely that the districting error had an effect on the election’s ultimate outcome.
Subject: District lines. Topics: Election errors; enjoining elections; malapportionment; intervention; 42 U.S.C. § 1983; primary election.

One of many Case Studies in Emergency Election Litigation.

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Oliver v. Lewis (Lee H. Rosenthal, S.D. Tex. 4:12-cv-2568)
Defendants removed to federal court a state court challenge to the disqualification of a primary election victor for party disloyalty. Upon the plaintiffs’ agreement to dismissal of a federal constitutional claim by nonsuiting the voter plaintiffs, the district court remanded the case because of the early withdrawal of the federal claim and the complexity of the state claims.
Topics: Matters for state courts; getting on the ballot; primary election.

One of many Case Studies in Emergency Election Litigation.

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Shields v. Engelman Irrigation District (Ricardo H. Hinojosa, S.D. Tex. 7:08-cv-116)
In response to an April 3, 2008, federal complaint, a district judge and then a three-judge district court enjoined new voter registration requirements for a May 10 election by landowners to an irrigation district board of directors for lack of preclearance pursuant to section 5 of the Voting Rights Act.
Topics: Registration procedures; section 5 preclearance; three-judge court; voter identification; matters for state courts; intervention; pro se party.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Meyer v. Texas (Kenneth M. Hoyt, S.D. Tex. 4:10-cv-3860)
An independent write-in candidate for Congress filed a pro se federal complaint challenging the constitutionality of state election laws favoring party candidates, including straight-ticket voting. The district judge concluded that the complaint did not allege a constitutional violation, and the state laws served the state’s interest in regulating elections.
Topics: Pro se party; write-in candidate.

One of many Case Studies in Emergency Election Litigation.

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North Forest Independent School District v. Texas Educational Agency (David Hittner, S.D. Tex. 4:13-cv-1786)
School district trustees filed a federal voting rights challenge to consolidation of the school district with a neighboring school district. On the day after the case was heard, the challenge pursuant to section 5 of the Voting Rights Act became moot because of the Supreme Court’s holding that the criteria for application of section 5 were unconstitutional. The district judge denied immediate relief on the section 2 claim, consolidation proceeded, and the parties stipulated to a nonsuit.
Topics: Section 2 discrimination; section 5 preclearance; laches.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

Texas Democratic Party v. Bettencourt (Gray H. Miller, S.D. Tex. 4:08-cv-3332)
Six days after the 2008 general election, the Democratic candidate for a state judgeship was a few hundred votes behind his opponent. The Democratic candidate filed a federal complaint seeking prompt resolution of several thousand provisional and absentee ballots. Two days later, the district court denied the plaintiff immediate relief. An amended complaint more generally challenging county procedures for voter registration and provisional ballots resulted in a 2012 settlement.
Topics: Provisional ballots; absentee ballots.

One of many Case Studies in Emergency Election Litigation.

Available Online Only

In 2010, the Judicial Conference Advisory Committee on Civil Rules requested a study of motions for sanctions based on an allegation that the nonmoving party had destroyed evidence, especially electronically stored information (ESI). The study examined the electronic docket records of civil cases filed in 2007–2008 in 19 districts, including at least one district in every circuit except the District of Columbia Circuit. This report summarizes the findings of that study and, where appropriate, compares those findings to other studies.

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