Casarez v. Val Verde County

• Decision Date: 24 January 1997
• Docket Number: Civil Action No. DR-96-CA-108.
• Citation: 957 F.Supp. 847
• Parties: Jovita CASAREZ, Plaintiff, v. VAL VERDE COUNTY, A Political Subdivision of the State of Texas, and Maria Elena Cardenas, County Clerk of Val Verde County, Defendants.
• Court: U.S. District Court — Western District of Texas

957 F.Supp. 847

Jovita CASAREZ, Plaintiff, v. VAL VERDE COUNTY, A Political Subdivision of the State of Texas, and Maria Elena Cardenas, County Clerk of Val Verde County, Defendants.

Civil Action No. DR-96-CA-108.

United States District Court, W.D. Texas, Del Rio Division.

January 24, 1997.

COPYRIGHT MATERIAL OMITTED

Alpha Hernandez, Del Rio, TX, David R. Richards, Gray & Becker, Austin, TX, George Joseph Korbel, Texas Rural Legal Aid, San Antonio, TX, for Jovita Casarez.

Ana M. Markowski, County Attorney's Office, Del Rio, TX, for Val Verde County, Maria Elena Cardenas.

Richard F. Gutierrez, Del Rio, TX, Ralph A. Lopez, Lopez, Lotz, Pauerstein & Stahl, San Antonio, TX, Jonathan D. Pauerstein, Lopez, Lotz, Pauerstein & Stahl P.C., San Antonio, TX, for D'Wayne Jernigan.

Thomas Edward Quirk, Quirk & Mansell, P.C., San Antonio, TX, for Murry M. Kachel.

Murry M. Kachel, Del Rio, TX, pro se.

Judith A. Sanders-Castro, San Antonio, TX, Robert Garza, Del Rio, TX, for Oscar Gonzalez, Jr., Frank Coronado.

Javier Aguilar, Special Asst. Attorney General, Austin, TX, for State of Texas.

ORDER REGARDING ABSTENTION PENDING STATE COURT ACTIONS AND PRELIMINARY INJUNCTION

BIERY, District Judge.

There is tumult in the body politic of Val Verde County, Texas, resulting in a cloud over the offices of Sheriff and County Commissioner of Precinct 1. Were there a magic judicial wand, the Court would require the residents to be reconciled to live in rapprochement rather than be ravaged by rancor. But there is no such scepter. Having listened to the cacophony of claims and counterclaims, the Court will rule on the preliminary injunction issue based on the law and the evidence. See FED.R.CIV.P. 52(a); Landmark Land Co. v. Office of Thrift Supervision, 990 F.2d 807, 811 (5th Cir.1993).

It is first apropos to say what the issue is not: Whether personnel of the United States military can vote. Clearly, the sacred franchise our armed services protect can be exercised by the protectors. This the Congress has provided, subject to state election laws, in the Federal Post Card Application ("FPCA") law. 42 U.S.C. §§ 1973ff to 1973ff-6.

THE ISSUES

Instead, the question is: Where legally may mobile minions of military members mark ballots for local offices? For the answer, the federal courts are directed to look to the election law of the state where the controversy arises, in this instance the Texas Election Code and Texas state court interpretation thereof. See 42 U.S.C. § 1973ff-6 (each state shall permit person in military or spouse of someone in military who is "otherwise qualified to vote" to use Federal Post Card Application to request absentee ballot); TEX.ELEC.CODE ANN. § 101.001 (Vernon Supp.1997) (person in military or spouse of someone in military is eligible for early voting in Texas if person "is qualified to vote in this state, or if not registered to vote in this state would be qualified if registered"); Id. §§ 11.002, 13.001 ("qualified voter" means person is registered to vote and is resident of county in which application for registration is made) (emphasis added); Id. § 1.015 (Vernon 1986) (a voter's "residence" is "one's home and fixed place of habitation to which he intends to return after any temporary absence"); Alvarez v. Espinoza, 844 S.W.2d 238, 247 (Tex.App. — San Antonio 1992, writ dism'd w.o.j.); Rodriguez v. Thompson, 542 S.W.2d 480, 483 (Tex.Civ.App. — El Paso 1976, no writ); Atkinson v. Thomas, 407 S.W.2d 234, 237-47 (Tex.Civ.App. — Austin 1966, no writ); Guerra v. Pena, 406 S.W.2d 769, 776-77 (Tex.Civ.App. — San Antonio 1966, no writ); McBride v. Cantu, 143 S.W.2d 126, 127-28 (Tex.Civ.App. — San Antonio 1940, no writ).

In the event votes were improperly allowed in the challenged races, the corollary issues are:

1. Did such impropriety dilute the votes of actual Val Verde county residents and therefore violate the federal Voting Rights Act? 42 U.S.C. § 1973.

2. Do concentrations of improper absentee votes violate constitutional concepts of "one man, one vote"? See Baker v. Carr, 369 U.S. 186, 207-08 [82 S.Ct. 691, 704-05, 7 L.Ed.2d 663] (1962). See also Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 388-89 (5th Cir.1984) (court may consider unpleaded issues raised and argued at preliminary injunction hearing).

BACKGROUND

Texas has a colorful history of heated, close, and problematic elections. See e.g. JOHN E. CLARK, THE FALL OF THE DUKE OF DUVAL (1995); Alvarez, 844 S.W.2d at 241; Rodriguez, 542 S.W.2d at 482; Atkinson, 407 S.W.2d at 237; Guerra, 406 S.W.2d at 771-72; McBride, 143 S.W.2d at 127. In a good faith effort to ensure access to the laboratory of democracy, the legislative branch passed two statutes which are now juxtaposed for interpretation by the judicial branch:

a) The Federal Post Card Application law (to protect right to vote of uniformed services personnel) (42 U.S.C. § 1973ff-1);

b) The Voting Rights Act (to protect right to vote of those historically denied the same through de jure or de facto action) (H.R.REP. No. 439, 89th Cong., 1st Sess. 6 (1965), reprinted in 1965 U.S.C.C.A.N. 2437, 2471) (devices used to deny the right to vote because of race or color include stuffing ballot boxes, casting votes for deceased persons, casting multiple ballots, threatening and coercing voters, destroying ballots, willfully miscounting ballots, and buying votes).

Mr. Oscar Gonzalez, Jr. was appointed sheriff to fill the unexpired term of the retired sheriff. Mr. Gonzalez became the Democratic nominee for the next four year term to begin January 1, 1997. Mr. D'Wayne Jernigan became the Republican nominee. For replacement of a retiring county commissioner, Mr. Murry M. Kachel was selected as the Republican nominee and Mr. Frank Coronado was chosen as the Democratic nominee.

The election of November 5, 1996 produced these counts:

                For Sheriff
                     D'Wayne Jernigan:    5,373 votes
                     Oscar Gonzalez, Jr:  5,106 votes
                    For County Commissioner Precinct 1
                     Murry M. Kachel:     1,266 votes
                     Frank Coronado:      1,153 votes
                

Prior to the administration of the oaths of office to Mr. Jernigan and Mr. Kachel, plaintiff Jovita Casarez filed suit in federal court alleging approximately 800 military mail in ballots were improperly allowed to participate in the local, as opposed to federal, elections resulting in a dilution violation of the Voting Rights Act. 42 U.S.C. § 1973. The election in Precinct 1 is of particular import. Laughlin Air Force Base is located in that precinct; almost 500 of the 800 absentee votes in question were cast by persons claiming to be residents of that commissioner's precinct. Plaintiff does not challenge the propriety of the 800 ballots vis-a-vis the federal contests for President, Vice-President, United States Senator, and United States Congress. United States District Judge H.F. Garcia granted a temporary restraining order preventing the assumption of office by Mr. Jernigan and Mr. Kachel until an orderly review of the facts and law could be accomplished.

Pending in state court are two lawsuits related to this matter. Prior to Ms. Casarez filing this federal action, Mr. Gonzalez and Mr. Coronado filed election contests in Val Verde County contending election officials unlawfully allowed the mail in voters to cast ballots and vote in the local elections by the use of the Federal Post Card Application. Mr. Jernigan, Mr. Kachel, Mr. Gonzalez, and Mr. Coronado have been allowed to intervene.

ABSTENTION DOCTRINE

"[I]n all cases implicating state/federal relations, federal courts ought to intrude into state affairs no more than is absolutely necessary." Morrow v. Harwell, 768 F.2d 619, 628 (5th Cir.1985). A federal court should abstain from deciding cases to avoid needless conflict with a state's administration of its own affairs. See Burford v. Sun Oil Co., 319 U.S. 315, 334, 63 S.Ct. 1098, 1107-08, 87 L.Ed. 1424 (1943). This is especially true in cases involving state voting law issues. "[O]ur federal system contemplates that states will be primarily responsible for regulating their own elections." Curry v. Baker, 802 F.2d 1302, 1315 (11th Cir.1986). Even when obvious racial discrimination is at work, voiding the result of a state election is a "drastic, if not staggering (practice), ... and therefore a form of relief to be guardedly exercised." Bell v. Southwell, 376 F.2d 659, 662 (5th Cir.1967). Federal courts must not, however, abdicate the decision of federal questions. Thomas v. Texas State Bd. of Medical Examiners, 807 F.2d 453, 454 (5th Cir.1987). The issue of abstention may be raised sua sponte by the trial court. See Barichello v. McDonald, 98 F.3d 948, 955 (7th Cir.1996).

Ballas v. Symm, 494 F.2d 1167 (5th Cir. 1974) is instructive. A college student sought to register to vote in Waller County, Texas. Id. at 1168. The County Registrar required the student to complete a "Questionnaire Pertaining to Residence," inquiring into the applicant's address, ownership of property, auto registration, phone listing, and similar matters. Id. After completing the questionnaire, the registrar found the student to be a nonresident and denied him the right to vote. Id. at 1169.

The student initiated suit in federal court alleging the questionnaire violated the Voting Rights Act under federal law. He also challenged, under Texas statutory law, the registrar's decision he was a nonresident. The trial judge made a threshold determination the questionnaire did not in and of itself violate federal law; the questionnaire did not discriminate based on race because all voters who had moved into the county recently were required to complete the form. See id. at 1169, 1171. The student's request for a preliminary injunction was denied. Id. at 1170.

The court abstained from immediately taking further action on the case, finding two principles controlling:

(a) avoiding a decision of a federal constitutional question where the case may be disposed of [by] questions of...