Ortiz v. Thompson, 6187

Decision Date31 July 1980
Docket NumberNo. 6187,6187
Citation604 S.W.2d 443
PartiesRudy C. ORTIZ, Appellant, v. Bob THOMPSON, Appellee.
CourtTexas Court of Appeals
OPINION

JAMES, Justice.

This is an election contest case. Appellant-Contestant Rudy C. Ortiz and Appellee-Contestee Bob Thompson were the only two candidates for the position of Councilperson, Place 6, for the City of San Antonio in a municipal election held on Saturday, April 7, 1979. Thompson was certified as the winner of that election, the return thereof showing 4,186 votes cast for Thompson and 4,102 votes cast for Ortiz. Ortiz brought this suit contesting the election, alleging as grounds therefor: (1) that prior to the election "the City of San Antonio, Texas, designated new polling places", at least one of which was located in District 6, that such changes "were required to be precleared by the Department of Justice", that the city failed to obtain such preclearance, and that the changes therefore violated the Federal Voting Rights Act of 1965, 42 U.S.C. Sec. 1973 et seq.; (2) that "scores of voters" were denied the right to vote because they were "erroneously registered to precincts in which they did not reside"; (3) that during absentee voting, Thompson's campaign workers engaged in "fraudulent and unlawful conspiratorial actions" which "suppressed the will of the legal voters" and violated V.A.T.S. Election Code Art. 5.05 and other laws, to wit: "falsely impersonated officials and picked up completed ballots and caused the ballots not to be returned to the proper officials by suppressing same and/or destroying them; gave false information and directions regarding the procedures to vote; requested ballots for prospective electors who in fact had not requested same; fraudulently suggested to qualified voters that by filling in some ballots and other forms that such persons were in fact voting, thereby causing such voters not to cast official ballots; gave qualified voters who had not applied or received a ballot by mail, a ballot to be cast in their homes; and (4) that "several qualified electors were denied their rights to vote . . . due to the severe mechanical problems occurring shortly after the polls opened."

Trial was to the court without a jury, after which the trial court rendered judgment in favor of the Contestee Thompson. Said court made Findings of Fact and Conclusions of Law, which included, inter alia, the following:

"FINDINGS OF FACT

"3. The canvassing board canvassed the results and certified that Robert S. Thompson received 4,186 votes and Rudy C. Ortiz received 4,102 votes. * * * "5. Seventeen persons in District 6 had voter registration certificates which contained erroneous precinct numbers.

"6. The evidence did not establish that any of the seventeen persons referred to in finding of fact number 5, were prevented or dissuaded from voting because of the error. * * *

"8. There was evidence that seventeen (17) persons over the age of 65 voted a mail absentee ballot for Councilperson, District 6, but their ballots were not received by the City Clerk and not counted.

"9. There was evidence that there were 1,192 persons over the age of 65 registered to vote in District 6.

"10. There was no evidence as to how many persons over the age of 65 voted in the election in District 6.

"12. The number of votes challenged, including the number of persons who were alleged to have been prevented from voting, was less than the difference in the margin by which Robert S. Thompson was declared the winner.

"13. The Court finds that the outcome of the election for Councilperson, District 6 is not impossible to determine.

"14. The facts before the Court show that the outcome as declared by the canvassing board declaring Robert S. Thompson the winner of the election is the correct result of the election.

"CONCLUSIONS OF LAW

"1. The Court concludes as a matter of law that the Court was without jurisdiction to adjudicate any alleged violations of the Federal Voting Rights Act because the Act specifies that such adjudication must be before a three-judge Federal District Court.

"2. The Court concludes as a matter of law that the Court was without jurisdiction to adjudicate any alleged violation of the Federal Voting Rights Act in a contest of election under Texas law because the grounds for a Texas Election Contest must be found or implied in the Texas Election Code. * * *

"4. The Court concludes that Contestant, having failed to prove that irregularities occurred in the holding of the election which affected a number of votes sufficient to change the outcome of the election, is not entitled to judgment as a matter of law."

We affirm the trial court's judgment.

Appellant Ortiz brings this appeal on seven points of error but the major thrust of his appeal concerns the Federal Voting Rights Act, 42 U.S.C. Sec. 1973 et seq., and its relationship to election contests in our Texas state courts. As stated above, Ortiz's pleadings alleged that the election in question should be set aside and a new election ordered because the City of San Antonio violated the Voting Rights Act. 42 U.S.C. Sec. 1973c provides that a state or political subdivision covered by the Act which seeks to administer a change in voting standards or procedure different from those in effect on November 1, 1964, must first submit the proposed change to the Attorney General of the United States or obtain a declaratory judgment from the United States District Court for the District of Columbia that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. . . ." Ortiz alleged that such preclearance had not been obtained by the City before this election. When Ortiz attempted to introduce evidence in support of this allegation, the trial court ruled the evidence inadmissible and basically held: (1) that state courts have no jurisdiction to enforce the Federal Voting Rights Act and (2) that violations of the Act are not grounds for contesting an election under our state law in our state courts. Ortiz argues that both of these conclusions are erroneous.

Ortiz relied specifically on 42 U.S.C. Sec. 1973c as the basis for his alleged violations of the Voting Rights Act. We note that Sec. 1973c of said Act contains the following language:

"Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the (U.S.) Supreme Court."

The express language of Sec. 1973c jurisdiction in voting rights cases is limited to Federal District Courts, and state courts have no power to adjudicate such actions.

The United States Supreme Court, in Allen v. Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed. 201 (1969), held that "the disputes involving the coverage of Sec. 5 be determined by a district court of three judges" 393 U.S. at 563, 89 S.Ct. at 830. Following Allen, lower courts have held that a single Federal judge cannot adjudicate issues arising under the Voting Rights Act of 1965. Sumter County Democratic Executive Committee v. Dearman, 514 F.2d 1168, 1170 (5th Cir. 1975). It would seem reasonable to conclude that a single state judge would also be powerless to adjudicate issues under the Act, and at least one Federal court has so held. Beatty v. Esposito, 411 F.Supp. 107 (E.D.N.Y.1976). We recognize that in Allen the Supreme Court did not expressly state that the term "district court" referred only to a ...

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7 cases
  • Hathorn v. Lovorn
    • United States
    • U.S. Supreme Court
    • 15 d2 Junho d2 1982
    ...20 At least one state court has ruled that it lacks jurisdiction over claims arising under the Voting Rights Act. Ortiz v. Thompson, 604 S.W.2d 443 (Tex.Civ.App.1980). See also Beatty v. Esposito, 411 F.Supp. 107 (EDNY 1976) (finding that state court lacked jurisdiction to decide § 5 issue,......
  • Rodriguez v. Cuellar, 04-04-00335-CV.
    • United States
    • Texas Court of Appeals
    • 12 d1 Julho d1 2004
    ...63, which allows parties to amend their pleadings. In support of his jurisdictional argument, Cuellar also relies on Ortiz v. Thompson, 604 S.W.2d 443, 447 (Tex.App.-Waco 1980, no writ), and Moore v. City of Corpus Christi, 542 S.W.2d 720, 722 (Tex.Civ.App.-Corpus Christi 1976, writ ref'd n......
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    • United States
    • Texas Supreme Court
    • 23 d3 Junho d3 2004
    ...of the former Texas Election Code contained a two-fold notice requirement that was mandatory and jurisdictional. See, e.g., Ortiz v. Thompson, 604 S.W.2d 443, 447 (Tex. App.—Waco 1980, no writ); Moore v. City of Corpus Christi, 542 S.W.2d 720, 722 (Tex. Civ. App.—Corpus Christi 1976, writ r......
  • Cohen v. Clear Lake City Water Authority
    • United States
    • Texas Court of Appeals
    • 31 d4 Janeiro d4 1985
    ...contest is limited to such subjects or grounds of contest as are expressly or impliedly authorized by the Election Code. Ortiz v. Thompson, 604 S.W.2d 443, 447 (Tex.Civ.App.--Waco 1980, no writ); Stelzer v. Huddleston, 526 S.W.2d 710, 714 (Tex.Civ.App.--Tyler 1975, writ dism'd); Magnolia Pe......
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