CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 6/3/2023 1

Inadvertent Use of Wrong District Lines 

in a Primary Election 

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. 

A county’s department of education filed a federal complaint in the Southern 

District of Texas against the county and county officers on July 20, 2012, to 

correct districting errors in a primary election for the school board that was 

held on May 29.1 With its complaint, the department filed an application for a 

temporary restraining order and a preliminary injunction.2

On November 19, 2011, Judge Vanessa D. Gilmore established an interim 

districting plan for the county commission because the existing plan had become malapportioned and a new plan had not yet received preclearance pursuant to section 5 of the Voting Rights Act.3

 Commission boundaries were also 

used for the county department of education’s board of trustees; three trustees 

were elected at large, and four were elected from the four districts, which were 

called precincts.4 Of the three trustee seats up for election in 2012, one was at 

1. Complaint, Harris Cty. Dep’t of Educ. v. Harris County, No. 4:12-cv-2190 (S.D. Tex. 

July 20, 2012), D.E. 1; see Second Amended Complaint, id. (July 27, 2012), D.E. 12; First 

Amended Complaint, id. (July 27, 2012), D.E. 11; see also Ericka Mellon, Lawsuit Claims Districting Errors Flubbed Election, Hous. Chron., July 21, 2012, at 2. 

2. Application, Harris Cty. Dep’t of Educ., No. 4:12-cv-2190 (S.D. Tex. July 20, 2012), 

D.E. 7. 

Judge Gilmore retired on January 2, 2022. Federal Judicial Center Biographical Directory 

of Article III Federal Judges, www.fjc.gov/history/judges. 

3. Order, Rodriguez v. Harris County, No. 4:11-cv-2907 (S.D. Tex. Nov. 19, 2011), D.E. 

66; Rodriguez v. Harris County, 964 F. Supp. 2d 686, 706–07 (S.D. Tex. 2013); see Voting 

Rights Act of 1965, Pub. L. No. 89-110, § 5, 79 Stat. 437, 439, as amended, 52 U.S.C. § 10304 

(requiring preclearance of changes to voting procedures in jurisdictions with a certified history of discrimination); see also Amended Complaint, Rodriguez, No. 4:11-cv-2907 (S.D. Tex. 

Oct. 19, 2011), D.E. 26; Complaint, id. (Aug. 5, 2011), D.E. 1. 

4. Opinion at 3, Harris Cty. Dep’t of Educ., No. 4:12-cv-2190 (S.D. Tex. Sept. 6, 2012), D.E. 

30 [hereinafter Harris Cty. Dep’t of Educ. Opinion], 2012 WL 3886427. 
Inadvertent Use of Wrong District Lines in a Primary Election 

2 Federal Judicial Center 6/3/2023 

large and two were for precincts; the old precinct lines were mistakenly used 

for the primary election.5

In precinct 4, a Democratic candidate ran unopposed, and the margin of 

victory for the Republican primary-election winner was considerably greater 

than the number of improperly cast votes.6 In precinct 6, a Republican candidate ran unopposed.7

 There were three Democratic candidates.8 There were 

872 improper votes and 1,396 registered voters improperly excluded from the 

election.9 The primary-election leader was fewer than 400 votes shy of a majority, so a runoff primary election was scheduled for July 31.10

On July 30, the county Democratic Party moved to intervene as a defendant.11 Judge Lee H. Rosenthal heard the case that day, granted intervention, set 

August 6 as the deadline for other motions to intervene, and ordered briefing 

on motions to dismiss the action completed by August 8.12 The plaintiffs 

dropped their request for a temporary restraining order.13

The leader of the primary election at issue was defeated by a wide margin 

in the runoff election.14 “It is mathematically possible—not probable—that, 

had the correct map been used in the May 31 primary, [the primary-election 

leader] would have received the majority needed to win the primary outright, 

obviating the need for the July runoff that he lost.”15

After the runoff election, the runoff-election victor16 and the county’s Republican Party17 moved on August 3 to intervene as defendants. A voter moved 

to intervene thirteen days later.18 Judge Rosenthal granted all motions to intervene but the last, which was untimely.19

Judge Rosenthal dismissed the action on September 6.20 There was no constitutional violation, because there was no showing that use of the wrong map 

5. Id. at 3–4. 

6. Id. at 4. 

7. Id. 

8. Id. 

9. Id. 

10. Id. 

11. Intervention Motion, id. (July 30, 2012), D.E. 13. 

12. Docket Sheet, id. (July 20, 2012) (D.E. 16). 

13. Id.; see Mike Morris, Education Lawsuit Fails to Stop Runoff, Hous. Chron., July 31, 

2012, at 2. 

14. Harris Cty. Dep’t of Educ. Opinion, supra note 4, at 4. 

15. Id. at 4–5. 

16. Intervention Motion, Harris Cty. Dep’t of Educ., No. 4:12-cv-2190 (S.D. Tex. Aug. 3, 

2012), D.E. 17. 

17. Intervention Motion, id. (Aug. 3, 2012), D.E. 18. 

18. Intervention Motion, id. (Aug. 16, 2012), D.E. 25. 

19. Harris Cty. Dep’t of Educ. Opinion, supra note 4, at 2, 6, 16. 

20. Id. at 16; see Erin Mulvaney, Federal Judge Dismisses Suit Over Flawed Primary, Hous. 

Chron., Sept. 7, 2012, at 2 (“Sarah Langlois, general counsel for the department of education, 

said the judge’s ruling will protect the department from any future challenges alleging violation of federal law. She said the suit was filed to make sure the board was properly and lawfully 

elected.”). 
Inadvertent Use of Wrong District Lines in a Primary Election 

Federal Judicial Center 6/3/2023 3

was anything other than inadvertent.21 Moreover, the equities were squarely 

against the candidate who lost so decisively in the runoff primary election.22

The new districting plan for the county commission had been precleared 

on December 30, 2011, but the court-ordered plan was used because preclearance happened so late in the election calendar.23 On August 1, 2013, Judge Gilmore determined that the county’s new districting plan was not quite unconstitutional.24

21. Harris Cty. Dep’t of Educ. Opinion, supra note 4, at 11–13. 

22. Id. at 15. 

23. Rodriguez v. Harris County, 964 F. Supp. 2d 686, 707 (S.D. Tex. 2013). 

24. Id. at 804–05, aff’d, 601 F. App’x 255 (5th Cir. 2015).