CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/10/2023 1

Emphasis Votes 

Texas Democratic Party v. Dallas County 

(Jorge A. Solis, N.D. Tex. 3:08-cv-2117) 

During a recount for a state legislative election, one political party 

and two voters filed a federal action complaining that emphasis 

votes—in which a voter casts both a straight-party vote and a vote 

for the specific office—would improperly not be counted because of 

the switch from punch-card ballots to voting machines. After the 

recount was completed, the plaintiffs dropped their claims with respect to the specific election, but more general claims remained. 

The district court found that election procedures with respect to 

emphasis votes did not discriminate in violation of section 2 of the 

Voting Rights Act, but they were in violation of section 5 because 

they had not been precleared. In time, the Justice Department precleared the changes. 

Subject: Recounts. Topics: Voting technology; recounts; section 

5 preclearance; three-judge court; section 2 discrimination; 

intervention. 

After the votes were counted for the 2008 general election, the Republican 

incumbent for Texas house of representatives district 105 was ahead of her 

Democratic challenger by twenty votes,0F

1

 and a recount was planned.1F

2

 The 

Democratic Party and two voters filed a federal complaint on December 1 

arguing that planned methods of recounting the votes would fail to include 

votes for the Democratic candidate by voters who both cast a straight-party 

vote for the Democratic Party and selected a Democratic candidate.2F

3

 This 

type of valid vote is referred to as an emphasis vote.3F

4

 The complaint alleged 

that this difficulty resulted from the replacement in 1998 of punch-card paper ballots with voting machines.4F

5

The incumbent moved to intervene on December 4,5F

6

 and Judge Jorge A. 

Solis granted intervention on December 8.6F

7

 After the recount, the incum1. See Brandon Formby & Marissa Alanis, GOP Keeps House Seat in Squeaker, Dallas 

Morning News, Nov. 11, 2008, at 1A (reporting that the result allowed the Republican party 

to keep a one-seat advantage in Texas’s house of representatives). 

2. See Brandon Formby, Challenger Plans to Pursue Recount, Dallas Morning News, Nov. 

12, 2008, at 1B; Brandon Formby, Irving Democrat Seeks Recount in Close Race, Dallas 

Morning News, Nov. 20, 2008, at 5B. 

3. Complaint, Tex. Democratic Party v. Dallas County, No. 3:08-cv-2117 (N.D. Tex. Dec. 

1, 2008), D.E. 1; see Brandon Formby, Democrats Sue as Recount Starts, Dallas Morning 

News, Dec. 2, 2008, at 1B. 

4. Opinion at 2, Tex. Democratic Party, No. 3:08-cv-2117 (N.D. Tex. Apr. 17, 2009), D.E. 

42. 

5. Complaint, supra note 3. 

6. Intervention Motion, Tex. Democratic Party, No. 3:08-cv-2117 (N.D. Tex. Dec. 4, 

2008), D.E. 6. 

7. Intervention Order, id. (Dec. 8, 2008), D.E. 9. 

Judge Solis retired on May 1, 2016, and died on October 8, 2021. Federal Judicial Center 
Emphasis Votes 

2 Federal Judicial Center 10/10/2023 

bent’s margin of victory decreased by one vote.7F

8

 On December 19, the plaintiffs dropped their claims with respect to the Texas house election.8F

9

On April 17, 2009, Judge Solis determined that the complaint did not allege valid claims under section 2 of the Voting Rights Act,9F

10 pertaining to racial or ethnic discrimination in elections, but the complaint did allege a valid 

claim under section 5,10F

11 requiring preclearance of election changes in jurisdictions with a certified history of election discrimination.1F

12 On July 9, the 

circuit’s chief judge named a three-judge district court to hear the section 5 

claim.12F

13

On December 17, the three-judge court determined that the Justice Department had not precleared how the new voting machines registered votes 

for some voters who selected both straight-party choices and choices for individual candidates.13F

14 On April 23, 2012, however, the court dismissed the 

section 5 claim in light of intervening Justice Department preclearance.14F

15 An 

appeal was dismissed voluntarily on January 25, 2013.15F

16

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

8. See Recount Confirms Republican’s Slim Victory, Dallas Morning News, Dec. 6, 2008, 

at 3. 

9. Stipulation, Tex. Democratic Party, No. 3:08-cv-2117 (N.D. Tex. Dec. 19, 2008), D.E. 

17. 

10. Voting Rights Act of 1965, Pub. L. No. 89-110, § 2, 79 Stat. 437, 437, as amended, 52 

U.S.C. § 10301. 

11. Id. § 5, 79 Stat. at 439, as amended, 52 U.S.C. § 10304 (requiring that preclearance 

disputes be heard by a three-judge district court). 

12. Opinion, supra note 4. 

13. Order, Tex. Democratic Party, No. 3:08-cv-2117 (N.D. Tex. July 9, 2009), D.E. 44. 

14. Order, id. (Dec. 17, 2009), D.E. 45; see Jason Trahan & Christy Hoppe, Federal Judges 

Disallow Dallas County’s Use of Voting Machines, Dallas Morning News, Dec. 22, 2009. 

15. Order, Tex. Democratic Party, No. 3:08-cv-2117 (N.D. Tex. Apr. 23, 2012), D.E. 95; 

see Christy Hoppe, Justice Department Upholds Voting Machines, Dallas Morning News, 

Mar. 25, 2010, at B6. 

On June 25, 2013, the Supreme Court declined to hold section 5 unconstitutional, but the 

Court did hold unconstitutional the criteria for which jurisdictions require section 5 preclearance. Shelby County v. Holder, 570 U.S. 529 (2013); see Robert Barnes, Court Blocks Key 

Part of Voting Rights Act, Wash. Post, June 26, 2013, at A1; Adam Liptak, Justices Void Oversight of States, Issue at Heart of Voting Rights Act, N.Y. Times, June 26, 2013, at A1. 

16. Order, Tex. Democratic Party v. Dallas County, No. 12-10571 (5th Cir. Jan. 25, 2013).