CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 11/1/2023 1

Preclearance Required 

for Reduction in Polling Locations 

Miguel Hernandez Chapter of the American GI Forum 

v. Bexar County (Royal Furgeson, 5:03-cv-816) 

and American GI Forum v. Bexar County 

(Fred Biery, No. 5:04-cv-181) (W.D. Tex.) 

A federal complaint challenged a reduction in early-voting locations 

without preclearance pursuant to section 5 of the Voting Rights Act. 

The district judge issued a temporary restraining order requiring additional voting locations, and the county opened several more. A suit 

by the same plaintiff and others about seven months later respecting 

a primary election for political-party chairs resulted in a temporary 

restraining order from a different district judge ordering only one 

polling place reopened, but preclearance arrived later that day, and 

the judge dismissed the action except for jurisdiction to enforce the 

temporary restraining order. The court of appeals stayed the temporary restraining order pending appeal, and the appeal was voluntarily 

dismissed after the election. 

Subject: Absentee and early voting. Topics: Poll locations; 

section 5 preclearance; early voting; primary election; ballot 

measure; attorney fees. 

An interest group filed a federal complaint1 in the Western District of Texas 

on August 26, 2003, alleging that the dearth of early-voting polling places in 

Bexar County—the county that includes San Antonio—for a September 13 

constitutional-amendment election2 violated both section 23 and section 54 of 

the Voting Rights Act. With its complaint, the group filed a motion for a temporary restraining order.5

In 2001, there were twenty early-voting sites; for 2003, eleven were 

planned, and none was to be located on San Antonio’s west side.6

 Preclearance 

of the reduction in polling locations was pending.7

 Following an August 27 

1. Complaint, Miguel Hernandez Chapter of the Am. GI Forum v. Bexar County, No. 5:03-

cv-816 (W.D. Tex. Aug. 26, 2003), D.E. 1. 

2. “The election will cover 22 proposed state constitutional amendments ranging from 

funds for veteran housing to limitations on damages in civil lawsuits.” Opinion at 2–3, id.

(Aug. 28, 2003), D.E. 3 [hereinafter 2003 Am. GI Forum Opinion]. 

3. Pub. L. No. 89-110, § 2, 79 Stat. 437, 437, as amended, 52 U.S.C. § 10301. 

4. Id., § 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). 

5. Docket Sheet, Am. GI Forum, No. 5:03-cv-816 (W.D. Tex. Aug. 26, 2003) [hereinafter 

2003 Am. GI Forum Docket Sheet] (D.E. 2). 

6. 2003 Am. GI Forum Opinion, supra note 2, at 2. 

7. Id.
Preclearance Required for Reduction in Polling Locations 

2 Federal Judicial Center 11/1/2023 

hearing, Judge Royal Furgeson issued a temporary restraining order on August 28.8

 “In the absence of precelearance, Defendants have no legal authority—statutory or decisional—to implement the voting changes . . . .”9

Instead, Defendants are to resort to the previously-cleared early-voting 

polling places used during the November 6, 2001 Constitutional Amendment 

Election. . . . The Court recognizes that some of these locations are no longer 

available. As such, the Court will require Defendants to locate early-voting 

polling places in buildings adjacent to or very near the previous locations, or 

in the alternative, to erect mobile voting units in the vicinity of the old locations.10

At a compliance hearing held on August 29, Judge Furgeson and the parties were satisfied that the county had established eighteen early-voting sites11

and granted a voluntary dismissal on November 14.12

On March 3, 2004, the plaintiff, four voters, and another interest group 

filed a federal complaint and a motion for a temporary restraining order in the 

Western District against Bexar County election officials alleging again that 

consolidation and change in polling places violated section 5, this time in a 

March 9 primary election for political-party chairs.13 Judge Fred Biery set the 

case for hearing on March 5.14

At the hearing, Judge Biery ordered one traditional polling place reopened, 

and he ordered notices posted at other closed polls instructing voters where 

the new polls were.15 “After the conclusion of the hearing, the Court received 

by facsimile transmission official word from the Department of Justice indicating preclearance has been granted.”16 So on March 8, Judge Biery dismissed 

the action without prejudice, “save and except for retention of jurisdiction to 

enforce the temporary restraining order.”17

8. Id. at 6–7. 

Judge Furgeson retired on May 31, 2013. Federal Judicial Center Biographical Directory 

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

9. 2003 Am. GI Forum Opinion, supra note 2, at 5. 

10. Id. at 6. 

11. 2003 Am. GI Forum Docket Sheet, supra note 5 (D.E. 5); see 2003 Am. GI Forum Opinion, supra note 2, at 7; see Tom Bower, Three More Polling Sites Opened, San Antonio ExpressNews, Aug. 30, 2003, at 4B. 

12. Order, Miguel Hernandez Chapter of the Am. GI Forum v. Bexar County, No. 5:03-

cv-816 (W.D. Tex. Nov. 14, 2003), D.E. 8. 

13. Complaint, Am. GI Forum v. Bexar County, No. 5:04-cv-181 (W.D. Tex. Mar. 3, 2004), 

D.E. 1; Docket Sheet, id. (Mar. 3, 2004) (D.E. 2); see Guillermo Contreras, Minority Groups 

Sue in Pursuit of More Bexar Polling Places, San Antonio Express-News, Mar. 4, 2004, at 2B. 

14. Order, Am. GI Forum, No. 5:04-cv-181 (W.D. Tex. Mar. 3, 2004), D.E. 3. 

15. Opinion at 2, id. (Mar. 8, 2004), D.E. 9 [hereinafter 2004 Am. GI Forum Opinion]; see

Guillermo Contreras, Judge: Reopen East Side Poll Site, San Antonio Express-News, Mar. 6, 

2004, at 3B. 

16. 2004 Am. GI Forum Opinion, supra note 15, at 3. 

17. Id.
Preclearance Required for Reduction in Polling Locations 

Federal Judicial Center 11/1/2023 3

The county appealed,18 and on March 8, the court of appeals granted the 

county a stay pending appeal.19 The court of appeals accepted a voluntary dismissal of the appeal on March 30.20 On January 26, 2005, Judge Biery denied 

the plaintiffs attorney fees.21

18. Notice of Appeal, Am. GI Forum, No. 5:04-cv-181 (W.D. Tex. Mar. 8, 2004), D.E. 10. 

19. Order, Am. GI Forum v. Bexar County, No. 04-50221 (5th Cir. Mar. 8, 2004), filed as 

Order, Am. GI Forum, No. 5:04-cv-181 (W.D. Tex. Mar. 8, 2004), D.E. 11; see Order, Am. GI 

Forum, No. 04-50221 (5th Cir. Mar. 9, 2004), filed as Order, Am. GI Forum, No. 5:04-cv-181 

(W.D. Tex. Mar. 9, 2004), D.E. 12 (denying the plaintiff’s motion to lift the stay); see also

Guillermo Contreras, Appeals Court Blocks Order on Opening Polling Place, San Antonio Express-News, Mar. 9, 2004, at 5B (reporting that the court of appeals “temporarily halted a dispute over whether county cost-saving measures closed too many polling sites and moved others to places less accessible to elderly or minority voters”). 

20. Order, Am. GI Forum, No. 04-50221 (5th Cir. Mar. 30, 2004), filed as Order, Am. GI 

Forum, No. 5:04-cv-181 (W.D. Tex. Apr. 5, 2004), D.E. 19. 

21. Opinion, Am. GI Forum, No. 5:04-cv-181 (W.D. Tex. Jan. 26, 2005), D.E. 22.