The Fifth Court of Appeals was told during oral arguments Wednesday to halt the March 5 primary election for the appellate courts while the merits of a lawsuit — alleging that the configuration of the 14 intermediate appellate courts unconstitutionally dilutes a McKinney woman’s vote compared to voters in less-populous districts — are decided.
James A. Pikl of Scheef & Stone, who represents Keresa Richardson in the lawsuit against Gov. Greg Abbott and the Texas secretary of state, told the panel not to focus on the merits of his client’s claim. Instead, all the court needs to decide is whether Collin County District Judge John Roach was correct when, in March, he denied a request from the state to dismiss the lawsuit on standing and sovereign immunity grounds.
“We’re just here on whether Judge Roach properly denied the plea to the jurisdiction,” Pikl told the court. “Does the district court have jurisdiction to rule on cases where state officers are being accused of violating the constitution? If he doesn’t, my question is, ‘Who does?’”
After accusing the state of “dragging this case out forever” he then urged the court to grant his client interim relief.
“The March 5 primary election is upon us,” he said. “We need this court, if you suspect there’s even a reasonable possibility that equal protection applies to judicial races — which I think we’ve made a pretty good argument it does — we’re asking you to stop the secretary of state from holding the court of appeals elections March 5 … [and] move those out just like they did in 2012, they moved them to June in 2012, so that the merits can be addressed at the trial court, this court and the supreme court. We need that interim relief.”
A member of the panel, comprised of Justices Amanda L. Reichek, Cory L. Carlyle and Emily Miskel, asked whether it wasn’t too late to seek that type of relief from the courts, noting that overseas and military ballots have already been mailed for the primary race.
Pikl argued the courts could cancel the primary election even as late as March 6.
“We can order the secretary of state to disregard the March 5 primary balloting, move the primary out to June 6 — it’s happened before — let the merits be reached and then proceed with a primary at a later time,” he said.
Richardson, a candidate for Texas House District 61 who has been endorsed by Rick Santorum and Ken Paxton, previously sought to have all members of the Dallas appellate court recuse themselves from hearing the case arguing they all have a conflict of interest “derived from the fact that this case will affect their elected status, their voting districts, and their future elected status, and thus they are all personally interested in the relief being requested and should not be the arbiters of the issues.”
Justices Robbie Partida-Kipness and Maricela Moore Breedlove obliged on Sept. 29 and recused themselves.
Richardson then attempted to take the case straight to the Texas Supreme Court. She argued it wasn’t just the 13 justices on the Dallas appellate court who were unqualified to hear the case, but all 67 justices serving on the other intermediate appellate courts because they all have an “undisputable professional, personal, and financial interest” in the outcome because it will “affect their voting districts and their future elected status.”
On Oct. 18 the Texas Supreme Court denied the request, sending it back to the Fifth Court of Appeals, where Richardson renewed her request to have the justices recuse themselves and outlined another path to get to the high court.
“Because none of the justices on this court are capable of hearing this appeal and it cannot be transferred to the Supreme Court, the appeal should be dismissed,” she argued. “The appeal may then be taken up by the Texas Supreme Court if and when appellants choose to properly file it with the Texas Supreme Court under [Texas Rule of Appellate Procedure] 57.”
That request, too, was unsuccessful.
During oral arguments, Lanora C. Pettit of the state attorney general’s office, representing the secretary of state and the governor, took issue with Pikl’s accusation that the state had been intentionally delaying resolution of the case, arguing the only delay that can be attributed to Texas was a two-week postponement of oral arguments that had been originally scheduled for Jan. 30 when Pettit was unavailable.
“[That] is frankly the only extension the state has asked for. … [T]he suggestion that the state is drawing this out is simply factually inaccurate,” she said.
Richardson is the wrong plaintiff, who sued the wrong defendants on the wrong claims to challenge the apportionment of the intermediate appellate courts, Pettit told the panel, and the defendants “have no role in the relief she seeks,” which is redrawing the judicial maps.
“She makes this entirely about arithmetic but even under her math, her vote is not being undercounted,” Pettit said. “Instead, because the Fifth District is underpopulated, her vote is being overcounted.”
The case number is 05-23-00325-CV.