The Texas Supreme Court recently denied a request from an aggrieved Collin County voter to skip a step in the appellate process and go directly to the state’s high court with her lawsuit alleging the current configuration of the state’s 14 appellate districts is unconstitutional.
The Oct. 18 denial of Keresa Richardson’s transfer request means the appeal remains pending with the Fifth Court of Appeals in Dallas, where late last month two justices — Robbie Partida-Kipness and Maricela Moore Breedlove — voluntarily recused themselves from hearing the dispute at Richardson’s request. Richardson has argued to the courts that the malapportionment of the 14 judicial districts in Texas is a “disease” and that the use of docket equalization measures to even the workload among the courts is a “field dressing.” Richardson is alleging both issues constitute violations of the equal protection clause of the Constitution.
“It is conceded by appellants that the Texas legislature has not undertaken to fix the malapportionment problem related to Texas appellate courts after having no less than 29 legislative sessions (60 years) in which to do so,” she argued. “It therefore falls on Texas courts, including this honorable court and the district court below, to do so.”
Richardson is suing Gov. Greg Abbott and the Texas secretary of state, alleging that the configuration of the 14 intermediate appellate courts unconstitutionally dilutes her vote compared to voters in less-populous districts.
Richardson has argued that all 13 of the justices of the Dallas appellate court, as well as the 67 other justices serving on the rest of the intermediate appellate courts, are unqualified to hear the case 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.”
In light of the Texas Supreme Court’s denial of Richardson’s transfer request, she urged in a motion filed Oct. 24 that the Dallas Cout of Appeals reconsider her request that they all recuse themselves from hearing the dispute 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.”
A three-judge panel of the Fifth Court of Appeals — Chief Justice Robert D. Burns III and Justices Ken Molberg and Bonnie Lee Goldstein — issued an order Oct. 25 denying Richardson’s request that the appeal be heard on an expedited schedule. Richardson had argued the appeal presented the justices with an “emergency situation,” because of the proximity to the initial candidate filing date for the 2024 primary election.
The state of Texas had in May appealed the case after Collin County District Judge John Roach in March denied a request from the state to dismiss the lawsuit on standing and sovereign immunity grounds.
Richardson alleges that docket equalization — whereby cases from busier courts are transferred to less-busy courts that adjudicate the dispute in accordance with case law from the originating appellate court — deprives her of the “one-person, one-vote principle,” in violation of the equal protection provisions of both the state and U.S. constitutions.
Docket equalization is a secondary constitutional violation that flows from malapportionment of the judicial districts, Richardson has argued. The issue is that justices not elected by the parties in the dispute before them are deciding the dispute, Richardson has said, and the solution is to redraw the appellate districts in a way that would eliminate the need for docket equalization.
“The entire premise of this case is that the current, and unique, fourteen-district structure of Texas appellate courts, combined with decades of legislative inaction and indisputable population data, have resulted in unconstitutional variations among those districts if the voters within them are entitled to constitutional protection of equal protection,” Richardson has argued.
Richardson is represented by James A. Pikl of Scheef & Stone.
Texas is represented by Lanora C. Pettit of the state attorney general’s office.
The case number is 05-23-00325-CV.