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Texas Supreme Court Denies Petition for Mandamus in Harris County Redistricting Lawsuit

On January 6, the Texas Supreme Court denied the petition for mandamus in the first of two lawsuits over the Harris County Ellis-3 redistricting plan. The Ellis-3 plan completely flipped Precincts 3 and 4 while altering the boundaries of both. The likely end result will be a 4-1 Democratic supermajority in the next election. A supermajority would let commissioners shift flood-bond funds around at will.

Mandamus is a judicial order commanding another court or person to perform a specific duty. In this case, Commissioners Cagle, Ramsey and their supporters requested the court to order Lina Hidalgo to stop the Ellis-3 Plan from moving forward.

*File photo of Harris County Precinct One Commissioner Rodney Ellis who is at the center of this controversy.*

Central Issue At Stake

The central issue in the case was whether 1.1 million people had their voting rights denied or delayed by the Ellis-3 plan. The Texas Supreme Court recognized the inevitable problem of preserving (or minimizing disruption to) voting rights in staggered elections when redistricting.

“To be abundantly clear, by denying the petition today, we do not dispute that the constitutional issue Relators raise is a serious question that warrants this Court’s full consideration when properly presented. We do not prejudge the outcome.“

Basis for Denial

However, in denying the writ of mandamus, the judges cited:

A delay in filing the initial appeal after the District Court dismissed the suit. Filing for the election had already begun. The judges said, “Avoidable delays, in particular, may be fatal to the courts’ ability to proceed at all.”
The need to describe “with precision how any relief will affect that election and the larger structure of our state’s election machinery.” And “…a party who asks a court to take action that could disrupt the election calendar after the election process has begun has the duty to explain the practical consequences…”

Regarding the second point, the Justices wrote, “Relators claim to be in possession of an alternative map that lawfully redraws precincts without excluding any voter from consecutive county-commissioner elections. This map was not presented to the commissioners court, the district court, the Respondents, or this Court, and it is unclear how this map could become law.”

Justices Blacklock and Young wrote in delivering the opinion of the Texas Supreme Court that, “Expedition and precision in requesting relief help ensure that courts can never be converted, willingly or otherwise, into a partisan tool for one side or the other. Those requirements reduce the incentives for partisan adversaries to lie in wait with lawsuits that create chaos. To be clear, we do not charge Relators here with any such intention. We simply note that the rules are demanding because such conduct would otherwise go undeterred.”

Sets No Blanket Precedent

“We emphasize that our inability to address the merits of this petition on the eve of the election—because of the timing and nature-of-relief problems discussed above does not by any means establish that there is never any judicial relief that could be given,” said the ruling.

The Justices then spent several pages exploring questions about how judicial interference would affect the machinery of an election already in progress. “To be abundantly clear, by denying the petition today, we do not dispute that the constitutional issue Relators raise is a serious question that warrants this Court’s full consideration when properly presented.” The Justices just didn’t feel there were enough specifics in this case to let them do so.

Not a Summary Judgement

Significantly, the Texas Supreme Court said, “We deny the petition for writ of mandamus, but we do not do so lightly or summarily. Our decision implies no endorsement, affirmation, or other view of the redrawn map of precincts challenged here. Nor do we suggest that mandamus would never be an appropriate vehicle to resolve this question or ones like it. Our narrow holding is that this mandamus petition, under the circumstances we describe below, cannot go forward under settled precedents that sharply limit judicial authority to intervene in ongoing elections.”

Second Lawsuit Still Pending in Lower Court

A second lawsuit by former commissioner Steve Radack is still pending in the Harris County 190th Civil Court. That suit alleges the Ellis-3 plan should be invalidated because it was sprung on people at the last minute without sufficient public notice. The Texas Open Meetings Act demands a minimum of 72 hours notice.

But the Ellis-3 plan was posted online only minutes before the meeting in which the plan was approved. In that meeting, 94 members of the public signed up to speak. Not one of them mentioned the Ellis-3 plan. The first mention of Ellis-3 in the transcript is when commissioners started debating plans.

For the complete text of the Supreme Court ruling, click here.

For the official transcript of the meeting in which Commissioners approved the Ellis-3 Plan, click here.

It’s not clear how or if the Supreme Court of Texas ruling on the Cagle/Ramsey suit will affect any ruling in the Radack suit. Delays were a central issue in denying mandamus. And the Radack suit was filed six weeks AFTER the Cagle/Ramsey suit.

Posted by Bob Rehak on 1/7/22

1592 Days since Hurricane Harvey

Emergency Petition Filed with Texas Supreme Court to Stop Ellis-3 Redistricting Plan

On 12/23/21, a group of petitioners trying to stop implementation of the Ellis-3 redistricting plan for Harris County took their case to the Texas Supreme Court.

Precinct 4 Commissioner Jack Cagle, Precinct 3 commissioner Tom Ramsey and their supporters filed their original lawsuit in District Court last November. They claimed the Ellis-3 redistricting plan was unconstitutional. They say it disenfranchised 1.1 million people of their right to vote for the commissioner of their choice in next year’s county election.

District Court Judge Brittanye Morris denied the plaintiffs a temporary restraining order on November 29. Judge Dedra Davis dismissed the entire case on Wednesday, December 22. Neither explained why.

Goal of Petition for Writ of Mandamus

Then on Thursday, December 23, 2021, Cagle, Ramsey and their supporters filed an emergency petition for a “writ of mandamus” with the Texas Supreme Court.

The petition, if granted, would compel Harris County Judge Lina Hidalgo, Precinct 1 Commissioner Rodney Ellis, and Precinct 2 Commissioner Adrian Garcia “to cease implementation of the illegal and unconstitutional Ellis 3 Plan for the upcoming election cycle” and pay all costs of the suit.

A writ of mandamus is literally a judicial command. It orders an official to perform a statutory duty.

*The legal combatants: Cagle and Ramsey on the left, Hidalgo, Garcia and Ellis on the right, listen to people testifying at the 12/14/2021 Commissioners Court meeting* *about changing flood-bond priorities for third time in 2.5 years.*

Elements of Petition

The 47-page petition petition for a writ of mandamus to the Texas Supreme Court begins by recapping the basis for the original lawsuit.

The 2020 census revealed population changes among districts that required redistricting.
It was possible to comply with the “one man, one vote” rule by transferring 4% of the county’s population.
But Hidalgo, Ellis and Garcia chose a plan that moved 48% and overstepped their authority.
That plan will deprive 1.1 million people of their right to vote for commissioner in the next election and likely tip the result from Republican to Democrat in one precinct, creating a 4-1 supermajority for Democrats.

The petition then recites more facts in the case, elements of the redistricting plan, legal precedents, issues and arguments.

The petition basically restates elements of the original District Court petition. However, for the Texas Supreme Court, it also lists precedents for writs of mandamus. Those were not an element of the original case.

Writs of mandamus compel lower court judges or government officials to perform the duties of their job. In this case, the petition was targeted at three local officials – Hidalgo, Ellis and Garcia.

Request to Expedite Petition

The petitioners also filed a 4-page request to expedite the case, citing the nearness of the next election.

The urgency explains why Cagle, Ramsey and their supporters skipped the normal intermediate step of filing an appeal. Because of the need to print ballots early in the year, time was simply not available. A writ of mandamus represents the only legal remedy they have available at this point.

Tik tok. Tik tok.

Posted by Bob Rehak on 12/24/2021

1578 Days since Hurricane Harvey

Redistricting Lawsuit Dismissed by Ellis-Backed Judge

A lawsuit by Harris County Precinct 3 Commissioner Tom Ramsey, Precinct 4 Commissioner Jack Cagle and their supporters that sought to overturn a redistricting plan devised by Precinct 1 Commissioner Rodney Ellis has been dismissed by an Ellis-backed judge, Dedra Davis.

How Ellis-3 Redistricting plan affects Lake Houston Area — *In the Ellis-3 Redistricting plan, almost all of the Lake Houston Area including Kingwood, Humble, Atascocita, Huffman and Crosby will change from Precinct 4 to Precinct 3*. *Tom Ramsey will remain the Commissioner of Precinct 3, and will not be up for re-election in 2022.*

Details of Redistricting Plan

The Ellis redistricting plan swapped the numbers of Precincts 3 and 4. It also redrew the boundaries of Precincts 3 and 4 so that Ramsey’s home and Cagle’s home changed precincts. The Ellis plan has two immediate effects.

It forces Cagle and Ramsey, both Republicans, to run in each others’ precincts because commissioners must live in the precincts they represent.
The number swap will deny voters in the new precinct 3 the right to vote for commissioner in the next election. That’s because only even-numbered precincts will vote in the next election cycle for commissioners. So the Lake Houston Area will not be able to vote for commissioners next year as it normally would have.

In addition, the plan redraws boundaries of the new Precinct 4 so that it becomes more Democratic. That jeopardizes Cagle’s chances of re-election and could shift the balance of power in Commissioners Court. Four Democrats could create a super-majority, enabling them to raise taxes at will.

A supermajority could also have far reaching consequences for flood mitigation by enabling Democrats to shift funds between watersheds as Adrian Garcia already tried to do.

TRO Denied, Then Lawsuit Dismissed on Plea to Jurisdiction

The plaintiffs sought a temporary restraining order (TRO) to block preparations for redistricting until the lawsuit could be resolved.

Judge Brittanye Morris (acting as an ancillary judge for Davis) denied the TRO on November 29 without explanation.

Hidalgo then filed a Plea to the Jurisdiction on December 13. In it, she pled that:

Plaintiffs lacked standing to bring the claims
She enjoyed sovereign (governmental) immunity
Plaintiffs did not plead a constitutionally valid claim
She was acting within her powers.

Yesterday, December 22, 2021, Judge Dedra Davis of the 270th District Court upheld Hidalgo’s plea to the jurisdiction and dismissed the lawsuit.

Judge Davis, who was supported in her election bid by Rodney Ellis, a key player in this drama, did not recuse herself. Nor did she cite any reasons for dismissing the case in her terse ruling.

*Rodney Ellis and Judge Dedra Davis during her election bid.*

Stage Set for Appeal

A spokesperson for Commissioner Jack Cagle’s office responded that the plaintiffs intend to file an appeal. However, because of the holidays, no other details were immediately available.

Posted by Bob Rehak on 12/23/2021

1577 Days since Hurricane Harvey

Ellis-Backed Judge Set to Hear Case on Constitutionality of Ellis Redistricting Plan

Dedra Davis, a district-court judge that Harris County Commissioner Rodney Ellis backed for election in 2018, has been chosen to hear a constitutional challenge to Harris County’s redistricting plan developed by – you guessed it – Rodney Ellis. The plan will likely give Democrats a supermajority in Commissioners Court and allow them to dictate everything from tax increases to the future of flood mitigation in Harris County.

1.1 Million Will Lose Right to Vote for Commissioners Next Year

The suit alleges that the Ellis-3 plan, by switching precinct boundaries and numerical designations – will deprive 1.1 million people of their right to vote for commissioner in the next county election. Further, the suit alleges that precinct lines could have been redrawn without depriving anyone of their right to vote.

Ellis switched numbers of Precincts 3 and 4 and moved a large part of P2 into P3. Because only even-numbered precincts will vote next year, voters in the new P3 – which includes virtually the entire Lake Houston Area – will not be able to vote for commissioners as they normally would have.

Ellis-Backed Judge Draws Ellis Case

The Honorable Judge Dedra Davis of the Texas 270th Judicial Court is a Democrat. She first ran for public office in 2018, but managed to beat Republican Judge Brent Gamble, a 20-year incumbent by 10 points – even though members of the Houston Bar Association preferred Gamble almost 3-to-1. And the Houston Chronicle strongly endorsed Gamble over Davis.

*Screen capture from 2018 Bar Association poll.* *Did Ellis’ support tilt the scales in the other direction?*

Some might call Davis’ 10-point win over a highly respected incumbent a stunning upset. But Ellis swings a lot of weight in Harris County.

*Commissioner Ellis reportedly campaigned heavily for candidate Davis.*

One Harris County insider who spoke on condition of anonymity said, “She is one of the judges Ellis got elected. There are several of them.” A second person sent me the photo above that shows Davis campaigning with Ellis.

Can Davis Be Impartial?

Judges don’t get to chose their cases. And this case has barely begun. The lawsuit was filed just two days ago. No rulings have yet been made according to Harris County District Clerk records. So I’m not alleging any impropriety.

Davis just had the bad luck to draw a case involving one of her biggest supporters – someone whose support likely swung her election.

According to the Texas Rules of Civil Procedure, Rule 18b, Judge Davis has a perfect out if she wants it. Rule 18b, Paragraph B states, “Grounds for Recusal. A judge must recuse in a proceeding in which:

(1) the judge’s impartiality might reasonably be questioned;

(2) the judge has a personal bias or prejudice concerning the subject matter or a party.”

Only the Honorable Judge Davis can know what’s inside her heart, but a million disenfranchised voters will be looking over her shoulder on this case and wondering whether her association with Commissioner Ellis will color her judgement.

Posted by Bob Rehak on 11/18/21

1542 Days after Hurricane Harvey

The thoughts expressed in this post represent opinions on matters of public concern and safety. They are protected by the First Amendment of the US Constitution and the Anti-SLAPP Statute of the Great State of Texas.

Lawsuit Alleges Harris County’s Ellis-3 Redistricting Plan is Unconstitutional

A lawsuit filed yesterday with the Harris County District Clerk alleges the Ellis-3 Redistricting Plan adopted in the Harris County Commissioners Court Meeting on 10/28/21 is unconstitutional. The Ellis-3 plan would deny virtually everyone in the Lake Houston Area the ability to vote in the next county commissioner election. If allowed to stand, the plan also has the potential to affect all aspects of county government from flood mitigation to services and taxation. Below is a summary of the lawsuit. See the entire lawsuit here.

Basis For and Goals of Suit

The lawsuit claims the Ellis-3 Plan, which renumbered precincts in addition to redrawing them, disenfranchises more than 1.1 million people of their right to vote in next year’s Harris County elections.

Modified Ellis Plan will flip precincts 3 and 4 — *Ellis-3 Plan will flip precincts 3 and 4. Colors represent new precinct boundaries and lines represent old.*

Plaintiffs in the lawsuit include Republican Commissioners Tom Ramsey in Precinct 3 and Jack Cagle in Precinct 4. The suit names County Judge Lina Hidalgo and Harris County as defendants. Significantly, defendants may be barred from asserting governmental immunity under a legal principle called ultra vires and the Texas Declaratory Judgments Act. “Ultra vires” describes an act which requires legal authority, but is done without it.

The plaintiffs seek a temporary restraining order and injunctive relief that bars the County from using the Ellis-3 plan for the upcoming 2022 election cycle for Harris County Commissioner elections. Plaintiffs also seek to extend the filing period for new candidates and incumbents until after the lawsuit is resolved.

Suit Claims Ellis-3 Plan Deprives 1,125,937 People of Right to Vote

One of the most significant features of the Ellis-3 Plan was that it moved more than a million voters between even- and odd-numbered precincts. In Texas, when people vote for county commissioners depends on whether they live in even- or odd-numbered precincts.

Even-numbered precincts will vote in the 2022 election cycle and odd-numbered precincts will vote in 2024. So when Ellis flipped the numbers for Precincts 3 and 4, he “illegally and unconstitutionally” stripped 1,125,937 Harris County voters of the right to vote in the next election, according to the suit.

The Texas Constitution established the odd/even rules in 1954 through an amendment which also staggered the initial terms of Commissioners, thus ensuring half would be elected every two years.

Virtually all registered voters in the heavily Republican Lake Houston Area would be deprived of their right to vote for commissioners in the next County election.

New precincts in Harris County — *New precincts in the Ellis 3 Plan would deprive virtually all Lake Houston Area voters of their right to vote in the next election by putting them in an odd-numbered precinct.*

*How Ellis-3 Redistricting plan affects Lake Houston Area*. Formerly split between Precincts 2 and 4, now everything is in Precinct 3 except for Summerwood *and will not be able to vote in the next county election.*

The Ellis-3 Plan moves voters from even-numbered precincts into odd-numbered precincts as follows:

7,192 move from Precinct 2 to l
139,434 move from Precinct 2 to 3
215,142 move from Precinct 4 to 1
764,169 move from Precinct 4 to 3.

Accordingly, last month’s adoption of the Ellis-3 Plan will prevent more more than 1.1 million people from voting in the next election who otherwise would have voted. The lawsuit calls that “a total and complete abrogation of their constitutionally mandated right to vote.”

17.71% Disparity in Population Made Redistricting Necessary

The lawsuit acknowledges that redistricting was necessary. Under state law, precincts are supposed to have equal-sized populations…or as close as you can get. But in no event should variation from the ideal exceed 10%.

However, prior to redistricting, unequal population growth between 2010 and 2020 exceeded that 10% maximum.

2020 Census data on the Harris County Attorney’s website shows precinct populations varied from the “equal-sized” ideal by the following percentages:

P1 -0.36%
P2 -10.47%
P3 +7.24%
P4 +3.59%

That created a population disparity of 17.71% between the largest and smallest precincts, almost double the amount allowed under state law.

2 Million Move Precincts when 200 Thousand Would Have Sufficed

However, the lawsuit also claims that the Ellis-3 Plan moved 2.2 million between precincts (both odd- and even-numbered) when constitutional requirements could have been met by moving only 201,713.

Plaintiffs also claim that they have created a “demonstration map” where population deviations were addressed but ZERO citizens lost their right to vote in the next election. (However, Plaintiff’s did not include that map with their legal filing.)

Plaintiffs offer a simple explanation for why excessive shifting occurred. They assert that “Commissioner Ellis wanted to do whatever it would take to draw a new map that would create three (3) Democratic seats.”

The original petition claims, “…the Ellis 3 Plan does just that.”

“It maintains Ellis’ Precinct I as a reliably Democratic district, making sure that Latino voting strength is too weak to beat him in a primary election, especially given the African-American support he enjoys in that precinct regardless.”
“It strengthens Precinct2’s democratic strength in the hopes that Commissioner Adrian Garcia can withstand a general election challenge by a Republican.”
“It packs Republicans into Precinct 3, such that the likelihood of Commissioner Ramsey being reelected is high.”
“By strengthening the Republican voting strength of Precinct 3, the consequence is to flip the likely partisan nature of Precinct 4 from Republican to Democrat.”

But to do all that, the lawsuit alleges, the Ellis-3 Plan disenfranchised 1.1 million innocent voters.

While generally mocking the lawsuit, even the left-leaning Houston Chronicle admitted today that, “The adopted Ellis map gives Democrats a 50 percentage advantage over Republicans in Precinct 1, 12 points in Precinct 2 and 12 points in Precinct 4.”

The Chronicle continued, “The endgame is that the Democrats can secure a 4-1 majority, which will give them the freedom to set tax rates with a quorum of four members and avoid a minority of two Republicans sitting out and derailing the vote.

Lawsuit Chances

Not one of the experts interviewed by the Chronicle writer gave the suit a snowball’s chance. One dismissed it as “political theater.”

But neither did the Chronicle mention that the Judge assigned to the case, Dedra Davis, was supported by Rodney Ellis in her last election bid.

*Judge Dedra Davis has been assigned to the redistricting case.*

One Harris County insider who spoke on condition of anonymity said, “She is one of the judges Ellis got elected. There are several of them. The lawsuit has no chance. They will have to appeal up to a higher court.”

A second person sent me this photo. It validates the insider report.

*Judge Dedra Davis at Campaign Event with Rodney Ellis, whose plan she will rule on.*

Perhaps Davis will recuse herself since Ellis is the lead actor in this drama. Not recusing herself would seem to create grounds for an appeal. Here is the Texas law governing recusal of District Court judges.

Posted by Bob Rehak on 11/17/2021 and modified on 11/18 with addition photo of Ellis and the Judge in his case.

1541 Days since Hurricane Harvey