28 F.4th 659
5th Cir.2022Background
- Plaintiffs (five individuals and three organizations) sued the Texas Secretary of State in her official capacity challenging four Texas Election Code provisions governing mail-in ballots: postage (§86.002), postmark/receipt deadlines (§86.007), signature verification (§87.027), and criminal possession (§86.006).
- Plaintiffs alleged those rules (especially during COVID‑19) unconstitutionally burdened the right to vote under the First, Fourteenth, and Twenty‑Fourth Amendments and sought declaratory and injunctive relief.
- The Secretary moved to dismiss on sovereign‑immunity grounds, arguing Ex parte Young does not permit suit because she lacks a connection to enforcement of the challenged provisions; the district court denied that motion relying on the Secretary’s general statutory duties to obtain uniformity and protect voting rights (Tex. Elec. Code §§31.003, 31.005).
- The Secretary appealed under the collateral‑order doctrine to the Fifth Circuit; the appeals process included an initial summary‑affirm order withdrawn and rehearing routed to a merits panel.
- The Fifth Circuit majority reversed: it held the statutes show local officials (early voting clerks, early voting ballot boards, and local prosecutors) — not the Secretary — enforce the challenged provisions, so Ex parte Young does not authorize suit against the Secretary; the case was remanded with instructions to dismiss.
- Judge Higginbotham dissented, arguing the proper threshold is Article III standing/redressability and that the Secretary’s duty to obtain uniformity and protect voting rights supports Ex parte Young and allows the suit to proceed to the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ex parte Young allows suit against the Secretary (sovereign immunity) | Secretary’s statutory duties to obtain uniformity and protect voting rights make her a proper defendant under Ex parte Young | Secretary lacks a specific enforcement connection to the challenged provisions; Ex parte Young does not apply | Held: No. Secretary not proper defendant; suit barred by sovereign immunity and must be dismissed |
| Postage requirement (§86.002) | §86.002 effectively forces voters to pay postage; Secretary’s regulation role makes her enforceer | Statute tasks early voting clerk with providing envelopes and notice of postage; Secretary only prescribes instructions, not enforcement | Held: Early voting clerks — not Secretary — are responsible; Secretary lacks enforcement connection |
| Postmark/receipt deadlines (§86.007/§86.011) | Secretary’s general election‑enforcement duties mean she can be sued to enjoin deadlines | Timeliness determinations are made by early voting clerks/boards under the Code | Held: Local clerks/boards enforce deadlines; Secretary not enforcing provision |
| Signature verification & criminal possession (§87.027, §86.006) | Secretary oversees uniformity and thus can be enjoined for failures in signature verification/enforcement | Signature checking and prosecution are assigned to local ballot boards and local prosecutors, not Secretary | Held: Enforcement duties lie with local officials/prosecutors; Secretary lacks requisite connection |
Key Cases Cited
- Ex parte Young, 209 U.S. 123 (1908) (establishing exception to state sovereign immunity allowing suits against state officers to enjoin ongoing federal‑law violations)
- City of Austin v. Paxton, 943 F.3d 993 (5th Cir. 2019) (Ex parte Young requires a defendant’s enforcement connection to the challenged statute)
- Texas Democratic Party v. Abbott, 978 F.3d 168 (5th Cir. 2020) (distinguishes general duties from a particular enforcement duty required for Ex parte Young)
- Mi Familia Vota v. Abbott, 977 F.3d 461 (5th Cir. 2020) (analyzing enforcement connection under Ex parte Young in election‑law context)
- Morris v. Livingston, 739 F.3d 740 (5th Cir. 2014) (where a different official is statutorily tasked with enforcement, Ex parte Young inquiry ends)
- Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021) (discussing limits of Ex parte Young and the availability of equitable relief against state actors)