72 F.4th 94
5th Cir.2023Background
- Jillian Ostrewich wore a yellow firefighter T-shirt (supporting Prop B) while early voting in Houston and was told by poll workers/presiding judge to turn it inside-out before voting.
- She sued Texas election officials challenging Texas Election Code §§ 61.003, 61.010, and 85.036 as chilling and censoring political expression at polling places under the First Amendment.
- The district court upheld § 61.010 but struck down §§ 61.003 and 85.036 as facially unconstitutional; it also allowed suit against the Texas Secretary of State and Attorney General under Ex parte Young.
- On appeal the Fifth Circuit reviewed sovereign-immunity and standing issues and applied the Mansky reasonableness framework for polling-place speech restrictions.
- The Fifth Circuit held the Secretary of State and Attorney General are immune (Young inapplicable), found Ostrewich has standing against the remaining defendants, and concluded all three electioneering statutes are constitutional; it also denied nominal damages.
- Statutory context: §§ 61.003 and 85.036 prohibit "electioneering" within 100 feet of polling places (defining electioneering to include political signs/literature); § 61.010 bars wearing badges/emblems related to candidates, measures, or parties near polling places.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sovereign immunity (Sec. of State & AG) | Young applies because officials train/advice and can enforce or refer prosecutions | Officials lack particular enforcement power; presiding judges enforce; AG cannot unilaterally prosecute | Young inapplicable; Sec. of State and AG immune; claims against them dismissed |
| Standing | Censorship at the polls and statutory chill represent concrete injuries (pre-enforcement chill) | No traceable injury; no credible threat of enforcement or prosecution | Plaintiff has standing; credible threat presumed for non-moribund speech-restricting statutes |
| § 61.010 (as-applied) | T-shirt was generic non-expressive apparel, not express advocacy; application unconstitutional | Shirt related to ballot measure; presiding judge reasonably enforced § 61.010 to keep polling place nonpartisan | As-applied challenge fails; judge reasonably restricted shirt under § 61.010 |
| § 61.010 (facial/vagueness/overbreadth) | "Related to" is vague, delegates unguided discretion to presiding judges | Limitation to candidates/measures/parties "appearing on the ballot" supplies a workable limiting principle | Facial challenge fails; statute meets Mansky reasonableness standard |
| §§ 61.003 & 85.036 (facial) | Lack "on the ballot" limit makes "political" unmoored and gives excessive discretion to exclude apparel | Statutes regulate "electioneering" (for/against candidates/measures/parties) and define it to include political signs/literature; narrower than the Minnesota law in Mansky | Facial challenge rejected; statutes provide limiting principle and are constitutional |
| Nominal damages | Claimed past censorship supports nominal damages | No past compensable constitutional injury if statutes valid | Denied: no nominal damages because no established past, completed injury |
Key Cases Cited
- Minn. Voters All. v. Mansky, 138 S. Ct. 1876 (2018) (polling-place speech restrictions governed by a reasonableness test in a nonpublic forum; laws must supply workable limiting principles)
- Burson v. Freeman, 504 U.S. 191 (1992) (historical context supports states restricting election-day speech near polls)
- Ex parte Young, 209 U.S. 123 (1908) (Young permits suits against state officials only when they have a sufficient enforcement connection)
- Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir. 2020) (pre-enforcement chill establishes standing; credible threat of prosecution presumed for non-moribund statutes)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury-in-fact, causation, redressability)
- State v. Stephens, 663 S.W.3d 45 (Tex. Crim. App. 2021) (Attorney General lacks independent authority to initiate election prosecutions under Texas law)
- Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021) (nominal damages address redressability and require a past, completed injury)
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969) (symbolic apparel can constitute protected political expression)
- City of Austin v. Paxton, 943 F.3d 993 (5th Cir. 2019) (Young requires a particular duty and demonstrated willingness to enforce the challenged statute)
- Tex. Democratic Party v. Abbott, 978 F.3d 168 (5th Cir. 2020) (general supervisory duties do not satisfy Young's enforcement-connection requirement)