Case Information
United States District Court Southern District of Texas ENTERED June 24, 2020 UNITED STATES DISTRICT COURT David J. Bradley, Clerk SOUTHERN DISTRICT OF TEXAS LAREDO DIVISION
SYLVIA BRUNI, et al. , §
§
Plaintiffs, §
VS. § CIVIL ACTION NO. 5:20-CV-35
§
RUTH HUGHS, in her official §
capacity as the Texas Secretary §
of State , §
§
Defendant.
MEMORANDUM AND ORDER
Plaintiffs filed this lawsuit premised on their predicted effects of a forthcoming Texas elections law, which they claim will cause a series of events at polling-places, ultimately resulting in their injuries. Namely, Plaintiffs challenge House Bill 25 (HB 25), which the Texas Legislature passed in 2017 and which will take effect in September 2020. The Bill will remove from the Texas Elections Code the option for Texans to cast their ballots in partisan races using a “straight-ticket vote.” According to Plaintiffs, the enforcement of HB 25 will cause longer lines at polling-places, increased roll-off at polling-places, voter confusion at polling-places, and less turnout from Democratic-party voters at polling-places. Plaintiffs claim that the combination of these predicted effects will cause them to suffer several injuries.
Defendant, Texas Secretary of State Ruth Hughes, has filed a Motion to Dismiss (Dkt.
No. 32) which argues, among other things, that Plaintiffs lack standing. “Standing” is a
requirement to sue rooted in Article III of the United States Constitution, which ensures that
federal courts confine themselves to their “constitutionality limited role of adjudicating
actual and concrete disputes”
United States v. Sanchez-Gomez
,
The Court has carefully reviewed the parties’ arguments, the record, and the applicable law. Having found that Plaintiffs’ injuries rest on numerous suppositions that are uncertain to occur and that the occurrence of Plaintiffs’ injuries depends on decisions of third parties who are not before the Court, the Court finds that Plaintiffs’ injuries are not certainly impending and fail to satisfy Article III. Thus, the Secretary’s Motion to Dismiss (Dkt. No. 32) is hereby GRANTED , and this action is DISISSED WITHOUT PREJUDUICE .
I. Background
As it stands, the Texas Election Code allows Texans to cast their ballots in statewide
elections by “casting a straight-party vote,” a practice known as “straight-ticket voting.” T EX . E LEC . C ODE . § 62.011. Straight-ticket voting “allows a voter to vote for all candidates of their
desired political party by making a single mark designating the selection of that political
party, rather than voting for each partisan candidate individually.”
Mich. State A. Philip
Randolph Inst. v. Johnson
,
There are five Plaintiffs in this case: (1) Sylvia Bruni, an elected official for the Webb County Democratic Party, (2) the Democratic Senatorial Campaign Committee, (3) the Democratic Congressional Campaign Committee, (4) the Texas Democratic Party, and (5) Jessica Tiedt, a candidate for District 20 of the Texas House of Representatives (Dkt. No. 16). Plaintiffs allege that the enforcement of HB 25 will violate the First, Fourteenth, and Fifteenth Amendments to the United States Constitution and Section 2 of the Voting Rights Act ( id. ). They filed this lawsuit under 42 U.S.C. §§ 1983 and 1988 against the sole Defendant, Texas Secretary of State Ruth Hughes, who is tasked with adopting rules for the elimination of straight-ticket voting. See 2017 Tex. Sess. Law Serv. Ch. 404. Ultimately, Plaintiffs seek an injunction to stop HB 25 from taking effect and a declaration that the Bill violates the above-named provisions of the Constitution and Voting Rights Act (Dkt. No. 16).
Plaintiffs make nine discrete factual allegations in their complaint, which, at this stage of the litigation, the Court must presume are true. Stratta v. Roe , No. 18-50994, 2020 WL 2781642, at *3 (5th Cir. May 29, 2020). Plaintiffs reason that, when read together, these allegations compel an inference that they have sustained an injury in fact. First, they allege that Texans currently endure long lines when casting votes at polling-place locations (Dkt. No. 16 at 12). They have detailed several studies and articles to support this allegation ( id. ).
Second, Plaintiffs allege that long lines disparately impact minorities who “overwhelmingly” support the Democratic Party ( id. at 4, 24). They reason that minorities are more likely to “(1) live in poverty, (2) have less flexible job schedules, (3) lack access to transportation, and (4) lack access to child care assistance,” which causes them to “leave polling-place lines” and avoid “attempting to vote” altogether ( id. at 15). In short, Plaintiffs allege that minorities “have less ability to withstand long-polling place lines” ( id. at 24).
Third, Plaintiffs allege that ballots in Texas elections are generally lengthy, labeling them as “some of the longest ballots in the country” ( id. at 11). And they specifically allege that in Texas’s “most populous counties, voters are sometimes faced with the task of making decisions in over 80 races or referendum questions” all on a single ballot ( id. ).
Fourth, Plaintiffs allege that long lines and ballots increase voter fatigue and roll-off ( id. at 12). Roll off occurs “when a voter casts a ballot but fails to make a selection in all entries on that ballot” ( id. ). Plaintiffs contend that many voters engage in roll-off due to the lengthy ballots in Texas races and the lengthy waits that voters are subject to when casting their ballots. They add that roll-off “occurs most commonly” amongst minorities given they have, “on average, lower educational attainment [as] compared to white Texans” ( id. at 25).
Fifth, Plaintiffs allege that straight-ticket voting combats long lines and roll-off (id . at 12). They reason that straight-ticket voting “reduces voting time and minimizes wait times at polling places,” and reduces roll-off by “reducing the number of separate races in which a voter must select a candidate” ( id. at 2, 12). Stated differently, Plaintiffs reason that straight-ticket voting helps prevent long lines and increase the speed at which citizens cast their votes by permitting them to do so for all races on a given ballot with a single punch.
Sixth, Plaintiffs allege that the elimination of straight-ticket voting will significantly increase the length of lines at polling places and increase roll-off at polling-places. Plaintiffs cite a state legislator who summarizes their position on this point:
[L]ong waits at polling places already are huge problems in some parts of Texas, especially in urban areas where many voters line-up to vote for many races on the ballot. On the first day of early voting for the November 2016 election, for example, long waits—sometimes hours—were reported in Bexar, Harris, Nueces, and Denton counties. Lines and ballot fatigue can exhaust voters’ patience, and eliminating the straight-party option would only make things worse and cause many either to skip down-ballot races altogether or not go to the polls at all. The effect would be to suppress voting and voter turnout.
(Dkt, No. 16 at 18) (citing Tex. S.J., 85th Leg., Reg. Sess., Sen. Zaffirini (May 18, 2017)).
Seventh, Plaintiffs allege that the elimination of straight-ticket voting will cause voter confusion (Dkt. No. 16 at 25). Plaintiffs reason that voters “who have relied on [the straight- ticket voting practice] for decades will now be forced to navigate a system with which they are unfamiliar,” which “will disparately impact minority voters” who “on average have lower educational attainments as a result of historical discrimination” ( id. ).
Seventh, Plaintiffs allege that their predicted “effects” of HB 25—longer lines at polling-places, increased roll-off at polling-places, and voter confusion at polling-places—will significantly burden Texans’ right to vote ( id. at 23, 26). Specifically, Plaintiffs reason that, given Texas’s “existing problem of long polling-place lines,” the elimination of straight-ticket voting will “exponentially increase” the time that Texans will wait to cast their ballots at polling-places, which will cause “a substantial amount of additional voters [to] leave polling- place lines without voting” ( id. ). For the same reason, Plaintiffs allege that the predicted effects of HB 25 will disproportionately burden voters who support the Democratic Party, including minorities, which will “in turn” cause Democratic candidates, including Tiedt and others, to lose votes at polling-places that would have otherwise been cast for them ( id. ).
Finally, Plaintiffs allege that they will be injured by the predicted effects of HB 25 because they will need to “divert and expend additional time and resources in voter education and turnout” ( id. at 7–10). Plaintiffs further allege that the predicted effects will decrease the electoral prospects of Tiedt and other candidates whom they support and represent, and that HB 25 will prevent members, volunteers, and constituents of the organization-Plaintiffs from exercising their “associational rights to band together and elect candidates of their choice” ( id. ). Tiedt, a “down-ballot candidate,” also alleges that increased roll-off will deprive her of votes given her position at the bottom of Texas ballots ( id. at 11).
Secretary Hughes moves to dismiss this case under Federal Rules of Civil Procedure 12(b)(1) and (6) or, in the alternative, to transfer the case to the Western District of Texas under Federal Rule of Civil Procedure 12(b)(3) (Dkt. No. 32). Amongst other arguments, the Secretary argues that Plaintiffs lack Article III standing ( id. at 43). Plaintiffs filed a Response (Dkt. No. 47), and Defendant filed a Reply (Dkt. No. 52). With the Court’s leave, the Honest Elections Project filed an Amicus Brief in Support of Defendant’s Motion (Dkt. No. 42).
II. Applicable Law
A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(1) challenges
the Court’s subject-matter jurisdiction. Where, as here, a defendant lodges a “facial attack”
under Rule 12(b)(1), the Court only examines the “sufficiency of the allegations in the
complaint because they are presumed to be true.”
Houston Home Dialysis v. Blue Cross and
Blue Shield of Tex
., No. H-17-2095,
Article III of the United States Constitution limits the jurisdiction of federal courts to
“Cases” and “Controversies.” U.S. C ONST A RT . III, § 2. One element of the case-or-controversy
requirement “is that plaintiffs must establish that they have standing to sue.”
Peters v. St.
Joseph Servs. Corp.,
74 F. Supp. 3d 847, 854 (S.D. Tex. 2015). Standing is a question of
subject-matter jurisdiction.
Norris v. Causey
,
To establish Article III standing, a plaintiff must show (1) an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable decision.
Spokeo, Inc. v. Robins
, 136 S. Ct. 1640, 1547 (2016). 3 General factual allegations of an injury caused by the defendant may be sufficient, for on a
motion to dismiss “[the Court] presume[s] that general allegations embrace those specific
facts that are necessary to support the claim.”
Lujan v. Defendners of Wildlife
,
III. Analysis
All of Plaintiffs’ alleged injuries hinge on the occurrence of their five predicted “effects” of HB 25: (1) increased lines at polling places, (2) increased roll-off at polling places, (3) increased voter confusion at polling places, (4) reduced Democratic-party turnout at polling places, either because Democratic-party voters will leave polling-place lines or fail to show up all together, and (5) due to these predicted effects, fewer votes at polling-places for Democratic-party candidates, including for Tiedt and other candidates whom Plaintiffs support. Plaintiffs allege that these predictions will cause them to sustain their injuries.
To satisfy Article III standing, a plaintiff’s injury must be “concrete, particularized,
and actual or imminent.”
Clapper v. Amnesty Intern. USA
,
A plaintiff’s injury “that would result from a chain of events does not always preclude
standing,” but “at times, a chain of events can be too remote to support a claim of standing.”
Abulawa v. U.S. Dep’t of Treas.
, No. 15-2186 (RDM),
In this case, all of Plaintiffs’ alleged injuries fail to satisfy the imminence requirement
of Article III because they are premised on numerous predicted “effects” of HB 25 which are
uncertain to occur.
Texas v. United States
, 523 U.S. 296, 296 (1998). Namely, Plaintiffs’
injuries only
might
occur:
if
the Bill causes longer lines at polling-places;
if
the Bill causes
increased roll-off at polling-places;
if
the Bill causes voter confusion at polling-places;
if
these
predicted effects cause Democratic-party voters—and not voters of other political
affiliations—to leave lines at polling-places or fail to show up at polling-places altogether;
if
these predicted effects cause voters who would have voted for Tiedt or other Democratic-party
candidates to engage in roll-off at polling places; and
if
all of these predicted effects—in a
compounding fashion—cause Democratic-party candidates, including Tiedt and other
candidates whom Plaintiffs support, to lose votes at polling-places that would have otherwise
been cast for them. Given the numerous suppositions that must occur before Plaintiffs might
suffer any harm, the Court finds that Plaintiffs’ injuries are not certainly impending and fail
to satisfy Article III.
Texas
,
Furthermore, the cases that Plaintiffs rely on are unconvincing because they do not
address the salient issue, the imminence—or lack thereof—of a plaintiff’s injury. Although
the plaintiff in
OCA-Greater Houston v. Texas
,
Similarly, Texas Democratic Party v. Benkiser , 459 F.3d 582 (5th Cir. 2006) is unpersuasive. There, acting under a provision of the Texas Elections Code, the chairwoman of the Republican Party declared that another elected official, Tom Delay, was ineligible for reelection. Id. at 585. The Texas Democratic Party (TDP) sued the chairwoman for injunctive relief, arguing the provision she acted under was unconstitutional. Id. On appeal, the Fifth Circuit found that TDP had sustained two injuries from the chairwoman’s actions: (1) the “additional funds and resources” that it would need to expend to “prepare a new and different campaign in a short time frame,” and (2) the harm to its election prospects that would result if the Republican Party “were permitted to replace DeLay with a more viable candidate.” Id .
Yet, the injuries in Benkiser were imminent and not premised on numerous hypothetical scenarios that might occur due to the enforcement of a forthcoming law. The plaintiff in Benkiser challenged an already-enforced statute, and its injuries were the direct result of the statute’s application. In other words, the plaintiff’s injuries flowed directly from the defendant’s use of the statute without intermediate events. By contrast, the injuries here are hypothetical and are not couched as the direct result of HB 25. Rather, Plaintiffs’ injuries hinge on multiple uncertain intermediate predictions. While the injury in Benkiser is similar in form to injuries here—the expenditure of resources and the harm to a plaintiff’s electoral prospects—it is the imminence of Plaintiffs’ injuries that are at issue in this case, not their form. And, notably, in response to the Secretary’s argument that Plaintiffs’ injuries are not certainly impending (Dkt. No. 32 at 20), Plaintiffs fail to cite any caselaw, let alone caselaw that supports the proposition that an injury may be “certainly impending” for Article III purposes where it hinges on several predicted effects of a forthcoming law (Dkt. No. 47 at 27).
The Court also agrees with the Secretary’s argument that Plaintiffs assume “local
officials will not use their state-law authority to ameliorate the situation” at polling-places
(Dkt. No. 32 at 14). Indeed, as Texas’s chief election officer, the Secretary holds “the power to
take appropriate action to protect Texans’ voting rights from abuse,”
Tex. Democratic Party
v. Abbott
, No. 20-50407,
Moreover, significantly amplifying the uncertainty over Plaintiffs’ allegations is the
nation’s current public-health crisis. The United States is experiencing a global pandemic
involving the spread of the highly contagious COVID-19 virus which can cause serious illness
and sometimes death. As one district court put it, “there is no doubt that the rapidly
approaching election date[s] in the midst of the COVID-19 pandemic means that citizens will
face serious, and arguably unprecedented, burdens in exercising their right to vote in-
person.”
Democratic Nat’l Comm. v. Bostelmann
, Nos. 20-cv-249-wmc, 278-wmc, 284-wmc,
pandemic with no known vaccine or treatment.” Dunn, et. al,
Legal Theories to Compel Vote By-Mail
in Federal Court
, 11 C AL . L. R EV . O NLINE 166, 167 (2020);
see, e.g.
,
Democratic Nat’l Comm. v.
Bostelmann
, Nos. 20-cv-249-wmc, 278-wmc, 284-wmc,
The uncertainty of Plaintiffs’ allegations notwithstanding, the occurrence of their
injuries remains in the hands of Texas voters. Even after HB 25 takes effect, Texans may
choose to wait in line at polling places or not, to engage in roll-off or not, or to manually vote
for all members of their desired political party or not. And Texans will be presented with an
additional decision this year as they consider voting in-person during the pandemic. These
impending decisions provide an additional reason that Plaintiffs lack standing: their injuries
hinge on decisions of third parties who are not before the Court.
See High v. Karbhari
, 774
F. App’x 180, 183 (5th Cir. 2019) (noting that, at the pleading stage, “if [an] injury’s existence
depends on the decisions of third parties not before the court, it is conjectural or hypothetical
and does not establish standing”);
Sierra Club v. Environ. Protec. Agency
,
IV. Conclusion
For these reasons, the Court finds that Plaintiffs have failed to meet their burden of establishing Article III standing. Having found that Plaintiffs lack Article III standing, the Court lacks subject-matter jurisdiction to adjudicate this case. Thus, the Secretary’s Motion to Dismiss (Dkt. No. 32) is GRANTED , and this case is DISMISSED WITHOUT PREJUDICE . The Clerk is DIRECTED to CLOSE this case.
Coronavirus Crisis , B RENNAN C TR FOR J USTICE , https://www.brennancenter.org/our-work/responding- coronavirus-crisis (Last visited June 19, 2020) (advocating for, in light of the COVID-19 pandemic, “wider online voter registration and election tools, extended deadlines, and a move to make vote-by- mail universally available while retaining safe options for in-person voting”).
It is so ORDERED
SIGNED June 24, 2020.
___________________________________ Marina Garcia Marmolejo United States District Judge
Notes
[1] HB 25 is codified in T EX E LEC . C ODE § 31.012.
[2] Plaintiffs have filed three similar cases in the Western District of Texas, although none of those cases are predicated on the effects of a forthcoming Bill. See Tex. Democratic Party, et al. v. Hughes , No. 1:19-cv-1071-LY, Dkt. No. 1 (W.D. Tex. 2019) (Plaintiffs challenging the “systemic advantage of the Ballot Order Statute” which is currently codified in the Texas Elections Code and
[3] Organizational plaintiffs must also satisfy these elements.
Greater New Orleans Fair
Housing Action Ctr. v. Kelly
,
[4] A plaintiff seeking injunctive or declaratory relief must also satisfy this standard.
Waller v.
Hanlon
,
[5] Plaintiffs’ allegations about the
current
length of lines at polling-places, length of ballots at
polling-places, and frequent roll-off at polling-places are factual allegations which the Court presumes
are true, given they are “historical or otherwise demonstrable.”
Arpaio v. Obama
,
[6] Some state officials have already taken steps to modify in-person voting at polling-places. For
instance, Texas Governor Greg Abott postponed the May 2020 primary runoff election, doubled the
“period for early voting by personal appearance,” and directed officials to issue guidance on social
distancing and other precautionary measures.
Tex. Democratic Party
,