DOCTOR GEORGE RICHARDSON; ROSALIE WEISFELD; MOVE TEXAS CIVIC FUND; LEAGUE OF WOMEN VOTERS OF TEXAS; AUSTIN JUSTICE COALITION; COALITION OF TEXANS WITH DISABILITIES, Plaintiffs—Appellees, versus FEDERICO FLORES, JR.; MARIA GUERRERO; VICENTE GUERRERO, Movants—Appellants, versus JOHN SCOTT, in his official capacity as the Texas Secretary of State, Defendant—Appellant - Appellee.
No. 20-50774
United States Court of Appeals for the Fifth Circuit
March 16, 2022
Before HIGGINBOTHAM, WILLETT, and DUNCAN, Circuit Judges.
Appeal from the United States District Court for the Western District of Texas, USDC No. 5:19-CV-963. FILED March 16, 2022, Lyle W. Cayce, Clerk.
Plaintiffs challenged Texas‘s system for verifying the signatures on mail-in ballots. Based on purported constitutional defects in that system, the district court issued a detailed injunction against the Texas Secretary of State. But the Secretary does not verify mail-in ballots; that is the job of local election officials. Sovereign immunity therefore bars the injunction. We reverse the district court‘s order, vacate the injunction, and remand for further proceedings.
I.
A.
First, we sketch Texas‘s system for verifying mail-in ballots.1
An eligible voter applies for a mail-in ballot by timely signing and mailing an application to the early voting clerk.
The Early Voting Ballot Board (“EVBB“) is responsible for processing mail-in ballots.
Following its review, the EVBB secures rejected ballots and delivers them to the general custodian of election records.
B.
In August 2019, Plaintiffs4 filed suit challenging this verification system. They brought claims under the due process and equal protection clauses of the Fourteenth Amendment, as well as the Americans with Disabilities Act,
After denying the Secretary‘s motion to dismiss and receiving cross-motions for summary judgment, in September 2020 the district court granted Plaintiffs partial summary judgment on their constitutional claims and ordered “detailed and lengthy” injunctive relief pertaining to the November 2020 election. Richardson v. Tex. Sec‘y of State (Richardson II), 978 F.3d 220, 227 (5th Cir. 2020); see also Richardson v. Tex. Sec‘y of State (Richardson I), 485 F. Supp. 3d 744, 801–03 (W.D. Tex. 2020).
The Secretary timely appealed, and a motions panel stayed the injunction. Richardson II, 978 F.3d at 224. While declining to reach standing or sovereign immunity, the panel found the Secretary likely to succeed on the merits because Texas‘s system did not implicate due process rights and survived the Anderson / Burdick test. Id. at 228–33, 235–41.6 The panel also concluded that the injunction likely went beyond the remedy available under Ex parte Young by purporting to “control the Secretary in [the] exercise of discretionary functions.” Id. at 241; see Ex parte Young, 209 U.S. 123 (1908). Judge Higginbotham concurred on the grounds that the Supreme Court has “consistently counseled against court-imposed changes to ‘election rules on the eve of an election.‘” Richardson II, 978 F.3d at 244 (Higginbotham, J., concurring) (quoting Republican Nat‘l Comm. v. Democratic Nat‘l Comm., --- U.S. ---, 140 S. Ct. 1205, 1207 (2020) (per curiam)).
II.
“We review a preliminary injunction for abuse of discretion, reviewing findings of fact for clear error and conclusions of law de novo.” Planned Parenthood of Greater Tex. v. Kauffman, 981 F.3d 347, 354 (5th Cir. 2020) (en banc) (citation omitted). Similarly, “[w]e review the district court‘s jurisdictional determination of sovereign immunity de novo.” City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019), cert. denied --- U.S. ---, 141 S. Ct. 1047 (2021).
III.
The Secretary raises sovereign immunity as a threshold ground for reversal. He contends that, because he does not enforce the challenged ballot verification system, Plaintiffs’ suit falls outside the Ex parte Young exception to sovereign immunity. See Ex parte Young, 209 U.S. at 157 (state officer defendant must have “some connection with the enforcement of the act“). We agree.
Plaintiffs claim the process of verifying signatures on mail-in ballots violates their rights under the Fourteenth Amendment and federal disability laws. But, as discussed, the Texas Election Code places those duties in the hands of local election officials: the early voting clerk, the EVBB, and the SVC. See Richardson II, 978 F.3d at 224–26. The Secretary has no enforcement role. See Lewis v. Scott, No. 20-50654, --- F.4th ---, slip. op at 5 (5th Cir. March 16, 2022) (holding “[i]t is local election officials, not the Secretary, who verify voters’ signatures and notify voters of a mismatch“). “Where a state actor or agency is statutorily tasked with enforcing the challenged law and a different official is the named defendant, our Young analysis ends.” City of Austin, 943 F.3d at 998 (citation omitted).
To find the required connection, the district court relied on the Secretary‘s broad duties to oversee administration of Texas‘s election laws. See Richardson I, 485 F. Supp. 3d at 771–72 (citing
Plaintiffs argue enforcement authority is evident in election code
Nor, finally, is the Secretary‘s enforcement authority shown by the fact that the Secretary wrote a letter to Harris County about a different election code provision. Even assuming the letter showed the Secretary “enforced” some mail-in ballot provisions, an official‘s choice “to defend different statutes under different circumstances does not show that he is likely to do the same here.” City of Austin, 943 F.3d at 1002.
In sum, the district court erred in finding the Secretary was the proper defendant under Ex parte Young.
IV.
We REVERSE the district court‘s order, VACATE the preliminary injunction, and REMAND for further proceedings consistent with this opinion.10
I must dissent with this case as well as its companion cases.1 None present an issue of sovereign immunity, as the Eleventh Amendment does not bar these claims under the Fourteenth Amendment. Our issue is rather the antecedent question of Article III standing, turning on injury and redressability.
I.
I write to remind failing memories of the signal role of Ex parte Young in directly policing the path of cases and controversies to the Supreme Court from our state and federal courts and warn against its further diminution.2 As I explained over twenty years ago in Okpalobi v. Foster, ”Ex parte Young poses no threat to the Eleventh Amendment or to the fundamental tenets of federalism. To the contrary, it is a powerful implementation of federalism necessary to the Supremacy Clause, a stellar companion to Marbury and Martin v. Hunter‘s Lessee.”3 Just as then, “the destination of the majority‘s trek today is inevitably a narrowing of the doctrine of Ex parte Young . . . I decline passage on that voyage. I decline because I am persuaded that familiar principles of standing are better suited to answer these questions with less risk to the vital role of Ex parte Young.”4
None other than the inimitable Charles Alan Wright saw Ex parte Young as “indispensable to the establishment of constitutional government and the rule of law.”10 Professor Wright‘s views, drawn as they were from a lifetime of disciplined study stand on their own, gaining their strength from years of recording judicial performance and the currency of our system by the teachings of the Constitutional Convention and the acts of our first Congress. This is the wisdom of a scholar and practitioner, here grounded by the reality that Ex parte Young brings the axis necessary for the courts to harness the power vested in them by the Constitutional Convention of 1787—the direction of the flow to the Supreme Court of challenges to the validity of state action, a function essential to the splitting of the atom of sovereignty in a sovereign nation of sovereign states in a young republic and today.
The three-judge district courts, with direct appeal to the Supreme Court, were quickly established as a needed counter to the reach of Ex parte Young.11 And with this concern faded by the creation of three-judge district courts, there came a list of seminal decisions protecting civil liberties, long and distinguished.12 Recall that it was a three-judge district court, with its
III.
Another strand of history completes the relevant frame for this state-federal tension. While the need for a Supreme Court was never an issue for the delegates at the Constitutional Convention, as its absence was a driving force for its convening, whether to create a tier of lower courts divided the delegates. The cornerstone Madisonian Compromise resolved the impasse—authorizing Congress to create the lower federal courts. And it did, over resistance born of a concern of potential federal court intrusion into state affairs, the work of its judiciary. That lingering concern of the Convention led the first Congress to enact the Anti-Injunction Act: providing that “a writ of injunction [shall not] be granted to stay proceedings in any court of a state,” assuring direct review of state courts by the Supreme Court.14 An exception clause later added: “except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or
With the turn of the century, we entered the Lochner period, characterized by federal injunctions blocking state efforts to address social issues in the rising industrial world.16 It is significant that from Reconstruction to the Lochner era, lawyers seldom reached for § 1983 given its inclusion of the language of the Privileges and Immunities Clause, language neutered in the Slaughterhouse cases.17 In more recent times, § 1983 came to be a major pathway to the lower federal courts, prompting challenges to its injunctive power as violating the Anti-Injunction Act. The Supreme Court‘s response sheds light on the wielding and melding of federal injunctions and our federalism.
From these threads of history, the Supreme Court in Mitchum v. Foster laid bare the subtle relationship of the Anti-Injunction Act, § 1983, and Ex parte Young. The Court saw the then sixty-four-year-old Ex parte Young as a critical valve to direct the flow of cases from the state courts to the Supreme Court.18 Justice Stewart explained that “Section 1983 was thus a product of a vast transformation from the concepts of federalism that had prevailed in the late 18th century when the anti-injunction statute was enacted.”19
The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people‘s federal rights—to protect the people from unconstitutional action under color of state law, “whether that action be executive, legislative, or judicial.”21
Mitchum v. Foster is itself a contemporary example of the on-going allocation of the flow of cases to the Supreme Court from the state courts and the Congressionally created lower federal courts, as well as the role of Ex parte Young in that cast.
In sum, Ex parte Young, birthed as a tool of the Lochner period, proved its effectiveness in sustaining challenges to state efforts to protect workers. Mitchum v. Foster presents as a parallel—protecting civil rights—giving to civil rights claimants a § 1983 with the power of the injunction, albeit not always a path around the Eleventh Amendment.
IV.
Here however, as it was in Okpalobi, the threshold question is standing, the Article III door to the federal courthouse, which the majority stepped past. Standing doctrine was a product of the shift to the public law model. With its focus upon injury and redressability, it rejected an
Under a proper Article III analysis, these suits have a redressable injury because the Secretary is directed by the election laws of Texas to interpret and conform the election code to other election laws (as federal law is state law). Power to interpret to gain uniformity with state and federal law is power to enforce.25 And “our precedent suggests that the Secretary of State bears a sufficient connection to the enforcement of the Texas Election Code . . . to support standing.”26 Again, the claim is that the Secretary failed to discharge that duty or has done so in an unconstitutional manner. These claims can proceed if there is standing with its requirement of injury and redressability.
V.
Even this quick glance back sheds light on threshold questions of the role of the Court in protecting the most vital Constitutional right of a democratic government: the right to vote. And so, I am troubled by this Court‘s narrowing of Ex parte Young. Ex parte Young is no culprit.28
About this we can agree, partisan views ought to prevail by persuading voters, not by denying their right to vote. With respect to my able colleagues, I must dissent.