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, v. TEXAS SECRETARY OF STATE, RUTH R. HUGHS, Defendant—Appellant.
No. 20-50774
United States Court of Appeals for the Fifth Circuit
October 19, 2020
JERRY E. SMITH, Circuit Judge
Appeal from the United States District Court for the Western District of Texas No. 5-19-CV-963. FILED October 19, 2020 Lyle W. Cayce Clerk.
United States Court of Appeals for the Fifth Circuit
No. 20-50774
Appeal from the United States District Court for the Western District of Texas No. 5-19-CV-963
Before HIGGINBOTHAM, SMITH, and OLDHAM, Circuit Judges.
The United States is a few days from the November 3, 2020, General Election. Texas officials are preparing for a dramatic increase of mail-in voting, driven by a global pandemic.1 One of their many pressing concerns is to ensure the integrity of the ballot by adhering to the state‘s election-security procedures. And the importance of electoral vigilance rises with the increase in the number of mail-in ballots, a form of voting in which “the potential and reality of fraud is much greater . . . than with in-person voting.” Veasey v. Abbott, 830 F.3d 216, 239 (5th Cir. 2016) (en banc). “Absentee ballots remain the largest source of potential voter fraud . . . .”2
In a well-intentioned but sweeping order issued less than two months before the election,3 however, the district court minimizes Texas‘s interest in preserving the integrity of its elections and takes it upon itself to rewrite
Because Texas‘s strong interest in safeguarding the integrity of its elections from voter fraud far outweighs any burden the state‘s voting procedures place on the right to vote, we stay the injunction pending appeal.
I.
Though it is not constitutionally required to do so,4 Texas offers qualifying citizens the option to vote by mail. See
To vote by mail, a voter must first apply for a mail-in ballot.
After receiving those materials, a voter who wishes to cast a ballot must fill out the ballot, seal the ballot envelope, place it in the carrier envelope,
The Early Voting Ballot Board (“EVBB“) is responsible for processing the results of early voting.
Relevant here, the EVBB may accept a ballot “only if . . . neither the voter‘s signature on the ballot application nor the signature on the carrier envelope certificate is determined to have been executed by a person other than the voter, unless signed by a witness . . . .”
If the Early Voting Clerk appoints an SVC, the committee receives the ballots and makes the signature-verification determination before delivering the ballots to the EVBB.
Once the SVC has made its signature-verification determinations, the committee‘s chair delivers the ballots to the EVBB.
If the EVBB rejects a ballot, it must note the reason on the carrier envelope.
No later than ten days after the date of the election, the EVBB must provide written notice of its rejection to the voter at the address on the ballot application.
II.
The plaintiffs challenged Texas‘s absentee-ballot system in August 2019, suing the Secretary of State, Ruth Hughs; the Brazos County Elections Administrator, Trudy Hancock; and the City of McAllen‘s Secretary, Perla Lara. The plaintiffs—a group comprised of two persons who had absentee ballots rejected in previous elections and organizations involved in voter registration, education, outreach, and support—raised several claims. They maintain that Texas‘s signature-comparison and voter-notification procedures violate (1) the Due Process Clause of the Fourteenth Amendment, (2) the Equal Protection Clause of the Fourteenth Amendment, (3) the Americans with Disabilities Act, and (4) the Rehabilitation Act of 1973.
The district court denied defendants’ motions to dismiss, and the parties conducted discovery, which lasted until May 2020, after which both sides moved for summary judgment. In August 2020, the
Describing their proposal as a “narrowly tailored remedy,” the plaintiffs asked for an injunction requiring election officials to take various rapid affirmative steps to provide notice to voters whose ballots have been rejected, to loosen absentee voter-identification requirements, and to implement an elaborate and expedited process for challenges by voters with rejected ballots. If the court found that remedy to be “impossible, impractical, or overly burdensome,” it instead should enjoin officials from engaging in a signature-comparison process at all.
The Secretary took several actions over recent months to facilitate the ability of qualifying voters to vote by mail. She provided guidance to local election officials, recommending that they notify voters of rejected ballots as quickly as possible. She reminded election officials of how early they may convene EVBBs. She also alerted local election officials that they may examine not only the signatures on a voter‘s application and carrier envelope, but also other signatures on file and made within the last six years. She published a letter providing mail-in voters with guidance on how properly to complete and send their ballots and giving notice of the signature-comparison process.
The district court granted the plaintiffs’ summary judgment motion in part. In its detailed and lengthy memorandum opinion and order, the court “focus[ed] its analysis only on certain Plaintiffs’ claims against” Secretary Hughs, addressing only the due process and equal protection claims of Weisfeld and the Coalition of Texans with Disabilities. Richardson, 2020 WL 5367216, at *5.
The district court issued an injunction adopting many of the plaintiffs’ proposed changes to Texas‘s election procedures. See id. at *38–39. The injunction contained three main provisions pertaining to the 2020 election. Id. at *37–39. First, the court required the Secretary to issue an advisory, within ten days, notifying local election officials of the injunction. Id. at *38. The notification must inform them that rejecting ballots because of mismatching signatures is unconstitutional unless the officials take actions that go beyond those required by state law. Id.
Second, the district court gave the Secretary a menu of actions that she must take. The Secretary must either issue an advisory to local election officials requiring them to follow the court‘s newly devised signature-verification and voter-notification procedures, or else promulgate an advisory requiring that officials cease rejecting ballots with mismatched signatures altogether. See id.
Third, the court mandated that the Secretary take action against any election officials who fail to comply with the district court‘s newly minted procedures. Id. at *39. Deeming those dictates “appropriate for the November 2020 elections,” the court stated that it would hold a hearing after the election to consider imposing additional long-term election procedures. Id. at *45.
On September 9, the Secretary filed a notice of appeal and a motion requesting the district court to stay its order pending appeal. The district court denied a stay on September 10. On September 11, the Secretary filed in this court an emergency motion for a stay pending appeal. On September 11, this panel granted a temporary
III.
“A stay is not a matter of right, even if irreparable injury might otherwise result.” Tex. Democratic Party v. Abbott (“TDP-I“), 961 F.3d 389, 397 (5th Cir. 2020) (Smith, J.) (quoting Nken v. Holder, 556 U.S. 418, 433 (2009)). “Whether to grant a stay is committed to our discretion.” Id. (citing Thomas v. Bryant, 919 F.3d 298, 303 (5th Cir. 2019)). We assess “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken, 556 U.S. at 426. “The first two factors are the most critical.” Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020) (per curiam). “The proponent of a stay bears the burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997).
The Secretary is likely to succeed on the merits. At the very least, she is likely to show that the district court erred in its analysis of plaintiffs’ claims. As we recently noted in two election-related opinions ruling on motions for stays pending appeal, because the Secretary is likely to succeed on one ground, we need not address the others.11 We therefore express no opinion on the Secretary‘s arguments concerning standing or whether sovereign immunity bars the present suit against her. We do, however, examine whether the district court‘s remedy is barred by sovereign immunity.
A.
The Secretary contends that she is likely to succeed in showing that Texas‘s signature-verification procedures are constitutional. In particular, she asserts that (1) those procedures do not implicate the plaintiffs’ due process rights, (2) the Anderson/Burdick framework—as distinguished from Mathews v. Eldridge, 424 U.S. 319, 335 (1976)—provides the appropriate test for the due process claims, and (3) the signature-verification procedures withstand scrutiny under Anderson/Burdick. The Secretary will likely prevail on each point.
1.
We must first determine whether the plaintiffs have alleged any cog-nizable interests that warrant due process analysis.12 They have not.
The plaintiffs bring procedural due process claims,13 which require two inquiries:
The
It is important, however, to identify a cognizable interest under the Due Process Clause, because we often dismiss due process claims where plaintiffs fail to identify a cognizable interest16 and because “[t]he types of interests for
Property interests “are not created by the Constitution.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Instead, they “are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Id. For instance, courts sometimes consider welfare payments and continued employment to be property interests. Id. at 578.
We have found no court that has held that the right to vote—much less the alleged right to vote by mail—is a property interest.17 Neither the plaintiffs nor the district court expressly asserts that the right to vote is a property interest.18 In fact, the complaint omits the word “property” when quoting the
b.
Several district courts have concluded that the right to vote is a liberty interest. See, e.g., Raetzel, 762 F. Supp. at 1357. Liberty interests arise from either “the Constitution itself, by reason of guarantees implicit in the word liberty,” or from “an expectation or interest created by state laws or policies.” Wilkinson, 545 U.S. at 221 (internal quotation marks omitted).
Liberty interests that arise from the Constitution extend beyond “freedom from bodily restraint.” Roth, 408 U.S. at 572. They also include the right to contract, to engage in “the common occupations of life,” to gain “useful knowledge,” to marry and establish a home to bring up children, to worship God, and to enjoy “those privileges long recognized . . . as essential to the orderly pursuit of happiness of free men.” Id. On the other hand, state-created liberty interests are “generally limited to freedom from restraint . . . .” Sandin v. Conner, 515 U.S. 472, 484 (1995).19 This is “a narrow category of state-created liberty interests.” Jordan v. Fisher, 823 F.3d 805, 810 (5th Cir. 2016). The plaintiffs cite no circuit precedent suggesting that state-created liberty interests exist outside the context of bodily confinement.
There are two problems with describing the right to vote as a liberty interest. First, the district court styled it as a state-created interest, concluding that, because “Texas has created a mail-in ballot regime,” it must now provide “due process protections.” Richardson, 2020 WL 5367216, at *21.20 But
Second, setting aside the district court‘s treatment of the right at stake, it might seem intuitive, as the plaintiffs suggest, that the right to vote is a liberty interest that arises from the Constitution. After all, the right to vote is a fundamental constitutional right. McDonald, 394 U.S. at 807. But that helps the plaintiffs with their equal protection claim, not their procedural due process claim.21 For procedural due process, the question is not whether the plaintiffs assert a fundamental right, but instead whether the right they assert is a liberty interest.
Besides describing the right to vote as fundamental, the plaintiffs have not explained what there is about the right to vote that makes it a liberty interest. The right to vote does not immediately resemble the rights described in Roth, 408 U.S. at 572. The plaintiffs cite no circuit or Supreme Court precedent extending the label of “liberty interest” to the right to vote. The Sixth Circuit, the only circuit to squarely address this issue,22 held that the right to vote does not constitute a liberty interest.23
Given the failure of the plaintiffs and the district court to assert that voting—or, for that matter, voting by mail—constitutes a liberty interest, along with the absence of circuit precedent supporting that position, the Secretary is likely to prevail in showing that the plaintiffs’ motion for summary judgment on their due process claim should have been denied.
c.
Finally, we reject the district court‘s reasoning regarding any state-created liberty interest. The court concluded that because “Texas has created a mail-in ballot regime . . . the State must provide those voters with constitutionally-sufficient due process protections before rejecting their ballots.” Richardson, 2020 WL 5367216, at *21. That notion originated in Raetzel, in which the District of Arizona acknowledged that absentee voting “is a privilege and a convenience,” and yet concluded—without citation—“[y]et, such a privilege is deserving of due process.” Raetzel, 762 F. Supp. at 1358. In its defense, Raetzel‘s reasoning resembles the principle animating Goss v. Lopez, 419 U.S. 565 (1975). Goss concluded that, “[h]aving chosen to extend the right to an education to people of appellees’ class generally, Ohio may not withdraw that right on grounds of misconduct, absent fundamentally fair procedures. . . .” Goss, 419 U.S. at 574. Although several district courts have regurgitated Raetzel‘s
And properly so. There is a problem with grafting Goss‘s reasoning onto the voting context: Goss found two cognizable due process interests, namely a “property interest in educational benefits” and a “liberty interest in reputation.” Goss, 419 U.S. at 576. In context, Goss‘s language about the state‘s “[h]aving chosen to extend” benefits and being thus bound by due process came from its analysis of a “protected property interest.” Id. at 579 (emphasis added). Raetzel, however, concluded that “the right to vote is a ‘liberty’ interest.” Raetzel, 762 F. Supp. at 1357 (emphasis added). Thus, Raetzel grafted the Supreme Court‘s reasoning concerning property interests onto a claimed liberty interest without providing any authority justifying that extension. We decline to adopt Raetzel‘s extrapolation of Supreme Court precedent.
The Secretary is likely to show that the plaintiffs have alleged no cognizable liberty or property interest that could serve to make out a procedural due process claim. The Secretary is therefore likely to succeed in the dismissal of plaintiffs’ due process claims.
2.
Even supposing that voting is a protected liberty or property interest, the Secretary is likely to show that the district court used the wrong test for the due process claim. The court applied Eldridge, 424 U.S. at 335, which provides the “general[]” test for determining what process is due.25 On the other hand, Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992) announce a test to address “[c]onstitutional challenges to specific provisions of a State‘s election laws” under “the First and
For several reasons, the Anderson/Burdick framework provides the appropriate
Second, our sister circuits—some of which neglected to examine whether voting constitutes a cognizable liberty or property interest—apply Anderson/Burdick to all
Third, even if, arguendo, we had carte blanche to decide which test applies, the Anderson/Burdick approach is better suited to the context of election laws than is the more general Eldridge test. “There must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730 (1974). And “it is the state legislature—not . . . federal judges—that is authorized to establish the rules that govern” elections.31
By using Eldridge, the district court‘s “judicial supervision of the election process . . . flout[s] the Constitution‘s express commitment of the task to the States.” Crawford, 553 U.S. at 208 (Scalia, J., concurring) (citing
trict court applied the wrong test in analyzing the due process claims.
3.
The Secretary contends that Texas‘s signature-verification procedures withstand scrutiny under Anderson/Burdick. The parties appear to agree that Anderson/Burdick provides the appropriate framework to analyze the equal protection claims, and we have concluded that it is also the appropriate test to analyze the due process claims if the plaintiffs are able to prove a cognizable liberty or property interest. We thus analyze the equal protection and due process claims together.32
The Anderson/Burdick rubric requires us to examine two aspects of Texas‘s signature verification procedures: (1) whether the process poses a “severe” or instead a “reasonable, nondiscriminatory” restriction on the right to vote and (2) whether the state‘s interest justifies the restriction. Burdick, 504 U.S. at 434 (cleaned up). Texas‘s signature-verification procedures are reasonable and nondiscriminatory, and they survive scrutiny under Anderson/Burdick.
a.
The plaintiffs and the district court reason that Texas‘s signature-verification procedures impose a severe burden on the right to vote, because “voters who have their ballots rejected due to a perceived
First, the district court concluded that Texas‘s signature-verification procedures constitute “a ‘severe’ burden on certain voters’ right to vote.” Id. at *34 (emphasis added). But the severity analysis is not limited to the impact that a law has on a small number of voters. For instance, Crawford‘s three concurring Justices concluded that “our precedents refute the view that individual impacts are relevant to determining the severity of the burden” that a voting law imposes. Crawford, 553 U.S. at 205 (Scalia, J., concurring). Though Crawford‘s three-Justice plurality did not go as far as the three-Justice concurrence, it too examined the burden on “most voters.” Id. at 198.
Examining burdens on a plaintiff-by-plaintiff basis “would effectively turn back decades of equal-protection jurisprudence.” Id. at 207 (Scalia, J., concurring). Specifically, the district court‘s individualized assessment of burdens ignores Burdick—the very case that it purports to apply. For instance, in Burdick, 504 U.S. at 436-37, Hawaii‘s ballot access laws did not constitute a severe burden on the right to vote when any burden was borne “only by those who fail to identify their candidate of choice until days before the primary.” In fact, the Burdick dissenters—whose views did not carry the day—asserted that the law‘s impact on only “some individual voters” could constitute a severe burden. Id. at 448 (Kennedy, J., dissenting).33 Thus, if we were “[t]o deem ordinary and widespread burdens like these severe” based solely on their impact on a small number of voters, we “would subject virtually every electoral regulation to strict scrutiny, hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes.” Clingman v. Beaver, 544 U.S. 581, 593 (2005).
Second, the plaintiffs and the district court neglect meaningfully to analyze binding precedent concerning what constitutes a “severe” burden on the right to vote. Crawford concluded that a photo-identification requirement was not a severe burden, even where “a somewhat heavier burden may be placed on a limited number of persons.” Crawford, 553 U.S. at 199. But these burdens were “neither so serious nor so frequent as to raise any question about the constitutionality” of the requirement. Id. at 197.
Signature-verification requirements, like photo-ID requirements, help to ensure the
Even if some voters have trouble duplicating their signatures, that problem is “neither so serious nor so frequent as to raise any question about the constitutionality” of the signature-verification requirement. Crawford, 553 U.S. at 197-98. “[N]o citizen has a Fourteenth . . . Amendment right to be free from the usual burdens of voting.” Veasey, 830 F.3d at 316 (Jones, J., concurring) (cleaned up). And “mail-in ballot rules that merely make casting a ballot more inconvenient for some voters are not constitutionally suspect.” Tex. LULAC, 2020 WL 6023310, at *6.
Moreover, Texas mitigates the burden of its signature-verification requirement in three ways. First, for those who sign ballots, the Secretary has issued notice of the signature-comparison process and guidance on how to complete a ballot properly. Richardson, 2020 WL 5367216, at *45. Second, for those who cannot sign a ballot “because of a physical disability or illiteracy,”
Because Texas‘s signature-verification requirement is no more burdensome on the right to vote than was the photo-ID mandate in Crawford, it does not constitute a severe burden. Instead, the signature-verification requirement is a “reasonable, nondiscriminatory restriction[]” on the right to vote. Burdick, 504 U.S. at 434.
The district court, however, concluded that the signature-verification procedures constitute a severe burden because they provide “untimely notice of rejection and no meaningful opportunity to cure.” Richardson, 2020 WL 5367216, at *33. Texas could remedy that transgression, the court posited, if its mechanism for screening ballots “imposed no risk of uncorrectable rejection.” Id. at *33 n.41. But the court failed to specify how a dearth of opportunities to cure transmogrifies Texas‘s signature-verification requirement into a severe burden. Similarly, the court did not cite any precedent suggesting that “no risk” of uncorrectable rejection
Indeed, the Constitution does not demand such a toothless approach to stymying voter fraud. We have found no “authority suggesting that a State must afford every voter . . . infallible ways to vote.” Tex. LULAC, 2020 WL 6023310, at *6. For instance, Crawford upheld a photo-ID law even though a voter might be unable to cast a ballot on election day because he “may lose his photo identification, may have his wallet stolen on the way to the polls, or may not resemble the photo in the identification because he recently grew a beard.” Crawford, 553 U.S. at 197. The risk that a voter might be unable to cast his vote on account of this restriction did not constitute a severe burden. Similarly, nowhere did Crawford mandate that Indiana provide voters with notice and an opportunity to cure before they were turned away from the polls.36
In fact, in Crawford the Court noted less burdensome methods of identification, including a requirement that voters “sign their names so their signatures can be compared with those on file.” Id. (emphasis added). The dissent lauded as “significantly less restrictive” a voter-ID system in which a Florida voter who lacks photo ID may cast, at the polling place, a provisional ballot that will be counted if the state “determines that his signature matches the one on his voter registration form.” Id. at 239 (emphasis added) (Breyer, J., dissenting). Nowhere did the dissent intimate that this “significantly less restrictive” voter-ID system required notice or an opportunity to cure before rejection. See id.
By concluding that Texas‘s signature-verification requirement does not constitute a severe burden—even without notice and an opportunity to cure—we join the Ninth Circuit, which agrees that “the absence of notice and an opportunity to rehabilitate rejected signatures imposes only a minimal burden on plaintiffs’ rights.” Lemons, 538 F.3d at 1104. This is so even where “county elections officials do not notify voters after rejecting non-matching signatures.” Id.
We next determine whether “the State‘s important regulatory interests are . . . sufficient to justify the restrictions,” and they generally are, under Burdick, if the burden of the voting restriction is not severe. Burdick, 504 U.S. at 434 (cleaned up). We agree with the Secretary that Texas‘s interest in preventing voter fraud justifies its signature-verification requirement.
It is well established that the electoral process poses a risk of fraud. See Voting for Am., Inc. v. Steen, 732 F.3d 382, 394 (5th Cir. 2013). “[N]ot only is the risk of voter fraud real but . . . it could affect the outcome of a close election.” Crawford, 553 U.S. at 196. Thus, “[w]hile the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.” Id. Texas “indisputably has a compelling interest in preserving the integrity of its election process.” Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989).
But Texas‘s signature-verification requirement is not designed to stymie voter fraud only in the abstract. It seeks to stop voter fraud where the problem is most acute—in the context of mail-in voting.37 “[T]he potential and reality of fraud is much greater in the mail-in ballot context than with in-person voting.”38
Texas‘s important interest in reducing voter fraud—and specifically in stymying mail-in ballot fraud—easily justifies
First, the district court deemed it relevant that “there is no evidence in the record demonstrating that any mismatched-signature ballots were submitted fraudulently.” Richardson, 2020 WL 5367216, at *34 n.44. But we do not force states to shoulder “the burden of demonstrating empirically the objective effects” of election laws. Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986). States may “respond to potential deficiencies in the electoral process with foresight rather than reactively.” Id. at 195-96. States have thus “never been required to justify [their] prophylactic measures to decrease occasions for vote fraud.” Tex. LULAC, 2020 WL 6023310, at *7.
For instance, in Crawford, although “[t]he record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history,” the Court still concluded that “[t]here is no question about the legitimacy or importance of the State‘s interest in counting only the votes of eligible voters.” Crawford, 553 U.S. at 194, 196. By intimating that Texas ought to provide the court with evidence of voter fraud, the district court ignored this court‘s binding conclusion that “Texas need not show specific local evidence of fraud in order to justify preventive measures.” Steen, 732 F.3d at 394.
Second, the district court misapplied the Anderson/Burdick methodology by erroneously imposing a narrow-tailoring requirement. Under Burdick, 504 U.S. at 434, where a voting restriction imposes a severe burden, the state must show (1) that there is “a state interest of compelling importance” and (2) that the regulation is “narrowly drawn to advance” that interest. But where the burden of an election law is reasonable—instead of severe—the state must show only a “legitimate interest[]” that is “sufficient to outweigh the limited burden” imposed by the regulation. Id. at 440.
The Anderson/Burdick framework does not impose a narrow-tailoring requirement on the state when dealing with reasonable burdens. Id. The Secretary satisfied her burden by proving that Texas‘s interest in thwarting voter fraud justifies signature verification. The district court even suggested as much. Richardson, 2020 WL 5367216, at *35.
But instead of accepting this important interest and weighing it against the burden on the plaintiffs, the district court imposed an additional burden: The Secretary must show that Texas‘s interest in preventing voter fraud “is furthered by utilizing signature comparison procedures that do not provide voters with a meaningful opportunity to avoid disenfranchisement by curing an improperly rejected ballot.” Id. at *29. According to the court, Texas failed in this endeavor because there is “no rational basis for providing robust cure procedures to voters who fail to show an ID when voting in person but not those whose signatures are perceived to mismatch when voting by mail.” Id. at *35.
The district court cited no authority for this added burden on the Secretary. And for good reason.
Texas‘s important interest in preventing voter fraud in its mail-in ballot system is sufficient to justify its reasonable restrictions on the right to vote. The Secretary is likely to prove that the district court erred in granting the plaintiffs’ summary judgment on the merits.
B.
The Secretary is likely to prevail in her defense that sovereign immunity bars the district court‘s injunction requiring that she issue particular advisories and take specific potential enforcement action against non-complying officials. Whether Ex parte Young, 209 U.S. 123 (1908), bars all affirmative injunctions against an officer “is an unsettled question that has roused significant debate.” Green Valley Special Util. Dist. v. City of Schertz, 969 F.3d 460, 472 n.21 (5th Cir. 2020) (en banc). We need not settle that debate here. Although the question remains whether sovereign immunity bars all affirmative injunctions, the present injunction is impermissible because it would control the Secretary in her exercise of discretionary functions.
In Young, 209 U.S. at 158, the Court stated that “[t]here is no doubt that the court cannot control the exercise of the discretion of an officer.” Analyzing the question whether sovereign immunity bars positive injunctions against officers, the D.C. Circuit stated that “an attempt to control an officer” in the exercise of a discretionary function would violate sovereign immunity under Ex parte Young, and “would place the court on the wrong side of the line thought to divide ‘discretionary’ from ‘ministerial’ functions.” Vann v. Kempthorne, 534 F.3d 741, 753 (D.C. Cir. 2008) (citing Hagood v. Southern, 117 U.S. 52, 69 (1886)). The D.C. Circuit further examined the Supreme Court‘s application of sovereign immunity in Hawaii v. Gordon, 373 U.S. 57 (1963) (per curiam). See Vann, 534 F.3d at 753. In Gordon, 373 U.S. at 58, the Court held that a court could not require the Director of the Bureau of the Budget to withdraw a report advising the federal government regarding which land the United States should retain under the Hawaii Statehood Act. Such an order violated sovereign immunity because it
We need not determine now whether affirmative injunctions are categorically barred by sovereign immunity. See Green Valley, 969 F.3d at 472 n.21. It is sufficient to note that, at the very minimum, a court may not “control [an officer] in the exercise of his discretion.” Young, 209 U.S. at 158.
The district court‘s sweeping order requires that the Secretary take several positive actions. In addition to requiring her to issue an advisory notifying local election officials of the district court‘s constitutional judgment regarding the signature-mismatch laws, the order also gives the Secretary an ultimatum. It provides that she either must issue an advisory stipulating the detailed procedures that the district court imposed, or, alternatively, must promulgate an advisory requiring that local officials refrain at all from rejecting ballots based on mismatched signatures. Richardson, 2020 WL 5367216, at *38.
“If a statute, regulation, or policy leaves it to . . . [an] agency to determine when and how to take action, the agency is not bound to act in a particular manner and the exercise of its authority is discretionary.” St. Tammany Par. ex rel. Davis v. FEMA, 556 F.3d 307, 323 (5th Cir. 2009). Though the Secretary has a duty to maintain uniformity,
The fact that the district court‘s mandated procedures were offered to the Secretary as one of two choices does not cure the order from infringing on her discretion. To the contrary, the very fact that the order gave her an ultimatum constitutes “an attempt to control the officer” and is, thus, plainly forbidden under Young. See Vann, 534 F.3d at 753.
The injunction also stipulates that the Secretary must reprimand any local officials who violate the district court‘s procedures and must “correct the offending conduct” per
IV.
The other factors also counsel in favor of granting a stay pending appeal. As to whether the Secretary “will be irreparably injured absent a stay,” Nken v. Holder, 556 U.S. 418, 426 (2009), “[w]hen a statute is enjoined, the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws,” Veasey, 870 F.3d at 391. And as to “where the public interest lies,” Nken, 556 U.S. at 426, when “the State is the appealing party, its interest and harm merge with that of the public,” Veasey, 870 F.3d at 391. Moreover, “a temporary stay here, while the court can consider argument on the merits, will minimize confusion among both voters and trained election officials—a goal patently within the public interest given the extremely fast-approaching election date.” TDP-I, 961 F.3d at 412 (cleaned up).
Finally, as to “whether issuance of the stay will substantially injure the other parties interested in the proceeding,” Nken, 556 U.S. at 426, to whatever extent it might, it does not outweigh the other factors. “Our decision is limited to determining irreparable harm not in denying the plaintiffs’ requested relief outright but in temporarily staying the injunction pending a full appeal.” TDP-I, 961 F.3d at 412. Because of the likelihood that the Secretary will succeed on the merits, combined with the irreparable harm inflicted on the state and its citizens by the injunction, the balance of harms weighs in favor of the Secretary.
*****
The Secretary‘s motion to stay the injunction pending appeal is GRANTED. The injunction is STAYED in all its particulars pending further order of this court.41
In 1985, the Texas Legislature codified a revised state election code that included
I concur only in the decision to stay pending appeal of the district court‘s injunction changing the election rules. The Secretary of State has shown a substantial likelihood of success on the merits, and the district court‘s ruling has been stayed to allow this Court to decide the merits of the case. Well enough, but the reality is that the ultimate legality of the present system cannot be settled by the federal courts at this juncture when voting is already underway, and any opinion on a motions panel is essentially written in sand with no precedential value³—its reach is to delay, not to finally decide the validity of the state regulation. The Supreme Court has consistently counseled against court-imposed changes to “election rules on the eve of an election.“⁴ Caution is particularly appropriate where, as here, the challenged laws were in effect long before suit was filed.
I.
I would not attempt to settle our circuit‘s law on such complex and delicate questions in a preliminary ruling that has not benefitted from oral argument or collegial discussions. And a decision by this motions panel granting a stay settles no law. To the contrary, it has no precedential force and is not binding on the merits panel, leaving it as a writing in water—made the more empty by pretermitting the jurisdictional requisites of sovereignty and the reach of Ex parte Young. The matter is yet to travel its ordinary course to be settled by a fully considered opinion by the merits panel, perhaps then by the en banc Court. This reality is brought home by the changing opinions of my colleagues as the Court responds to legal challenges in the electoral process as conflicting opinions in other circuits indicate.⁵ Here, we proceed without collegial conference on a motions panel and need not as a panel traverse numerous paths and crossroads engaging significant issues whose impact on our voting-rights
II.
In 2016 and 2018, “approximately 5,000 [Texas] ballots were rejected on the basis of perceived signature mismatches.“⁸ Such “small” differences have the potential to decide both local and national elections. And with the large increase in votes cast by mail in our ongoing pandemic that error rate would toss out far greater numbers. There is much at stake here.
While Chief Justice Marshall‘s observation that the federal courts must decide is more than a truism, staying our hand is well within our compass here as we are asked to draw upon our injunctive powers. These must include an assessment of the real-world effect of when sought-for relief is granted. Plainly, the risks of now ordering changes in rules in effect for years would add to the uncertainties at every county seat across Texas, each facing the counting of votes cast by mail swelled by the pandemic beyond all past experience. There is yet another layer. A final decision from the judiciary is unlikely before voting in this presidential election year is completed. Again, it is now underway. Finally, while I cannot join Judge Smith‘s opinion, I join the grant of a stay for the reasons I here offer.
Relying on the old wisdom that looking to the path traveled can give direction to the road ahead, we see that while the road of right to vote has at times been nigh impassable as it rolled past people of color, women, and the poor, it has in the long view tracked the expansion of civil rights, reflecting to these eyes a maturation of individual liberty. Sometimes one step forward with two steps back, but the arc has been its expansion with which partisans ought make peace, accepting the bedrock principle that disenfranchising citizens is not a fallback to a failure to persuade. It is a given both that states must protect citizens’ fundamental right to vote, resisting in that effort tempting cover for partisan objectives, and that their efforts remain reviewable with the disinterest demanded by the architects of our Constitution, insisting that judges of federal courts it would create be as “independent as the lot
Notes
Moreover, Texas—like Indiana in Crawford—provides an alternative method of voting for those who do not believe they can provide the requisite signature: in-person voting. True, some voters may be unable to make the trip to the polls. But similarly, some voters in the Crawford situation might be unable to make the trip to the clerk‘s office. That inability of some voters to exercise the franchise, because they cannot comply with voting restrictions, does not render otherwise reasonable voting restrictions constitutionally infirm.
Courts have documented instances of voter fraud around the country, many of which involve forgery of absentee ballots. See, e.g., Democratic Nat‘l Comm. v. Hobbs, 948 F.3d 989, 1036 (9th Cir. 2020) (describing “the recent case of voter fraud in North Carolina involving collection and forgery of absentee ballots by a political operative hired by a Republican candidate“); Crawford, 553 U.S. at 225 (Souter, J., dissenting) (referring to “absentee-ballot fraud, which (unlike in-person voter impersonation) is a documented problem in Indiana“).
Texas is not immune from mail-in voter fraud. See The Heritage Foundation, Election Fraud Cases, https://www.heritage.org/voterfraud-print/search?combine=&state=TX&year=&case_type=All&fraud_type=24489 (last visited Sept. 30, 2020) (“Miguel Hernandez visited an elderly woman shortly before the 2017 Dallas City Council election, collected her blank absentee ballot, filled it out, and forged her signature before mailing it back. Hernandez was the first person arrested as part of a larger voter fraud investigation in the Dallas area, stemming from claims by elderly voters that someone was forging their signatures and the return of nearly 700 mail-in ballots all signed by the same witness using a fake name.“); id. (“Charles Nathan Jackson, of Tarrant County, forged the name of a stranger, Mardene Hickerson, on an application for an early voting ballot.“).