Case Information
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
MI FAMILIA VOTA, TEXAS STATE
CONFERENCE OF THE NATIONAL
ASSOCIATION FOR THE
ADVANCEMENT OF COLORED
PEOPLE, GUADALUPE TORRES, NO. SA-20-CV-00830-JKP
Plaintiffs,
v.
GREG ABBOTT, GOVERNOR OF
TEXAS; AND RUTH HUGHS, TEXAS
SECRETARY OF STATE;
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs Mi Familia Vota, Texas State Conference of the National Association for the Advancement of Colored People and Guadalupe Torres’s Emergency Motion for Temporary Restraining Order and Preliminary Injunction and Defendants Governor Greg Abbott and Secretary of State Ruth Hughs’ Response. [1] ECF Nos. 53, 55 . At the status hearing held October 22, 2020, the parties agreed to address and present this motion as a Motion for Preliminary Injunction, only. Upon consideration of the Motion for Preliminary Injunction, briefs, evidence and arguments presented at a hearing held October 26, 2020, the Court concludes Plaintiffs’ Motion for Preliminary Injunction shall be GRANTED in part and DENIED in part.
The Court concludes Exemption 8 in Governor Abbott’s Executive Order GA-29, which exempts those who are “voting, assisting a voter, serving as a poll watcher, or actively administering an election” from compliance with the statewide mask mandate, violates Section 2 of the Voting Rights Act because it creates a discriminatory burden on Black and Latino voters. For this reason, exemption 8 is invalid and void. The remaining provisions of Executive Order GA-29, including the enforcement provisions and other exemptions, remain intact. [2] All other requested injunctive relief is denied.
PROCEDURAL BACKGROUND Plaintiffs filed their Original Complaint on July 16, 2020. ECF No. 1. In this action,
Plaintiffs generally contend Texas election procedures create unsafe conditions at polling sites which preclude certain protected classes of people from voting during the early voting period or in person on election day, November 3, 2020 (collectively “the 2020 election”). Plaintiffs bring this action to ensure “practical and constitutionally-required measures that both protect the public health and guarantee the right to vote” to all Texas citizens, specifically Black and Latino citizens.
On September 7, 2020, this Court granted the State’s Motion to Dismiss Plaintiffs’
Complaint based upon a finding the Court lacked subject matter jurisdiction.
ECF No. 44.
This
Court concluded Plaintiffs did not challenge the constitutionality of any specific Election Code
provision, but instead, generally challenged the prudence of “Texas’s election laws” and
*3
the constitutionality” of Exemption 8 contained within the Executive Order.
See Mi Familia Vota v. Abbott
, 20-
50793,
“Texas’s election policies” for combating the COVID-19 virus within the 2020 election.
Id.
This Court concluded it lacked Article III power to grant the injunctive relief Plaintiffs
requested based upon the general challenge, finding the requested relief concerned the
administration of elections and implementation of election procedures which are
constitutionally committed to the state legislative branch and its designated governmental
bodies.
Id.
Therefore, any judicial directive would require an initial policy determination
outside of prescribed separation of power and allowed judicial discretion.
Id.
In addition, the
requested judicial directive would require an undertaking that would inherently demonstrate a
lack of respect due the legislative branch and its designated governmental actors.
Id.
Based
upon these findings, this Court concluded the case, as plead and argued, presented a
nonjusticiable political question – specifically, the relief sought to remedy the alleged injuries
was beyond the Court’s Article III power to grant.
See
ECF No. 44;
Mi Familia Vota v. Abbott
,
SA-20-CV-00830-JKP,
On October 14, 2020, the Fifth Circuit Court of Appeals affirmed this Court’s judgment in part and reversed and remanded this matter on a limited issue not previously presented to this Court, stating:
Were the district court to conclude that the exemption from wearing a mask in public places contained in Executive Order GA-29 for pollworkers, voters, and others in polling places violated Section 2 of the Voting Rights Act, the district court might excise that provision if it concluded that this would redress the injuries the Plaintiffs have alleged. It is at least conceivable that such a remedy would not materially or substantially affect the ongoing election, but that would be a matter for the district court to determine.
Mi Familia Vota v. Abbott
, No. 20-50793,
In this instruction, the Fifth Circuit handed down three issues to be determined on *4 remand: whether the mask-mandate Exemption 8 violates Section 2 of the Voting Rights Act as applied; whether this Court can resolve the injuries the Plaintiffs allege by “excising” (invalidating) the mask-mandate Exemption 8 from the Executive Order, and; whether excising the mask-mandate Exemption 8 would “materially or substantially affect the ongoing election.” Id .
FACTUAL BACKGROUND
Upon the filing of Plaintiffs’ Amended Complaint, this matter is now before this Court for determination of these three issues with Plaintiffs’ Motion for Preliminary Injunction.
Texas government officials have taken steps to mitigate public health risks associated with the COVID-19 pandemic. See Mi Familia Vota v. Abbott , 2020 WL 6058290, at *1. Among these steps, are advisories from Secretary Hughes and Executive Orders issued by Governor Abbott. The Executive Order that is the subject of this action, GA-29, issued on July 2, 2020 (“the Executive Order”). In the Executive Order Governor Abbott expressed his views regarding ways in which Texas citizens can safely resume activities following the mandated extended quarantine and maintain public health by mitigating the risk of COVID-19 spread. [3] Governor Abbott stated,
• “as Texas reopens in the midst of COVID-19, increased spread is to be expected, and the key to controlling the spread and keeping Texans safe is for all people to consistently follow good hygiene and social- distancing practices,”
• “due to recent substantial increases in COVID-19 positive cases, and increases in the COVID-19 positivity rate and hospitalizations resulting from COVID-19, further measures are needed to achieve the least restrictive means for reducing the growing spread of COVID-19, and to avoid a need for more extreme measures,”
• “I have joined the medical experts in consistently encouraging people to use face coverings, and health authorities have repeatedly emphasized *5 that wearing face coverings is one of the most important and effective tools for reducing the spread of COVID-19;”
• “given the current status of COVD-19 in Texas, requiring the use of face coverings is a targeted response that can combat the threat to public [3] Executive Order GA-29 (July 2, 2020): https://open.texas.gov/uploads/files/organization/opentexas/EO-GA- 29-use-of-face-coverings-during-COVID-19-IMAGE-07-02-2020.pdf. health using the least restrictive means, and if people follow this requirement, more extreme measures may be avoided,” and • “wearing a face covering is important not only to protect oneself, but also to avoid unknowingly harming fellow Texans, especially given that many people who go into public may have COVID-19 without knowing it because they have no symptoms.”
Executive Order GA-29;
see Mi Familia Vota v. Abbott
,
Executive Order GA-29; see Mi Familia Vota v. Abbott , 2020 WL 6058290, at *1–2. The Executive Order then enumerated eleven exemptions from the mask mandate, which include children younger than ten, those with medical conditions or disabilities, while seated at a restaurant to eat or drink, while engaging in exercise outdoors, and while engaging in religious worship. The exemptions also provided the option for counties to opt-out of the mask mandate if a county judge certified it met requisite criteria to do so. [4] The mask-mandate exemption that is the subject of this action is Exemption 8:
*6 4. any person while the person is (a) exercising outdoors or engaging in physical activity outdoors, and (b) maintaining a safe distance from other people not in the same household;
5. any person while the person is driving alone or with passengers who are part of the same household as the driver;
6. any person obtaining a service that requires temporary removal of the face covering for security surveillance, screening, or a need for specific access to the face, such as while visiting a bank or while obtaining a personal care service involving the face, but only to the extent necessary for the temporary removal; 7. any person while the person is in a swimming pool, lake, or similar body of water; . . .
9. any person who is actively providing or obtaining access to religious worship, but wearing a face covering is strongly encouraged;
10. any person while the person is giving a speech for a broadcast or to an audience; or 11. any person in a county (a) that meets the requisite criteria promulgated by the Texas Division of Emergency Management (TDEM) regarding minimal cases of COVID-19, and (b) whose county judge has affirmatively opted-out of this face-covering requirement by filing with TDEM the required face-covering attestation form—
8. any person who is voting, assisting a voter, serving as a poll watcher, or actively administering an election, but wearing a face mask is strongly encouraged.
Executive Order GA-29. Finally, the Executive Order declared a person’s failure to wear a mask under these conditions cannot be punishable by criminal offense or penalty, directing,
Local law enforcement and other local officials, as appropriate, can and should enforce this executive order, . . . as well as local restrictions that are consistent with this executive order and other effective executive orders. But no law enforcement or other official may detain, arrest, or confine in jail any person for a violation of this executive order or for related non-violent, non-felony offenses that are predicated on a violation of this executive order . . . This executive order hereby prohibits confinement in jail as a penalty for the violation of any face- covering order by any jurisdiction. Executive Order GA-28 is hereby amended to delete from paragraph number 15 the phrase: “, but no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering.” Id.
Plaintiffs filed suit in July, shortly after the Executive Order issued. [5] In their Amended Complaint, Plaintiffs narrow the challenged action to mask-mandate Exemption 8 in the Executive Order as violative of Section 2 of the Voting Rights Act, as applied. ECF No. 64, pars. 96-106 . Plaintiffs base their cause on the premise that Black and Latino voters experience a disproportate adverse effect than other races caused by the COVID-19 pandemic because these minority groups experience higher incidences of infection, hospitalization, and fatalities, and contraction of the disease creates higher incidences of serious illness over mild or *7 asymptomatice response. Based upon this increased risk to their good health and well-being to themselves and their families, Plaintiffs allege these protected racial classes face greater risk of exposure and contraction of the disease by voting in person due to the exposure to large groups of people in this setting. Id. at pars. 1-9, 21-95 . Given this heightened risk of exposure provided, however, that wearing a face covering is highly recommended, and every county is strongly encouraged to follow these face-covering standards.
[5] Plaintiffs originally challenged advisories issued by Secretary Hughes; however, on appeal, they narrowed the challenge to the Executive Order, only, and cited specific Election Code provisions. Following direction from the Fifth Circuit and in the Amended Complaint, the challenged action is now limited to mask-mandate Exemption 8 in the Executive Order as violative of Section 2 of the Voting Rights Act.
to COVID-19, Plaintiffs posit that Exemption 8, which allows people to not wear masks while at a polling site presents substantial health risks that creates fear of voting in the Black and Latino people. As a result, Plaintiffs argue Black and Latino voters in Texas are forced to make an unacceptable choice with respect to the 2020 election: exercising their right to vote - or - protecting their own health and lives and that of their loved ones and community by staying home. Id. Because the increased health risk and physical health barriers will de facto force voters represented by Plaintiffs out of the political process if left unmitigated, Plaintiffs contend the mask-mandate exemption to GA-29 violates Section 2 of the Voting Rights Act, as applied. Specifically, the foundation of Plaintiffs’ cause of action is
“[t]he disproportionate infection rate and the more severe health consequences that Black and Latino people face from the coronavirus mean that voting procedures that fail to provide the necessary health and safety protections to all voters in the context of this pandemic will disproportionately burden the rights of Black and Latino voters, in particular. Thus, Texas’s mask exemption for polling places a discriminatory burden on the Black and Latino communities’ right to participate in the voting process on account of their race.
Id . at par. 52. To eliminate this racially-discriminatory deterrence on protected classes of people within the context of the 2020 election, Plaintiffs contend an adequate remedy of this disparate impact would be to invalidate Exemption 8. This invalidation would provide *8 Plaintiffs the same opportunity as all other classes of people: the opportunity to vote in as safe an environment as possible by taking proven measures that alleviate the risk of infection and spread of COVID-19.
Plaintiffs seek to eliminate the alleged discriminatory deterrence from voting and disparate impact created by Exemption 8 of the Executive Order by seeking preliminary injunction, requesting this Court:
a. Order that the following exemption from wearing a mask in public places contained in Executive Order GA-29: “8. any person who is voting, assisting a voter, serving as a poll watcher, or actively administering an election” is invalid and shall be excised;
b. Order that those provisions of Election Advisory No. 2020-19 providing that “There is no authority under Texas law to require voters to wear face coverings when presenting to vote” and that suggest face coverings are not mandatory at polling locations are invalid and shall be excised; c. Order Defendants to take all necessary and appropriate steps to implement the foregoing excisions;
d. Retain jurisdiction to ensure all Defendants’ ongoing compliance with the foregoing orders;
e. Grant such other and further relief that this Court deems just and appropriate.
ECF No. 64, p. 26 .
ANALYSIS
I. STANDING
Before addressing the sustantive merits of Plaintiffs’ claims, the Court must take up the
State’s challenge to Plaintiffs’ standing to bring the asserted cause of action because standing
*9
is a threshold determination.
See Steel Co. v. Citizens for a Better Env’t
, 523 U.S. 83, 102
(1998);
United States v. 2004 Ferrari 360 Modeno
,
The State contends all three plaintiffs lack Article III standing to challenge the Executive Order. The State argues the Organizational Plaintiffs lack standing because they cannot show they, as organizations, will suffer an injury-in-fact. Further, while a diversion of resources can constitute a requisite injury, the Organizational Plaintiffs fail to satisfy this injury under these circumstances. The State further contends the injury of disparate impact of Exemption 8 cannot be traced to Governor Abbott or Secretary Hughs. Rather, the disparate impact can only be created by COVID-19. Finally, the State argues there is no possibility of redressing Plaintiff’s asserted injury of disparate impact because Governor Abbott does not have the power to enforce the Executive Order and exemptions within the Executive Order; only local officials hold that power, and these officials are not a party in this action.
“The law of Article III standing, which is built on separation-of-powers principles,
serves to prevent the judicial process from being used to usurp the powers of the political
branches.”
Town of Chester v. Laroe Estates, Inc.
, 137 S. Ct. 1645, 1650 (2017);
Inclusive
Communities Project, Inc. v. Dep’t of Treasury
, 946 F.3d 649, 655 (5th Cir. 2019). If
challenged, to establish this Article III standing, a plaintiff must demonstrate: (1) it suffered
(or will suffer) an injury in fact; (2) that is fairly traceable to the challenged conduct of the
defendant (causation); and (3) that is likely to be redressed by a favorable judicial decision
(redressability).
See Lujan v. Defenders of Wildlife
,
Even though Article III requires a causal connection between a plaintiff’s injury and
the defendant’s challenged conduct, it doesn’t require a showing of proximate cause or that
“the defendant’s actions are the very last step in the chain of causation.”
Bennett v. Spear
, 520
U.S. 154, 169 (1997). Causation, for example, exists when the defendant’s actions produce a
“determinative or coercive effect upon the action of someone else,” resulting in injury;
however, it does not exist when the Plaintiff’s injuries are “the result of the independent action
of some third party not before the court.”
Id.
at 167. Nor can any asserted injury be “self-
inflicted.”
Ass’n of Cmty. Orgs. for Reform Now v. Fowler
,
The instant case has two types of plaintiffs: the individual plaintiff and the two
Organization Plaintiffs. “[I]n the context of injunctive relief, one plaintiff’s successful
demonstration of standing ‘is sufficient to satisfy Article III’s case-or-controversy
requirement.’”
Tex. Democratic Party v. Abbott
,
1. First Element: Injury In Fact
Organizations can establish the first standing element, injury in fact, under two theories:
“associational standing” or “organizational standing.”
OCA-Greater Hous.
,
“For a threatened future injury to satisfy the imminence requirement, there must be at
least a ‘substantial risk’ that the injury will occur.”
Stringer v. Whitley
,
Through the declaration of Angelica Razo, its Texas Director, Mi Familia Vota presents evidence its primary mission is “to build Latino political power by expanding the electorate, strengthening local infrastructures, and through year-round voter engagement.” This mission consists of public education, voter registration, and voter engagement, with operations in *12 Texas, Arizona, California, Colorado, Florida, and Nevada. Its “election-related work usually involves facilitating voter registration and voter education, voter outreach and civic education, particularly ‘getting out the vote’ among its members.” See ECF No. 53-1, Declaration of Angelica Razo (version submitted at Hearing on 10/2/6/2020) .
Through this same declaration, Mi Familia presents sufficient evidence its injury-in- fact is the additional time, effort and money expended to try to make polling places safer for its targeted voters and these resources would have otherwise been spent educating targeted voters on issues central to its mission. Id . Through her declaration, Ms Razo demonstrates Mi Familia Vota has been forced to expend additional time and resources to try to make polling places safer and this time would have been otherwise spent educating voters on issues central to its mission. Id . This additional time and resources entailed seeking redress from Secretary Hughs by letter in March 2020, urging her to take immediate action to make voting safer, including by making in-person voting safer; working with county election officials, county by county, to learn what their varying pandemic election policies are in order to accurately inform voters; participating with Dallas V.O.T.E.S. (Voting Openly Trouble-Free Equitably Safely) Coalition to work with the Dallas County Elections Department and the Dallas County Commissioners Court to require and provide voters and poll workers with masks at polling locations, and; fielding many more calls from voters in the communities they serve, who are extremely concerned about how to vote during the pandemic. Id .
The demonstrated additional resources exhausted is in line with other recent persuasive
findings of injury-in-fact by organizational plaintiffs in similar context.
See e.g. OCA
, 867 F.3d
at 612 (injury was not large, but challenged statute perceptibly impaired OCA’s ability to “get
out the vote”);
Scott v. Schedler
,
For these reasons, Ms. Razo’s declaration is sufficient to establish Mi Familia Vota holds organizational standing, and therefore, satisfies the first element.
2. Elements Two and Three: Traceability (Causation) and Redressability The State argues Plaintiffs cannot satisfy the two prongs of traceability and redressability to establish standing. The State contends the mask-mandate exemption in the Executive Order will not cause the harm Plaintiffs allege and cannot be traced to Governor Abbott or Secretary Hughs. The State contends any injunctive relief will not redress Plaintiffs’ alleged discriminatory harm because they make a personal choice to sacrifice their right to vote that is not caused by Exemption 8 but by COVID-19.
To establish the “traceability” causal connection between the injury and the conduct
complained of, the injury must be “fairly ... trace[able] to the challenged action of the
defendant, and not ... th[e] result [of] the independent action of some third party not before the
court
.” Lujan v. Defs. of Wildlife
,
To satisfy redressability, a plaintiff must show “it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.”
Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.
,
The racial-bias challenge of Exemption 8 in the Executive Order issued by Governor Abbott is traceable to him and redressable by him, as well as by the Secretary of State who serves as the “chief election officer of the state.” Governor Abbott is the author and executive who promulgated the Executive Order and all exemptions and enforceability provisions therein. Consequently, any unconstituional racially-disparate effect of the mandates therein are certainly traceable to Governor Abbott as the author. Similarly, as the author and executive who promulgated the Executive Order, Governor Abbott holds the power to omit any portion found to be in violation of the Voting Rights Act as racially discriminatory in its application, thereby redressing any alleged injury. Within the Executive Order, itself, Governor Abbott pronounces his authority to enforce the mandates therein and pronounces how such mandates shall be enforced. [6] In any event, if the requested relief of invalidation of Exemption 8 were granted, this invalidation can redress the alleged injury by simply nullifying that portion of the Executive Order.
Further, within the Executive Order, Governor Abbott orders that failure to comply with the mask mandate is not a criminal offense and may not be punishable by criminal penalty, detention, arrest or confinement in jail “or for related non-violent, non-felony offenses that are *15 to rule in Plaintiffs’ favor.
The Secretary “is the ‘chief election officer of the state’ and is instructed by statute to
‘obtain and maintain uniformity in the application, operation, and interpretation of this code
and of the election laws outside this code.’”
OCA
,
Therefore, the Court finds Plaintiffs made a clear showing they meet all three requirements for standing at this stage in the litigation. See Lujan v. Defs. of Wildlife , 504 U.S. at 560–61. Plaintiffs plausibly allege an injury in fact which is fairly traceable to the conduct of the individual defendants, and a favorable order imposing injunctive relief would redress Plaintiffs’ alleged injuries.
II. FOUNDATION AND DIRECTIVES DERIVED FROM FIFTH CIRCUIT OPINION
This Court begins analysis of Plaintiffs’ cause of action under several directives and holdings set forth in the Fifth Circuit’s opinion in this case. The Court sets out these directives, as they establish a foundation and determination of this Court’s jurisdiction and authority to act, as well as establish guidance and parameters for this Court’s action.
First, the single cause of action asserted, that the mask-mandate Exemption 8, as
applied, is a racially-discriminatory violation of Section 2 of the Voting Rights Act, presents a
justiciable question.
Mi Familia Vota v. Abbott
,
Second, Governor Abbott and Secretary Hughs do not hold sovereign immunity from litigation of this Voting-Rights-Act cause of action. Id. at *4-5. While the Eleventh Amendment generally bars all the claims against Governor Abbott and Secretary Hughs, there is no sovereign immunity with respect to the Voting Rights Act claims. Id . The Fifth Circuit concluded “the Voting Rights Act, . . . validly abrogated state sovereign immunity.” Id . at *5. Consequently, Governor Abbott and Secretary Hughs are proper defendants and are not immune from the Voting Rights Act claim in this case. See id .
Third, this Court “cannot compel the Governor to issue orders as a means of redressing
claims under the Voting Rights Act or the Constitution”, nor can this Court “dictate to
legislative bodies or executives what laws and regulations they must promulgate.”
Id.
at *6.
However, this Court does have “jurisdiction and power to pass upon the constitutionality of
Acts of Congress.”
Id
. (impliedly equating the Executive Order to an “Act of Congress.”)
(quoting
Smith & Lee Assoc., Inc. v. City of Taylor
,
Finally, any finding by this Court that mask-mandate exemption 8 violates the Voting
Rights Act would not run afoul of the long-standing principle that “lower federal courts should
ordinarily not alter the election rules on the eve of an election.”
Mi Familia Vota v. Abbott
,
[i]n large measure, it would be a futile act to remand the Voting Rights Act claim for plenary consideration with regard to the November 2020 election because it would be inappropriate for the district court to grant much of the requested relief with the election ongoing.
We see a possible exception, however, with regard to the November 2020 election.
Id . at *7 After outlining the remanded issue for determination to be whether the subject mask- mandate exemption for polling sites is a violation of the Voting Right Act, the Fifth Circuit stated, “[i]t is at least conceivable that such a remedy would not materially or substantially affect the ongoing election, but that would be a matter for the district court to determine.” Id . Therefore, leaving to this Court the determination whether invalidating Exemption 8 would resolve the alleged discriminatory injury, the Fifth Circuit stated any decision in favor of Plaintiffs on the remanded issue is “conceivably” compliant with, and excepted from, the established “ Purcell doctrine” requiring judicial constraint on such issues within an ongoing election. See id .
III. CHALLENGE TO MASK-MANDATE EXEMPTION 8 IN EXECUTIVE ORDER GA-29
Preliminary Injunction Legal Standard
To obtain a preliminary injunction, the movant must demonstrate the following equit-
able factors: “(1) a substantial likelihood of success on the merits; (2) a substantial threat of
irreparable injury if the injunction is not issued; (3) the threatened injury if the injunction is
denied outweighs any harm that will result if the injunction is granted; and (4) the grant of the
injunction will not disserve the public interest.”
Janvey v. Alguire
,
The established irreparable injury must occur “during the pendency of the litigation.”
Justin Indus., Inc. v. Choctaw Secs., L.P.,
Whether to grant or deny a preliminary injunction lies within the sound discretion of
the district courts.
Weinberger v. Romero-Barcelo
, 456 U.S. 305, 320 (1982). When,
“exercising their sound discretion, courts of equity should pay particular regard for the public
consequences in employing the extraordinary remedy of injunction.”
Winter
,
1. Substantial Likelihood of Success on the Merits
Again, Plaintiffs challenge Exemption 8 as violative of Section 2 of the Voting Rights Act. Specifically, Plaintiffs’ allegation is
“[t]he disproportionate infection rate and the more severe health consequences
that Black and Latino people face from the coronavirus mean that voting
procedures that fail to provide the necessary health and safety protections to
all
voters in the context of this pandemic will disproportionately burden the rights
of Black and Latino voters, in particular. Thus, Texas’s mask exemption for
polling places a discriminatory burden on the Black and Latino communities’
right to participate in the voting process on account of their race.”
Within the context of this Motion for Preliminary Injunction, Plaintiffs must show a
substantial likelihood of success on the merits of this cause of action. To do so, Plaintiffs “must
present a prima facie case, but need not prove [entitlement] to summary judgment.”
Daniels
Health Scis., L.L.C.
,
Section 2 of the Voting Rights Act proscribes any “voting qualification or prerequisite to voting or standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen ... to vote on account of race or color.” 52 U.S.C. § 10301(a). A plaintiff may prove violation of Section 2 “by showing discriminatory effect alone” without showing discretionary intent. Thornburg v. Gingles , 478 U.S. 30, 35 (1986); see also 52 U.S.C. § 10301(b). In the seminal case, Veasey v. Abbott , the Fifth Circuit established an analytical framework for a claim of a discriminatory effect in violation of Section 2 of the Voting Rights Act:
(1) the challenged standard, practice, or procedure must impose a discriminatory burden on members of a protected class, meaning that members of the protected class have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice, and (2) that burden must in part be caused by or linked to social and historical conditions that have or currently produce discrimination against members of the protected class.
Veasey v. Abbott
,
a. Factor One: Discriminatory Effect To establish Exemption 8 imposes a discriminatory burden on Black and Latino voters Plaintiffs present declarations of the representative Plaintiffs.
In her declaration, Guadalupe Torres declares she is Latina and lives with her parents. All three contracted COVID-19 in June 2020. See ECF No. 53-4, Declaration of Guadalupe Torres (version submitted at Hearing on 10/2/6/2020), pars . 9-11. Their illness caused great financial strain because they were not able to work, which included inability to pay rent and her college tuition. Id. at pars. 14-16 . She knows many who suffered and experienced a death in the family caused by COVID-19. This experience and her susceptibility to COVID-19, *21 coupled with her fear of infecting her parents creates concern about going out in public. Id. at pars. 14-17 . Ms. Torres declares she is worried about the risk of infection created at polling places because people are not required to wear facial masks. Because polling places inherently include a large number of people standing in line, and she is not certain whether others will wear masks while she is in their presence, Ms. Torres declares she does not feel safe voting in person during the pandemic and is concerned she will get sick again or will carry the infection to her parents. Id. at pars. 18-21 . Ms. Torres has not voted yet because she is worried about standing in line with people who aren’t wearing masks. If she knew everyone would wear a mask, she “would definitely go out to vote. I would still be worried about the lines, but I know masks make the chances of transmission drastically lower.” Id. at par. 23-24.
Gary Bledsoe is President of the Texas NAACP. Mr. Bledsoe declares voting is very important to the Texas NAACP members, and many do not qualify to vote absentee. See ECF No. 53-2, Declaration of Gary Bledsoe (version submitted at Hearing on 10/2/6/2020), pars . 8-11. Many of the constituents and members suffer from underlying health conditions which put them at higher-than-average risk for becoming seriously ill from COVID-19. Mr. Bledsoe declares many Black Texans are concerned about the impact of COVID-19 to a greater degree than the general population “because of higher rates of infection of the disease amongst communities of color, worse outcomes once infected, and widespread reporting on these dangers, people in the Black community experience the dangers and devastation of the virus differently.” Id. at pars. 12-15 . Many of the members and constituents told him they fear contracting coronavirus if they vote in person because other voters and poll workers will not be required to wear masks. The lack of a mandate to wear a face covering in polling stations “could produce crowds that could become a ‘super spreader’ event.” Id . at pars. 16-20 . Mr. Bledsoe declares the fear created by the lack of a mask mandate at polling stations requires *22 Black Texans to choose between not voting or risking their lives or the lives of their loved ones. For these reasons, Mr. Bledsoe declares the Executive Order’s Exemption 8 will dissuade some Black Texans, including some of the Texas NAACP’s members, from voting. Id . He concludes “[t]he chill from the Executive Order’s exemption is born disproportionately by Black Texans because of the mutually exacerbating combination of worse outcomes for Black Texans once infected, greater risk of infection from longer lines, and greater societal repercussions to their work and home communities once infected. Id.
Angelica Razo presents a similar declaration on behalf of Mi Familia Vota. See ECF No. 53-1, Declaration of Angelica Razo (version submitted at Hearing on 10/2/6/2020). Ms. Razo declares members of the Black and Latino communities with which her organization works suffer from COVID-19 at rates higher than the general population, have worse health outcomes and higher fatality rates. Id. at pars. 6-9 . Additionally, many live in large, multi- generational households so if one person gets infected the infection spreads to family members. Ms. Razo declares Exemption 8 of the Executive Order, which allows people to not wear a facial mask at polling sites, disproportionately burdens Latinos and other minority groups because they are concerned of increased risk of exposure to COVID-19 in order to vote in- person and the risk this places on their health and their families’ health. Id. at pars. 9-17 . Ms. Razo declares Latino poll workers have also expressed the same concerns. As a result, “Latino voters-more than other Texans-fear the risk of exposure to COVID-19 from voting without a mask mandate. Id . Latinos have to choose between not voting or risking their lives, or the lives of their loved ones, to vote. This difficult choice will dissuade some Latinos from voting.” A requirement that all persons wear a mask while at a polling site would allow Latino voters “feel safer and minimize the risk that Latinos and other people of color will avoid voting to keep *23 themselves safe from the virus.” Id. at pars. 16-18 .
Finally, Catherine Troisi, an epidemiologist, opines: (1) Racial and ethnic minority groups have an increased risk of severe outcomes should they become infected with COVID- 19; (2) There are ways to mitigate the risk of virus transmission at polling places, including requiring wearing of masks by both voters and poll workers; (3) COVID-19 will continue to spread throughout the fall and winter; and (4) COVID-19 is spread from person to person, through the air, and on environmental surfaces. See ECF No. 53-3, Declaration of Catherine Troisi (version submitted at Hearing on 10/2/6/2020), par. 2. Therefore, gatherings such as at polling places contribute to virus spread. Id . Ms. Troisi provides substantiation for these opinions. Ms. Troisi recommends, in her “expert opinion (and consistent with CDC guidelines),” given that COVID-19 is highly likely to be circulating during voting season, especially at polling sites where large numbers of people are gathered, “masks are a critical precaution to prevent the spread of the virus.” Id. at pars. 31-34 .
These declarations establish a prima facie case that Exemption 8 has a discriminatory effect on Black and Latino voters because they have less opportunity than other members of the electorate to participate in the political process. These Plaintiff representatives set out the fear of their minority members of the greater severity of and fatality from the disease, their substantiated understanding that the wearing of masks by all people minimizes the risk of spread of the disease, their desire to vote, and the unfortunate choice required between voting and minimizing their risk caused by Exemption 8 of the Executive Order.
Based upon these declarations, the Court concludes Plaintiffs show a prima facie case that Exemption 8 imposes a discriminatory burden on members of the Black and Latino protected classes because of their race. Accordingly, Plaintiffs satisfy the first prong of the *24 Veasey two-part framework.
b. Factor Two: Causal Link
In
Gingles
, the Supreme Court established factors to help examine whether any alleged
discriminatory burden imposed on members of the protected class is partly caused by or linked
to current social conditions.
Gingles
,
(1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; (2) the extent to which voting in the elections of the state or political subdivision is racially polarized; (3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; (4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process; (5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; (6) whether political campaigns have been characterized by overt or subtle racial appeals; (7) the extent to which members of the minority group have been elected to public office in the jurisdiction; (8) whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group; and (9) whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
Gingles,
These
Gingles
factors focus primarily on historical conditions in a particular
geographical region that create the alleged racial polarization. However, historical data and
conditions are not necessarily at play under these facts, nor do they adequately apply to analysis
of causation based upon the specific claim. Here, within the environment of the unprecedented
*25
pandemic, Plaintiffs can only rely primarily on current statistical data and analysis of infection
rates by class to support their cause of action. While the Supreme Court endorsed these
Gingles
factors to discern whether a challenged practice or procedure has a discriminatory impact,
courts also regularly utilize statistical analyses to make this determination.
Veasey
, 830 F.3d
216, 243-44;
see, e.g.
,
Mississippi State Chapter, Operation Push, Inc. v. Mabus
,
To establish a prima facie case that the alleged discriminatory burden imposed on members of the protected Latino and Black classes is partly caused by or linked to current social conditions, Plaintiffs rely primarily upon the declaration of Catherine Troisi. Ms. Troisi declares that Black and Latino minority groups experience an increased risk of severe outcomes should they become infected with COVID-19. See ECF No. 53-3, Declaration of Catherine Troisi (version submitted at Hearing on 10/2/6/2020), par. 2. She substantiates this opinion with statistical data which shows Black and Latino classes experience proportionally larger numbers of COVID-19 cases and more severe outcomes and greater fatality rates than other classes. To set the framework of current social conditions, Ms. Troisi declares COVID-19 will continue to spread in the coming weeks, rather than decline. Id . In addition, COVID-19 is spread through the air, and on environmental surfaces. Therefore, places where large numbers of people gather, such as polling places, present heightened risk of contagion and contribute to virus spread. Finally, Ms. Troisi opines that an effective and critical way to mitigate the risk of virus transmission at polling places includes wearing of masks by all people present. Id .
Ms. Troisi’s declaration, in conjunction with Plaintiffs’ declarations establish a *26 discriminatory effect of Exemption 8. Ms. Troisi establishes the heightened risk to health experienced by these minority groups and the wearing of masks by all people is critical to prevent exposure and spread of COVID-19. Plaintiffs declare they fear the risk to their health caused by exposure at polling sites because people may not be wearing masks, they cannot vote because exercising this right will create too great of a risk, and if they were assured all people will wear masks, they will exercise their right to vote.
Based upon these declarations, the Court concludes Plaintiffs establish a prima facie case that the discriminatory burden that deters Black and Latino voters is at least in part caused by social conditions of the environment of the COVID-19 pandemic, these minority groups experience greater risk of contraction and severity of the disease and this discriminatory effect can be eliminated, or at least mitigated, if all people wear masks at polling sites. As a result, of this discriminatory effect, these minority groups have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. Accordingly, Plaintiffs satisfy the second prong of the Veasey two-part framework.
By establishing a prima facie case of each of the two prongs of the Veasey test, Plaintiffs show a substantial likelihood of success on the merits of their cause of action that Exemption 8 creates a violation of Section 2 of the Voting Rights Act.
2. Substantial Threat of Irreparable Injury
To satisfy the second prong of the preliminary-injunction test, Plaintiffs must show that
in the absence of an injunction they are “likely to suffer irreparable harm.”
Daniels Health
Scis., L.L.C. v. Vascular Health Scis., L.L.C.
,
In opposition, the State contends Plaintiffs’ only injury is one due to personal preference and choice; any decision to stay home and not vote is not caused by the mask- mandate exemption. The State also contends Plaintiffs have other options to vote, such as mail- in ballots and early voting at a site of their choice that is not crowded.
Plaintiffs show they will experience irreparable harm in the absence of an injunction because their fundamental right to vote is threatened by the mask-mandate exemption. In the declarations enumerated above, the representative Plaintiffs all stated their right to vote is threatened by the health risk created by Exemption 8 to the mask mandate.
In her declaration, Ms. Torres states voting is important to her but she does not want to risk her and her parents’ health by participating in the voting process. She states she does not feel safe voting in person during the pandemic because people are not required to wear masks at polling sites, but will feel safe to vote if she were assured all people were wearing a facial mask to minimize the spread of COVID-19. See ECF No. 53-4, Declaration of Guadalupe Torres (version submitted at Hearing on 10/2/6/2020), pars. 21-24.
Ms. Razo states members of the Latino community also express the same concerns and declares the mask exemption will disproportionately burden Latinos and other minority groups. She states many Latinos in her constituency expressed concern because they want to vote, but fear increased risk of exposure to COVID-19 based upon personal experience and knowledge that the disease affects Latinos more severely than other classes of people. For this reason, Latinos “have to choose between not voting or risking their lives, or the lives of their loved, ones to vote. This difficult choice will dissuade some Latinos from voting.” Ms. Razo concludes “[s]triking the carve-out—in other words, requiring masks to be worn at polling places, just like other public places—will make those voting in-person safer and minimize the *28 risk that Latinos and other people of color will avoid voting to keep themselves safe from the virus.” See ECF No. 53-1, Declaration of Angelica Razo (version submitted at Hearing on 10/2/6/2020), par. 14-23.
Mr. Bledsoe declares that “without basic protections like mandatory face coverings at the polls, Black Texans must choose between not voting or risking their lives or the lives of their loved ones to vote. This burden will dissuade some Black Texans, including some of our members, from voting.” Further, the dissuasion created by the mask mandate exemption for polling places “is born disproportionately by Black Texans because of the mutually exacerbating combination of worse outcomes for Black Texans once infected, greater risk of infection from longer lines, and greater societal repercussions to their work and home communities once infected.” Mr. Bledsoe declares “[t]he public interest and all voters will be greatly served by a sensible and reasonable order that protects the lives of people. Excising the exception for face coverings in polling places is an important step.” See ECF No. 53-2, Declaration of Gary Bledsoe (version submitted at Hearing on 10/2/6/2020), par.12-20.
Plaintiffs already established a substantial likelihood of success on their discriminatory
challenge to the mask-mandate exemption. The right to vote and have one’s vote counted is
undeniably a fundamental constitutional right, the violation of which cannot be adequately
remedied at law or after the violation occurred.
Reynolds v. Sims
,
This Court concludes Plaintiffs present sufficient evidence to show a substantial threat of irreparable injury in the absence of injunctive relief. Plaintiffs present evidence of the disparate impact Exemption 8 has on Black and Latino citizens because it precludes an opportunity to vote. This opportunity to vote cannot be remedied by law or otherwise renewed. Once lost, the opportunity to vote is lost. While a showing of a violation of a constitutional right is sufficient to establish irreparable injury as a matter of law, Plaintiffs also present sufficient evidence of irreparable injury.
Accordingly, the Court concludes this factor weighs in favor of a preliminary injunction.
3. Balance of Equities: Threatened Injury Outweighs Harm if Injunction is Granted
Plaintiffs argue the equities greatly favor an injunction, as there is no harm from issuing
a preliminary injunction that prevents the enforcement of a likely unconstitutional state law.
*30
See Giovani Carandola, Ltd. v. Bason
,
The State conflates part of its argument pertaining to this element with that of the first element (on the merits) and the fourth element (on the effect on public interest). The State contends an injunction at this point in the election process would cause voter confusion and would undermine the integrity of election administration. This harm outweighs the threatened injury of discriminatory preclusion of Plaintiffs’ ability to vote without harm to their health. This Court considered and heavily weighed the implications of any injunctive relief at this juncture in the election process and will discuss this deliberation and its significance within the context of the fourth element.
The State also argues the requested injunction would create harm of necessary extra time involved to educate the voters and personnel and the expense of providing a mask or alternative voting mechanism to any person who does not wish to comply with the Executive Order’s mask mandate.
Plaintiffs’ request for relief to protect all citizens’ right to vote and to dispel any
inequality in citizens’ opportunity to cast a vote outweighs the State’s harm in facilitating any
needed voter education, training, and provisions. “The very purpose of a Bill of Rights was
to withdraw certain subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish them as legal principles to be
applied by the courts.” One’s fundamental rights is one such liberty intended to be undeniably
sacred.
W. Virginia State Bd. of Educ. v. Barnette
,
Accordingly, the Court concludes the balance of equities favors a preliminary injunction.
4. Injunction will not Disserve the Public Interest
Injunctions preventing the violation of constitutional rights are “always in the public
interest.”
See Ingebretsen on behalf of Ingebretsen v. Jackson Public Sch. Dist
.,
However, even with the established import of protecting a person’s fundamental right
to vote, a court must weigh any protective action against the potential confusion and disruption
of the election administration caused when doing so in the middle of an election cycle.
Purcell
v. Gonzalez
,
Courts generally, and can, consider the
Purcell
principle within the fourth element of a
motion for preliminary injunction to examine whether a requested injunction that changes an
ongoing state election procedure serves the public interest.
See, e.g., Benisek v. Lamone
, 138
S. Ct. 1942, 1945 (2018);
League of Women Voters of United States v. Newby
,
In this situation, invalidating Exemption 8, which would make polling sites subject to *33 the statewide mask mandate, is not akin to these traditional Purcell principle infringements. Placing polling sites within the statewide mask mandate does not diminish the integrity of counting ballots, nor does it require significant effort to inform voters and Election Administrators. Plaintiffs’ requested injunctive relief does not require the Court to impose large-scale changes to the ongoing election process or create distinct and drastic changes to an established procedure. Any injunctive relief would simply place polling sites within the already imposed statewide mask mandate, making these public places consistent with that required in all other public settings. Any voided exemption from this established mask mandate will not require extensive training and expense typical in other Purcell principle violations. Moreover, making polling sites subject to the statewide mask mandate will not dissuade citizens from voting due to disruption, but will provide the opportunity to vote to an otherwise burdened class.
As stated previously, even while in the middle of this election cycle, the Fifth Circuit foresaw a potential exception to the Purcell principle in this particular case, stating:
[i]n large measure, it would be a futile act to remand the Voting Rights Act claim for plenary consideration with regard to the November 2020 election because it would be inappropriate for the district court to grant much of the requested relief with the election ongoing.
We see a possible exception, however, with regard to the November 2020 election.
Mi Familia Vota v. Abbott
,
This Court carefully measured the evidence presented by the State consisting of declarations from Election Administrators in four Texas cities regarding the adverse effects of invalidation of Exemption 8. The Court understands and hears the issues they raise, empathizes *34 with their concerns, and appreciates the importance these Election Administrators place on ensuring a well-organized, efficient, and smooth election process for all Texans. The Court strongly considered the public interest in preventing confusion and disruption during the ongoing election, and yet, maintains the mask-mandate exemption which impedes certain citizens’ fundamental right and equal opportunity to exercise this right creates greater harm.
For these reasons, this Court concludes the injunctive relief Plaintiffs seek will not disserve the public interest, and, to the contrary, will serve the public interest because it will prevent any discriminatory imposition on Plaintiffs’ right to vote. Invalidation of Exemption 8 will result in a familiar and consistent mandate that is required in most public settings and that has been in place since July. In addition, invalidation of Exemption 8 is not of the same nature or complicated or different as the requested changes in cases following the Purcell doctrine. This Court is not ordering a drastic change in rules or requirements that are contrary or drastically different than the procedures already in place. Those citizens who arrive at a polling site while not wearing a facial mask will be easily recognized and options for compliance or redirection are not complicated or extensive. For example, Jacquelyn Callanen, Elections Administrator for Bexar County declared that in Bexar County
[f]or voters who refuse [to wear a mask]—which to date has been a small fraction of the overall number of in person voters—each of our polling places has one machine that is set up farther away from other machines. Those isolated machines are typically set up near the exits of the polling places. That allows voters who are not wearing masks to cast their ballots in relative isolation. It also allows those voters to leave the polling place quickly, further minimizing their contact with other voters and poll workers.
See ECF No. 66-2; Declaration of Jacquelyn Callanen, Elections Administrator
As such, the Court’s injunction supports the Purcell principle that courts should avoid issuing orders that cause voters to become confused and stay away from the polls. To the extent this Court’s injunction invalidating Exemption 8, and thus subjecting polling sites to the *35 already-established mask mandate does potentially cause confusion, the Court is satisfied this confusion will be minimal and outweighed by the opportunity created for non-discriminatory access to the voting process.
For these reasons, the Court concludes invalidation of Exemption 8 as violative of Section 2 of the Voting Rights Act will not disserve the public interest. This factor weighs in favor of a preliminary injunction.
Conclusion
Plaintiffs established the four elements of preliminary injunction. Plaintiffs hold a substantial likelihood of success on the merits of their cause of action that Exemption 8 of Executive Order GA-29, which exempts from the mask mandate therein those persons who are “voting, assisting a voter, serving as a poll watcher, or actively administering an election” violates Section 2 of the Voting Rights Act. Accordingly, this Court concludes injunctive relief is warranted and thereby holds Exemption 8 of Executive Order GA-29 is invalid and void. The Court declines to reach the remaining requests for injunctive relief, as these requests are not within the Court’s power to impose a remedy or are no longer pertinent to the narrowed focus of the cause of action presented in the Amended Complaint and briefed and argued before the Court. To the extent not reached here, all other requests for injunctive relief have not been presented or proven to this Court and are denied.
IV. PRIVATE CAUSE OF ACTION
The State argues Plaintiffs have no private cause of action to sue for violation of Section 2 of the Voting Rights Act. This argument has no merit.
The Voting Rights Act “was drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens” and [t]he achievement of the Act's laudable goal could be severely hampered, however, if each citizen were required to depend solely on litigation instituted at the discretion of the Attorney General.” Allen v. State Bd. of Elections , 393 U.S. 544, 556 (1969)(abrogated by Ziglar v. Abbasi , 137 S. Ct. 1843, 1855 (2017)). Recently, the Fifth Circuit held in a similar voting rights case that citizens hold a private right of action to bring suit under the Voter Rights Act, stating, “[n]either the Supreme Court nor the Fifth Circuit prohibit bringing a private cause of action; many courts have recognized a private right of action; and Congress did not intend to foreclose private causes of action by also granting the Attorney General enforcement authority.” See Texas Democratic Party v. Hughs , 2020 WL 4218227 at *6 (W.D. Tex. 2020) (emphasis in original).
This Court concludes Plaintiffs have a private cause of action to sue for violation of Section 2 of the Voting Rights Act.
V. STAY OF THE COURT’S ACTION
Finally, in its Response to Plaintiffs’ Motion for Preliminary Injunction, the State
contends if this Court should g rant Plaintiffs’ motion, it should stay any injunctive relief granted
pending any appeal. For the reasons explained above, Plaintiffs are substantially likely to prevail
on the merits of their cause. Because Plaintiffs seek to protect a most important and fundamental
civil right, a stay of this Court’s ruling would not promote the public interest without injuring other
parties to a greater degree.
See Planned Parenthood of Greater Tex. Surgical Health Servs. v.
Abbott
,
The Court, therefore, declines to exercise its discretion to stay this ruling.
CONCLUSION
As discussed, this Court considered three issues the Fifth Circuit directed to be
determined on remand.
Mi Familia Vota v. Abbott
,
For the reasons stated, Plaintiffs’ Motion for Preliminary Injunction is GRANTED IN PART and DENIED IN PART . Exemption 8, which exempts from the mask mandate imposed by Executive Order GA-29 those persons who are “voting, assisting a voter, serving as a poll watcher, or actively administering an election” is invalid and void. The enforcement provisions of the mask mandate contained within the Executive Order remain intact as do the remaining exemptions.
Plaintiffs’ Motion for Preliminary Injunction is DENIED IN PART , as all other requested injunctive relief is denied. All other requests by Plaintiffs and the State contained within the briefs and motion are DENIED , and all other arguments presented by Plaintiffs and the State not specifically addressed in this opinion are OVERRULED .
IT IS SO ORDERED.
SIGNED this 27th day of October, 2020.
JASON PULLIAM UNITED STATES DISTRICT JUDGE
Notes
[1] In this Order, the Court will refer to the parties as follows: (1) Plaintiffs Mi Familia Vota, Texas State Conference of the National Association for the Advancement of Colored People and Guadalupe Torres: collectively, “Plaintiffs”; (2) Plaintiffs individually: “Mi Familia Vota”, “Texas NAACP”, and “Ms. Torres”; and (3) Defendants Greg Abbott and Ruth Hughs: collectively, “the State”; (4) Defendants individually: Greg Abbott, in his official capacity as Governor of the State of Texas: “Governor Abbott”; Ruth Hughs, in her official capacity as Texas Secretary of State: “Secretary Hughs”.
[2] Within its Article III powers, this Court has jurisdiction and power to pass upon the constitutionality of an act
of Congress or Executive body; however, it may not “order relief that would require the Governor of a State to
essentially enact legislation.”
Mi Familia Vota v. Abbott
, 20-50793,
[4] The exemptions from the mandatory mask mandate are: 1. any person younger than 10 years of age; 2. any person with a medical condition or disability that prevents wearing a face covering; 3. any person while the person is consuming food or drink, or is seated at a restaurant to eat or drink;
[6] The Executive Order states Governor Abbott “’is responsible for meeting ...the dangers to the state and people presented by disasters’ under Section 418.011 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility;” and “NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following on a statewide basis ….” predicated on a violation of this executive order.” Executive Order GA-29. Therefore, any ruling in favor of Plaintiffs would not create a criminal offense to anyone by the language and terms of the Executive Order, itself. All other provisions would remain in place were the Court