JILLIAN OSTREWICH, Plаintiff—Appellant/Cross-Appellee, versus CLIFFORD TATUM, in his official capacity as Harris County Elections Administrator; JANE NELSON, in her official capacity as Secretary of State of Texas; JOHN SCOTT, in his official capacity as the Attorney General of Texas, Defendants—Appellees/Cross-Appellants, KIM OGG, in her official capacity as Harris County District Attorney, Defendant—Appellee.
No. 21-20577
United States Court of Appeals for the Fifth Circuit
June 28, 2023
Before CLEMENT, DUNCAN, and WILSON, Circuit Judges.
CORY T. WILSON, Circuit Judge:
America‘s “early elections were not a very pleasant spectacle” for voters. Burson v. Freeman, 504 U.S. 191, 202 (1992) (plurality opinion) (quotation omitted). Indeed, in the nineteenth century, polling placеs were often a place of bedlam: “Sham battles were frequently engaged in to keep away elderly and timid voters,” id. at 202, “[c]rowds would gather to heckle and harass voters who appeared to be supporting the other side,” and “[e]lectioneering of all kinds was permitted,” Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1882–83 (2018). To facilitate more orderly voting, states came to institute a number of reforms, including restrictions on “election-day speech in the immediate vicinity of the polls.” Id. at 1883 (quotation omitted). “Today, all 50 states and the District of Columbia have laws curbing various forms of speech in and around polling places on Election Day.” Id.
At issue in this case are three such Texas laws:
A.
(a) A person commits [a misdemеanor] offense if, during the voting period and within 100 feet of an outside door through which a voter may enter the building in which a polling place is located, the person:
(1) loiters; or
(2) electioneers for or against any candidate, measure, or political party.
. . .
(b) In this section:
(1) “Electioneering” includes the posting, use, or distribution of political signs or literature.
(a) . . . [A] person may not wear a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot, or to the conduct of the election, in the polling place or within 100 feet of any outside door through which a voter may enter the building in which the polling place is located.
. . .
(c) A person commits an offense if the person violates Subsection (a). An offense under this subsection is a Class C misdemeanor.
B.
Houston‘s 2018 election ballot included a proposition (“Prop B“) to amend the City Charter to guarantee Houston‘s firefighters pay parity with the City‘s police officers. Prop B supporters аctively campaigned for the initiative, including through street demonstrations. Many supporters wore distinctive yellow t-shirts that contained a union logo and the words “Houston Fire Fighters.” Prop B supporters also wore the shirts while advocating around polling locations.
Jillian Ostrewich, a self-proclaimed “fire wife,” and her firefighter husband wore these shirts when they headed to the polls to vote during Houston‘s early voting period. When Ostrewich reached the front of the voting line, an unidentified election worker pointed at her shirt and told her that “[y]ou are not going to be allowed to vote,” because voters were “voting on that.” This was consistent with the policy established by the polling location‘s presiding judge, the official who manages polling locations in Texas. See
After the election, Ostrewich filed suit, alleging that she was unconstitutionally censored and that Texas‘s electioneering laws unconstitutionally chilled her right to free speech. She sued both local and state defendants in their official capacities, including the Texas Secretary of State, Texas Attorney General, Harris County Clerk, and Harris County Attorney, (collectively, the “State“).3 After discovery, both Ostrewich and the State moved for summary judgment. The case was assigned to a magistrate judge, who recommended rejecting the State‘s assertions that Ostrewich‘s claims were barred by sovereign immunity and, alternatively, that she lacked Article III standing. Addressing the merits, the magistrate judge recommended upholding
On appeal, Ostrewich asserts the district court erred in upholding
II.
We review a “district court‘s judgment on cross motions for summary judgment de novo, addressing each party‘s motion independently, viewing the evidence and inferences in the light most favorable to the nonmoving party.” CANarchy Craft Brewery Collective, LLC v. Tex. Alcoholic Beverage Comm‘n, 37 F.4th 1069, 1074 (5th Cir. 2022) (quotation omitted). Summary judgment is appropriate if “the evidence shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” High v. E-Sys. Inc., 459 F.3d 573, 576 (5th Cir. 2006);
When interpreting Texas statutes, this court employs “the same methods of statutory interpretation used by the Texas Supreme Court.” Camacho v. Ford Motor Co., 993 F.3d 308, 311 (5th Cir. 2021). That court instructs thаt “text is the alpha and the omega of the interpretive process.” Id. (quoting BankDirect Cap. Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86 (Tex. 2017)).
Before addressing the merits, we must traverse a couple of threshold issues: the proper parties to this action, and Ostrewich‘s standing. Both implicate the court‘s jurisdiction to consider the case. We conclude that Texas‘s Attorney General and Secretary of State enjoy sovereign immunity, but that Ostrewich has standing to bring her claims against the remaining defendants.
A.
The district court found that the Ex parte Young4 exception to
We first address the Secretary of State. To overcome her sovereign immunity via Young, Ostrewich must show that the Secretary has “some connection with the enforcement” of the “specific election code provisions” at issue. Richardson, 28 F.4th at 653–54 (quotation and citation omitted). She may not rely simply on the Secretary‘s “broad duties to oversee administration of Texas‘s election laws.” Id. at 654. The Secretary‘s “[o]ffering advice, guidance, or interpretive assistance” to local officials does not constitute enforcement. Id. at 655.
The district court concluded that the Secretary had a sufficient connection to the enforcement of Texas‘s electioneering laws because she is responsible for training presiding judges to enforce elections law, and she issues election advisories interpreting the electioneering laws, which guide presiding judges’ discretionary decisions “under threat of removal.” See
In Texas, presiding judges are exclusively entrusted with enforcing the electioneering laws at polling locations. See
The same goes for the Attorney General. Ostrewich must show that he has a particular duty to enforce the electioneering laws and has demonstrated willingness to do so. See City of Austin, 943 F.3d at 1000–02. The district court determined that Ostrewich met this burden because there was no evidence that “the Attorney General will not prosecute violators in the future.” The court further determined that the Attorney General had two specific statutory duties that require him tо enforce the electioneering laws:
A recent opinion from the Texas Court of Criminal Appeals is dispositive of this question. In State v. Stephens, 663 S.W.3d 45, 47 (Tex. Crim. App. 2021), reh‘g denied, 664 S.W.3d 293 (Tex. Crim. App. 2022), the Court of Criminal Appeals held that
This holds true irrespective of
B.
To have standing against the remaining two defendants, Ostrewich must (1) have suffered an injury in fact (2) that is fairly traceable to the challenged action of one of the remaining defendants and (3) that will likely be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Ostrewich alleges two injuries: First, an election worker—while enforcing the electioneering laws—unconstitutiоnally censored her speech by instructing her to turn her firefighter t-shirt inside-out; second, the electioneering laws unconstitutionally chilled her speech. The State argues neither injury is sufficient to confer standing, maintaining that the first is not traceable to a named defendant, and the second is not an injury-in-fact. We disagree; Ostrewich‘s allegation that Texas‘s electioneering laws unconstitutionally chilled her speech establishes standing.
In the pre-enforcement context, this court has repeatedly held that chilling a plaintiff‘s speech is a constitutional harm adequate to satisfy the injury-in-fact requirement. E.g., Speech First, Inc. v. Fenves, 979 F.3d 319, 330–31 (5th Cir. 2020) (collecting cases). A plaintiff suffiсiently pleads such an injury when she “(1) has an ‘intention to engage in a course of conduct arguably affected with a constitutional interest,’ (2) [her] intended future conduct is ‘arguably proscribed by the policy in question,’ and (3) ‘the threat of future enforcement of the challenged policies is substantial.‘” Id. at 330 (cleaned up) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 161–64 (2014)).
The State argues that Ostrewich fails to “show a threat of future enforcement” because she provides no evidence that she—or any Texas voter—has or will ever face a credible threat of prosecution for violating the electioneering laws. But the State‘s argument is refuted by Speech First, where we explained that for pre-enforсement challenges to newly enacted or “non-moribund” statutes restricting speech, this court “assume[s] a credible threat of prosecution in the absence of compelling contrary evidence.” Id. at 335; see also id. at 331 (“It is not hard to sustain standing for a pre-enforcement challenge in the highly sensitive area of public regulations governing bedrock political speech.“).5 Ostrewich has standing because her “claim is that the [non-moribund] policy causes self-censorship among those who are subject to it, and [her] speech is arguably regulated by the policy[.]” Id. at 336–37.
IV.
We now turn to the merits of Ostrewich‘s appeal. The
The Supreme Court has articulated a “reasonableness” test for dealing with such situations. In Mansky, a group of voters, like Ostrewich, challenged a Minnesota electioneering law that prohibited voters from wearing a “political badge, political button, or other political insignia . . . at or about the polling place.” Id. at 1883. Rеcognizing that a polling place is a “nonpublic forum,” as polling locations have not traditionally been “a forum for public communication[,]” the Court held that Minnesota could reasonably restrict speech—based on content—to further the state‘s interest “in maintaining a polling place free of distraction and disruption.” Id. at 1885, 1891 (quotation omitted). Under this flexible standard, states are required only to draw a reasonable line that “articulate[s] some sensible basis for distinguishing what [speech] may come in from what must stay out.” Id.
at 1888. States may entrust election workers, like Texas‘s presiding judges, with discretion to enforce these restrictions at the polls, so long as the law guides that discretion by “objective, workable standards.” Id. at 1891.
Here, as in Mansky, the electioneering laws regulate conduct within polling places—which, as noted, are nonpublic forums.
On appeal, Ostrewich contends the district court erred in holding
A.
Ostrewich contends that
1.
When a litigant brings both facial and as-applied challenges, we generally decide the as-applied challenge first because it is the narrower question. Buchanan v. Alexander, 919 F.3d 847, 852 (5th Cir. 2019). So we begin with Ostrewich‘s contention that the State‘s enforcement of
“Casting a vote . . . is a time for choosing, not campaigning. The State may reasonably decide that the interior of the polling place should reflect that
distinction.” Mansky, 138 S. Ct. at 1887. Thus, to prevent partisan discord, Texas may restrict voter apparel in a polling place during the voting period “as long as the regulation on speech is reasonable.” Id. at 1885. The question is whether a presiding judge, by enforcing
The district court concluded that Ostrewich‘s firefighter t-shirt was synonymous with the campaign in favor of Prop B. Moreover, Ostrewich herself testified that she wore the shirt to the polls because she was excited to vote on the measure. From these facts, the district court concluded that Ostrewich‘s firefighter t-shirt related to a measure appearing on the ballot, so that the presiding judge permissibly censored her to further Texas‘s interest in ensuring a campaign-free polling place.
Ostrewich argues the district court erred because
2.
We move to her facial challenge. See Buchanan, 919 F.3d at 854 (“Generally, we proceed to an overbreadth issue only if it is determined that the statute would be valid as applied.” (quotation omitted)). In the
Ostrewich‘s theories for facial unconstitutionality collapse into each other—essentially, Ostrewich contends that
The State disagrees, asserting that the statute‘s “related to” proviso constitutes a workable standard. Rather than requiring presiding judges to retain a mental index of various political issues аnd positions,
or political party” is on the ballot, its “badge, insignia, [or] emblem” is prohibited.
“Clear and simple” may be a bit of an overstatement. The record offers many examples of Texas officials inconsistently applying
In Mansky, the Supreme Court was particularly concerned that Minnesota‘s law lacked any limiting principle. By Minnesota‘s own admission, its statute could apply to ban content promoting any “recognizable political view.” Id. at 1890. In contrast,
As the district court succinctly explained,
[Section 61.010] targets people who have gathered at a government-designated spot at a government-designated time tо perform a civic task—vote. Its restrictions
extend no further . . . . By limiting its reach to issues appearing on the ballot, the Texas law provides fair notice of what is expected of people gathered in and around the polling place on election day and during early voting.
Ostrewich also argues
B.
Ostrewich next challenges the facial constitutionality of
Indeed, both sections state “a person may not electioneer for or against any candidate, measure, or political party.”
The district court also erred in holding that
We reach this conclusion mindful that the standard for holding these sections facially unconstitutional is “daunting” and requires us to find that “a substantial number of its applications are unconstitutional, judged in relation to the statute‘s plainly legitimate sweep.” Voting for Am., Inc. v. Steen, 732 F.3d 382, 387 (5th Cir. 2013) (quotation omitted). The Supreme Court has never suggested that electioneering restrictions сould only proscribe content related to issues appearing on the ballot, and the district court failed to explain how these two statutes would otherwise be unconstitutional in “a substantial number” of their applications. We certainly do not foresee that they would be. The district court therefore erred in holding
C.
Based on our conclusion that all three electioneering laws pass constitutional muster, such that Texas elections workers had a constitutional basis for prohibiting Ostrewich from wearing her firefighter t-shirt at the polling place, her claim for nominal damages fails as a matter of law. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 n.* (2021) (“Nominal damages gо only to redressability and are unavailable where a plaintiff has failed to establish a past, completed injury.“). We therefore affirm the district court‘s denial of nominal damages.
V.
In sum: We REVERSE the district court‘s holding denying Texas‘s Secretary of State and Attorney General sovereign immunity under the
Notes
Various offiсeholders have changed during the pendency of this appeal. We have previously granted unopposed motions to substitute and refer to each officer using his or her official title for consistency.
We recognize that the defendants encompass both state and local government officials. However, because the defendants are represented by a single brief, we refer to them collectively as “the State” for simplicity.
The State tries to circumvent this analysis by arguing that Speech First is inapplicable because the electioneering laws are not new. Yet the State completely ignores that Speech First also applies to “non-moribund” statutes. 979 F.3d at 335. Moreover, the electioneering laws at issue аre routinely invoked by Texas and enforced by election judges. See, e.g., Election Advisory No. 2020-06, https://www.sos.state.tx.us/elections/laws/advisory2020-06.shtml.
Similarly, the State asserts that it presented “compelling contrary evidence” that Ostrewich does not face a threat of prosecution, as no voter has been prosecuted for violating the law for at least a decade. But “a lack of past enforcement does not alone doom a claim of standing“—more evidence is needed. Speech First, 979 F.3d at 336; see also Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2006) (“Controlling
precedent . . . establishes that a chilling of speech because of the mere existence of an allegedly vague or overbroad [law] can be sufficient injury to support standing.“).Ostrewich also asserts that the district court erroneously interpreted
Ostrewich further argues that the district court‘s interpretation renders
Finally, Ostrewich posits that