TEXAS DEMOCRATIC PARTY; GILBERTO HINOJOSA; JOSEPH DANIEL CASCINO; SHANDA MARIE SANSING; BRENDA LI GARCIA, Plaintiffs-Appellees, versus GREG ABBOTT, Governor of the State of Texas; RUTH HUGHS, Texas Secretary of State; KEN PAXTON, Texas Attorney General, Defendants-Appellants.
No. 20-50407
United States Court of Appeals, Fifth Circuit
June 4, 2020
Appeal from the United States District Court for the Western District of Texas
Before SMITH, COSTA, and HO, Circuit Judges.
The United States is mired in a pandemic involving a virus that can cause serious illness and sometimes death. Local officials are working tirelessly to “shap[e] their response to changing facts on the ground,”
“Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.‘” Id. (quoting Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905)). Either overlooking or disagreeing with that admonition, the district judge a quo suspects that—referring to the defendant state officials—“[t]here are some among us who would, if they could, nullify” the promises of the Declaration of Independence and “forfeit[] the vision of America as a shining city upon a hill.” He resolves to take matters into his own hands.
In an order that will be remembered more for audacity than legal reasoning, the district judge intervenes just weeks before an election, entering a sweeping preliminary injunction that requires state officials, inter alia, to distribute mail-in ballots to any eligible voter who wants one. But because the spread of the Virus1 has not given “unelected federal jud[ges]”2 a roving commission to rewrite state election codes, we stay the preliminary injunction pending appeal.
I.
To help ensure the health of Texas voters while protecting the integrity of the state‘s elections, Governor Greg Abbott declared that, among other things, the May 2020 primary runoff elections would be postponed to July 14, 2020; that the period for “early voting by personal appearance” would be doubled; and that election officials would issue further guidance to election workers and voters on social distancing and other precautionary measures.3
The plaintiffs—the Texas Democratic Party, its chair, and various individual voters—allege that such actions aren‘t enough. They sued Texas Governor Greg Abbott, Secretary of State Ruth Hughs, and Attorney General Ken Paxton,4 in state court, seeking injunctive and declaratory relief that, as a matter of Texas law, those eligible to vote by mail include all “eligible voter[s], regardless of age and physical condition . . . if they believe they should practice social distancing in order to hinder the known or unknown spread of a virus or disease.” Specifically, the plaintiffs claimed, such voters suffer from a “disability” under Texas election law because a lack of immunity to the Virus constitutes a “physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of . . . injuring the voter‘s health.”
Thus began within the Texas judiciary a saga of sorts. First, the state trial court granted the plaintiffs a preliminary injunction. Texas intervened and filed a notice of interlocutory appeal, which, under Texas law, superseded and stayed the injunction.5
[b]ased on the plain language of the relevant statutory text, fear of contracting [the Virus] unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Texas Election Code for purposes of receiving a ballot by mail. Accordingly, public officials shall not advise voters who lack a qualifying sickness or physical condition to vote by mail in response to [the Virus]. . . .
To the extent third parties advise voters to apply for a ballot by mail for reasons not authorized by the Election Code, including fear of contracting [the Virus] without an accompanying qualifying disability, such activity could subject those third parties to criminal sanctions [citing
TEX. ELEC. CODE §§ 84.0041 ,276.013 ].
The plaintiffs successfully moved the Texas Court of Appeals to reinstate the injunction, which the Texas Supreme Court stayed pending its resolution of the state‘s mandamus petition.
Shortly thereafter, the plaintiffs filed this case against Governor Abbott, General Paxton, Secretary Hughs, the Travis County Clerk, and the Bexar County Elections Administrator. The plaintiffs claim that Texas‘s rules for voting by mail (1) discriminate by age in violation of equal protection and the
Quoting the Declaration of Independence, the Gettysburg Address, the Bible, and various poems, the district court, on May 19, 2020, granted the plaintiffs a preliminary injunction ordering that “[a]ny eligible Texas voter who seeks to vote by mail in order to avoid transmission of [the Virus]“—which, as the district court itself recognizes, would effectively be every Texas voter—“can apply for, receive, and cast an absentee ballot in upcoming elections during the pendency of pandemic circumstances.” Further, the court enjoined the state officials from “issuing any guidance, pronouncements, threats of criminal prosecution or orders, or otherwise taking any actions inconsistent with [its] Order.”
The district court suggests that, by requiring able-bodied, young voters who are present in the county to visit the polls in person when they may possibly contract the Virus (notwithstanding doubled early voting and other precautionary measures), the state officials wished “to return to the not so halcyon and not so thrilling days of yesteryear of the Divine Right of Kings,” “the doctrine that kings have absolute power because they were placed on their thrones by God and therefore rebellion against the monarch [was] always a sin.” “One‘s right to vote should not be elusively based on the whims of nature,” the court
In support, the district court held that the plaintiffs are likely to succeed on the merits of all their claims. As for the age-related claims, the court opined that accommodating older voters with the option to vote by mail but requiring younger voters to vote in person “disproportionate[ly] burden[s]” younger voters without any conceivably “rational basis” or “any legitimate or reasonable [state] interest,” evincing only that “older voters [are] valued more than [their] fellow citizens of younger age.”
Regarding the vagueness claims, the court noted—without waiting (predictably for only a few days) for the Texas Supreme Court to interpret its own state‘s election law—that “[t]he multiple constructions of [the Texas Election Code] by [General] Paxton and the state court fail to provide people of ordinary intelligence a reasonable opportunity to understand if they are unqualified to access a mail ballot.”
Finally, the court concluded that General Paxton‘s statements publicly disagreeing with the Texas lower courts and accordingly informing election officials likely constituted voter intimidation and an unconstitutional restriction of the plaintiffs’ political speech.
Regarding the balance of harms, the district court “conclude[d] that any harm to [the state officials] [wa]s outweighed by the continued injury to Plaintiffs if an injunction d[id] not issue.” The injunction did not harm the state officials at all: “No harm occurs when the State permits all registered, legal voters the right to vote by utilizing the existing, safe method that the State already allows for voters over the age of 65.” According to the district court, the fact that “[b]etween 2005 [and] 2018“—when, of course, far fewer than literally all Texas voters were eligible to vote by mail—“there were 73 prosecutions out of millions of votes cast” indicates not that voter fraud is difficult to detect and prosecute but instead that “vote by mail fraud is [not] real.” And, in any event, because maintaining safety while vindicating constitutional rights is within the public interest, it is, according to the district court, also within the public interest “to prevent [Texas] from violating the requirements of federal law.”
The state officials filed an emergency motion for a stay pending appeal, and this motions panel granted a temporary administrative stay to consider carefully the motion for stay pending appeal.8 In the interim, the Texas Supreme Court, without dissent, largely accepted General Paxton‘s proffered interpretation of the Texas Election Code. In re State, No. 20-0394, 2020 Tex. LEXIS 452, at *2 (Tex. May 27, 2020) (Hecht, C.J.).9 The court held that it “agree[d] with the State that a lack of
We now stay the preliminary injunction pending appeal.
II.
“A stay is not a matter of right, even if irreparable injury might otherwise result.” Nken v. Holder, 556 U.S. 418, 433 (2009). Whether to grant a stay is committed to our discretion. See Thomas v. Bryant, 919 F.3d 298, 303 (5th Cir. 2019). We evaluate “(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).
III.
When evaluating the first factor, “[i]t is not enough that the chance of success on the merits be better than negligible.” Nken, 556 U.S. at 434 (quotation marks omitted). Indeed, in the mine run of appeals, “likelihood of success remains a prerequisite,”10 and a “presentation of a substantial case . . . alone is not sufficient.”11 In a limited subset of cases, a “movant need only present a substantial case on the merits” if (1) “a serious legal question is involved” and (2) “the balance of the equities weighs heavily in favor of granting the stay.”12
A.
The state officials claim three jurisdictional bars: (1) The plaintiffs’ claims present a nonjusticiable political question; (2) the plaintiffs lack standing; and (3) the claims are barred by sovereign immunity.13 We address each in turn.
The state officials—supported by Louisiana and Mississippi as amici—assert that this case is a nonjusticiable political question, because the plaintiffs “essentially ask the federal courts to determine whether the State‘s efforts to combat [the Virus] in the context of elections have been adequate.”14 In their view, “no manageable standard exists to resolve whether the State has done enough to protect voters from this pandemic.” Relatedly, Louisiana and Mississippi suggest that the district court could not have reached its decision without first having made an impermissible policy determination. For support, the state officials and their amici rely primarily on a recent district court case challenging Georgia‘s plans for holding upcoming primary elections. See Coal. for Good Governance v. Raffensperger, No. 1:20-CV-1677-TCB, 2020 WL 2509092 (N.D. Ga. May 14, 2020).
That contention is unlikely to gain traction. The Coalition case is different in kind.15 That challenge was directed at the specific procedures Georgia planned to use to conduct the election, such as whether to use electronic voting machines or paper ballots. Id. at *1. In other words, the suit challenged the wisdom of Georgia‘s policy choices. But to resolve this appeal, we need not—and will not—consider the prudence of Texas‘s plans for combating the Virus when holding elections. Instead, we must decide only whether the challenged
2.
The state officials contend that they are likely to show that the plaintiffs lack standing.17 “To establish standing under Article III of the Constitution, a plaintiff must demonstrate (1) that he or she suffered an injury in fact that is concrete, particularized, and actual or imminent, (2) that the injury was caused by the defendant, and (3) that the injury would likely be redressed by the requested judicial relief.” Thole v. U.S. Bank N.A., No. 17-1712, 2020 WL 2814294, at *2 (U.S. June 1, 2020). The state officials assert that the plaintiffs cannot satisfy the last two prongs, because “[a]cceptance or rejection of an application to vote by mail falls to local, rather than state, officials.”
Our precedent, however, poses a significant obstacle. In OCA-Greater Houston v. Texas, 867 F.3d 604, 612-13 (5th Cir. 2017), we considered a challenge to Texas Election Code section 61.033, which requires an interpreter to “be a registered voter of the county in which the voter needing the interpreter resides.” Texas averred that the second and third standing factors were not satisfied, because the plaintiff‘s injury was caused by local election officials—who determined whether a voter could serve as an interpreter—not the state or its Secretary of State. Id. at 613. The panel rejected that position, holding that the “invalidity of a Texas election statute is, without question, fairly traceable to and redressable by . . . its Secretary of State, who serves as the ‘chief election officer of the state.‘” Id. (quoting
So too here. Texas‘s vote-by-mail statutes are administered, at least in the first instance, by local election officials.18 But the Secretary of State has the duty to “obtain and maintain uniformity in the application, operation, and interpretation of” Texas‘s election laws, including by “prepar[ing] detailed and comprehensive written directives and instructions relating to” those vote-by-mail rules.
That analysis applies with far less force, however, to Governor Abbott. OCA-Greater Houston, 867 F.3d at 613, was a suit against only the state of Texas and its Secretary of State. The Texas Election Code delegates enforcement power for the vote-by-mail provisions to “early voting clerk[s],” subject to control by the Secretary of State. See
The plaintiffs disagree, pointing to several of the Governor‘s actions that they believe demonstrate his “extensive enforcement with respect to state elections.”20 But those actions—all of which addressed when an election was to be held, not how it was to be conducted—were exercises of the Governor‘s emergency powers, not any authority given him by the Texas Election Code. Because the plaintiffs have pointed to nothing that outlines a relevant enforcement role for Governor Abbott, the plaintiffs’ injuries likely cannot be fairly traced to him. See Thole, 2020 WL 2814294, at *2.
3.
The state officials aver that they are “likely to show that the preliminary injunction is barred by sovereign immunity.”
a.
Generally, state sovereign immunity precludes suits against state officials in their official capacities. See City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019). The important case of Ex parte Young, 209 U.S. 123 (1908), is an exception to that baseline rule, but it permits only “suits for prospective . . . relief against state officials acting in violation of federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) (emphasis added). It does not sanction suits targeted at state-law violations. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 124-25 (1984).
To be sued, state officials must “have ‘some connection’ to the state law‘s enforcement,” Air Evac EMS, Inc. v. Tex. Dep‘t of Ins., 851 F.3d 507, 517 (5th Cir. 2017), which ensures that “the suit is [not] effectively against the state itself,” In re Abbott, 956 F.3d 696, 708 (5th Cir. 2020). The precise scope of the “some connection” requirement is still unsettled,21 but the requirement traces its lineage to Young itself.22 We do know, though, that it is not enough that the official have a “general
Moreover, a mere connection to a law‘s enforcement is not sufficient—the state officials must have taken some step to enforce. But how big a step? Again, the line evades precision. One panel observed that “‘[e]nforcement’ typically involves compulsion or constraint.” K.P., 627 F.3d at 124. Another defined it as “a demonstrated willingness to exercise” one‘s enforcement duty. Morris, 739 F.3d at 746. But the bare minimum appears to be “some scintilla” of affirmative action by the state official. Austin, 943 F.3d at 1002.
Finally, there is “significant overlap” between our standing and Young analyses. Air Evac, 851 F.3d at 520. “[I]t may be the case that an official‘s connection to enforcement is satisfied when standing has been established,” because if an “official can act, and there‘s a significant possibility that he or she will . . . , the official has engaged in enough compulsion or constraint to apply the Young exception.” Austin, 943 F.3d at 1002 (emphasis added) (quotation marks and alteration omitted).
b.
The state officials assert that, for three reasons, Young is not satisfied: (1) The district court lacked jurisdiction to order the state officials to comply with state law; (2) because none of the state officials “enforces the mail-in ballot rules,” they lack the “requisite connection” to be sued; and (3) General Paxton‘s statements do not constitute threats of enforcement sufficient to invoke Young. None of those notions is likely to carry the day.
The pleadings belie the state officials’ first contention. The complaint seeks to prevent the enforcement of provisions of the Texas Election Code that the plaintiffs believe violate the Constitution. The plaintiffs are not hoping to secure a “consistent application of state law“; to the contrary, their case before the state courts focused solely on state-law issues.
The second contention also runs into a significant roadblock. As we recognized above, our precedent suggests that the Secretary of State bears a sufficient connection to the enforcement of the Texas Election Code‘s vote-by-mail provisions to support standing. See OCA-Greater Houston, 867 F.3d at 613. That, in turn, suggests that Young is satisfied as to the Secretary of State. See Austin, 943 F.3d at 1002. But, as discussed above, because the Governor “is not statutorily tasked with enforcing the challenged law[s], . . . our Young analysis,” at least as to him, “ends.” Abbott, 956 F.3d at 709 (quotation marks omitted).
Finally, though the state officials’ third contention raises a close question, they have not shown that they are likely to succeed. They acknowledge that General Paxton “has concurrent jurisdiction with local prosecutors to prosecute election fraud.” And a state attorney general‘s sending letters threatening enforcement is enough to satisfy Young.23 Such action goes beyond merely making a public statement
B.
We turn to the constitutional claims.
1.
“States . . . have broad powers to determine the conditions under which the right of suffrage may be exercised,” Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45, 50 (1959), and Texas has long allowed certain groups, including persons aged sixty-five and over, to vote early by mail.25
Not everyone has that privilege, however, so with the Virus spreading, Texas plans to implement measures to protect those who go to the polls. Those measures include the bread and butter of social distancing, such as protective masks for election workers, plentiful cleaning wipes and hand sanitizer, cotton swabs for contacting touch screens, and floor decals inside the polling places that show where voters should stand.26
The plaintiffs demand that Texas go further. They complain that the state violates the Equal Protection Clause of the
The plaintiffs’ theory comes in two flavors. First, they assert (rightly) that
The district court had no trouble agreeing with the plaintiffs, hurling invectives at what it apparently saw as the state officials’ harebrained justifications for gifting older but not younger voters with a vote by mail. The district judge concluded that strict scrutiny applies, because
In so doing, the court rejected Texas‘s asserted interests in giving older citizens special protection and in guarding against election fraud. “Both reasons, even taken at face-value [sic], fail to outweigh the burden voters will face in exercising their right to vote before the threat of [the
The district court opined, in the alternative, that the statute would fail even rational-basis review—a standard under which a law enjoys “a strong presumption of validity.” F.C.C. v. Beach Commc‘ns, Inc., 508 U.S. 307, 314 (1993). “There is no rational state interest,” the district court informed the state officials, “in forcing the majority of . . . voters to visit polls in-person [sic] during a novel global pandemic, thus jeopardizing their health (and the health of all those they subsequently interact with).” Neither is there a valid “interest in fencing out voters under the age of 65 [on a theory that] it would introduce rampant fraud, while allowing older voters to utilize mail ballots and allowing the alleged rampant fraud therewith.” No stranger to rank speculation, the judge then accused Texas of seeking to disenfranchise a certain “sector of the population because of the way they [sic] may vote.”27
2.
The state officials will likely prove error, because the district court ignored the case that squarely governs the equal-protection issue: McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 803 (1969) (Warren, C.J.).28 Under McDonald, rational-basis review will probably apply, and
a.
In McDonald, the Court held that an Illinois statute that denied certain inmates mail-in ballots did not restrict their right to vote. Id. at 807. Instead, it burdened only their asserted right to an absentee ballot, because there was no evidence that the state would not provide them another way to vote. Id. at 807-08. Put differently, there was no indication that the inmates were “in fact absolutely prohibited from voting by the State[.]” Id. at 808 n.7 (emphasis added). The absentee rules did “not themselves deny [the inmates] the exercise of the franchise; nor, indeed, d[id] Illinois’ Election Code so operate as a whole[.]” Id. at 807-08.
The McDonald Court therefore applied rational-basis review, not strict scrutiny, and easily upheld the absentee-ballot scheme. Id. at 808-11. The state‘s refusal to give the inmates a mail ballot was not irrational, “particularly in view of the many other classes of Illinois citizens not covered by the absentee provisions, for whom voting may [have been] extremely difficult, if not practically impossible.” Id. at 809-10.
b.
The state officials will likely succeed in showing that McDonald controls. Texas has similarly decided to give only some of its citizens the option to vote by mail.29 That statutory scheme, which is “designed to make voting more available to some groups who cannot easily get to the polls,”
In the hopes of securing heightened scrutiny, the plaintiffs take a swing at distinguishing McDonald. They assert that here, unlike in McDonald, there is evidence that
The state officials will likely succeed in rebutting those contentions. It is true that “the Court‘s disposition of the claims in McDonald rested on a failure of proof,” O‘Brien v. Skinner, 414 U.S. 524, 529 (1974), but that cuts against the plaintiffs, not for them. The very same “failure[s] of proof” exist here, because, as explained, there is no evidence that Texas has prevented the plaintiffs from voting by all other means. Id.
The Virus, to be sure, increases the risks of interacting in public. But, under McDonald, a state‘s refusal to provide a mail-in ballot does not violate equal protection unless—again—the state has “in fact absolutely prohibited”30 the plaintiff from voting.31 Texas permits the plaintiffs to vote in person; that is the exact opposite of “absolutely prohibit[ing]” them from doing so.32
“Ironically, it is [Texas‘s] willingness” to afford flexibility to older citizens
presence of the Virus.33
McDonald’s progeny drives the point home. In Goosby, 409 U.S. at 521, the Court distinguished McDonald on the ground that “the Pennsylvania statutory scheme absolutely prohibit[ed the plaintiffs] from voting.” Similarly, in O’Brien, 414 U.S. at 530, the plaintiffs were “denied any alternative means of casting their vote,” so McDonald did not control. Thus, in both Goosby and O’Brien, the absentee rules were suspect only because the state had prevented the vote.34 The mail-in ballot, in other words, was the plaintiffs’ only shot at exercising the franchise. The same is not true here.
The plaintiffs fare no better in trying to distinguish McDonald by pointing out that
Though they complain of age discrimination, the plaintiffs next assail McDonald for being too aged.36 Decided in 1969, McDonald supposedly “predates most of the Supreme Court’s modern voting rights jurisprudence.” At bottom, the plaintiffs think that Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992), have put McDonald in the grave.
Yet the Supreme Court abrogates its cases with a bang, not a whimper, and it has never revisited McDonald.37 Because McDonald “has direct application in [this] case, . . . the Court of Appeals should follow” it, “leaving to [the High] Court the
Regardless, the Court has not discarded McDonald, sub silentio or otherwise. By the time McDonald was handed down, the basic doctrinal framework was in place, and McDonald has not become an albatross since. Indeed, “[b]y 1969, . . . the Supreme Court had been stating that voting was a fundamental right stretching back more than eight decades. The Warren Court itself had repeatedly employed strict scrutiny to examine infringements on the franchise.”38 Anderson, for its part, does not cite (much less overrule) McDonald, and Burdick cites it favorably.39 McDonald lives.
c.
Because the plaintiffs’ fundamental right is not at issue, McDonald directs us to review only for a rational basis, under which “statutory classifications will be set aside only if no grounds can be conceived to justify them.”40 The law need only “bear some rational relationship to a legitimate state end.” McDonald, 394 U.S. at 809.
The state officials are likely to show that
We agree. Texas has a proper interest in helping older citizens to vote, and its decision to permit them to do so by mail is a rational way to satisfy that “laudable state policy.” McDonald, 394 U.S. at 811. If anything, the Virus’s existence proves the reasonableness of Texas’s approach, given that older persons have a greater risk of becoming seriously ill or dying from it, as the record demonstrates.41
The district court held (in the alternative) that
Take one example. Even though a court must uphold the law if there is any conceivable basis for it, see, e.g., Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1782 (2019) (per curiam), the district court instead tried to divine Texas’s true intent. Shooting in the dark, the court guessed that Texas wanted to “forc[e] . . . voters to visit polls in-person [sic] during a novel global pandemic, thus jeopardizing their health” and to “fenc[e] out from the franchise a sector of the population because of the way they [sic] may vote.” This kind of drive-by speculation about the state’s covert motives is utterly impermissible and finds no support in this record.42 Instead of searching for a conceivable basis for the rules, the court jerry-rigged some straw men and proceeded to burn them.
The district court also forgot that the legislature can “take one step at a time, addressing itself to the phase of the problem which seems most acute,” Beach Commc’ns, 508 U.S. at 316, without worrying that a rogue district judge might later accuse it of drawing lines unwisely.43 Undeterred, the court reasoned that it is absurd for Texas to “fenc[e] out voters under the age of 65” from a mail-in ballot because of frets about fraud “while allowing older voters to u[se] mail ballots,” thereby risking the same “rampant fraud.”
The district judge should know that that is not how rational-basis review works. See McDonald, 394 U.S. at 809. Texas may take one bite at the apple; it need not swallow it whole. See, e.g., Fritz, 449 U.S. at 179. That “the line might have been drawn differently . . . is a matter for legislative, rather than judicial, consideration.” Fitzgerald v. Racing Ass’n of Cent. Iowa, 539 U.S. 103, 108 (2003).
The policy merits of Texas’s voting procedures were not before the district court, even though the Virus has raised the stakes. “[R]ational-basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” Heller v. Doe ex rel. Doe, 509 U.S. 312, 319 (1993) (quotation marks omitted). Instead, the
C.
The well-respected logic of McDonald applies equally to the
The
The district court seemed to agree with the plaintiffs’ notion that the summary affirmance in Symm v. United States, 439 U.S. 1105 (1979) (mem.), proves that strict scrutiny governs
Instead, employing McDonald’s logic leads inescapably to the conclusion that rational-basis review applies. If a state’s decision to give mail-in ballots only to some voters does not normally implicate an equal-protection right to vote, see McDonald, 394 U.S. at 807–08, then neither does it implicate “[t]he right . . . to vote” of the
As above, there is no evidence that Texas has denied or abridged that right; properly qualified voters may exercise the franchise. So what “is at stake here” is “not the right to vote . . . but a claimed right to receive absentee ballots.” McDonald, 394 U.S. at 807. Rational basis therefore likely applies, see id. at 807–08, and, for reasons now familiar, the Texas Election Code’s vote-by-mail rules live to see another day, see
The Virus’s emergence has not suddenly obligated Texas to do what the
D.
The district court concluded that the plaintiffs are likely to succeed on their void-for-vagueness claim. The state officials, in turn, are likely to show the opposite.
“A statute is unconstitutionally vague if it does not give a ‘person of ordinary intelligence a reasonable opportunity to know what is prohibited[.]’” United States v. Bird, 124 F.3d 667, 683 (5th Cir. 1997) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). “The void-for-vagueness doctrine has been primarily employed to strike down criminal laws.” Groome Res. Ltd. v. Par. of Jefferson, 234 F.3d 192, 217 (5th Cir. 2000). “In the civil context, the statute must be so vague and indefinite as really to be no rule at all.” Id. (quotation marks omitted).
That is not so here, nor do the plaintiffs allege that it is. Texas law provides an adequate definition of “disability”: “a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter’s health.”
E.
The state officials are likely to show that the voter-intimidation claim is meritless. The plaintiffs asserted that claim under
For several reasons, the state officials will likely succeed. To start, there is no conspiracy involving two or more persons. “It is a long-standing rule in this circuit that a ‘corporation cannot conspire with itself any more than a private individual can, and it is the general rule that the acts of the agent are the acts of the corporation.’” Id. at 653 (quoting Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952)). In the plaintiffs’ motion for preliminary injunction, they complained that “General Paxton has worked in concert with employees . . . in issuing his threats.” Paxton cannot conspire with his employees for purposes of
Additionally, the state officials will likely show that General Paxton did not deprive anyone of the equal protection of the laws. To the contrary, the plaintiffs seek to prohibit General Paxton from communicating truthfully about Texas law. And by characterizing his comments as “threats,” the district judge undermined freedom of speech, rule of law, and the power of public officials to participate in public discourse.
F.
The state officials likely will show that General Paxton did not threaten the free-speech rights of these plaintiffs or anyone else. Under Texas law, it is a crime for voters to submit knowingly false applications to vote by mail or for third parties to encourage voters to do so. See
We need not decide today whether the
The plaintiffs are not sui generis in their free speech protections. The preliminary injunction prohibiting General Paxton from “issuing any guidance, pronouncements, threats of criminal prosecution or orders” itself threatens his personal right to comment on matters of public concern. The Texas Attorney General enjoys no less robust a right to participate in the marketplace of ideas than does anyone else, including the plaintiffs. See, e.g., Bond v. Floyd, 385 U.S. 116, 133–35 (1966).
IV.
As to “whether the [stay] applicant[s] will be irreparably injured absent a stay,” Nken, 556 U.S. at 426, the state officials have easily met their burden. “When the State is seeking to stay a preliminary injunction, it’s generally enough to say [that] any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Valentine, 956 F.3d at 803 (quotation marks and brackets omitted). The Texas legislature has articulated criteria for vote-by-mail eligibility, see
The subject and timing of the injunction render that injury particularly acute.
[U]nder our Constitution[,] . . . the States are given the initial task of determining the qualifications of voters who will elect members of Congress. . . . Moreover, as a practical matter, 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. In any event, the States have evolved comprehensive, and in many respects complex, election codes regulating in most substantial ways, with respect to both federal and state elections, the time, place, and manner of holding primary and general elections . . . .
Storer v. Brown, 415 U.S. 724, 729–30 (1974) (citing
This injunction strikes at the core of Texas’s regulation of voting. It effectively requires that all voters be allowed to vote by mail, immediately and fundamentally affecting primary runoffs for which in-person voting begins in a matter of weeks. Perhaps, as the district court suggested, all “[c]itizens should have the option to” vote by mail as a matter of public policy, maybe they shouldn’t. But an order requiring Texas to institute such a policy against its will presents significant, irreparable harm, which is precisely why the Supreme “Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the
V.
We consider “whether issuance of the stay will substantially injure the other parties interested in the proceeding,” i.e., the plaintiffs. Nken, 556 U.S. at 426.
It will not. “There is no doubt that [the Virus] poses risks of harm to all Americans, including” Texas voters. Valentine, 956 F.3d at 804. But 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. Given the great likelihood that the state officials will ultimately succeed on the merits, combined with the undeniable, irreparable harm that the injunction would inflict on them—factors that we consider “the most critical,” id. at 801—we hold that the balance of harms weighs in favor of the state officials.
VI.
We have no trouble concluding that staying the injunction is “where the public interest lies.” Nken, 556 U.S. at 426. The district court relied solely on a Ninth Circuit case for the proposition that “it is in the public interest not [sic] to prevent the State from violating the requirements of federal law.” But “[b]ecause the State is the appealing party, its interest and [aforementioned] harm merge with that of the public.” Veasey v. Abbott, 870 F.3d 387, 391 (5th Cir. 2017) (per curiam). And even so, “[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.” Id.
Just days after themselves obtaining an injunction intervening in forthcoming elections, the plaintiffs ambitiously suggest that we should now refrain from intervening ourselves, given “the proximity of a forthcoming election and the mechanics and complexities of state election laws.”49 That invocation “reminds us of the legal definition of chutzpah: . . . a young man, convicted of murdering his parents, who argues for mercy on the ground that he is an orphan.”50 In any case, we “would prefer not to [intervene], but when a lower court”—at the plaintiffs’ behest—erroneously “intervenes and alters the election rules so close to the election date, our precedents indicate that [we], as appropriate, should correct that error.” Republican Nat’l Comm., 140 S. Ct. at 1207.
* * * * *
The state officials’ motion to stay the preliminary injunction pending appeal is GRANTED. The injunction, in all its particulars, is STAYED pending further order of this court.
These are difficult times. Many have suffered enormous loss. Many worry about what is coming next. To lose the ability to vote in an upcoming election due to fear of the pandemic would be beyond heartbreaking for citizens who are already hurting, for it is “a right they will never be able to recover.” Stringer v. Whitley, 942 F.3d 725, 726 (5th Cir. 2019) (Ho, J., concurring).
State officials have responded by adopting various measures to ensure safety at the polls. If Plaintiffs believe these measures will not be enough, and that only mail-in ballots will suffice, that is understandable. But it is beyond our purview. Under the Constitution, it is a policy decision for the Texas Legislature to make. See
We do not suspend the Constitution during a pandemic. That includes our constitutional structure of government. “Just as other government officials must not exceed their rightful power in extraordinary circumstances, this Court also must not do so”—lest “we abandon the Constitution at the moment we need it most.” In re Salon a La Mode, __ S.W.3d __, __ (Tex. 2020) (Blacklock, J., concurring). Even—indeed, especially—in times of strife, fidelity to our Constitution must endure and guide us through the crisis.
I agree that we should grant a stay of the preliminary injunction pending appeal and thus join Judge Smith’s powerful opinion for the court.
I.
The right to vote is fundamental to our constitutional democracy. But it means nothing if your vote doesn’t count. And it won’t count if it’s cancelled by a fraudulent vote—as the Supreme Court has made clear in case after case.
“Every voter’s vote is entitled to be counted”—and that means every vote must be “protected from the diluting effect of illegal ballots.” Gray v. Sanders, 372 U.S. 368, 380 (1963). “[P]rotection of the integrity of the ballot box is surely a legitimate state concern.” O’Brien v. Skinner, 414 U.S. 524, 534 (1974) (Marshall, J., concurring). There should be “no question about the legitimacy or importance of the State’s interest in counting only the votes of eligible voters.” Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196 (2008) (plurality op. of Stevens, J.).
As Justice Stevens noted, “the risk of voter fraud” is “real.” Id. And “it could affect the outcome of a close election.” Id. “[F]lagrant examples of such fraud . . . have been documented throughout this Nation’s history by respected historians and journalists.” Id. at 195 (collecting examples).1
Numerous members of our court have likewise concluded that “mail-in ballot fraud is a significant threat”—so much so that “the potential and reality of fraud is much greater in the mail-in ballot context than with in-person voting.” Veasey v. Abbott, 830 F.3d 216, 239, 256 (5th Cir. 2016) (en banc). See also id. at 263 (“[M]ail-in voting . . . is far more vulnerable to fraud.”); id. (recognizing “the far more prevalent issue of fraudulent absentee ballots”).3
There is no suggestion that these widely held concerns about voter fraud will not be present during the pandemic. So if there is to be expansion of mail-in voting notwithstanding these findings, our Constitution and precedents remind us that it must be done by legislators, not judges.
II.
For nearly a century, mail-in voting has been the exception—and in-person voting the rule—in Texas. Under Texas law, only certain groups—including the disabled, the elderly, certain persons confined in jail, and voters who will be absent from the jurisdiction during the voting period—may vote by mail. See
Plaintiffs claim that Texas law is unconstitutional. They offer two theories for why judges, rather than legislators, should expand
A.
First, Plaintiffs contend that, due to the pandemic, voters fear going to public polling places. Their concerns are very real, and very well taken.
But under governing Supreme Court precedent, expanding access to mail-in voting to redress personal hardship—as opposed to state action, O’Brien, 414 U.S. at 525–27, 529–31—is a policy matter for the Legislature, not the courts. See, e.g., McDonald, 394 U.S. at 809; see also
In McDonald, a group of eligible voters in county jail could not go to the polls, either “because they are charged with nonbailable offenses” or “because they have been unable to post the bail imposed by the courts.” 394 U.S. at 803. Nor did they qualify for mail-in ballots under state law. So they sued under the Equal Protection Clause. But the Court rejected their claim. And that decision likely forecloses the equal protection claim presented here as well.
As the Court explained, absentee voting is “designed to make voting more available to some groups who cannot easily get to the polls.” Id. at 807. So such laws increase options—not restrictions. They “do not themselves deny [voters] the exercise of the franchise.” Id. at 807–08 (emphasis added).
Of course, there will always be other voters for whom, through no fault of the state, getting to the polls is “difficult” or even “impossible.” Id. at 810. See also id. at 810 n.8 (collecting examples). But as the Court explains, that is a matter of personal hardship, not state action. For courts to intervene, a voter must show that the state “has in fact precluded [voters] from voting”—that the voter has been “prohibited from voting by the State.” Id. at 808 & n.7.
The plaintiffs in McDonald failed to make this showing. As the Court observed, “the record is barren of any indication that the State might not, for instance, furnish the jails with special polling booths or facilities on election day, or provide guarded transportation to the polls themselves for certain inmates, or entertain motions for temporary reductions in bail to allow some inmates to get to the polls on their own.” Id. at 808 n.6. Cf. O’Brien, 414 U.S. at 529–31 (noting failure to provide alternative measures stated in McDonald).
The record here is, if anything, even stronger for the state than in McDonald. There is affirmative evidence here that officials are taking various steps to ensure safety at the polls—measures familiar to anyone who has recently visited a grocery store. According to a sworn declaration, they include:
- “training election workers on best practices for setting up polling locations for social distancing, including determining maximum capacity inside the voting areas,”
- “[p]roviding a table-mounted Plexiglas protective shield at each voter check-in station,”
- “[p]roviding protective masks for all election workers,”
- “[p]roviding sanitizing wipes and hand sanitizer to each location in sufficient quantities as to accommodate voter
turnout and equipment sanitation needs,” - “[p]roviding social distancing floor decals to polling places to ensure safety recommendations are practiced inside and outside the location,”
- “[o]ffering cotton swabs to voters to use as a disposable stylus for marking their ballot selections on the touch screen ballot marking device,”
- “[p]lacing additional election workers in polling places to assist with changes relating to . . . the safety measures,” and
- “[p]reparing for increased curbside voting traffic at polling places.”
In sum, election officials “are working in earnest to ensure adherence to social distancing, limits on the number of people in one place, and constant sanitation of facilities.” In re State of Texas, __ S.W.3d __, __ (Tex. 2020).
So this is not a case of official intransigence, as in O’Brien, 414 U.S. at 525–27. Tellingly, neither Plaintiffs nor the district court even mention O’Brien, and they invoke McDonald only in passing. They instead focus their attention on the
B.
Plaintiffs contend that, separate and apart from the pandemic, the Texas absentee ballot law expressly discriminates on the basis of age, because it permits all persons over the age of 65 to vote by mail, but does not provide that same automatic right to those under 65.
The
Plaintiffs do not mention the
The Supreme Court has repeatedly held that “there are ‘two remedial alternatives’ . . . when a statute benefits one class . . . and excludes another from the benefit.” Sessions v. Morales-Santana, 137 S. Ct. 1678, 1698 (2017). The remedy must provide equal treatment, of course. But equal treatment can be achieved either by “withdrawal of benefits from the favored class” or by “extension
So how do courts decide which remedy to order? Do we “level up” (everyone gets to vote by mail) or “level down” (no one gets to)? To decide, courts must determine “what the legislature would have willed had it been apprised of the constitutional infirmity.” Id. at 1699 (quotations omitted). We look to “the legislature’s intent, as revealed by the statute at hand.” Id. If “the discriminatory exception consists of favorable treatment for a discrete group,” we “strik[e] the discriminatory exception” and “extend[] the general rule . . . to cover the previously favored group.” Id.
These principles readily apply here. Under Texas law, in-person voting is the rule, and mail-in voting is the exception. And that is consistent with the judicial consensus that “fraud is much greater in the mail-in ballot context than with in-person voting.” Veasey, 830 F.3d at 239 (en banc).
So if Plaintiffs are entitled to relief, it is presumably the “leveling-down” injunction noted by Texas—an injunction “requiring all to vote in person,” not one “extend[ing] mail-in voting to those under 65.” As then-Judge Ginsburg once put it: “[W]hich would the political branches choose? It would take a court bolder than this one to predict . . . that extension, not invalidation, would be the probable choice.” Olsen v. DEA, 878 F.2d 1458, 1464 (D.C. Cir. 1989).
If Plaintiffs have a legal theory to justify a “leveling-up” injunction, they did not offer one here. Nor did the district court. So a stay is warranted.5
* * *
Our charge here is simple. As the majority opinion points out, and the Supreme Court recently reaffirmed: “[W]hen a lower court intervenes and alters the election rules so close to the election date, our precedents indicate that this Court, as appropriate, should correct that error.” RNC v. DNC, 140 S. Ct. 1205, 1207 (2020). The district court demonstrably erred here, and in more ways than one—as the majority opinion extensively documents. Most notably, the district court ignored virtually the entire body of governing Supreme Court precedent relevant to this case, including McDonald, O’Brien, and Morales-Santana. So the state is likely to prevail in this appeal. I concur.
GREGG COSTA, Circuit Judge, concurring in the judgment:
This was a textbook case for Pullman abstention. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 501 (1941). The district court ruled just one day before the Supreme Court of Texas was hearing argument on a mandamus petition asking what counts as a “disability” under the mail-in ballot law. That forthcoming interpretation of state law could have made any federal constitutional ruling “unnecessary.” Id. at 500.
Plaintiffs’ main push back against all of this is to argue that Pullman does not apply to voting rights cases. But we have applied Pullman to
Although there is no full civil rights carve out for Pullman abstention, the importance of the constitutional right asserted can counsel against abstention. See 17A WRIGHT & MILLER § 4242 n.41 (citing
Indeed, it took the state court just a week to rule, so we now have the benefit of its decision. See In re State of Texas, No. 20-0394, 2020 Tex. LEXIS 452 (Tex. May 27, 2020). Its ruling may not have eliminated the federal constitutional claims, but it still shows the wisdom of waiting for an imminent interpretation of a state law before determining whether that law offends the Constitution. Although the Supreme Court of Texas held that “a lack of [COVID] immunity alone” does not qualify as a disability, it also stated that “a voter can take into consideration aspects of his health and his health history that are physical conditions in deciding whether, under the circumstances, to apply to vote by mail because of disability.” Id. at *26. In denying mandamus, the decision also explained that a voter need not “declare the nature of the underlying disability” and that Texas law “place[s] in the hands of the voter the determination of whether in-person voting will cause a likelihood of injury due to a physical condition.” Id. at *28–29. The court further concluded that county clerks and election administrators “do not have a ministerial duty, reviewable by mandamus, to look beyond the application to vote by mail.” Id. at *29.
These clarifications of Texas law may warrant the withdrawal of some claims or perhaps the additions of others. At a minimum, In re Texas changes the complexion of the federal litigation, especially the aspects of this case focused on the statements of state, county, and party officials about mail-in voting. For example, wouldn’t it now be accurate for county clerks or campaign officials to tell voters that they get to determine “whether in-person voting will cause a likelihood of injury due to a physical condition”? Id.
A stay is thus warranted because the district court should have waited for the state supreme court ruling and should now evaluate the federal claims against that definite interpretation of state law. Maybe its result will be the same; maybe it won’t. But this important issue should be resolved based on a full and accurate understanding of the relevant state law.
We should end this administrative stay decision with that threshold procedural error. But despite recognizing that the district court should have abstained, see Maj. Op. at 9 n.13, the majority goes on to address other procedural issues and the merits. In doing so, it makes the same mistake the district court did: reaching “unnecessary” constitutional questions. Pullman, 312 U.S. at 500.
In addition to its perhaps more obvious interest in promoting “harmonious relation[s] between state and federal authority,” Pullman, 312 U.S. at 501; see also Arizonans for Official English v. Arizona, 520 U.S. 43, 75 (1997), Pullman is an example of the broader principle that a federal court should address constitutional questions only when necessary. Pullman, 312 U.S. at 500; 17A WRIGHT & MILLER § 4242; see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345–56 (1936) (Brandeis, J., concurring). Because an interpretation of state law might eliminate or at least impact the constitutional issue, a federal court that does not wait for an imminent state court ruling risks publishing an advisory opinion.
That same principle counsels against our delving into the merits of the case in this stay decision. “[I]f it is not necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment). Because the failure to abstain alone supports a stay, merits discussion at this stage is unnecessary. It is also premature before the district court considers the claims in light of the now-determined issue of state law. The need for restraint is greater still at the stay stage as an opinion is not binding on the panel that will handle the appeal of the injunction. Voting for Am., Inc. v. Steen, 732 F.3d 382, 386 (5th Cir. 2013). What is good for the district court should be good for the appellate court.
* * *
COVID-19 has touched every aspect of our society. That includes the workings of our government. For the first time in its
These plaintiffs are not challenging measures elected officials have taken to combat COVID-19. But see Maj. Op. at 2 (citing Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905)). Instead they are asking whether constitutional and statutory protections for voting rights require measures to ensure access to the ballot that is the lifeblood of our democracy—in particular, the ability to cast ballots by mail as hundreds of thousands of Texans have done in recent elections without significant fraud concerns. See, e.g., Early Voting – November 4, 2016, TEX. SEC’Y OF STATE, https://www.sos.texas.gov/elections/earlyvoting/2016/nov4.shtml (reporting 311,324 “cumulative by mail voters” for early voting in the 2016 general election). These important questions deserve to be answered in the first instance on a full understanding of state law followed by appellate review with the benefit of oral argument and panel deliberation. Fortunately, there is still time for that.