Case Information
United States District Court EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
TEXAS VOTERS ALLIANCE, DONNIE § §
WISENBAKER, ALAN VERA, RUSSELL §
HAYTER, AND WARREN JOHNSON, § CIVIL ACTION NO. 4:20-CV-00775 Plaintiffs , § Judge Mazzant § § v. § §
DALLAS COUNTY, HARRIS COUNTY, § HAYS COUNTY, AND HOPKINS § COUNTY, §
Defendants .
MEMORANDUM OPINION AND ORDER
Thе Court first acknowledges and unequivocally recognizes that its sole function is to
interpret the existing law. It is not within the purview of the Court to formulate new law or pass
judgment upon what the law should be, for “judicial power is never exercised for the purpose of
giving effect to the will of the Judge” but instead is exercised only to give effect “to the will of the
law.”
Osborn v. Bank of the United States
,
The Court remains especially mindful of its role as a neutral arbiter in election-related
cases. A citizen’s right to choose their elected officials “in a free and unimpaired fashion is a
bedrock of our political system.”
Reynolds v. Sims
,
BACKGROUND
This case arises from the Center for Tech and Civic Life (“CTCL”)—through $300 million in funding provided by Mark Zuckerberg and Priscilla Chan—awarding and distributing federal election grants to Texas counties. CTCL—a nonpartisan, nonprofit organization—offers COVID- 19 relief election administration grants to counties and cities as supplemental funding to ensure the safety of voters. All counties and cities in the United States are eligible to apply for funds under the grants, regardless of the political affiliation of their officials or thе voting tendencies of their electorates. The funding from these grants is intended to ensure that voting is a safe, secure, and effective exercise. Specifically, these grants cover expenses associated with: (1) ensuring safe and efficient election day administration; (2) expanding voter education and outreach efforts; (3) launching poll worker recruitment, training, and safety efforts; and (4) supporting early in-person voting and voting by mail. To be considered for a grant, applicants need only submit basic information—such as the number of active registered voters in the jurisdiction, the number of full- time staff on the election team, the election office’s budget, and a W-9. CTCL approves the application of every eligible election department and subsequently awards these departments a minimum of $5,000. CTCL does not request or consider any partisan criteria.
Almost half of the 254 counties in Texas applied for CTCL grants. The overwhelming majority of those counties voted for the Republican presidential candidate in 2016. CTCL subsequently awarded funding to each county. Four of the counties that applied and received grants were Dallas County, Harris County, Hays County, and Hopkins County (collectively, the “Counties”). Dallas County received approximately $15.1 million from CTCL, Harris County received $9.6 million, Hays County received $289,075, and Hopkins County received $19,952. The Counties have since either spent or irrevocably committed a large fraction of the funds they received from the grants.
Plaintiffs Texas Voters Alliance, Donnie Wisenbaker, Alan Vera, Russell Hayter, and Warren Johnson (collectively, the “Plaintiffs”) do not want progressive candidates to “win” the November 3rd election (Dkt. #1 at p. 7). Plaintiffs allege that CTCL’s grants “are targeted to counties and cities with progressive voter patterns—resulting in more progressive votes and a greater chance that progressive candidates will win” (Dkt. #1 at p. 7). Plaintiffs sue to challenge CTCL’s award to the four abovementioned counties.
On October 9, 2020, Plaintiffs filed their Complaint (Dkt. #1). Contained within Plaintiffs’ Complaint was their request for both declaratory and injunctive relief. That same day, Plaintiffs filed the present Motion for Temporary Restraining Order (Dkt. #2). On October 15, 2020, Counties filed their Response (Dkt. #19). On October 16, 2020, the Court held a hearing on the Motion (Dkt. #22). Shortly after the hearing, Counties submitted Defendants’ Notice of Supplemental Authority (Dkt. #23).
LEGAL STANDARD [1]
“A preliminary injunction is an ‘extraordinary remedy.’”
Texans for Free Enter. v. Tex.
Ethics Comm’n
,
ANALYSIS [2]
Plaintiffs first ask this Court to enter dеclaratory relief against the Counties. More specifically, Plaintiffs seek a declaration that the Counties acted ultra vires in accepting CTCL’s private federal election grants. Plaintiffs also request this Court enjoin the Counties from both (1) accepting or using CTCL’s private federal election grant, or items purchased with CTCL’s private federal election grant, and similar private federal election grants and (2) soliciting or participating in public-private partnerships with CTCL unless the same are first approved by the State of Texas.
In support of their requests, Plaintiffs advance the argument that the Counties acted ultra vires in forming public-private partnerships for federal election administration with CTCL by accepting and using CTCL’s private federal election grant because preemption applies under the Elections Clause, Supremacy Clause, the Help Americans Vote Act (“HAVA”), and the National Voter Registration Act (“NVRA”). [3]
Defendants respond by presenting arguments couched within the factors that the Court considers when determining whether to issue a preliminary injunction. The Counties make three arguments as to why Plaintiffs cannot establish a likelihood of success on the merits: (1) Plaintiffs lack standing; (2) Plaintiffs lack a cause of action for their claims under the Supremacy Clause and HAVA; and (3) Plaintiffs are unlikely to succeed on the merits of their preemption arguments under the Elections Clause, HAVA, and public-private partnerships. Defendants further argue that Plaintiffs cannot show a likelihood of irreparable harm and that the remaining equitable factors weigh heavily against granting a preliminary injunction.
The Court will first address the standing arguments and then proceed to the consider the four preliminary injunction factors.
I. Standing
“[S]tanding is not, and must not be, a guessing game.”
Kumar v. Frisco Indep. Sch. Dist.
,
“Requests for injunctive and declaratory relief implicate the intersection of redressability and
injury-in-fact requirements.”
Id
. Relief is limited by the redressability requirement to “that which
is likely to remedy the plaintiff’s alleged injuries.”
Id.
“Because injunctive and declaratory relief
‘cannot conceivably remedy any past wrong,’” plaintiffs seeking these types of relief “can satisfy
the redressability requirement only by demonstrating a continuing injury or threatened future
injury.”
Id.
(citing
City of Los Angeles v. Lyons
,
A threatened injury qualifies as an injury-in-fact if three requirements are met: (1) the injury
is “potentially suffered by plaintiff, not someone else”; (2) it is “concrete and particularized, not
abstract”; and (3) the injury is “actual or imminent, not conjectural or hypothetical.”
Id.
at 720–
21. A threatened injury must be imminent “to ensure that the alleged injury is not too speculative
for Article III purposes.”
Clapper v. Amnesty Int’l USA
,
A. Injury-in-Fact
Plaintiffs have failed to allege an injury sufficient to establish an injury-in-fact. An injury-
in-fact requires Plaintiffs’ pleadings and proof to show that they have suffered “‘the invasion of a
legally protected interest’ that is ‘concrete and particularized,’
i.e.
, which ‘affects . . . [P]laintiff[s]
in a personal and individual way.”
Gill v. Whitford
,
Plaintiffs make blanket assertions to establish an injury-in-fact. Plaintiffs state that they were injured by the grants from CTCL, contending that the grants target counties and cities with progressive voting patterns, thus resulting in more progressive votes. The alleged influx of progressive votes allegedly harms Plaintiffs because, as blatantly stated in Plaintiffs’ Complaint, they do not want a progressive candidate to win the November 3rd election (Dkt. #1 at p. 7). Further, Plaintiffs believe that the grants impermissibly influence the election and could potentially lead to disenfranchisement of voters. Making these naked assertions without further evidence, however, does not make them true.
The Supreme Court has held that an interest “in influencing the legislature’s overall
composition and policymaking” is not the “individual and personal injury of the kind required for
Article III standing.”
Gill
,
Plaintiffs cite to a Delaware state court case to support a finding Article III standing. In
Young v. Red Clay Consolidated School District
, the defendant sought voters’ approval of a tax
increase.
A person’s right to vote, however, is an interest that is personal and of thе kind required
for Article III standing.
Gill
,
At the October 16th hearing before the Court, Plaintiffs alleged that a possible violation of
the law might exist and because of that violation, the plaintiffs—as private citizens—have standing
to bring suit and stop any unlawful action. This is not the case. Federal courts are not “forum[s]
for generalized grievances.”
Lance
, 549 U.S at 440. “To have standing, . . . a plaintiff must have
more than a ‘general interest common to all members of the public.’”
Id.
(quoting
Ex parte Levitt
,
Plaintiffs further claimed at the October 16th hearing that if the Court were to agree with
them on the merits, the Court must then necessarily find standing. This is also not an accurate
statement. Injury-in-fact is a constitutional requirement, and “[i]t is settled that Congress cannot
erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who
would not otherwise have standing.”
Raines v. Byrd
, 521 U.S. 811, 820 n.3 (1997) (citing
Gladstone Realtors v. Vill. Of Bellwood
,
Plaintiffs also argued that the grants create a public-private partnership between the
Counties and the CTCL that is constitutionally impermissible. In support of their argument,
Plaintiffs referred the Court to
Caperton v. A.T. Massey Coal Co., Inc
. In
Caperton
, the Supreme
Court found that a corporation’s three-million-dollar campaign donation to the state supreme court
judge—after the trial court entered a fifty-million-dollar judgment against the corporation—was
impermissible.
Caperton v. A.T. Massey Coal Co., Inc.
,
Plaintiffs’ next argument is that the congressional representative for their district might not be seated because these grants would influence the election. [5] If the grants did in fact influence the election and a citizen challenged the results on that basis, Plaintiffs claim that the House may decide that the chosen representatives are not qualified—thus depriving Plaintiffs of their representative. Plaintiffs direct the Court to Article I, § 5 of the Constitution in support of this argument. This section states that “[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” U.S. C ONST . art. I, § 5, cl. 1. Reading the Constitution’s plain language, this section does not state that an Article III court will be the Judge of the Elections, Returns and Qualifications of the Members. Thus, the Court declines to meddle in Congress’s internal governance or provide an advisory opinion on the potential issue.
Plaintiffs also ask the Court to find new possible theories of harm under
Gill v. Whitford
.
Plaintiffs point to where the Supreme Court stated “[w]e leave for another day consideration of
other possible theories of harm not presented here and whether those theories might present
justiciable claims giving rise to statewide remedies.”
Gill
,
B. Causal Connection
Even аssuming that a statutory violation existed or that potentially influencing an election
constituted an injury, it is difficult to trace the complained injury to the challenged action. The
Supreme Court has noted that a plaintiff need not “demonstrate that it is literally certain that the
harms they identify will come about.”
Clapper
,
To trace the complained-of action to the alleged harm, the Court must assume the grants targeted specific counties. Further, the Court must assume the grants will drive out more voters of a specific political leaning and that the grants will influence the election, and, as a result, Plaintiffs will be dissatisfied with the outcome of the election. Plaintiffs’ assertions are like throwing a breadcrumb trail on a windy, north Texas afternoon. The Court cannot find a causal connection “in light of the attenuated claim of inferences necessary to find harm here.” Id.
C. Redressability
“To obtain equitable relief for past wrongs, a plaintiff must demonstrate either continuing
harm or a real and immediate threat of repeated injury in the same future. Similar reasoning has
been applied to suits for declaratory judgments.”
Bauer v. Texas
,
Grant declaratory relief that the Counties have acted ultra vires, acted without legal authority, in accepting CTCL’s private federal election grants. Issue an injunction enjoining Dallas, Harris, Hayes and Hopkins County from accepting or using CTCL’s private federal election grant, or items purchased with CTCL’s private federal election grant, and similar private federal election grants. Issue an injunction enjoining Texas counties and cities from soliciting or participating in public private partnerships with CTCL unless the same are first approved by the State of Texas.
(Dkt. #1 at p. 32). The Court will address each request in turn.
First, Plaintiffs ask this Court to grant declaratory relief determining that the Counties have acted ultra vires. The alleged ultra vires act Plaintiffs allege is the Counties’ past actions in accepting the grants. Due to the past nature of the wrong, Plaintiffs must demonstrate either continuing harm or a real and immediate threat of repeated injury in the future. Bauer , 341 F.3d at 358. As discussed above, it is unclear that Plaintiffs have suffered an injury, let alone a continuing injury that may be repeated in the future. Further, even assuming that the requirements of Article III standing in this respect are minimally met, the Court can consider prudential standing considerations in reaching its decision that declaratory relief is not warranted in this case. See id. at 358–59.
Plaintiffs argue the grants injure them because the grants “are targeted to counties and cities with progressive voter patterns” (Dkt. #1 at p. 1). The first issue arises when noting that the Counties themselves did not “target” anyone. Rather, CTCL—an organization not presently before the Court—would presumably be the bad actor “targeting” the Counties. Plaintiffs’ argument also fails because (1) not all of the four counties in this suit are historically progressive and (2) the Counties themselves requested the funds. Additionally, Plaintiffs’ own arguments do not align. On one hand, Plaintiffs’ claim the Counties’ actions unconstitutionally influence electoral outcomes causing the ultra vires issue. On the other hand, Plaintiffs argue that simply accepting the grants constitute an ultra vires act. Plaintiffs’ claimed harm—that the elections will be unconstitutionally influenced—are essentially independent from any potential ultra vires act, namely: accepting the grants. Therefore, declaratory relief is not appropriate in this case.
Second, Plaintiffs ask this Court to enjoin the Counties from accepting the funds from CTCL or using either CTCL’s grants or items purchased with the grants. Enjoining the Counties from accepting future grants would be a simple task. However, preventing the Counties from using money already received and the items already purchased is an impossible task. To begin, the elections in November are not solely federal elections. They are also state elections. Polling locations are used for both state and federal elections. With early voting аlready underway, the Court is hesitant to interfere with the election process, especially noting the entanglement with state elections. Further, the funds the Counties received have likely been commingled with other funds, and items purchased with the commingled funds will be impossible to trace back to the grants.
Finally, Plaintiffs ask this Court to enjoin the Counties from soliciting or participating in public-private partnerships with CTCL unless the same are first approved by the State of Texas. Again, Plaintiffs have failed to demonstrate either a continuing harm or a real and immediate threat of repeated injury in the future. Even assuming the Counties did act improperly, enjoining their future actions will not undo the grants already received or “un-influence” the ongoing election.
For redressability to exist, there must be a likelihood that the requested relief will fix the alleged injury. The Court sees no way to differentiate the supposedly partisan hand sanitizer from the impartial. The Court cannot undo the early votes already cast. And the Court is unable to grant relief that would effectively redress the alleged injury Plaintiffs claim to suffer.
D. Organizational Standing
The analysis for the individual plaintiffs and the Texas Voters Alliance is the same. “An
organization has standing to sue on its own behalf if it meets the same standing test that applies to
individuals.”
Ass’n of Cmty. Orgs. for Reform Now v. Fowler
,
For a party claiming organizational standing, the organization must “identify members who
have suffered the requisite harm.”
Summers v. Earth Island Inst.
,
Texas Voters Alliance has not identified any members of the organization, nor has it
alleged the individual plaintiffs to this suit are members. Even assuming they are, Texas Voters
Alliance has not identified a concrete injury that is distinct from the injury claimed by the
individual plaintiffs. Plaintiffs state that “[t]he injury to the plaintiffs is real and concrete” to
bolster their assertion that there is an injury-in-fact (Dkt. #1 at p. 8). As discussed above, Texas
Voters Alliance’s does not have standing to bring their grievance about the electoral outcome.
See
Gill
,
E. Dillon Rule
At the October 16th hearing, Plaintiffs raised an argument couched within the Dillon Rule.
[6]
Plaintiffs cite to a 1907 Supreme Court case to support their assertion that local subdivisions of
state governments have no inherent powers. In
Hunter v. City of Pittsburgh
, the Supreme Court
states, “[m]unicipal corporations are political subdivisions of the state, created as convenient
agencies for exercising such of the governmental powers of the state as may be intrusted [sic] to
them.”
Examples exist where the State has authorized local subdivisions to exert certain powers. In § 81.032 of the Local Government Code, the Texas legislature has decided that “[t]he commissioners court may accept a donation of labor or services, gift, grant, . . . or other property on behalf of the county . . . for the purpose of performing a function conferred by law on the county or county officer.” T EX . L OC . G OV ’ T C ODE A NN . § 81.032. Though not binding authority, there are election law opinions from the Texas Secretary of State debunking Plaintiffs’ assertion that accepting funds is in and of itself an ultra vires act. Former Secretary of State Gwyn Shea notes the Secretary of State’s office “could not find an outright statutory prohibition” for counties accepting donations, but that counties should be cautious when—in situations not applicable here—there are conditions placed on the grants. Tex. Sec’y State Op. No. GS-1 (2002) (discussing § 81.032 of the Local Government Code and whether it permitted counties to accept donations to pay for temporary branch early voting polling places). Ultimately, the Court determines that Plaintiffs’ arguments fail because the Dillon Rule is inapposite in this case
II. Preliminary Injunction
Even if the Court found standing, Plaintiffs would still need to satisfy the elements of a preliminary injunction to be granted the relief they seek. Plaintiffs fail to do so here.
As previously stated, a preliminary injunction is an extraordinary remedy and may be awarded only after a clear showing by Plaintiffs that (1) there is a substantial likelihood that they will prevail on the merits; (2) they will suffer an irreparable injury absent the preliminary injunction; (3) their substantial injury outweighs the harm to the Counties; and (4) granting the preliminary injunction will not disserve the public interest. See Google, Inc. v. Hood , 822 F.3d 212, 220 (5th Cir. 2016). Bearing in mind at all times that granting a preliminary injunction is appropriate only when “the policy of preserving the court’s power to decide the case effectively outweighs the risk of imposing an interim restraint before it has done so,” 11A C HARLES A LAN W RIGHT ET AL ., F EDERAL P RACTICE AND P ROCEDURE § 2947 (3d ed. 2007), the Court will address each element in turn.
A. Likelihood of Success on Merits
The Court first looks to Plaintiffs’ substantial likelihood of success on the merits of their
claims. To satisfy this element, Plaintiffs are “not required to prove [their] entitlement to summary
judgment.”
Byrum
, 566 F.3d at 446. Certainty of success is not the standard—substantial
likelihood is, which means that success on the merits must be “considerably more likely” than not.
United States v. Thorn
,
The analysis that follows is broken down into three parts. First, the Court examines the availability of the causes of actions pleaded by Plaintiffs. Next, the Court looks to the issue of preemption. Finally, various remaining arguments Plaintiffs offer are addressed.
a. Availability of Causes of Action Neither the pleadings nor arguments of counsel at the October 16th hearing are entirely clear concerning Plaintiffs’ alleged causes of action. Plaintiffs appear to argue that they have pleaded causes of action based on three discrete theories: (1) HAVA, (2) the Supremacy Clause, and (3) the Elections Clause. The Court analyzes HAVA first and then turns to the constitutional claims. [7]
i. HAVA Congress enacted the Help America Votes Act (HAVA) following the 2000 presidential election. Pub. L. No. 107–252, 116 Stat. 1666 (2002) (codified in scattered sections of 2, 5, 10, 36, and 52 U.S.C.). HAVA’s preamble announces its purpose:
To establish a program to provide funds to States to replace punch card voting systems, to establish the Election Assistance Commission to assist in the administration of Federal elections and to otherwise provide assistance with the administration of certain Federal election laws and programs, to establish minimum election administration standards for States and units of local government with responsibility for the administration of Federal elections, and for other purposes.
Id. In short, HAVA serves to improve access to and the administration of federal elections.
Plaintiffs argue that HAVA “confers a private cause of action” to them (Dkt. #1 at p. 5). [8] At the October 16th hearing, Plaintiffs further clarified their position by stating that the private right of action under HAVA comes from 52 U.S.C. §§ 21111–12. Plaintiffs urged that if the Court did not agree with this argument, then the HAVA statutory scheme implies a private cause of action for Plaintiffs (Dkt. #26 at p. 8:14–17). Each argument is addressed in turn.
HAVA does not expressly create a private right of action. The starting point for statutory
analysis is the text itself.
Desert Palace, Inc. v. Costa
,
Such is the case here. By its terms, HAVA provides two enforcement mechanisms. First, the Attorney General may bring actions for injunctive and declaratory relief “as may be necessary to carry out the uniform and nondiscriminatory election technology and administration requirements” under various HAVA provisions. 52 U.S.C. § 21111. Second, “any person who believes that there is a violation of any provision of subchapter III (including a violation which has occurred, is occurring, or is about to occur) may file a complaint” under the “State-based administrative complaint procedures.” [9] Id. § 21112(a)(1), (a)(2)(B). Texas has established its HAVA administrative-complaint structure in accordance with § 21112(a)(2). See 1 T EX . A DMIN . C ODE § 81.171. Nowhere else in HAVA’s language is there an express indication of alternative enforcement mechanisms, let alone a private right of аction. Plaintiffs have not offered any evidence to the contrary. And when an “express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.” Alexander v. Sandoval , 532 U.S. 275, 290 (2001). Simply by its terms, HAVA does not create a private right of action.
The Court is not the first to arrive at this conclusion. Several courts of appeals have also
held that HAVA does not create a private cause of action.
See Bellitto v. Snipes
,
Plaintiffs argue, alternatively, that even if HAVA does not explicitly afford them a private right of action, HAVA’s scheme itself implies the availability of such private enforcement mechanism. Plaintiffs contend that Texas’s administrative-complaint system under HAVA is “legally insufficient” and therefore gives rise to a private cause оf action (Dkt. #1 at p. 6).
This argument fails for two reasons. First, nowhere in their pleadings—and at no time in the October 16th hearing—did Plaintiffs offer anything more than bare conclusory statements that Texas’s procedures are out of compliance with HAVA’s statutory requirements. Plaintiffs correctly read § 21112 to condition Texas’s receipt of HAVA funds on the establishment and maintenance of § 21112(a)(2)-compliant “State-based administrative complaint procedures.” 52 U.S.C. § 21112(a)(1). But Plaintiffs provide no evidence to support their argument that 1 T EX . A DMIN . C ODE § 81.171 strays from § 21112(a)(2)’s requirements. In fact, they “offer no reason to think so” (Dkt. #19 at p. 19). Without more, Plaintiffs’ assertion lacks persuasive force.
Second, Plaintiffs do not satisfy the test articulated in
Alexander v. Sandoval
to prove the
existence of an implied cause of action under HAVA.
See
532 U.S. at 275. In
Sandoval
, the
Supreme Court reiterated that “[l]ike substantive federal law itself, private rights of action to
enforce federal law must be created by Congress.”
Id.
at 286 (citing
Touche Ross & Co. v.
Redington
,
Applying these principles to the present case, the Court cannot discern the implied cause
of action Plaintiffs allege exists. The Counties offer the argument that proves fatal to Plaintiffs’
assertion here—that “Plaintiffs’ approach inverts
Sandoval
’s instructions” (Dkt. #19 at p. 20). As
previously recounted, HAVA creates two explicit methods of enforcement. Neither enforcement
method affords statutory standing to a private litigant in federal court. Plaintiffs conclude,
therefore, that HAVA must confer a private right of action in the absence of further statutory
instruction. But the reality is quite the opposite. It is canonical that “Congress’s creation of
specific means of enforcing [a] statute indicates that it did
not
intend to allow an additional
remedy—a private right of action—that it did not expressly mention at all.”
Stokes v. Sw. Airlines
,
Even if the Court entertained the notion of crafting poliсy and believed that a private cause
of action under HAVA should exist, the Court could not create one, “no matter how desirable that
might be as a policy matter, or how compatible with the statute.”
Sandoval
,
ii. Constitutional Claims Plaintiffs also allege separate causes of action originating in the Supremacy Clause and the Elections Clause. The Supremacy Clause provides that:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. C ONST . art. VI, cl. 2. And the Elections Clause reads:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
U.S. C ONST . art. I, § 4, cl. 1. Since neither constitutional provision explicitly provides a cause of action for private litigants, Plaintiffs are necessarily referencing the potеntial existence of implied causes of action under these clauses.
Even though courts have previously followed the Supreme Court in providing the
necessary remedies to effectuate the purposes of various constitutional provisions,
see Hernandez
,
Supreme Court precedent directly precludes Plaintiffs’ Election Clause claim. As discussed briefly above, see supra Section I.A, the plaintiffs alleging an Elections Clause violation in Lance v. Coffman were unable to bring suit in their capacity as private citizens. See 549 U.S. at 442. Even though standing and subject matter jurisdiction are related (but distinct) concepts, the holding in Coffman signifies that private litigants cannot derive a cause of action directly from the constitutional text of the Elections Clause. This makes logical sense. The Elections Clause outlines a structural principle of the American system of federalism, dividing power concurrently between the states and Congress. U.S. C ONST . art. I, § 4, cl. 1. The Clause does not speak to individual rights. Any rights and corresponding remedies for Elections Clause violations must therefore arise from laws enacted by Congress pursuant to its authority under the Elections Clause. Simply put, no cause of action based solely on the text of the Elections Clause exists for Plaintiffs to plead.
The Court next turns to Plaintiffs’ Supremacy Clause argument. In
Armstrong v.
Exceptional Child Center, Inc.
, the Supreme Court wholly rejected the theory that a private cause
of action arises out of the Supremacy Clause.
See
Plaintiffs maintain the validity of their Supremacy Clause claim by citing to
League of
Women Voters v. Blackwell
, a case out of the U.S. District Court for the Northern District of Ohio,
in both their pleadings and at the October 16th hearing. In
Blackwell
, the district court held that
“[i]t is clearly established that the Supremacy Clause grants the federal courts jurisdiction over
such claims; conflict with a federal law raises a federal question pursuant to 28 U.S.C. § 1331.”
League of Women Voters v. Blackwell
,
Although their argument is far from clear, Plaintiffs appear to invoke the strand of caselaw
that “permits private parties to sue without express statutory authorization to prevent state officials
from enforcing state laws on the ground that they are preempted by a federal statute.” R ICHARD
H. F ALLON , J R . ET AL ., H ART AND W ECHSLER ’ S T HE F EDERAL C OURTS AND T HE F EDERAL S YSTEM 745 (7th ed. 2015). This underlying principle traditionally applies when a plaintiff seeks injunctive
or declaratory relief from state regulation “on the ground that such regulation is pre-empted by a
federal statute which, by virtue of the Supremacy Clause of the Constitution, must prevail.”
Shaw
v. Delta Air Lines, Inc.
,
First, Plaintiffs support their case with a single decision from a district court outside of the
Fifth Circuit. This district court case has also all but assuredly been overruled in relevant part.
Armstrong
was decided by the Supreme Court eleven years after the U.S. District Court for the
Northern District of Ohio decided
Blackwell
.
Armstrong
clarified that “[t]he ability to sue to enjoin
unconstitutional actions by state and federal officers” does not “rest[] upon an implied right of
action contained in the Supremacy Clause.”
Second, the cause of action Plaintiffs bring under the Supremaсy Clause is misapplied to
the instant suit in several ways. For one thing, these suits are brought against federal and state
officers
, not federal or state governments.
[11]
The Counties are not state officers. Additionally, this
type of lawsuit seeks to prevent state officials from enforcing state laws on preemption grounds.
Plaintiffs request relief from the Court based on a theory that does not clearly identify any state
official, let alone a specific state law that this unidentified state official might enforce that would
be preempted by federal law. Furthermore, even if Plaintiffs had offered this same claim but under
the theory that this “ability to sue to enjoin unconstitutional actions by state and federal officers is
the creation of courts of equity” rather than the Supremacy Clause,
Armstrong
,
The Court concludes that separate causes of action are unavailable to Plaintiffs under HAVA, the Elections Clause, and the Supremacy Clause. Thus, the likelihood of their claims succeeding on the merits is remote. But even if Plaintiffs had standing in this case and had pleaded viable claims, the only cause of action that would remain falls under HAVA preemption. The Court turns now to the merits of this claim.
b. Preemption
Almost every page of Plaintiffs’ Complaint argues that federal law preempts statе law and
therefore the Counties’ actions are illegal. While the preemption doctrine is far from
straightforward and remains the subject of significant debate, the theory Plaintiffs proffer
a state official acting in violation of federal law if there is a ‘sufficient connection to enforcing an allegedly
unconstitutional law.’”
Tex. Democratic Party v. Abbott
, No. 20-50407,
misconstrues how the preemption doctrine functions. To give proper context to the analysis of Plaintiffs’ preemption claims, the Court first attempts to partially untangle the doctrinal web of preemption.
The Court initially seeks to address a critical misconception regarding preemption. Many understand preemption as derivative of the Supremacy Clause. See, e.g. , Preemption , B LACK ’ S L AW D ICTIONARY (11th ed. 2019) (defining preemption as “[t]he principle ( derived from the Supremacy Clause ) that a federal law can supersede or supplant any inconsistent state law or regulation” (emphasis added)). The conceptual overlap between preemption and the Supremacy Clause is evident considering that “[s]tatements of preemption law almost routinely ‘start from the top’ with a reference to the Supremacy Clause.” Stephen A. Gardbaum, The Nature of Preemption , 79 C ORNELL L. R EV . 767, 769 (1994). But upon closer examination, it becomes clear that constitutional provisions other than the Supremacy Clause may control preemption analysis in specific, limited situations.
It is first worth noting that the Supremacy Clause does not directly confer rights to
individuals or powers to Congress—it is simply “a rule of priority.”
Va. Uranium, Inc. v. Warren
,
But federal courts cannot fulfill this role in sustaining the “delicate balance” of federalism
absent valid congressional action, for “Congress may impose its will on the States” so “long as it
is
acting within the powers granted it under the Constitution
.”
Gregory v. Ashcroft
,
The first step in determining whether Congress lawfully preempted state law is identifying
the enumerated power under which Congress claims to have acted, then followed by locating the
relevant constitutional authority that delineates the proper roles within the federalist structure that
the states and Congress are to play.
See, e.g.
,
McCulloch v. Maryland
,
The Supremacy Clause is called upon so frequently when federal and state laws conflict because it is the default provision that controls in these situations. If no other constitutional provision addresses the interplay between federal and state power in respect to a specific area of regulatory authority, the Supremacy Clause fills the gap. This explains why recitations of law generally characterize the Supremacy Clause and preemption as one and the same. E.g. , Simmons v. Sabine River Auth. La. , 732 F.3d 469, 473 (5th Cir. 2013) (“As is well known, federal preemption is based on the Supremacy Clause, which provides that federal law ‘shall be the supreme Law of the Land.’” (quoting U.S. C ONST . art. VI, cl. 2)).
But this broad rule is not always applicable. For instance, the Framers of the Constitution
addressed certain distributions of power in the constitutional text more than once to affirm the
allocation of authority within the federalist structure with precision.
See, e.g.
,
Gibbons v. Ogden
,
This brings the Court to the Elections Clause. This constitutional provision is
sui generis
as a structural component in the American federalist system. Its doctrinal roots stem from the
foundational idea that legitimate governments “deriv[e] their just powers from the consent of the
governed.” T HE D ECLARATION OF I NDEPENDENCE para. 2 (U.S. 1776). Determining exactly who
the governed consent to be governed by takes place in elections through the individual right to
vote.
See Burdick v. Takushi
,
Recognizing how imperative an operable election system is in a free society, the Framers
included a provision in the Constitution specifically addressing the division of regulatory authority
over federal elections—the Elections Clause.
[15]
See
T HE F EDERALIST N O . 57, at 348 (James
Madison) (Clinton Rossiter ed., 1961) (“The elective mode of obtaining rulers is the characteristic
policy of republican government.”). The Clause has two functions: it first imposes a duty on the
states “to prescribe the time, place, and manner of electing Representatives and Senators,” and
then confers upon Congress “the power to alter those regulations or supplant them altogether.”
Inter Tribal Council
,
The plain language of the Elections Clause leaves no doubt as to the Framers’ desired
mechanism for resolving conflicts of federal and state law regarding the “time, place, and manner”
of federal elections. States are initially entrusted—and duty-bound—to promulgate laws and
regulations governing these considerations of federal elections. And only when “the state
system . . . directly conflict[s] with federal election laws on the subject” will state law regulating
the “time, place, and manner” of federal elections be uprooted.
Bomer
,
“As should be clear . . . , the Elections Clause operates quite differently from the Supremacy
Clause.”
Gonzalez v. Arizona
,
What all this means for the instant case is that the preemption analysis of Plaintiffs’ claims must place particular importance on the first step in the determination as to whether Congress lawfully preempted state law: identifying the enumerated power under which Congress claims to have acted. If Congress passes legislation under the authority granted by the Elections Clause, then the default preemption analysis under the Supremacy Clause becomes immaterial and the Elections Clause preemption methodology applies. If Congress enacts law under a different enumerated power, then the traditional Supremacy Clause-based preemption analysis applies.
Plaintiffs bring their preemption claim under HAVA. Congress explicitly enacted HAVA
under its Elections Clause authority. H.R. Rep. 107–329, pt. 1, at 57,
i. Elections Clause
Having determined that the preemption analysis under the Elections Clause is appropriate
here, the Court briefly restates the applicable framework.
See, e.g.
,
True the Vote v. Hosemann
,
Plaintiffs’ preemption argument does not comport with the applicable analytical framework for the Elections Clause preemption. The Court asked Plaintiffs’ counsel at the October 16th hearing to identify the specific provisions of HAVA that preempted the alleged ultra vires actions of the Counties. Counsel, in effect, replied that the entirety of HAVA’s statutory scheme preempted the Counties’ actions (Dkt. #26 at p. 16:7–13). Plaintiffs appear to argue that because Congress decided to exercise its regulatory authority in a specific area pursuant to an enumerated constitutional provision, any laws or even actions not expressly provided for by HAVA are unconstitutional. This rationale is misguided.
To begin, Plaintiffs’ theory of preemption is misconceived under
any
variation of federal
preemption doctrine. Even if the broader analysis under the Supremacy Clause was applicable,
this principle of preemption would be foreign. The rationale Plaintiffs articulate here is likely an
attempt to invoke the concept of field preemption—an arm of general preemption analysis under
the Supremacy Clause. “Field preemption occurs when ‘States are precluded from regulating
conduct in a field that Congress, acting within its proper authority, has determined must be
regulated by its exclusive governance.’”
City of El Cenizo v. Texas
,
Moreover, when prompted by the Court at the October 16th hearing to single out which HAVA provision preempted the Counties from accepting the CTCL funds, Plaintiffs identified a specific provision in the statutory scheme—52 U.S.C. § 20901 (Dkt. #26 at p. 16:10–11). The statutory text of § 20901 does not state that it serves as the exclusive source of funding for federal election administration, and Plaintiffs do not carry their burden in demonstrating the validity of their interpretation. Further, Plaintiffs fail to identify the Texas law that directly conflicts with § 20901. [17] Because the Court’s role is to adjudicate the case on its merits and not to present the merits themselves, the Court is unable to conduct a proper preemption analysis.
B. Likelihood of Irreparable Harm The Court next considers whether Plaintiffs can demonstrate a likelihood of irreparable harm. Plaintiffs allege that irreparable harm will consequently result because CTCL grants will lead to more progressive votes cast and more progressive candidates elected. The Court concludes, however, that Plaintiffs cannot show irreparable harm for the same reasons they do not have standing.
For a preliminary injunction, Plaintiffs must demonstrate that they are “likely to suffer irreparable harm in the absence of preliminary relief.” Winter v. Nat. Res. Def. Council , 555 U.S. 7, 20 (2008). An injunction is only appropriate if the anticipated injury is imminent and not speculative. Id. at 22.
Plaintiffs’ “harm” relies on a speculative chain of inferences contradicted by the facts presented before the Court. CTCL grants are nonpartisan and guaranteed to any municipality that meets minimum criteria. In practice, 88% of Texas counties that received grants voted for the Republican presidential candidate in 2016. Despite these uncontroverted facts, Plaintiffs argue bias because large metropolitan areas received proportionally larger grants. CTCL grants are, however, based on nonpartisan criteria—like population—and are used for nonpartisan administrative purposes—like PPE for poll workers. More populous counties necessarily require more funds for administrative purposes because they have more registered voters. The applicants, not the CTCL, identify their financial needs. Any correlation between grant size and vote outcome is therefore coincidental, not causal.
Even if CTCL grants were partisan, Plaintiffs’ theory assumes the grants will change the
electoral outcome. Given the near-infinite variables affecting a federal election, that is “wholly
speculative.”
See Siegel v. LePore
, 234 F.3d 1163, 1177 (11th Cir. 2000) (refusing to grant a
preliminary injunction where plaintiff’s alleged harm was too speculative because it hinged on an
electoral outcome);
SAM Party v. Kosinski
,
Second, Plaintiffs allege harm because only some Texas counties received grants and not
all. They rely on
Red Clay
, in which the Delaware Chancery Court held that a government can
violate the Delaware Election Clause if “it skews the outcome of an election by encouraging or
facilitating voting by favored demographic groups.”
Red Clay
,
Third, Plaintiffs allege harm because the counties are acting illegally. As discussed with reference to success on the merits, the Counties’ actions are legal. Even assuming the Counties acted illegally, generalized grievances are insufficient to establish irreparable harm. Lance , 549 U.S. at 439. When “[t]he only injury plaintiffs allege is that the law . . . has not been followed,” that “is precisely the kind of undifferentiated grievance about the conduct of government that [federal courts] have refused to countenance.” Id. at 442.
Fourth, Plaintiffs allege harm because if the grants are illegal, and if there is a close
election, then the losing candidate could potentially contest the result of the election. That
assertion includes many “what ifs.” It is so speculative that Plaintiffs could only characterize this
series of unfortunate events as “possible” (Dkt. #26 at p. 17:6). “Possible” is not a “substantial
threat of irreparable harm.
See Lakey
,
Other Courts reach the same conclusion that this Court does today. Plаintiffs have filed nearly identical lawsuits in at least six other jurisdictions. Minn. Voters All. v. City of Minneapolis , No. 20-cv-2049 (D. Minn. Sept 24, 2020); Wis. Voters All. v. City of Racine , No. 20-cv-1487 (E.D. Wis. Sept. 24, 2020); Pa. Voters All. v. Centre Cnty. , No. 4:20-cv-1761 (M.D. Pa. Sept. 25, 2020); Election Integrity Fund v. City of Lansing , No. 20-cv-950 (W.D. Mich. Sept. 29, 2020); Iowa Voter All. v. Black Hawk Cnty. , No. 6:20-cv-2078 (N.D. Iowa Oct. 1, 2020); Ga. Voter All. v. Fulton Cnty. , No. 1:20-cv-4198 (N.D. Ga. Oct. 9, 2020). Of those six, three issued orders denying Plaintiffs’ requested relief. See Order Den. Mot. for Prelim. Relief, Wis. Voters All. , (E.D. Wis. Oct. 14, 2020), ECF No. 27; Order Den. Mot. for TRO and Establishing Br. Schedule, Election Integrity Fund (W.D. Mich. Oct. 2, 2020), ECF No. 19; Mem. of Law & Order, Minnesota Voters Alliance , (D. Minn. Oct. 16, 2020), ECF No. 25. The U.S. District Court for the Western District of Michigan held that “Plaintiffs have failed to show irreparable harm” because they “allege that they will be harmed on November 3, 2020 if their chosen candidates do not prevail, but they do not allege that there is any ongoing use of the grants that causes them immediate, irreparable harm. Order Den. Mot. for TRO and Establishing Br. Schedule, Election Integrity Fund (W.D. Mich. Oct. 2, 2020), ECF No. 19, at *2. The U.S. District Court for the District of Minnesota found plaintiffs lacked standing because “bare claims that the City has violated various laws are insufficient” to establish injury. Mem. of Law & Order, Minn. Voters All. , (D. Minn. Oct. 16, 2020), ECF No. 25, at *11.
Notably, one harm is
not
alleged. At no point do Plaintiffs allege that the Counties’ actions
have made it harder for them to exercise their right to vote. The truth is that Plaintiffs—like all
residents of the Counties—stand to benefit from the additional resources for safe and efficient
voting provided by CTCL grants. A “law that makes it easier for others to vote does not abridge
any person’s right to vote.”
Texas Democratic Party
, 2020 WL 5422917, at *15. The CTCL
grants provide funds for PPE; recruiting, training, and retaining poll workers; and socially distant
voting alternatives. These measures make it easier for Texans to lawfully vote. As noted above,
“[h]ow this expansion of voting opportunities burdens anyone’s right to vote is a mystery.”
Hughs
,
C. Substantial Injury Outweighs Harm
When determining whether to grant a preliminary injunction, the Court must determine
whether Plaintiffs’ threatened injuries outweigh any damage the injunction may cause the
Counties.
See Winter
,
Plaintiffs filed at least six near-identical lawsuits around the country challenging CTCL grants. See supra Section II.B. Plaintiffs did not sue the Counties at the same time, however. Despite the Counties publicly accepting the grants in September, Plaintiffs did not sue until Friday, October 9th—the last business day before early voting began in Texas. This delay was unreasonable. It was foreseeable that Counties would immediately spend these funds in early voting efforts. By the time Plaintiffs sued, Counties already spent or irrevocably committed most of the grant funds. Although Plaintiffs’ delay was objectively brief, it potentially had a prejudicial effect on the Counties given the urgency of the ongoing election.
Plaintiffs argue that an injunction would preserve the “status quo” by merely preventing
Counties from spending remaining funds. The status quo, however, includes the Counties
providing residents with public health protections to ensure safe voting. An injunction at this late
stage, when millions of votes have already been cast, would send the Counties scrambling to adjust
while voting occurs.
See Oden v. Brittain
, 396 U.S. 1210, 1211 (1969) (Black, J., opinion in
chambers);
see also Veasey v. Perry
,
Finally, Plaintiffs assert a novel argument that if the Court finds a likelihood of success on
the merits, then the Court must necessarily find that the balance of equities weighs in Plaintiffs’
favor. Of course, if this were true, then there would be no need for the remaining preliminary
injunction criteria. Courts would reflexively issue preliminary injunctions after determining a
likelihood of success and, necessarily, would never weigh the equities. But that is not the law;
Plaintiffs must meet each criteria of a preliminary injunction—including irreparable harm, balance
of hardships, and the public’s interest.
See Lakey
,
D. Potential Disservice of the Public Interest The Court has determined that Plaintiffs’ harm is speculative and generalized. On the other hand, the public faces a real danger of unsafe and inefficient elections. The grants facilitate safe, secure, and efficient voting for all residents during the pandemic. Irrespective of political affiliation, every single voter will benefit by having appropriate precautions to ensure safe voting.
Texas has an “important regulatory interest” in administering its elections. Hughs , 2020 WL 6023310, at *7. “When a district court’s injunction prevents a State from effectuating its own election procedures, put in place by elected officials, it suffers irreparable harm.” Id. at *9. The Counties have already spent or pledged most of the funds for nonpartisan administrative expenses. Enjoining the Counties would disrupt these ongoing, pressing efforts to ensure each voter has the right to safely and effectively exercise their right to vote.
Perhaps most importantly, the sanctity of elections must be protected. The Supreme Court
“has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules
on the eve of an election.”
Republican Nat’l Comm. v. Democratic Nat’l Comm
.,
We are not on the eve of the election—voting is underway.
See Mi Familia Vota v. Abbott
,
No. 20-50793, 2020 WL 6058290, at *7 (5th Cir. Oct. 14, 2020) (refusing election-related
injunctive relief because “it would be inappropriate for the district court to grant much of the
requested relief with the election ongoing.”). Millions of early votes have been cast. Millions
more face disruption if the Court issues the requested injunction. Plaintiffs’ counsel argues that
“federal courts have a role in protecting the integrity of federal elections” (Dkt. #26 at p. 41:8-10).
The Court agrees. And for that exact reason, the Court will not legislate on Plaintiffs’ behalf.
Texans deserve confidence in their electoral process.
See First Nat. Bank of Boston v. Bellotti
,
CONCLUSION
Plaintiffs miss the mark on all three elements of standing. Plaintiffs likewise cannot meet any of the elements required to grant a preliminary injunction. No private cause of action exists under HAVA or the relevant sections of the United States Constitution. HAVA does not preempt the Counties from accepting and using the CTCL grant under the Elections Clause. Plaintiffs have failed to meet the harm standard for standing, and the Court concludes that for the same reasons, the irreparable harm standard is not met under the prеliminary injunction analysis. The substantial injury to Plaintiffs, which the Court notes does not exist, does not outweigh the harm to the Counties that would result from issuing an injunction. Finally, issuing an injunction in this case would disserve the public interest.
It is therefore ORDERED that Plaintiffs’ Motion for Temporary Restraining Order (Dkt. #2) is hereby DENIED .
Notes
[1] The Court recognizes that Plaintiffs style their Motion as one seeking a temporary restraining order. However, due to the arguments of both Parties and the impending election date, the Court instead analyzes the Motion as one for a preliminary injunction.
[2] While neither party raised the issue in their pleadings, the Court is not assured it has subject matter jurisdiction to
decide this case due to sovereign immunity’s jurisdictional bar.
Bryant v. Tex. Dep’t of Aging & Disability Servs.
,
[3] Plaintiffs initially appeared to plead that a cause of action also existed under the NVRA. At the October 16th hearing, Plaintiffs stated that they do not believe such private cause of action was available to them (Dkt. #26 at p. 59:1–3). Therefore, the Court does not address this argument. Further, in their pleadings, Plaintiffs asserted a NVRA preemption claim. However, at the October 16th hearing, Plaintiffs appeared to denounce the assertion when questioned further upon it (Dkt. #26 at p. 59:1–3). Thus, the Court does not address this argument. Even if the Court did address the NVRA claim, it would not change the Court’s decision. The NVRA does not address funding, thus making it inapposite to the present arguments. See National Voting Rights Act of 1993, Pub. L. No. 103– 31, 107 Stat. 77.
[4] Plaintiffs also cite to
Board of Education of Kiryas Joel Village School District v. Grumet
,
[5] At the October 16th hearing, Plaintiffs asserted each individual plaintiff was from one of the counties which they sued, but Plaintiffs did not plead where any of the individual plaintiffs resided.
[6] As stated by John F. Dillon, the rule’s namesake: It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation,—not simply convenient, but indispensable. 1 J OHN F. D ILLON , C OMMENTARIES ON THE OF M UNICIPAL C ORPORATIONS § 89, at 145 (4th ed. 1890).
[7] Because Plaintiffs lack standing, the Court is not required to analyze the availability of the causes of action Plaintiffs pleaded. See Shrimpers & Fishermen of RGV v. Tex. Comm’n on Env’t Quality ,968 F.3d 419 , 423 (5th Cir. 2020) (“We need not decide whether Petitioners have a cause of action because they do not have standing.”). But the Court does so to ensure an expedient and steadfast resolution of the suit.
[8] Plaintiffs also claim that HAVA confers standing as well (Dkt. #1 at p. 5). The problem with this argument is that
statutes cannot alone confer legal standing—a plaintiff must also have constitutional standing under Article III.
Hodgson v. Bowerbank
,
[9] Worth noting, this enforcement power is inapplicable to remedy the HAVA violations alleged here. Under the state- based administrative complaint procedures, the only requirement as to which private complaints of alleged HAVA violations these state systems must entertain are those regarding provisions of subchapter III, which relate to “Uniform and Nondiscriminatory Election Technology and Administration Requirements.” See 52 U.S.C. §§ 21081–21102. These statutory provisions do not directly involve funding concerns under HAVA’s scheme.
[10] The Court is bound by Supreme Court precedent as an inferior federal court, and Blackwell does not bind the Court because it was decided by a coordinate Article III court outside of the Court’s jurisdictional hierarchy. See T RACEY E. G EORGE & S UZANNA S HERRY , W HAT E VERY L AW S TUDENT R EALLY N EEDS TO K NOW : A N I NTRODUCTION TO THE S TUDY OF L AW 94 fig. (2d ed. 2016).
[11] Even though “ Armstrong d[id] not modify Shaw ’s clear language,” Air Evac EMS, Inc. v. Tex., Dep’t of Ins. , 851 F.3d 507, 515 (5th Cir. 2017), 28 U.S.C. § 1331 provides federal courts with jurisdiction over preemption claims “so long as the [plaintiff] can satisfy Ex parte Young ’s equitable exception.” City of Austin v. Abbott , 385 F. Supp. 3d 537, 543 (W.D. Tex. 2019). This exception allows plaintiffs to bring suits for injunctive or declaratory relief “against
[13] “‘The basic question involved in Supremacy Clause cases is never one of interpretation of the Federal Constitution
but inevitably one of comparing two statutes’ to see if they can be read harmoniously.”
United States v. Zadeh
, 820
F.3d 746, 754 (5th Cir. 2016) (cleaned up) (quoting
Swift & Co. v. Wickham
,
[14] For instance, a core principle of federal preemption law is that federal law can preempt state law “in three different
ways: when Congress does so expressly; when federal law occupies the entire field of regulation; and when state law
conflicts with federal law.”
Butler v. Coast Elec. Power Ass’n
,
[15]
See Rucho v. Common Cause
,
[16] Plaintiffs support their preemption argument by stating that the plain statement rule and the presumption against
preemption are inapplicable in the Elections Clause context (Dkt. #26 at p. 9:7-19). While this is an accurate statement
of law,
see, e.g.
,
Fish
,
[17] In fact, at least one Texas law explicitly allows counties to receive money or other assets “for the purpose of performing a function conferred by law on the county or a county officer.” T EX . L OC . G OV ’ T C ODE A NN . § 81.032.