TX Alli for Retd Amer v. ScottTX Alli for Retd Amer v. Scott
Plaintiffs—Appellees,
versus
John Scott, in his official capacity as the Texas Secretary of State,
Defendant—Appellant.
Appeal from the United States District Court for the Southern District of Texas USDC No. 5:20-CV-128
Before HIGGINBOTHAM, WILLETT, and DUNCAN, Circuit Judges.
Shortly before the November 2020 election, Plaintiffs challenged Texas‘s elimination of straight-ticket voting. Agreeing with Plaintiffs’ claims that this change unconstitutionally burdened the right to vote, the district court еnjoined the Texas Secretary of State. A motions panel of our court stayed the injunction. We now reverse the district court‘s order, vacate the injunction, and remand for further proceedings. Because the Secretary of State does not enforce the law that ended straight-ticket voting, Plaintiffs’ constitutional claims are barred by sovereign immunity.
I.
Texas House Bill 25 (HB 25) eliminated straight-ticket voting in Texas elеctions. Straight-ticket or “straight-party” voting meant “cast[ing] a vote for all the nominees of one party . . . by placing an ‘X’ in the square beside the name of the party of [the voter‘s] choice.”
On August 12, 2020, Plaintiffs2 filed suit challenging HB 25 on the grounds that eliminating straight-ticket voting would lengthеn polling lines and therefore burden voting rights. They alleged claims under the First, Fourteenth, and Fifteenth Amendments to the United States Constitution and § 2 of the Voting Rights Act of 1965,
On September 25, 2020, the district court issued a preliminary injunction based only on Plaintiffs’ constitutional undue burden claims. See Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S. 780 (1983). In doing so, the district court rejected
On September 30, 2020, a panel of our court stayed the preliminary injunction. See Tex. All. for Retired Ams. v. Hughs, 976 F.3d 564 (5th Cir. 2020) (per curiam). The stay rested on “[t]he principle . . . [that] court changes of eleсtion laws close in time to the election are strongly disfavored.” Id. at 566-67 (citing Republican Nat‘l Comm. v. Democratic Nat‘l Comm., --- U.S. ---, 140 S. Ct. 1205, 1207 (2020) (per curiam); North Carolina v. League of Women Voters of N.C., 574 U.S. 927 (2014) (per curiam); Husted v. Ohio State Conference of N.A.A.C.P., 573 U.S. 988 (2014) (per curiam); Veasey v. Perry, 574 U.S. 951 (2019) (per curiam); Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam)). The panel declined to address standing, sovereign immunity, or the merits. Id. at 567.
II.
“We review a preliminary injunction for abuse of discretion, reviewing findings of fact for clear error and conclusions of law de novo.” Planned Parenthood of Greater Tex. v. Kauffman, 981 F.3d 347, 354 (5th Cir. 2020) (en banc) (citation omitted). We review sovereign immunity and standing de novo. City of Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019), cert. denied --- U.S. ---, 141 S. Ct. 1047 (2021); N.A.A.C.P. v. City of Kyle, 626 F.3d 233, 236 (5th Cir. 2010) (citations omitted).
III.
In addition to arguing the merits, the Secretary raises the threshold issue of sovereign immunity.4 Bеcause we agree with the Secretary that Plaintiffs’ constitutional claims are barred on that basis, we need not reach the merits.
States are immune from private suits unless they consent or unless Congress validly strips their immunity. See Sossamon v. Texas, 563 U.S. 277, 283-84 (2011) (citing Alden v. Maine, 527 U.S. 706, 715 (1999); THE FEDERALIST No. 81, p. 511 (B. Wright ed. 1961) (A. Hamilton)); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 59 (1996); see also
How much of a “connection” has been hard to pin down, though. See Tex. Democratic Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020) (TDP) (observing that “[our] circuit has not spoken with conviction” on this issue).5
But some guideposts have emerged. First, an official must have more than “the general duty to see that the laws of the state are implemented.” City of Austin, 943 F.3d at 999-1000 (quoting Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014)). Second, the official must have “the particular duty to enforce the statute in question аnd a demonstrated willingness to exercise that duty.” TDP, 978 F.3d at 179 (citation omitted). This means the analysis is “provision-by-provision“: The officer must enforce “the particular statutory provision that is the subject of the litigation.” Ibid. (citation omitted); see also Mi Familia Vota v. Abbott, 977 F.3d 461, 467-68 (5th Cir. 2020). “Th[at] is especially true here because the Texas Election Code delineates between the authority of the Secretary of State and local officials.” Ibid. Third, “enforcement” means “compulsion or constraint.” City of Austin, 943 F.3d at 1000 (quoting K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)). If the official does not compel or constrain anyone to obey the challenged law, enjoining that official could not stop any ongoing constitutional violation. See Air Evac EMS, Inc. v. Tex., Dep‘t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 520 (5th Cir. 2017) (noting “significant overlap between Article III jurisdiction, Ex parte Young, and equitable relief” (citation omitted)).
We apply these principles to decide whether the Secretary has the necessary connection to enforcing HB 25‘s repeal of straight-ticket voting. The Secretary argues he lacks that connection and therefore is not a proper defendant under Ex parte Young. We agree.
As the Secretary points out, enforcement of HB 25 falls to local election officials. HB 25 repealed election code section 52.071, which required that a “square” for straight-ticket voting ”shall be printed to the left of each political party‘s name.”
Plaintiffs argue other election code provisions give the Secretary “responsibilities” for enforcing HB 25. Not so. Principally, Plaintiffs point to the Secretary‘s “voter education” duties in section 31.012. These require the Secretary to (1) post a notice on his website that HB 25 abolished straight-ticket voting,
Plaintiffs also rely on TDP v. Abbott, which held the Secretary was sufficiently connected to a challenged statute that allowed voters 65-and-older to vote by mail. 978 F.3d at 179-80. That decision relied on the Secretary‘s duty to design the mail-in ballot application form. Ibid.; see
It is true, as Plaintiffs point out, that the Secretary plays a role in designing write-in and provisional ballots. See
In sum, the Secretary is not a proper defendant under Ex parte Young.
IV.
We REVERSE the distriсt court‘s order, VACATE the preliminary injunction, and REMAND for further proceedings consistent with this opinion.9
PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:
I must dissent with this case as well as its companion cases.1 None present an issue of sovereign immunity, as the Eleventh Amendment does not bar these claims under the Fourteenth Amendment. Our issue is rather the antecedent question of Article III standing, turning on injury and redressability.
I.
I write to remind failing memories of the signal role of Ex parte Young in directly policing the path of cases and controversies to the Supreme Court from our state and federal courts and warn against its further diminution.2 As I explained over twenty years ago in Okpalobi v. Foster,
of standing are better suited to answer these questions with less risk to the vital role of Ex parte Young.”4
The majority continues this Court‘s effort to shrink the role of Ex parte Young, by overly narrow readings of the state officer‘s duty to enforce Texas‘s election laws. Unlike in Okpalobi “where the defendants had no enforcement connection with the challenged statute,”5 the Texas Secretary of State is the “chief election officer of the state” and is directly instructed by statute to “obtain and maintain uniformity in the application, operation, and interpretation of this code and of the election laws outside this code.”6 Moreover, the Secretary is charged to “take appropriate action to protect the voting rights of the citizens of this state from abuse by the authorities administering the state‘s electoral processes” and “to correct offending conduct.”7 Although recent decisions by this Court have split hairs regarding the level of enforcement authority required to satisfy Ex parte Young,8 the Secretary is charged to interpret both the Texas Election Code and the election laws outside the Code, including federal law, to gain uniformity, tasks it is clearly
bound to do.9 The allegation in these cases is that the Secretary is failing in that duty. This charge should satisfy our Ex parte Young inquiry.
II.
None other than the inimitable Charles Alan Wright saw Ex parte Young as “indispensable to the establishment of constitutional government and the rule of law.”10 Professor Wright‘s views, drawn as they were from a lifetime of disciplined study stand on their own, gaining their strength from years of recording judicial performance and the currency of our system by the teachings of the Constitutional Convention and the acts of оur first Congress. This is the wisdom of a scholar and practitioner, here grounded by the reality that Ex parte Young brings the axis necessary for the courts to harness the power vested in them by the Constitutional Convention of 1787—the direction of the flow to the Supreme Court of challenges to the validity of state action, a function essential to the splitting of the atom of sovereignty in
The three-judge district courts, with direct appeal to the Supreme Court, were quickly established as a needed counter to the reach of Ex parte Young.11 And with this concern faded by the creation of three-judge district
courts, there came a list of seminal decisions protecting civil liberties, long and distinguished.12 Recall that it was a three-judge district court, with its injunctive power, that brought Brown v. Board of Education to the federal courts, sustaining the integration of public schools.13
III.
Another strand of history completes the relevant frame for this state-federal tension. While the need for a Supreme Court was never an issue for the delegates at the Constitutional Convention, as its absence was a driving force for its convening, whether to create a tier of lower courts divided the delegates. The cornerstone Madisonian Compromise rеsolved the impasse—authorizing Congress to create the lower federal courts. And it did, over resistance born of a concern of potential federal court intrusion into state affairs, the work of its judiciary. That lingering concern of the Convention led the first Congress to enact the Anti-Injunction Act: providing that “a writ
of injunction [shall not] be granted to stay proceedings in any court of a state,” assuring direct reviеw of state courts by the Supreme Court.14 An exception clause later added: “except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”15 And there it rested, through the Civil War with its attending Constitutional amendments.
With the turn of the century, we entered the Lochner period, characterized by federal injunctions blocking state efforts to address social issues in the rising industrial world.16 It is significant that from Reconstruction to the Lochner era, lawyers sеldom reached for § 1983 given its inclusion of the language of the Privileges and Immunities Clause, language neutered in
From these threads of history, the Supreme Court in Mitchum v. Foster laid bare the subtle relationship of the Anti-Injunction Act, § 1983, and Ex parte Young. The Court saw the then sixty-four-year-old Ex parte Young as a critical valve to direct the flow of cases from the state courts to the Supreme
Court.18 Justice Stewart explained that “Section 1983 was thus a product of a vast transformation from the concepts of federalism that had prevailed in the late 18th century when the anti-injunction statute was enacted.”19 Congress was “concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts.”20 He continued:
The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people‘s federal rights—to protect the people from unconstitutional action under color of state law, “whether that action be executive, legislative, or judicial.”21
Mitchum v. Foster is itself a contemporary example of the on-going allocation of the flow of cases to the Supreme Court from the state courts and the Congressionally created lower federal courts, as well as the role of Ex parte Young in that cast.
In sum, Ex parte Young, birthed as a tool of the Lochner period, proved its effectiveness in sustaining challenges to state efforts to proteсt workers. Mitchum v. Foster presents as a parallel—protecting civil rights—giving to
civil rights claimants a § 1983 with the power of the injunction, albeit not always a path around the Eleventh Amendment.
IV.
Here however, as it was in Okpalobi, the threshold question is standing, the Article III door to the federal courthouse, which the majority stepped past. Standing doctrine was a product of the shift to the public law model. With its focus upon injury and redressability, it rejected an ombudsman role for the federal courts. Here, as all three of our cases bring claims of constitutional violation under § 1983, there is no immunity issue, no necessary role for Ex parte Young.22 As the state has no immunity from enforcement of the Fourteenth Amendment here,23 the remaining
Under a proper Article III analysis, these suits have a redressable injury because the Secretary is directed by the election laws of Texas to interpret and conform the election code to other election laws (as federal law is state law). Power to interpret to gain uniformity with state and federal law is
power to enforce.25 And “our precedent suggests that the Secretary of State bears a sufficient connection to the enforcement of the Texas Election Code . . . to support standing.”26 Again, the claim is that the Secretary failed to discharge that duty or has done so in an unconstitutional mаnner. These claims can proceed if there is standing with its requirement of injury and redressability.
In sum, I am persuaded that these cases ought not fail on standing or sovereign immunity grounds. Rather, we should have fully considered the merits of the plaintiffs’ arguments, especially where these cases also present claims under the Voting Rights Act and Americans with Disabilities Act, thin though they all may be.27
V.
Even this quick glance back sheds light on threshold questions of the role of the Court in protecting the most vital Constitutional right of a democratic government: the right to vote. And so, I am troubled by this Court‘s narrowing of Ex parte Young. Ex parte Young is no culprit.28
About this we can agree, partisan views ought to prevail by persuading voters, not by denying their right to vote. With respect to my able colleagues, I must dissent.