Andrade v. Naacp of Austin

Citation345 S.W.3d 1,54 Tex. Sup. Ct. J. 1401
Decision Date01 July 2011
Docket NumberNo. 09–0420.,09–0420.
PartiesEsperanza ANDRADE, in her Official Capacity as Secretary of State for the State of Texas, Petitioner,v.NAACP OF AUSTIN, Nelson Linder, Sonia Santana, and David Van Os, Respondents.
CourtSupreme Court of Texas

OPINION TEXT STARTS HERE

Greg W. Abbott, Attorney General of Texas, David S. Morales, Office of the Attorney General of Texas Deputy First Assistant Attorney General, Kristofer S. Monson, Assistant Solicitor General, Kathlyn C. Wilson, Assistant Attorney General, General Litigation Division, Austin TX, James C. Ho, Gibson Dunn & Crutcher LLP, Dallas TX, for Petitioner.James C. Harrington, Peter (Jody) Barton, Texas Civil Rights Project, Timothy J. Herman, HowryBreen, LLP, Jason P. Steed, Akin Gump Strauss Hauer & Feld LLP, Wayne Krause, Joseph P. Berra, Texas Civil Rights Project, Austin TX, for Respondents.

Chief Justice JEFFERSON delivered the opinion of the Court.

Technology is changing the way we vote. It has not eliminated controversy about the way votes are recorded and verified. We must decide whether voters have standing to pursue complaints about an electronic voting machine that does not produce a contemporaneous paper record of each vote. Because we conclude that most of the voters' allegations involve generalized grievances about the lawfulness of government acts, and because their remaining claims fail on their merits, we reverse the court of appeals' judgment and render judgment dismissing the case.

I. Background

Voters in different parts of the state utilize a number of different voting systems, all of which must first be certified by the Secretary of State. 1 Tex. Elec.Code §§ 122.001, .031. To obtain certification, voting system manufacturers must submit an application to a board of examiners appointed by the Secretary and the Attorney General. Id. §§ 122.034–.035. After the board prepares a report, id. § 122.036, the Secretary conducts a public hearing to provide interested persons an opportunity to express their views about a particular system, id. § 122.0371. The Secretary reviews the report, considers public input, and determines whether the system has satisfied the applicable approval requirements. Id. § 122.038(a). If so, she certifies the system for use in elections. Id. § 122.038(c). For each application, she submits a report explaining whether the system was approved. Id. § 122.039. Once a system is certified, local political subdivisions may adopt it for use in elections. Id. § 123.001.

Following certification and adoption, additional testing is required for direct recording electronic machines (DREs). DREs are designed “to allow a direct vote on the machine by the manual touch of a screen, monitor, or other device.” Id. § 121.003(12). DREs store individual votes and vote totals electronically, id., usually in several places within the unit, see Daniel P. Tokaji, The Paperless Chase: Electronic Voting and Democratic Values, 73 Fordham L.Rev. 1711, 1724 (2005). Immediately after receiving a DRE from a vendor, the election records custodian must perform a hardware diagnostic test and a “public test of logic and accuracy.” Tex. Elec.Code § 129.021. The latter involves creating a testing board that will then cast votes, verifying that each contest can be voted and is accurately counted. Id. § 129.023. The test must evaluate, to the extent possible, undervotes, overvotes, straight-party votes, and crossover votes. Id. It must also account for write-in and provisional votes. Id. Notice of the test must be published at least forty-eight hours in advance, and the test is open to the public. Id. § 129.023(b). The test is successful only if the actual results are identical to the expected results. Id. § 129.023(d). Travis County conducts these tests before each early voting period and election day.2 The Secretary of State may prescribe additional testing. Id. § 129.021(4). DREs must also satisfy, to the extent possible, requirements applicable to other electronic voting systems.3 Id. § 129.001(b).

In countywide polling place programs, the Secretary requires an audit of each DRE before, after, and, if feasible, during each election. Id. § 43.007(c). The general custodian of election records must secure access control keys or passwords to DREs, and use of such keys and passwords must be witnessed and documented. Id. § 129.053. The DRE may not be connected to any external communications network, including the Internet, nor are wireless communications permitted (except under certain limited circumstances). Id. § 129.054. The general custodian of election records must create a contingency plan in case of DRE failure. Id. § 129.056.

Copies of the program codes, operator manuals, and copies or units of all other software and any other information, specifications, or documentation required by the Secretary must be kept on file with the Secretary. Id. § 122.0331(a). The Secretary also requires that DREs meet or exceed the minimum requirements established by the Federal Election Commission. 1 Tex. Admin. Code § 81.61 (requiring compliance with FEC's Performance and Test Standards for Punch Card, Mark Sense, and Direct Record Electronic Voting Systems). Although DREs must provide contemporaneous printouts of “significant election events,” 4 there is no explicit statutory requirement that DREs provide a contemporaneous paper record of each vote cast. Repeated efforts to pass such legislation have failed, both at the federal 5 and state 6 levels.

The eSlate, a paperless DRE manufactured by Hart Intercivic, is one of a handful of DREs the Secretary has certified. See Voting Systems, Texas Secretary Of State, http:// www. sos. state. tx. us/ elections/ laws/ votingsystems. shtml. Voters arriving at the polls in counties using the eSlate are given a unique access code. The voter enters the code into the eSlate, which then displays the ballot. Voters turn a dial to highlight their ballot choice and then press “enter” to make a selection. After a voter completes his selections, the eSlate displays a ballot summary page. If the voter's choices are correctly displayed, the voter presses the “cast ballot” button, and the vote is recorded. See Voter Instructions, Travis County, http:// www. co. travis. tx. us/ county_ clerk/ election/ e Slate/ pdfs/ English_ Flyer_ 050923. pdf. Travis County purchased the eSlate system in 2001 and has used it since 2003.

The NAACP of Austin, its president Nelson Linder, Sonia Santana (a Travis County voter), and David Van Os (a candidate for attorney general) (collectively, the voters), sued Esperanza Andrade, the Secretary of State, 7 arguing that her certification of the eSlate violated the Election Code and our constitution. The voters assert that the Secretary's failure to require a contemporaneous paper record of an electronic vote violates their statutory right to a recount and an audit, as well as Texas constitutional guarantees of equal protection, the purity of the ballot box, and the right of suffrage. See Tex. Const. art. I, § 3, art. VI, § 2(c), art. VI, § 4; Tex. Elec.Code §§ 122.001, 211.001. The voters sought a declaration that the Secretary acted illegally and an injunction prohibiting the use of paperless election systems without an independent paper ballot mechanism.

The Secretary filed a plea to the jurisdiction and motion for summary judgment, asserting that the voters lacked standing to pursue their claims and that she was immune from suit. The trial court denied the plea and motion, and a divided court of appeals affirmed. 287 S.W.3d 240. We granted the petition for review 8 and now reverse. 53 Tex. Sup.Ct. J. 562 (Apr. 9, 2010).

II. The voters have standing to assert an equal protection claim.

Because the voters seek only declaratory and injunctive relief, and because each voter seeks the same relief, only one plaintiff with standing is required. See Barshop v. Medina Cnty. Underground Water Conservation Dist., 925 S.W.2d 618, 627 (Tex.1996).9 Accordingly, we examine whether Sonia Santana, a Travis County resident and registered voter, has standing to pursue the claims she asserts. We may look to the similar federal standing requirements for guidance,10 and [o]ur threshold inquiry ... ‘in no way depends on the merits of the [voters'] contention that particular conduct is illegal.’ 11

Generally, a citizen lacks standing to bring a lawsuit challenging the lawfulness of governmental acts.12 Brown v. Todd, 53 S.W.3d 297, 302 (Tex.2001). Thus, [s]tanding doctrines reflect in many ways the rule that neither citizens nor taxpayers can appear in court simply to insist that the government and its officials adhere to the requirements of law.” Charles Alan Wright, et al., Federal Practice & Procedure § 3531.10 (3d ed.2008). This pragmatic approach “ensures that ‘there is a real need to exercise the power of judicial review’ in a particular case, and it helps guarantee that courts fashion remedies ‘no broader than required by the precise facts to which the court's ruling would be applied.’ Lance v. Coffman, 549 U.S. 437, 441, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007) (citations omitted). Based partly on the notion of judicial self governance, this rule recognizes that other branches of government may more appropriately decide “abstract questions of wide public significance,” particularly when judicial intervention is unnecessary to protect individual rights. Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

Originally characterized as prudential,13 the Supreme Court has more recently clarified that the “generalized grievance” bar to standing is constitutional. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 573–74, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (holding that a citizen raising “only a generally available grievance about government—claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and...

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