Campaign Legal Ctr. v. Scott

• Decision Date: 29 September 2022
• Docket Number: 22-50692
• Citation: Campaign Legal Ctr. v. Scott, 49 F.4th 931 (5th Cir. 2022)
• Parties: CAMPAIGN LEGAL CENTER; American Civil Liberties Union Foundation of Texas; Mexican American Legal Defense and Educational Fund, Incorporated; Lawyers Committee for Civil Rights Under Law; DEMOS a Network for Ideas and Action, Limited, Plaintiffs—Appellees, v. John B. SCOTT, in his official capacity as Secretary of the State of Texas, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

49 F.4th 931

CAMPAIGN LEGAL CENTER; American Civil Liberties Union Foundation of Texas; Mexican American Legal Defense and Educational Fund, Incorporated; Lawyers Committee for Civil Rights Under Law; DEMOS a Network for Ideas and Action, Limited, Plaintiffs—Appellees,

v.John B. SCOTT, in his official capacity as Secretary of the State of Texas, Defendant—Appellant.

No. 22-50692

United States Court of Appeals, Fifth Circuit.

FILED September 29, 2022

Danielle Marie Lang, Molly Danahy, Alice Clare Campbell Huling, Campaign Legal Center, Washington, DC, Chad Wilson Dunn, Esq., Brazil & Dunn, Austin, TX, for Plaintiff-Appellee Campaign Legal Center.

Ashley Alcantara Harris, Andre Segura, American Civil Liberties Union of Texas, Houston, TX, for Plaintiff-Appellee American Civil Liberties Union Foundation of Texas.

Nina Perales, Mexican-American Legal Defense & Educational Fund, San Antonio, TX, for Plaintiffs-Appellees Mexican American Legal Defense and Educational Fund, Incorporated, Lawyers Committee for Civil Rights Under Law, DEMOS a Network for Ideas and Action, Limited.

Ari Cuenin, Office of the Attorney General, Office of the Solicitor General, Austin, TX, Joseph Aaron Barnes, Sr., Attorney, Office of the Attorney General of Texas, Special Litigation Unit, Austin, TX, Patrick K. Sweeten, Office of the Attorney General of Texas, Special Counsel Unit, Austin, TX, for Defendant-Appellant.

Noah Bokat-Lindell, Tovah Calderon, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC, for Amicus Curiae United States of America.

Before Jones, Ho, and Wilson, Circuit Judges.

Edith H. Jones, Circuit Judge:

The Plaintiffs obtained an injunction from the district court requiring the State of Texas to provide information including the names and voter identification numbers of persons suspected of being noncitizens though registered to vote. Reversing the district court, we hold that the organizations constituting the Plaintiffs lack standing to bring their claim under the National Voter Registration Act of 1993 ("NVRA"). Consequently, we REVERSE and REMAND with instructions to DISMISS.¹

I. BACKGROUND

This action arises from federal and state law, specifically, the NVRA's "public disclosure provision," 52 U.S.C. § 20507(i)(1), and Sections 16 and 31 of the Texas Election Code.

The NVRA is designed to "increase the number of eligible citizens who register to vote" and "enhance[ ] the participation of eligible citizens as voters" in federal elections. 52 U.S.C. § 20501(b)(1)–(2). Equally important, the NVRA is intended to "protect the integrity of the electoral process" and "ensure that accurate and current voter registration rolls are maintained." Id. § 20501(b)(3)–(4). In line with the latter goals:

Each State shall maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters, except to the extent that such records relate to a declination to register to vote or to the identity of a voter registration agency through which any particular voter is registered.

Id. § 20507(i)(1). "A person who is aggrieved by a violation of [the NVRA] may provide written notice of the violation to the chief election official of the State involved" and may file suit for injunctive relief if the violation goes uncorrected. Id. § 20510(b)(1)–(2).

The NVRA also provides that resident citizens can register to vote in a state when they apply for or renew their driver's licenses. See id. § 20504. The state must, however, cross-check registrations to ensure that only eligible voters remain on the rolls. See id. § 20507. To do so, the Texas Secretary of State ("the Secretary") periodically compares information in the existing statewide computerized voter registration list against citizenship information in the database of the Department of Public Safety ("DPS"). TEX. ELEC. CODE § 16.0332(a-1). Next, the Secretary sends the names of any potentially ineligible voter to appropriate local registrars. See id. §§ 16.033(a), .0332(a). If registrars determine a voter may be ineligible, they send "a written notice requiring the voter to submit to the registrar proof of United States citizenship." Id. § 16.0332(a). Failure to provide such proof can lead to cancellation of voter registrations. See id. §§ 16.033, 16.0332(b).

In the course of the Secretary's maintenance activity, the Secretary may "receiv[e] or discover[ ] information indicating that criminal conduct in connection with an election has occurred." Id. § 31.006(a). If the Secretary "determines that there is reasonable cause to suspect that criminal conduct occurred," then he "refer[s] the information to the attorney general." Id. That information only becomes public once the Secretary determines it "does not warrant an investigation," or "if referred to the attorney general, the attorney general has completed the investigation or has made a determination that the information referred does not warrant an investigation." Id. § 31.006(b).

The instant case is preceded by a 2019 lawsuit filed by other parties against an earlier iteration of the state's voter roll maintenance program. The State settled that case in an agreement providing that the Secretary may "obtain potential non-U.S. citizen data from DPS on a weekly basis," but the Secretary is only allowed to flag "the records of voters whose effective date of voter registration is prior to, or no more than 30 calendar days after, the issuance date of the voter's current driver's license or personal identification card for which he or she proved lawful presence but not U.S. citizenship."² In other words, the Secretary only identifies "individuals who registered to vote before they presented documents at a DPS office indicating their non-citizenship." The Secretary must also notify the plaintiffs' attorneys involved in the settlement 10 days before sending local election officials information from any new database of suspected non-citizen voters.

The Texas Attorney General informed Plaintiffs' counsel in this case that the Secretary had begun matching DPS data against voter registration rolls on a weekly basis and intended to notify county election officials of voters identified as potential non-citizens. An August 2021 letter indicated that the Secretary intended to send information identifying 11,197 registered voters as potential non-citizens to local officials. In a September 2021 letter, the Secretary stated that it had identified 49 additional potential non-citizens during the first three weeks of updates.

It is unclear why Plaintiffs received the letters because none was a party to the 2019 settlement. Nonetheless, their counsel responded to both letters by asking the Secretary for:

The list of all ... registrants [the Secretary's] office identified as potential non-U.S. citizens, including the date each individual registered to vote, the effective date of each individual's voter registration; the date each individual provided documentation to DPS; the issuance date of each individual's current driver's license or personal identification; the documents provided to DPS showing proof of lawful presence but not U.S. citizenship; and the voting history of each of these individuals.

The Secretary denied the requests on the basis of privacy concerns, asserted that the records were protected from disclosure under the Texas Public Information Act ("PIA"), TEX. GOV'T CODE § 552, and indicated his intent to seek a decision from the Attorney General as to whether to withhold them. Plaintiffs charged that withholding the requested documents violated the NVRA's public disclosure provision, and they were entitled to file suit if the violation was not corrected within 90 days.

As of January 14, 2022, 278 of the flagged voters had been confirmed as non-citizens. The status of the remaining flagged voters is unknown. In February 2022, Plaintiffs filed suit seeking declaratory and injunctive relief against the Secretary in his official capacity for violating the NVRA.

Consolidating a hearing for preliminary injunction with the merits, the district court held a bench trial and found that Plaintiffs have standing to seek the records; the requested records are subject to the NVRA's public disclosure provision; in three counties, the Secretary's list erroneously flagged some eligible voters as non-citizens; and the Secretary's failure to produce the records violated the NVRA because no exception applied. A separate mandatory injunction required the Secretary to provide Plaintiffs with a bevy of information regarding each of the 11,246 voters identified as potential non-citizens. The Secretary has provided all that information except individuals' names and voter identification numbers.

The Secretary appealed and moved both the district court and this court for a stay pending appeal. This court granted the Secretary's motion for a temporary administrative stay of the district court's injunction. The appeal was expedited to an oral argument calendar.

II. DISCUSSION

To resolve this appeal, we need go no further than to discuss the Plaintiffs' Article III standing to sue, a question of law subject to de novo review. Rivera v. Wyeth-Ayerst Lab'ys , 283 F.3d 315, 319 (5th Cir. 2002). "Because this case was tried, Plaintiffs needed to prove standing by a preponderance of the evidence." Env't Tex. Citizen Lobby, Inc. v. ExxonMobil Corp. , 968 F.3d 357, 367 (5th Cir. 2020) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S. Ct. 2130, 2136–37, 119 L.Ed.2d 351 (1992) ). "A factual finding that a plaintiff met that burden is reviewed for clear error." Id. (collecting cases). Because the district court erred in finding that the plaintiffs have Article III standing, it had no jurisdiction to reach the merits. Cook...