MI Familia Vota v. Abbott, NO. SA-20-CV-00830-JKP

• Court: United States District Courts. 5th Circuit. Western District of Texas
• Writing for the Court: JASON PULLIAM, UNITED STATES DISTRICT JUDGE
• Citation: 497 F.Supp.3d 195
• Parties: MI FAMILIA VOTA, Texas State Conference of the National Association for the Advancement of Colored People, Guadalupe Torres, Plaintiffs, v. Greg ABBOTT, Governor of Texas; and Ruth Hughs, Texas Secretary of State, Defendants.
• Decision Date: 27 October 2020
• Docket Number: NO. SA-20-CV-00830-JKP

497 F.Supp.3d 195

MI FAMILIA VOTA, Texas State Conference of the National Association for the Advancement of Colored People, Guadalupe Torres, Plaintiffs,
v.
Greg ABBOTT, Governor of Texas; and Ruth Hughs, Texas Secretary of State, Defendants.

NO. SA-20-CV-00830-JKP

United States District Court, W.D. Texas, San Antonio Division.

Signed October 27, 2020

497 F.Supp.3d 202

Avery S. Halfon, Lieff, Cabraser, Heimann & Bernstein LLP, Debra L. Greenberger, Pro Hac Vice, Jonathan S. Abady, Pro Hac Vice, Matthew D. Brinckerhoff, Pro Hac Vice, O. Andrew F. Wilson, Emery Celli Brinckerhoff Abady Ward & Maazel LLP, New York, NY, Ben Clements, Courtney M. Hostetler, John Bonifaz, Ronald A. Fein, Free Speech for People, Newton, MA, Evan J. Ballan, Kelly M. Dermody, Michael K. Sheen, Yaman Salahi, Lieff, Cabraser, Heimann & Bernstein LLP, San Francisco, CA, Madeline Michelle Gomez, Lieff, Cabraser, Heimann & Bernstein LLP, Nashville, TN, Sean Michael Lyons, Clarence V. Lyons, Lyons & Lyons, PC, San Antonio, TX, for Plaintiffs.

Patrick K. Sweeten, Eric A. Hudson, Todd Lawrence Disher, William Thomas Thompson, Office of the Attorney General of Texas, Austin, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

JASON PULLIAM, UNITED STATES DISTRICT JUDGE

Before the Court is Plaintiffs Mi Familia Vota, Texas State Conference of the National Association for the Advancement of Colored People and Guadalupe Torres's Emergency Motion for Temporary Restraining Order and Preliminary Injunction and Defendants Governor Greg Abbott and Secretary of State Ruth Hughs' Response.¹ ECF Nos. 53, 55. At the status hearing held October 22, 2020, the parties agreed to address and present this motion as a Motion for Preliminary Injunction, only. Upon consideration of the Motion for Preliminary Injunction, briefs, evidence and arguments presented at a hearing held October 26, 2020, the Court concludes Plaintiffs' Motion for Preliminary Injunction shall be GRANTED in part and DENIED in part.

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The Court concludes Exemption 8 in Governor Abbott's Executive Order GA-29, which exempts those who are "voting, assisting a voter, serving as a poll watcher, or actively administering an election" from compliance with the statewide mask mandate, violates Section 2 of the Voting Rights Act because it creates a discriminatory burden on Black and Latino voters. For this reason, exemption 8 is invalid and void. The remaining provisions of Executive Order GA-29, including the enforcement provisions and other exemptions, remain intact.² All other requested injunctive relief is denied.

PROCEDURAL BACKGROUND

Plaintiffs filed their Original Complaint on July 16, 2020. ECF No. 1. In this action, Plaintiffs generally contend Texas election procedures create unsafe conditions at polling sites which preclude certain protected classes of people from voting during the early voting period or in person on election day, November 3, 2020 (collectively "the 2020 election"). Plaintiffs bring this action to ensure "practical and constitutionally-required measures that both protect the public health and guarantee the right to vote" to all Texas citizens, specifically Black and Latino citizens.

On September 7, 2020, this Court granted the State's Motion to Dismiss Plaintiffs' Complaint based upon a finding the Court lacked subject matter jurisdiction. ECF No. 44. This Court concluded Plaintiffs did not challenge the constitutionality of any specific Election Code provision, but instead, generally challenged the prudence of "Texas's election laws" and "Texas's election policies" for combating the COVID-19 virus within the 2020 election. Id. This Court concluded it lacked Article III power to grant the injunctive relief Plaintiffs requested based upon the general challenge, finding the requested relief concerned the administration of elections and implementation of election procedures which are constitutionally committed to the state legislative branch and its designated governmental bodies. Id. Therefore, any judicial directive would require an initial policy determination outside of prescribed separation of power and allowed judicial discretion. Id. In addition, the requested judicial directive would require an undertaking that would inherently demonstrate a lack of respect due the legislative branch and its designated governmental actors. Id. Based upon these findings, this Court concluded the case, as plead and argued, presented a nonjusticiable political question – specifically, the relief sought to remedy the alleged injuries was beyond the Court's Article III power to grant. See ECF No. 44;

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Mi Familia Vota v. Abbott , SA-20-CV-00830-JKP, 484 F.Supp.3d 435, 442–47 (W.D. Tex. 2020), aff'd in part, rev'd in part and remanded, 977 F.3d 461 (5th Cir. 2020).

On October 14, 2020, the Fifth Circuit Court of Appeals affirmed this Court's judgment in part and reversed and remanded this matter on a limited issue not previously presented to this Court, stating:

Were the district court to conclude that the exemption from wearing a mask in public places contained in Executive Order GA-29 for pollworkers, voters, and others in polling places violated Section 2 of the Voting Rights Act, the district court might excise that provision if it concluded that this would redress the injuries the Plaintiffs have alleged. It is at least conceivable that such a remedy would not materially or substantially affect the ongoing election, but that would be a matter for the district court to determine.

Mi Familia Vota v. Abbott , No. 20-50793, 977 F.3d 461, 471 (5th Cir. 2020).

In this instruction, the Fifth Circuit handed down three issues to be determined on remand: whether the mask-mandate Exemption 8 violates Section 2 of the Voting Rights Act as applied; whether this Court can resolve the injuries the Plaintiffs allege by "excising" (invalidating) the mask-mandate Exemption 8 from the Executive Order, and; whether excising the mask-mandate Exemption 8 would "materially or substantially affect the ongoing election." Id.

FACTUAL BACKGROUND

Upon the filing of Plaintiffs' Amended Complaint, this matter is now before this Court for determination of these three issues with Plaintiffs' Motion for Preliminary Injunction.

Texas government officials have taken steps to mitigate public health risks associated with the COVID-19 pandemic. See Mi Familia Vota v. Abbott , 977 F.3d at 463–64. Among these steps, are advisories from Secretary Hughes and Executive Orders issued by Governor Abbott. The Executive Order that is the subject of this action, GA-29, issued on July 2, 2020 ("the Executive Order"). In the Executive Order Governor Abbott expressed his views regarding ways in which Texas citizens can safely resume activities following the mandated extended quarantine and maintain public health by mitigating the risk of COVID-19 spread.³ Governor Abbott stated,

• "as Texas reopens in the midst of COVID-19, increased spread is to be expected, and the key to controlling the spread and keeping Texans safe is for all people to consistently follow good hygiene and social-distancing practices,"

• "due to recent substantial increases in COVID-19 positive cases, and increases in the COVID-19 positivity rate and hospitalizations resulting from COVID-19, further measures are needed to achieve the least restrictive means for reducing the growing spread of COVID-19, and to avoid a need for more extreme measures,"

• "I have joined the medical experts in consistently encouraging people to use face coverings, and health authorities have repeatedly emphasized that wearing face coverings is one of

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the most important and effective tools for reducing the spread of COVID-19;"

• "given the current status of COVID-19 in Texas, requiring the use of face coverings is a targeted response that can combat the threat to public health using the least restrictive means, and if people follow this requirement, more extreme measures may be avoided," and

• "wearing a face covering is important not only to protect oneself, but also to avoid unknowingly harming fellow Texans, especially given that many people who go into public may have COVID-19 without knowing it because they have no symptoms."

Executive Order GA-29; see Mi Familia Vota v. Abbott , 977 F.3d at 463.

Based upon these assessments, Governor Abbott required

Every person in Texas shall wear a face covering over the nose and mouth when inside a commercial entity or other building or space open to the public, or when in an outdoor public space, wherever it is not feasible to maintain six feet of social distancing from another person not in the same household.

Executive Order GA-29; see Mi Familia Vota v. Abbott , 977 F.3d at 464. The Executive Order then enumerated eleven exemptions from the mask mandate, which include children younger than ten, those with medical conditions or disabilities, while seated at a restaurant to eat or drink, while engaging in exercise outdoors, and while engaging in religious worship. The exemptions also provided the option for counties to opt-out of the mask mandate if a county judge certified it met requisite criteria to do so.⁴ The...