Mi Familia Vota v. Abbott

• Decision Date: 14 October 2020
• Docket Number: No. 20-50793,20-50793
• Citation: 977 F.3d 461
• Parties: MI FAMILIA VOTA; Texas State Conference of the NAACP; Guadalupe Torres, Plaintiffs—Appellants, v. Greg ABBOTT, Governor of the State of Texas; Ruth Hughs, Texas Secretary of State, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

977 F.3d 461

MI FAMILIA VOTA; Texas State Conference of the NAACP; Guadalupe Torres, Plaintiffs—Appellants,

v.Greg ABBOTT, Governor of the State of Texas; Ruth Hughs, Texas Secretary of State, Defendants—Appellees.

No. 20-50793

United States Court of Appeals, Fifth Circuit.

FILED October 14, 2020

Ben Clements, Free Speech For People, Newton, MA, Kelly M. Dermody, Evan J. Ballan, Yaman Salahi, Mike K. Sheen, Lieff, Cabraser, Heimann & Bernstein, L.L.P., San Francisco, CA, Sean M. Lyons, Esq., Lyons & Lyons, P.C., San Antonio, TX, Avery S. Halfon, Lieff, Cabraser, Heimann, & Bernstein, L.L.P., New York, NY, for Plaintiffs-Appellants.

Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Attorney General, Office of the Solicitor General, William Thomas Thompson, Assistant General Counsel, Office of the Attorney General, General Litigation Division, Todd Lawrence Disher, Patrick K. Sweeten, Office of the Attorney General of Texas, Special Counsel Unit, Eric Alan Hudson, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Defendants-Appellees.

Before Owen, Chief Judge, and Davis and Southwick, Circuit Judges.

Priscilla R. Owen, Chief Judge:

Mi Familia Vota, the Texas State Conference of the NAACP (NAACP), and Guadalupe Torres (collectively the Plaintiffs) appeal the dismissal of their claims challenging certain Texas voting procedures during the COVID-19 pandemic. We affirm the judgment of the district court in part, reverse the judgment with respect to the Voting Rights Act claim, and remand that claim.

I

Texas officials have taken steps to mitigate the risks associated with the COVID-19 pandemic that voters may encounter. Among these are advisories from the Secretary of State¹ and an Executive Order issued by Texas Governor Greg Abbott.²

The Secretary of State's office issued an advisory urging poll workers to wear face masks; recommending the use of signs to urge voters to wear face masks while at the polls; advising how to use markings or tape to facilitate social distancing; advising how to disinfect electronic voting equipment; suggesting that polling locations provide styluses or swabs or pencils with erasers or coffee stirrers for voters to use instead of touching electronic voting devices; and explaining that if a poll worker could not identify a masked voter, the worker could ask the voter to lower the mask briefly to facilitate identification. Other advice was offered concerning efforts that could and should be taken to mitigate exposure to and spread of COVID-19.

In July 2020, Governor Abbott issued Executive Order GA-29. That order expressed his views that

• "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,"

• "given the current status of COVD-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."³

That Executive Order, which went into effect July 3, 2020, provided:

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.⁴

Failure to wear a mask under these conditions is punishable by a fine, but there are eleven enumerated exceptions or exemptions, including children younger than ten, those with medical conditions or disabilities, while eating or drinking or while seated at a restaurant to eat or drink, while engaging in exercise outdoors and maintaining social distancing, while voting or assisting in the voting process, and while engaging in religious worship, "though a face covering is strongly recommended."⁵

The Plaintiffs filed suit in July, after this Executive Order issued. They allege that Black and Latino communities have been disproportionately impacted by COVID-19 because these communities have experienced higher infection, hospitalization, and death rates. They assert that Texas's policies and laws, "individually and cumulatively, operate to deny voters the right to vote in a safe, free, fair, and accessible election." Plaintiffs posit that long lines, the use of electronic voting devices rather than paper ballots, limited curbside voting, and the permissiveness of mask-wearing at polling locations present substantial health risks that create fear of voting and therefore infringe upon the right to vote. The Plaintiffs asserted causes of action under the Fourteenth Amendment's Due Process and Equal Protection Clauses, the First Amendment, the Fifteenth Amendment, and section Two of the Voting Rights Act.

Plaintiffs seek robust judicial involvement in Texas's elections, requesting an injunction ordering that Governor Abbott and Secretary of State Hughs take specific, affirmative actions, identified in the prayer for relief in their Complaint, which we quote in its entirety:

a. Order Defendants to modify in-person voting procedures during the early voting period and on Election Day to ensure that polling sites are safe and of low risk to the health of all registered voters, and specifically order that Defendants:

i. Extend the period of early voting to begin on October 5, 2020.

ii. Require voters, poll-workers, persons assisting voters, and any other person at a polling site to wear a mask, including providing masks to persons who do not already have one, with exceptions only for individuals who cannot wear masks due to a disability;

iii. Allow counties to offer extended, temporary, and/or mobile early voting locations with flexible hours and days.

iv. Suspend the requirement that curbside voters must qualify as having a disability or, alternatively, order that any voter may identify as "disabled" due to the threat that the coronavirus poses to his or her health and life, for the purpose of being found eligible to vote curbside.

v. Open additional polling places and provide enough voting booths and poll workers at each polling place to ensure that voters are not required to wait more than twenty minutes to vote, to minimize coronavirus transmission.

vi. Staff all polling places with sufficient number of poll workers to keep voter lines to less than 20 minutes, including by actively recruiting new poll workers who are not at high risk for serious illness due to COVID-19.

vii. Prohibit the closure of polling places currently scheduled to be available on Election Day. Should a polling place need to be closed or moved in order to meet health and safety requirements, require that a new polling place be made available within the same voting precinct.

viii. In counties that use electronic voting machines, including counties that participate in the Countywide Polling place Program, make available sufficient numbers of both paper ballots and electronic voting machines so that voters have the option of voting by hand-marking a paper ballot or by voting on the electronic voting machine, to minimize the risk of coronavirus transmission.

ix. Revise voter identification requirements to allow voters to show identification without requiring poll workers to physically handle identification or documentation, apply the natural disaster exception to the pandemic, and allow voters to sign affidavits regarding the natural disaster exception at the polling place.

x. Ensure that poll workers are given protective gear, including masks and gloves, in sufficient quantity to allow poll workers to change protective gear frequently. Provide poll workers with ample opportunity to wash their hands.

b. Order Defendants to enable counties that need to revise election policies in order to protect voters’ health to do so, provided that the proposed revisions do not violate any relief ordered by this Court.

c. Order Defendants to rescind or modify any voting practice or procedure deemed by this Court to unlawfully discriminate against Black, Latino, or other underserved voters on the basis of a protected characteristic, to eliminate such discrimination.

d. Order that all such relief be extended until there are no existing cases of coronavirus in the state of Texas; or until there is a vaccine freely and readily available to all Texans, whichever comes sooner.

In their motion for a preliminary injunction, the Plaintiffs made clear that the bases for the request for injunctive relief were only the First Amendment and the Due Process Clause of the Fourteenth Amendment. They explained that "[a]lthough Plaintiffs’ complaint also alleges violations of the Equal Protection Clause, Fifteenth Amendment, and Section 2 of the Voting Rights Act based on race or ethnicity, Compl. ¶¶ 202-07, those claims do not form the basis of this motion."

In their brief before this court, the Plaintiffs have abandoned their request that early voting be ordered to begin on October 5, 2020, and have narrowed their challenge to Executive Order GA-29 and four sections of the Texas Election Code:

• Executive Order GA-29, requiring masks to be worn in public places but exempting voters and poll workers.

• Texas Election Code section 64.009,

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