MI Familia Vota v. Abbott

• Decision Date: 07 September 2020
• Docket Number: No. SA-20-CV-00830-JKP,SA-20-CV-00830-JKP
• Citation: 484 F.Supp.3d 435
• Parties: MI FAMILIA VOTA, Texas State Conference of the National Association for the Advancement of Colored People, Micaela Rodriguez, Guadalupe Torres, Plaintiffs, v. Greg ABBOTT, Governor of Texas; and Ruth Hughs, Texas Secretary of State, Defendants.
• Court: U.S. District Court — Western District of Texas

484 F.Supp.3d 435

MI FAMILIA VOTA, Texas State Conference of the National Association for the Advancement of Colored People, Micaela Rodriguez, 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 September 7, 2020

Avery S. Halfon, Lieff, Cabraser, Heimann & Bernstein 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, P.C., San Antonio, TX, for Plaintiffs.

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

MEMORANDUM OPINION AND ORDER

JASON PULLIAM, UNITED STATES DISTRICT JUDGE

Before the Court are Defendants Greg Abbott and Ruth Hughes's Motions to Dismiss and Plaintiffs' Response thereto. ECF Nos. 19, 20, 27. Because each Motion to Dismiss presents identical arguments on the issue pertinent to this Memorandum Opinion and Order, the Court will analyze and rule on these two motions together.

Upon consideration, the Court concludes it lacks subject matter jurisdiction to adjudicate this action. Accordingly, Defendants' Motions to Dismiss for lack of subject matter jurisdiction shall be GRANTED. Due to this finding, the Court will not reach the substantive merits of the remainder of issues raised in Defendants' Motions to Dismiss. Plaintiffs' Motion for Preliminary Injunction is DENIED as moot without reaching the substantive merits. All other pending motions are DENIED as moot. The Clerk is directed to close this case.

Background

Plaintiffs, Mi Familia Vota, Texas State Conference of the National Association for the Advancement of Colored People, Micaela Rodriguez and Guadalupe Torres, seek to protect from deterrence a most important civil liberty: the right to vote for all people. In light of the public health crisis caused by the COVID-19 pandemic, Plaintiffs contend the election procedures in place create unsafe conditions at polling sites which will unconstitutionally preclude certain protected classes of people from voting in the upcoming election on November 3, 2020 ("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.

In their Complaint, Plaintiffs contend Black, Latino, and Native American voters are disproportionately affected by the pandemic, experiencing higher incidences of COVID-19 infection, hospitalization, and fatalities. At the same time, these racial classes face greater risk to their health by voting because there exist fewer polling sites in their communities and because many Texas counties require all voters use electronic voting machines, restricting those eligible to utilize the options of curbside and mail-in ballots. Because the increased health risk and physical health barriers will de facto force voters out of the political process, Plaintiffs contend Defendants must implement election procedures known to protect the public health.

However, Plaintiffs contend, to date, Texas Director of Elections Keith Ingram declines to approve changes to Texas's in-place voting procedures in all forms, that is, in-person, absentee, early voting, curbside voting or mail-in ballots. While acknowledging that in-person voting might not be an "available option for all voters, including those affected by quarantines," Director Ingram will not authorize changes to voting laws or procedures, but instead, recommends county officials "consider seeking a court order to authorize exceptions to the voting procedures outlined in certain chapters of the Texas Election Code." Director Ingram further recommends county officials take action to ensure the safety of voters while at the polling sites and to prevent spread of the virus during voting, but he does not require any procedures or modifications to the allocation of polling sites or early voting. At the same time, HB 1888 (effective September 2019) prohibits counties from opening mobile early voting places with flexible locations, hours, and days.¹ Plaintiffs state that prior to the passage of HB 1888, county election officials could open mobile and temporary early voting sites for limited periods of time in parts of the county that might not otherwise be able to sustain the costs of a two-week long early voting polling place.

Plaintiffs argue the health risks created by the COVID-19 pandemic, transposed upon the legislative and executive branch officials' refusal to mandate admitted election procedures necessary to protect public health, create numerous burdens on the right to vote. Without citing specific Election Code provisions or laws, Plaintiffs contend, generally, "Texas's election laws impose a severe burden on the right to vote" and "Texas's election policies during the pandemic will unlawfully abrogate and abridge the constitutionally protected right to vote." These resultant burdens and dangers include: (1) the requirement to physically touch and exchange physical identification documents; (2) the requirement to stand in the same physical space of multiple prior voters and physically touch voting machines which cannot be disinfected between uses; (3) the limited availability of handmarked paper ballots which make the voting process considerably safer; (4) the limited availability of curb-side voting, which drastically reduces the potential exposure of voters; (5) the limited availability of early voting which reduces long lines on Election Day; (6) the reduction of polling places, increasing the risk that voters will need to travel long distances, take public transportation, or carpool with others, thus exacerbating the risk of infection; and (7) the likely overcrowding of polling places, further exacerbating the risk of infection due to such overcrowding.

As a result, Plaintiffs argue Black, Latino and Native American voters in Texas will be forced to face a constitutionally unacceptable choice: exercising their right to vote - or - protecting their own lives and the lives of their loved ones and community.

For these reasons, Plaintiffs assert causes of action of: (1) Undue burden on the right to vote in violation of the due process clause of the Fourteenth Amendment as applied to elections held during the COVID-19 pandemic; (2) Denial of Equal Protection under the law in violation of the Fourteenth Amendment as applied to elections held during the COVID-19 pandemic; (3) Undue burden on the right to vote in violation of the First Amendment as applied to elections held during the COVID-19 pandemic; (4) Race discrimination in violation of the Fifteenth Amendment ( 42 U.S.C. § 1983 ) as applied to elections held during the COVID-19 pandemic; and (5) Race discrimination in violation of Section 2 of the Voting Rights Act ( 52 U.S.C. § 10301 ) as applied to elections held during the COVID-19 pandemic. In filing this action, Plaintiffs request this Court establish procedures which will ensure the election process is as safe as possible to protect all Texas voters from being exposed to or contracting COVID-19 while at a polling site. To protect those in designated higher-risk categories, Plaintiffs seek modification of early, in-person and curbside voting procedures through declaratory relief. Plaintiffs request this Court declare and order Defendants:

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

b. Require voters, poll-workers, persons assisting voters, and any other person at a polling site to wear a mask;

c. Provide masks to persons who do not already have one, with exceptions only for individuals who cannot wear masks due to a disability;

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

e. 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, solely for the purpose of being found eligible to vote curbside;

f. 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;

g. Staff all polling places with a 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;

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

i. In counties that use electronic voting machines, including counties that participate in the Countywide Polling place Program, make available a sufficient number of both paper ballots and electronic voting machines to allow voters the option of voting by hand-marking a paper ballot or by voting on the electronic voting machine;

j. Revise voter identification requirements to allow voters to show identification without requiring poll workers to physically handle identification or documentation;

k. Apply the natural disaster exception for this election during the pandemic to allow voters to sign affidavits regarding the natural disaster exception at the polling place;

l. Ensure poll workers are given protective gear, including masks and gloves, in sufficient quantity to allow poll workers to change

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