Lewis v. Hughs

• Decision Date: 28 July 2020
• Docket Number: Civil Action No. 5:20-cv-00577-OLG
• Citation: 475 F.Supp.3d 597
• Parties: Linda Jann LEWIS, Madison Lee, Ellen Sweets, Benny Alexander, George Morgan, Voto Latino, Texas State Conference of the National Association for the Advancement of Colored People; and Texas Alliance for Retired Americans, Plaintiffs, v. Ruth HUGHS, in her official capacity as the Texas Secretary of State, Defendant.
• Court: U.S. District Court — Western District of Texas

475 F.Supp.3d 597

Linda Jann LEWIS, Madison Lee, Ellen Sweets, Benny Alexander, George Morgan, Voto Latino, Texas State Conference of the National Association for the Advancement of Colored People; and Texas Alliance for Retired Americans, Plaintiffs,

v.Ruth HUGHS, in her official capacity as the Texas Secretary of State, Defendant.

Civil Action No. 5:20-cv-00577-OLG

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

Signed July 28, 2020

Aria C. Branch, Pro Hac Vice, Marc Erik Elias, Pro Hac Vice, Perkins Coie LLP, Washington, DC, Gillian C. Kuhlmann, Pro Hac Vice, Perkins Coie LLP, Los Angeles, CA, Kevin J. Hamilton, Pro Hac Vice, William (Ben) Stafford, Pro Hac Vice, Perkins Coie, LLP, Seattle, WA, Sarah Langberg Schirack, Pro Hac Vice, Perkins Coie LLP, Anchorage, AK, Skyler M. Howton, Perkins Coie LLP, Dallas, TX, for Plaintiffs.

Patrick K. Sweeten, William Thomas Thompson, Michael Abrams, Todd Lawrence Disher, Office of the Attorney General of Texas, Austin, TX, for Defendant.

ORDER

ORLANDO L. GARCIA, CHIEF UNITED STATES DISTRICT JUDGE

On this day, the Court considered The Texas Secretary of State's Motion to Dismiss or, in the alternative, for a More Definite Statement (docket no. 17) (the "Motion"). Having reviewed the Motion and the record, the Court finds that it should be DENIED.

BACKGROUND

Plaintiffs are four individuals—Linda Jann Lewis, Madison Lee, Ellen Sweets, Benny Alexander, George "Eddie" Morgan ("Individual Plaintiffs")—and three organizations—Voto Latino, Texas State Conference of the National Association for the Advancement of Colored People ("NAACP"), Texas Alliance for Retired Americans (the "Alliance") ("Organizational Plaintiffs"). See docket no. 1. Defendant Ruth Hughs is the Texas Secretary of State (the "Secretary") and is sued in her official capacity as the State's chief election officer. Id. (citing Tex. Elec. Code § 31.001(a) ).

Plaintiffs bring this lawsuit against the Secretary challenging four provisions governing mail-in voting in Texas. See docket no. 1. First, Plaintiffs challenge Section 86.002 of the Texas Election Code's failure to provide prepaid postage for mail-in voters. Id.; Tex. Elec. Code § 86.002 ("Postage Tax"). Second, Plaintiffs challenge the requirement mail-in ballots be postmarked by 7:00 p.m. on election day and then received by the county no later than 5:00 p.m. on the day after the election in order to be counted. See Tex. Elec. Code § 86.007 ("Ballot Receipt Deadline"). Third, Plaintiffs challenge the requirement that voters must submit two signature samples that "match," according to local election officials, in order to have their early voting ballots counted. Id. § 87.027 ("Signature Match Requirement"). Fourth, Plaintiffs challenge the criminalization of a person assisting a voter in returning a marked mail ballot. Id. § 86.006 ("Voter Assistance Ban").

1. The Challenged Restrictions

With respect to the Postage Tax, Plaintiffs allege that requiring voters to pay for their own postage "imposes a monetary cost on voters whose only option to vote safely is to cast a vote by mail." Docket no. 1 at ¶ 67. This monetary cost, Plaintiffs allege, is particularly burdensome considering the economic hardships brought on by the pandemic. Id. at ¶ 68. Even if they can afford postage, Plaintiffs allege that some voters do not have stamps at home, and thus must risk going to a store during the COVID-19 pandemic. Id. at ¶ 70. To illustrate these burdens, Plaintiffs cite the differences in voter turnout in King County, Washington, which saw a 10% and 6% increase in votes over two elections after it provided prepaid postage. Id. at ¶ 75. Without prepaid postage, Plaintiffs argue many Texans will not vote.

Similarly, Plaintiffs argue that the Ballot Receipt Deadline will also prevent voters from exercising their right to vote. They allege that even under normal circumstances, permitting ballots to be postmarked by 7:00 p.m. on election day but requiring they be received by 5:00 p.m. the next day is confusing and relies on the near-perfect performance of the United States Postal Service. Id. at ¶¶ 77-79. Moreover, Plaintiffs allege that COVID-19 is causing more postal delays because of budgetary issues and reduced staff. Id. at ¶¶ 80-81. Plaintiffs submit that these issues could result in closing routes and processing centers. Indeed, these staff cuts combined with an unprecedented number of mailed ballots resulted in delayed and undelivered ballots in the recent Wisconsin election. Id. at ¶¶ 82-86. Plaintiffs contend that Texas has "no meaningful need for its day-after election day deadline," as "the Secretary advises county election administrators that they need not count these ballots until six days after election day at the earliest. " Id. at ¶ 93. Indeed, ballots from overseas are not due until five days after the election. Id. In sum, Plaintiffs challenge this result: ballots properly mailed by the election day deadline but not received by the day after the election are rejected, even though they are received before they would otherwise be counted. Id. at ¶¶ 94-95.

The Signature Match Requirement, or Section 87.027 of the Texas Election Code, requires county officials to match the mail-in voter's signature with the voter's signature on the vote-by-mail application. Tex. Elec. Code § 87.027. Plaintiffs challenge this provision for several reasons. One, the local officials are untrained in forensic handwriting and are not given uniform standards by the State. Id. at ¶ 97. Plaintiffs cite the Secretary's guidance for the county officials to "use their best judgment ... to verify if these signatures are the same." Id. at ¶ 98. Regardless of the lack of training, Plaintiffs note that signature matching is an inexact art, and voters, particularly those who are be disabled or elderly, may have a different signature because of "evolving physical abilities." Id. at ¶ 99. As a result, voters’ ballots will go uncounted. Plaintiffs further allege an additional problem: "Texas provides voters with no opportunity to cure election officials’ mistaken determinations that two signatures do not ‘match.’ " Id. at ¶ 103. Instead, the county notifies the voter within 10 days after the election that their vote was not counted. Id. Again, this restriction, according to Plaintiffs, will result in mistakenly and arbitrarily rejected ballots without an opportunity to cure the error.

Finally, Plaintiffs challenge the Voter Assistance Ban, Section 86.006, which criminalizes third parties from assisting voters with mailing in their ballots, outside of narrow circumstances. Plaintiffs allege that this ban results in a heavier burden on poor, minority, rural, and elderly voters who have less access to postal services, personal transportation, and are less able to bear the cost, both economic and to their health, of waiting in long lines to vote or in returning their ballots in person. Id. at ¶¶ 107-108. With the potentially large number of voters casting their ballots by mail due to the pandemic, Plaintiffs allege that even more voters will need assistance delivering their ballots.

2. The COVID-19 Pandemic

According to Plaintiffs, the COVID-19 pandemic exacerbates the burdens imposed by these restrictions. Plaintiffs state that COVID-19 "will make it dangerous and more difficult for Texans to cast their ballots in person in November," and as a result, "many Texas will seek to vote by mail out of necessity." Docket no. 1 at ¶ 27. Plaintiffs cite concerns such as the election venues being unwilling to open their doors to the public as well as the health, safety, and ability to retain poll workers. Id. at ¶¶ 34-37. As a recent illustration of these struggles, Plaintiffs cite Wisconsin's presidential primary which resulted in closed polling locations, "crowds, long lines, and excessive wait times in the middle of a global pandemic whose abatement requires social distancing and spending as little time as possible outside of the home." Id. at ¶¶ 42-43. Plaintiffs note the significant number of COVID-19 cases "who were infected with the disease while participating in April's election[,]" according to Wisconsin health officials. Id. at ¶ 43.

Plaintiffs warn these challenges will arise in Texas. For instance, in Bexar County, 131,705 people voted in person on election day in the 2018 general election. Id. at ¶ 45. If Bexar County must close polling locations due to the challenges outlined above, as seen in Wisconsin, Plaintiffs allege these voters will face an even greater risk of overcrowded polling locations. Id. at ¶¶ 36-37. Furthermore, they note that a "reported 14% of Bexar County adults are diabetic and 16% are family caregivers to elderly or disabled relatives[,]" individuals at heightened risk of severe outcomes resulting from COVID-19. Id. at ¶ 48. Given these conditions and the COVID-19 pandemic generally, Plaintiffs’ premise is that for at least certain voters, the only way to vote safely is by mail. See docket no. 1 at ¶ 67. Accordingly, these challenged restrictions could result in a significantly higher number of uncounted ballots than previous years.

3. Plaintiffs’ Claims for Relief

Plaintiffs state four causes of action, each brought pursuant to 42 U.S.C. § 1983. First, Plaintiffs allege that all four restrictions place an undue burden on the right to vote in violation of the First and Fourteenth Amendments. Id. at ¶¶ 112-121. Second, the Ballot Receipt Deadline and the Signature Match Requirement violate the Equal Protection Clause of the Fourteenth Amendment. Id. at ¶¶ 122-124. Specifically, Plaintiffs allege that the Ballot Receipt Deadline treats voters differently based on where they live, as the rate of rejected ballots differs between counties. Id. at ¶ 123. Likewise, because the Signature Match Requirement does not have a uniform standard for counties to verify signatures, one person's vote is valued over another based on where they live. Id. at ¶ 124. Moreover, elderly...