Lewis v. Scott

• Decision Date: 16 March 2022
• Docket Number: No. 20-50654,20-50654
• Citation: 28 F.4th 659
• 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; Texas Alliance for Retired Americans, Plaintiffs—Appellees, v. John SCOTT, in his official capacity as Texas Secretary of State, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

28 F.4th 659

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; Texas Alliance for Retired Americans, Plaintiffs—Appellees,

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

No. 20-50654

United States Court of Appeals, Fifth Circuit.

FILED March 16, 2022

Kevin J. Hamilton, Perkins Coie, L.L.P., Seattle, WA, Aria Branch, Marc Erik Elias, Attorney, Elias Law Group, L.L.P., Washington, DC, Stephanie Command, Perkins Coie, L.L.P., Washington, DC, Todd Lawrence Disher, Lehotsky Keller, L.L.P., Austin, TX, Skyler Howton, Perkins Coie, L.L.P., Dallas, TX, Sarah Schirack, Perkins Coie, L.L.P., Anchorage, AK, for Plaintiff-Appellee Linda Jann Lewis.

Kevin J. Hamilton, Perkins Coie, L.L.P., Seattle, WA, Aria Branch, Marc Erik Elias, Attorney, Elias Law Group, L.L.P., Washington, DC, Stephanie Command, Perkins Coie, L.L.P., Washington, DC, Skyler Howton, Perkins Coie, L.L.P., Dallas, TX, Sarah Schirack, Perkins Coie, L.L.P., Anchorage, AK, for Plaintiffs-Appellees Madison Lee, Ellen Sweets, Benny Alexander, George Morgan, Voto Latino, Texas State Conference of the National Association for the Advancement of Colored People, Texas Alliance for Retired Americans.

Beth Ellen Klusmann, Esq., Office of the Attorney General for the State of Texas, Austin, TX, Patrick K. Sweeten, Office of the Attorney General of Texas, Special Counsel Unit, Austin, TX, William Thomas Thompson, Assistant General Counsel, Attorney General of Texas, Office of Special Litigation, Austin, TX, for Defendant-Appellant.

Before Higginbotham, Willett, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Plaintiffs challenged as unconstitutional various provisions of the Texas Election Code regulating mail-in balloting and sued the Texas Secretary of State. We conclude that the Plaintiffs' suit is barred by sovereign immunity because the Secretary does not enforce the challenged provisions. We reverse and remand.

I.

In May 2020, Plaintiffs¹ filed suit challenging four provisions of the Texas Election Code that regulate voting by mail in Texas. First, they challenged section 86.002 on the grounds that it requires voters to pay for postage to mail a ballot. See TEX. ELEC. CODE § 86.002.² Second, they challenged section 86.007, which requires mailed ballots be postmarked by 7:00 p.m. on election day and received by 5:00 p.m. on the day after election day. See id. § 86.007(a). Third, they challenged section 87.027, which requires a committee to verify that the voter's signature on the carrier envelope matches examples of the voter's signature on file with the county clerk or voter registrar. See id. § 87.027(i). Fourth, they challenged section 86.006, which criminalizes knowingly possessing another person's mail-in ballot or carrier envelope except in specified circumstances. See id. § 86.006(f). Plaintiffs claimed these provisions, especially in the context of the Covid-19 pandemic, unlawfully burdened the right to vote in violation of the First, Fourteenth, and Twenty-Fourth Amendments. They sought a declaratory judgment, as well as permanent and preliminary injunctive relief. The named defendant was the Secretary of State ("the Secretary"), in her official capacity.³

The Secretary moved to dismiss based on, inter alia , sovereign immunity, arguing she lacked the necessary connection to enforcing the challenged provisions under Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The district court denied the motion. It found the requisite connection in two provisions of the Texas Election Code: (1) the Secretary's duty in section 31.003 to "obtain and maintain uniformity in the application, operation, and interpretation of [this code] and of the election laws outside [this code]"; and (2) the Secretary's authority in section 31.005 to "take appropriate action to protect voting rights from abuse by the authorities administering the state's electoral processes." Lewis v. Hughs , 475 F. Supp. 3d 597, 610 (W.D. Tex. 2020) (cleaned up); see TEX. ELEC. CODE §§ 31.003 ; 31.005(a)–(b).

The Secretary immediately appealed the denial of sovereign immunity under the collateral order doctrine. See Haverkamp v. Linthicum , 6 F.4th 662, 669 (5th Cir. 2021) (per curiam) (citing P.R. Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 141, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) ). A panel of this court initially granted Plaintiffs' motion to summarily affirm, based on its view that "no substantial question exists ... with respect to whether the Texas Secretary of State bears a sufficient connection to the enforcement of the Texas Election Code's vote-by-mail provisions to satisfy Ex parte Young 's ‘some connection’ requirement." Lewis v. Hughs , No. 20-50654, 2020 WL 5511881 (5th Cir. Sept. 4, 2020) (per curiam) (citing Young , 209 U.S. at 157, 28 S.Ct. 441 ; Tex. Democratic Party v. Abbott , 961 F.3d 389 (5th Cir. 2020) (per curiam)). After the Secretary moved for rehearing en banc, the panel (over a dissent) withdrew its order, denied Plaintiffs' motions to summarily affirm or to dismiss the appeal as frivolous, and routed the appeal to a merits panel. See Lewis v. Hughs , No. 20-50654, 2020 WL 6066178 (5th Cir. Oct. 2, 2020). The court later denied the Secretary's en banc petition.

II.

"We review the district court's jurisdictional determination of sovereign immunity de novo. " City of Austin v. Paxton , 943 F.3d 993, 997 (5th Cir. 2019), cert. denied ––– U.S. ––––, 141 S. Ct. 1047, 208 L.Ed.2d 519 (2021).

III.

As an exception to the general rule of state sovereign immunity, Ex parte Young permits plaintiffs to sue a state officer in his official capacity for an injunction to stop ongoing violations of federal law. 209 U.S. at 155–56, 28 S.Ct. 441 ; see also Whole Woman's Health v. Jackson , ––– U.S. ––––, 142 S. Ct. 522, 532, 211 L.Ed.2d 316 (2021). The officer sued must have "some connection with the enforcement of the [challenged] act." Young , 209 U.S. at 157, 28 S.Ct. 441. Although our circuit has struggled to define this "connection" requirement,⁴ this principle is settled: "Where a state actor or agency is statutorily tasked with enforcing the challenged law and a different official is the named defendant, our Young analysis ends." City of Austin , 943 F.3d at 998 (citing Morris v. Livingston , 739 F.3d 740, 742 (5th Cir. 2014) ); see also Tex. Democratic Party v. Hughs , 997 F.3d 288, 291 (5th Cir. 2021) ; Mi Familia Vota v. Abbott , 977 F.3d 461, 467–68 (5th Cir. 2020). Applying that principle, we conclude that the Secretary is not the proper defendant here.

First, Plaintiffs challenge what they call the "requirement" in section 86.002 that voters pay postage to mail early ballots.⁵ But the statute specifies that "[t]he early voting clerk shall provide an official ballot envelope and carrier envelope with each ballot provided to a voter." Id. § 86.002(a) (emphasis added). And, if "the clerk" determines these materials will weigh more than one ounce, "the clerk shall include ... a notice of the amount of first class postage that will be required for the return by mail of the carrier envelope and enclosed materials." Id. § 86.002(e). The only role the Secretary plays in this process is to "prescribe instructions to be printed on the balloting materials for the execution and return of a statement of residence." Id. § 86.002(d). That duty has nothing to do with enforcing any postage requirement on early ballots.

The same reasoning applies to the other provisions targeted by Plaintiffs. It is "[t]he early voting clerk," not the Secretary, who assesses whether mailed ballots are timely under the postmark-and-receipt requirements. Id. § 86.011(a).⁶ It is local election officials, not the Secretary, who verify voters' signatures and notify voters of a mismatch. See id. § 87.041(a) (providing "early voting ballot board" shall open and assess early voting ballots).⁷ And it is local prosecutors, not the Secretary, who are specifically charged with enforcement of the criminal prohibition on possessing a voter's mail-in ballot. See id. § 86.006(i) (establishing standards for "the prosecution of an offense under Subsection (f)" by "the prosecuting attorney"). So, the statutes themselves refute any notion that the Secretary enforces them. City of Austin , 943 F.3d at 998.⁸

Finally, Plaintiffs rely on the Secretary's "general duties" in enforcing election laws—such as his role as "chief election officer," TEX. ELEC. CODE § 31.001, his duty to "obtain and maintain uniformity" in the laws' application, id. § 31.003, his duty to "assist and advise" election officials, id. § 31.004, and his authority to "take appropriate action to protect" voting rights, id. § 31.005. None of these creates the relevant connection between the Secretary and any of the challenged provisions. The Secretary's general duties "fail to make [him] the enforcer of specific election code provisions." See Tex. All. for Retired Ams. v. Scott , No. 20-40643, ––– F.4th ––––, 2022 WL 795862 (5th Cir. March 16, 2022) (citing TEX. ELEC. CODE §§ 31.003 –.005).⁹ More is needed—namely, a showing of the Secretary's "connection to the enforcement of the particular statutory provision that is the subject of the litigation." Tex. Democratic Party v. Abbott (TDP ), 978 F.3d 168, 179 (5th Cir. 2020) ; see also City of Austin , 943 F.3d at 999–1000 (distinguishing "general duty" to implement state law from "particular duty to enforce the statute in question" (quoting Morris , 739 F.3d at 746 )). "Th[at] is especially true here because the Texas Election Code delineates between the authority of the Secretary of State and local officials." TDP , 978 F.3d at 179. The district court erred by basing its Young reasoning on these general duties.¹⁰

In sum, the district court erred in finding the Secretary was a proper defendant under Ex...