Longoria v. Paxton
| Decision Date | 11 February 2022 |
| Docket Number | CASE NO. SA:21-CV-1223-XR |
| Citation | 585 F.Supp.3d 907 |
| Parties | Isabel LONGORIA, Cathy Morgan, Plaintiffs, v. Warren K. PAXTON, in his official capacity as Attorney General of Texas; Kim Ogg, in her official capacity as Harris County District Attorney; Shawn Dick, in his official capacity as Williamson County District Attorney; and Jose Garza, in his official capacity as Travis County District Attorney, Defendants. |
| Court | U.S. District Court — Western District of Texas |
Christian Dashaun Menefee, Christina Marie Beeler, Jonathan Gabriel Chaim Fombonne, Sameer Singh Birring, Tiffany Sue Bingham, Harris County Attorney's Office, Houston, TX, Elizabeth Yvonne Ryan, Megan Cloud, Paul R. Genender, Weil, Gotshal & Manges L.L.P., Dallas, TX, Ethan J. Herenstein, Sean Morales-Doyle, Brennan Center for Justice at NYU School of Law, New York, NY, for Plaintiff Isabel Longoria.
Christian Dashaun Menefee, Jonathan Gabriel Chaim Fombonne, Sameer Singh Birring, Harris County Attorney's Office, Houston, TX, Elizabeth Yvonne Ryan, Megan Cloud, Paul R. Genender, Weil, Gotshal & Manges L.L.P., Dallas, TX, Ethan J. Herenstein, Sean Morales-Doyle, Brennan Center for Justice at NYU School of Law, New York, NY, for Plaintiff Cathy Morgan.
Patrick K. Sweeten, Eric A. Hudson, J. Aaron Barnes, Kathleen Hunker, Leif A. Olson, William Thomas Thompson, Office of the Attorney General of Texas, Austin, TX, for Defendant Warren K. Paxton.
Eric J.R. Nichols, Karson Karl Thompson, Butler Snow LLP, Austin, TX, for Defendant Kim Ogg.
Sean E. Breen, Howry Breen & Herman, LLP, Randy T. Leavitt, Austin, TX, for Defendant Shawn Dick.
Anthony J. Nelson, Leslie W. Dippel, Sherine Elizabeth Thomas, Patrick T. Pope, Travis County Attorney, Civil Litigation Division, Austin, TX, for Defendant Jose Garza.
On this date, the Court considered Plaintiffs’ motion for a preliminary injunction (ECF No. 7), Defendant Warren Paxton's response (ECF No. 48), Defendant Shawn Dick's response (ECF No. 47), and Plaintiffs’ reply (ECF No. 50). After careful consideration, the Court issues the following order.
This action arises out of an omnibus voting bill, Senate Bill ("SB1"), the State of Texas enacted on August 31, 2021. SB1 adds two new provisions, among others, to the Texas Election Code ("Election Code"): Sections 276.016(a)(1) ("anti-solicitation provision") and 31.129 ("civil enforcement provision"). Section 276.016(a)(1) provides, "A public official or election official commits an offense if the official, while acting in an official capacity, knowingly: (1) solicits the submission of an application to vote by mail from a person who did not request an application[.]" TEX. ELEC. CODE § 276.016(a)(1). Under Section 31.129, an election official may be liable to the State of Texas for a civil penalty if (1) the election official is employed by or is an officer of the state or a political subdivision of the state, and (2) violates a provision of the Election Code. Id. § 31.129(b)(1)–(2). Section 31.129 makes clear that "[a] civil penalty ... may include termination of the person's employment and loss of the person's employment benefits." Id. § 31.129(c). Together, the anti-solicitation and civil enforcement provisions impose civil and criminal liability—punishable by a mandatory minimum of six months’ imprisonment, fines of up to $10,000, and other civil penalties—on "public officials" and "election officials" who "solicit" a vote-by-mail application from an individual who has not requested one, regardless of the individual's eligibility to vote by mail. See id. §§ 2746.016(a)(1), 31.129.
Plaintiff Isabel Longoria ("Longoria"), the Elections Administrator for Harris County, and Plaintiff Cathy Morgan ("Morgan"), a volunteer deputy registrar ("VDR") in Williamson and Travis Counties, want to engage in speech that encourages eligible voters to submit timely vote-by-mail applications. ECF No. 5 at 1–2. Plaintiffs fear to engage in such speech, however, because the anti-solicitation and civil enforcement provisions may subject them to criminal prosecution and civil liability. See id. ; ECF No. 7 at 1–2. Plaintiffs therefore ask the Court to enjoin the defendants in this case from enforcing these provisions. See ECF Nos. 5, 7. They argue that, together, these provisions constitute unlawful viewpoint discrimination in violation of the First and Fourteenth Amendments, both facially and as applied to their speech. Id.
Texas conducts elections in its 254 counties and more than 1,200 cities pursuant to the Election Code. By default, the Election Code provides that the county tax assessor-collector and county clerk manage voter registration and election administration. See, e.g. , TEX. ELEC. CODE §§ 12.001, 67.007, 83.002. The Election Code alternatively permits counties to appoint a "county elections administrator" and transfer all voter registration and election administration duties to the appointed individual. Id. §§ 31.031, 31.043. These duties include overseeing the conduct of elections, providing information on early voting to individual voters, and distributing official vote-by-mail applications to eligible voters. See, e.g., id. §§ 31.043 – 31.045, 83.002, 85.007.
A majority vote of the county election commission—a body that comprises the county judge, the county clerk, the county tax assessor-collector, and the county chairs of qualifying political parties—appoints a county elections administrator. Id. § 31.032. To be eligible for appointment, a candidate must be a qualified Texas voter, id. § 31.034, and, as an "election official," cannot have been "finally convicted of an offense" under the Election Code, see id. § 1.005(4-a)(C) (); id. § 31.128 (). Once appointed, a county elections administrator is an employee of the county in which she serves and may only be removed from office "for good and sufficient cause on the four-fifths vote of the county election commission and approval of that action by a majority vote of the commissioners court." Id. § 31.037; Krier v. Navarro , 952 S.W.2d 25, 30 (Tex. App.—San Antonio 1997, writ denied) ().
The Election Code also provides for the appointment of volunteer deputy registrars ("VDRs"). VDRs are appointed by the voter registrar—the county tax assessor-collector, the county clerk, or the county elections administrator, as designated by the county—to encourage and facilitate voter registration. See TEX. ELEC. CODE §§ 13.031, 13.033, 13.041. An appointment as a VDR is terminated on the expiration of her appointed term or after a final conviction for certain Election Code violations. Id. § 13.036. The voting registrar may also terminate the appointment of a VDR after determining that the VDR (1) failed to adequately review a registration application, (2) intentionally destroyed or physically altered a registration application, or (3) engaged in "any other activity that conflicts with the responsibilities of a volunteer deputy registrar" under the Election Code. Id. VDRs are unpaid volunteers; nonetheless, they are subject to the provisions of the Election Code and can face criminal penalties for violations. See TEX. ELEC. CODE §§ 13.008, 13.043.
Plaintiff Longoria was sworn in as the Harris County Elections Administrator on November 18, 2020. ECF No. 7-1 ("Longoria Decl.") ¶ 2. Plaintiff Morgan has served as a VDR in Austin, Texas, since 2014, in both Williamson and Travis Counties. ECF No. 7-2 ("Morgan Decl.") ¶¶ 1–2.
Texas law provides for early voting by mail in certain circumstances. Specifically, any voter who is at least 65 years old, sick or disabled, confined due to childbirth, out of the county on election day, or, in some cases, confined in jail is eligible to vote early by mail. TEX. ELEC. CODE §§ 82.001 – 82.008. So long as an applicant timely request an application to vote by mail, the county elections administrator or county clerk "shall" provide an application and, if the applicant is deemed eligible, a mail-in ballot. Id. §§ 84.001, 84.012, 86.001(b).
Millions of Texans are eligible to vote by mail, and approximately 980,000 did so in the 2020 presidential election.1 Texas does not maintain a permanent list of voters eligible to vote by mail, and voters must apply to vote by mail at least annually, beginning on the first day of the calendar year and at least eleven days before an election. Id. §§ 86.0015 (a), (b-1). To vote by mail in the primary on March 1, 2022, voters must return a vote-by-mail application between January 1 and February 18, 2022. Id. § 86.0015(b-1).
Plaintiffs’ operative complaint includes two counts. See ECF No. 5. In Count I, Longoria and Morgan seek to prevent their local district attorneys from criminally prosecuting them under Section 276.016(a)(1). See id. ¶¶ 37–43. In Count II, Longoria seeks to prevent the Attorney General from bringing a civil enforcement action against her under Section 31.129 for violating Section 276.016(a)(1). See id. ¶¶ 44–46.
Section 276.016(a) provides that "[a] public official or election official commits an offense if the official, while acting in an official capacity, knowingly, (1) solicits the submission of an application to vote by mail from a person who did not request an application." TEX. ELEC. CODE § 276.016(a)(1). Section 276.0016(e) sets forth two exceptions to the general prohibition on solicitation. Section 276.016(a)(1) does not apply if the public official or election official (1) "provide[s] general...
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