Longoria v. Paxton

Decision Date11 February 2022
Docket NumberSA:21-CV-1223-XR
PartiesISABEL 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.
CourtU.S. District Court — Western District of Texas
ORDER

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

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.

BACKGROUND

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.

I. Appointment of Elections Administrators and VDRs under the Texas Election Code

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) (including “an elections administrator” in the definition of “election official”); id. § 31.128 (describing restrictions on eligibility of election officers). 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) ([T]he Legislature intended to shield the position of elections administrator from removal except upon compliance with the statutory safeguards established in the Election Code.”).

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.

II. Voting by Mail in Texas

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).

III. The Challenged Provisions and Impact on Plaintiffs' Speech

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 information about voting by mail, the vote by mail process, or the timelines associated with voting to a person or the public” (the “general information” exception) or (2) engages in solicitation “while acting in the official's capacity as a candidate for a public elective office” (the “candidate for office” exception). Id. § 276.016(e).

An offense under Section 276.016 is a state jail felony, id. § 276.016(b), which is punishable by confinement in a state jail for a term of at least 180 days, not to exceed two years, and a fine of up to $10, 000. Tex. Penal Code § 12.35. Section 276.016(f) clarifies that criminal liability is not the only available enforcement mechanism: “The remedy provided under this chapter is cumulative, and does not restrict any other remedies provided by this code or by law.”

Tex. Elec. Code § 276.016(f). Section 276.016(f) also provides that “a violation of this section is subject to injunctive relief or mandamus as provided by this code.” Id.

Section 31.129 sets forth the civil penalties for violations of the Election Code, including Section 276.016. Section 31.129 prov...

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