Richardson v. Flores

• Decision Date: 16 March 2022
• Docket Number: No. 20-50774,20-50774
• Parties: Doctor George RICHARDSON; Rosalie Weisfeld; MOVE Texas Civic Fund ; League of Women Voters of Texas; Austin Justice Coalition; Coalition of Texans With Disabilities, Plaintiffs—Appellees, v. Federico FLORES, Jr.; Maria Guerrero; Vicente Guerrero, Movants—Appellants, v. John Scott, in his official capacity as the Texas Secretary of State, Defendant—Appellant - Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

28 F.4th 649

Doctor George RICHARDSON; Rosalie Weisfeld; MOVE Texas Civic Fund ; League of Women Voters of Texas; Austin Justice Coalition; Coalition of Texans With Disabilities, Plaintiffs—Appellees,

v.Federico FLORES, Jr.; Maria Guerrero; Vicente Guerrero, Movants—Appellants,

v.John Scott, in his official capacity as the Texas Secretary of State, Defendant—Appellant - Appellee.

No. 20-50774

United States Court of Appeals, Fifth Circuit.

FILED March 16, 2022

Hani Mirza, Zachary Dolling, Texas Civil Rights Project, Houston, TX, Samuel Maclain Kalar, Richard Mancino, JoAnna Barbara Suriani, Willkie Farr & Gallagher, L.L.P., New York, NY, Mimi Murray Digby Marziani, Texas Civil Rights Project, Austin, TX, for Plaintiffs-Appellees.

Jerad Wayne Najvar, Esq., Austin M.B. Whatley, Najvar Law Firm, P.L.L.C., Houston, TX, for Movants-Appellants.

Beth Ellen Klusmann, Esq., Office of the Attorney General for the State of Texas, Austin, TX, for Defendant-Appellant.

Robert A. Atkins, Attorney, Kerissa Barron, Farrah Robyn Berse, Jessica Fuhrman, Melina Maria Meneguin Layerenza, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York, NY, for Amicus Curiae.

Before Higginbotham, Willett, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Plaintiffs challenged Texas's system for verifying the signatures on mail-in ballots. Based on purported constitutional defects in that system, the district court issued a detailed injunction against the Texas Secretary of State. But the Secretary does not verify mail-in ballots; that is the job of local election officials. Sovereign immunity therefore bars the injunction. We reverse the district court's order, vacate the injunction, and remand for further proceedings.

I.

A.

First, we sketch Texas's system for verifying mail-in ballots.¹

An eligible voter applies for a mail-in ballot by timely signing and mailing an application to the early voting clerk. TEX. ELEC. CODE ² § 84.001(a), (b), (d).³ Upon receiving a proper application, the early voting clerk mails the voter balloting materials, including the ballot, ballot envelope, and carrier envelope. §§ 86.001(b), 86.002(a), 86.003(a). The voter then fills out the ballot, seals the ballot envelope, places it in the carrier envelope, and timely returns it. §§ 86.005(c), 86.007. The voter must sign the certificate on the carrier envelope. §§ 86.005(c), 86.013(c).

The Early Voting Ballot Board ("EVBB") is responsible for processing mail-in ballots. § 87.001. The ballots are verified by the EVBB or initially by a Signature Verification Committee ("SVC"), if one is appointed. §§ 87.041(a), 87.021(2), 87.022–024, 87.027(a), (h). The EVBB and the SVC compare the signatures on the ballot application and the carrier envelope certificate, as well as signatures already on file. §§ 87.041(b)–(e), 87.027(h)–(i). Either body may accept or reject ballots based on signature comparisons. §§ 87.027(i), (j), 87.041(b), (d). The EVBB, however, may overrule the SVC's rejection of a ballot and accept the ballot. § 87.027(j).

Following its review, the EVBB secures rejected ballots and delivers them to the general custodian of election records. § 87.043(c). No more than ten days after an election, the EVBB must notify a voter in writing that his ballot was rejected. § 87.0431(a). No more than thirty days after an election, the early voting clerk must notify the Attorney General of the EVBB's rejections and provide certified copies of balloting materials. § 87.0431(b).

B.

In August 2019, Plaintiffs⁴ filed suit challenging this verification system. They brought claims under the due process and equal protection clauses of the Fourteenth Amendment, as well as the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. , and the Rehabilitation Act of 1973, 29 U.S.C. § 794. The named defendants were the Secretary of State⁵ ("the Secretary"), in her official capacity, as well as two local election officials.

After denying the Secretary's motion to dismiss and receiving cross-motions for summary judgment, in September 2020 the district court granted Plaintiffs partial summary judgment on their constitutional claims and ordered "detailed and lengthy" injunctive relief pertaining to the November 2020 election. Richardson v. Tex. Sec'y of State (Richardson II ), 978 F.3d 220, 227 (5th Cir. 2020) ; see also Richardson v. Tex. Sec'y of State (Richardson I ), 485 F. Supp. 3d 744, 801–03 (W.D. Tex. 2020).

The Secretary timely appealed, and a motions panel stayed the injunction. Richardson II , 978 F.3d at 224. While declining to reach standing or sovereign immunity, the panel found the Secretary likely to succeed on the merits because Texas's system did not implicate due process rights and survived the Anderson / Burdick test. Id. at 228–33, 235–41.⁶ The panel also concluded that the injunction likely went beyond the remedy available under Ex parte Young by purporting to "control the Secretary in [the] exercise of discretionary functions." Id. at 241 ; see Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Judge Higginbotham concurred on the grounds that the Supreme Court has "consistently counseled against court-imposed changes to ‘election rules on the eve of an election.’ " Richardson II , 978 F.3d at 244 (Higginbotham, J., concurring) (quoting Republican Nat'l Comm. v. Democratic Nat'l Comm. , ––– U.S. ––––, 140 S. Ct. 1205, 1207, 206 L.Ed.2d 452 (2020) (per curiam)).

II.

"We review a preliminary injunction for abuse of discretion, reviewing findings of fact for clear error and conclusions of law de novo. " Planned Parenthood of Greater Tex. v. Kauffman , 981 F.3d 347, 354 (5th Cir. 2020) (en banc) (citation omitted). Similarly, "[w]e 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.

The Secretary raises sovereign immunity as a threshold ground for reversal. He contends that, because he does not enforce the challenged ballot verification system, Plaintiffs' suit falls outside the Ex parte Young exception to sovereign immunity. See Ex parte Young , 209 U.S. at 157, 28 S.Ct. 441 (state officer defendant must have "some connection with the enforcement of the act"). We agree.

Plaintiffs claim the process of verifying signatures on mail-in ballots violates their rights under the Fourteenth Amendment and federal disability laws. But, as discussed, the Texas Election Code places those duties in the hands of local election officials: the early voting clerk, the EVBB, and the SVC. See Richardson II , 978 F.3d at 224–26. The Secretary has no enforcement role. See Lewis v. Scott , No. 20-50654, 28 F.4th 659, 664, (5th Cir. March 16, 2022) (holding "[i]t is local election officials, not the Secretary, who verify voters' signatures and notify voters of a mismatch"). "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 (citation omitted).

To find the required connection, the district court relied on the Secretary's broad duties to oversee administration of Texas's election laws. See Richardson I , 485 F. Supp. 3d at 771–72 (citing §§ 31.001–.005). Since then, however, our precedent has clarified that the Secretary's "general duties under the [Texas Election] Code" fail to make the Secretary the enforcer of specific election code provisions. Tex. Democratic Party v. Abbott , 978 F.3d 168, 180 (5th Cir. 2020) (citing §§ 31.003–.004).⁷ 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." Id. at 179 ; 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 v. Livingston , 739 F.3d 740, 746 (5th Cir. 2014) )). "Th[at] is especially true here because the Texas Election Code delineates between the authority of the Secretary of State and local officials." Tex. Democratic Party , 978 F.3d at 179. None of the general duties cited by the district court shows that the Secretary enforces the particular verification provisions challenged here. See Lewis , No. 20-50654, slip op. at 5-7, 28 F.4th at 663–64 (reaching same conclusion).⁸

Plaintiffs argue enforcement authority is evident in election code section 31.002, which requires the Secretary to prescribe the "design and content" of forms local officials use. Plaintiffs did not make this argument in the district court, so it is waived. See Certain Underwriters at Lloyd's v. Axon Pressure Prods. Inc. , 951 F.3d 248, 273 n.20 (5th Cir. 2020). But even had they not waived it, the argument would fail. Plaintiffs do not challenge the design or content of the forms associated with mail-in balloting. Rather, they challenge the processes of verifying mail-in ballots and notifying voters. The code confers the duty to verify ballots on local officials, not the Secretary. See Lewis , No. 20-50654, slip op. at 5, 28 F.4th at 663–64. So, enjoining the Secretary to change the balloting forms "would not afford the Plaintiffs the relief that they seek, and therefore, the Secretary of State is not a proper defendant." Mi Familia Vota v. Abbott , 977 F.3d 461, 467–68 (5th Cir. 2020) (citation and internal quotation marks omitted).⁹

Plaintiffs also argue the Secretary's enforcement authority is shown because the Secretary has issued various advisories to local officials about ballot verification. We disagree. "Enforcement" for Young purposes means "compulsion or constraint." City of Austin , 943 F.3d at 1000 (quoting K.P. v. LeBlanc , 627 F.3d 115, 124 (5th Cir. 2010) ). Offering advice, guidance, or interpretive assistance does not compel or constrain local officials in fulfilling their duty to verify mail-in...