Stringer v. Whitley

• Citation: 942 F.3d 715
• Decision Date: 13 November 2019
• Docket Number: No. 18-50428,18-50428
• Parties: Jarrod STRINGER; Benjamin Hernandez; John Woods, Plaintiffs–Appellees, v. David WHITLEY, in His Official Capacity as the Texas Secretary of State; Steven C. McCraw, in His Official Capacity as the Director of the Texas Department of Public Safety, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

942 F.3d 715

Jarrod STRINGER; Benjamin Hernandez; John Woods, Plaintiffs–Appellees,

v.David WHITLEY, in His Official Capacity as the Texas Secretary of State; Steven C. McCraw, in His Official Capacity as the Director of the Texas Department of Public Safety, Defendants–Appellants.

No. 18-50428

United States Court of Appeals, Fifth Circuit.

FILED November 13, 2019

Charles S. Siegel, Senior Attorney, Rachel A. Gross, Esq., Peter A. Kraus, Caitlyn E. Silhan, Waters & Kraus, L.L.P., Hani Mirza, Texas Civil Rights Project, Dallas, TX, Ryan Vincent Cox, Senior Attorney, Mimi Murray Digby Marziani, Texas Civil Rights Project, Austin, TX, for Plaintiffs-Appellees.

Kyle Douglas Hawkins, Beth Ellen Klusmann, Esq., Office of the Attorney General, Office of the Solicitor General, Matthew Hamilton Frederick, Deputy Solicitor General, Office of the Solicitor General for the State of Texas, Austin, TX, for Defendants-Appellants.

Davin McKay Rosborough, American Civil Liberties Union Foundation of New York, New York, NY, Chiraag Bains, Director, Demos, Niyati Shah, Asian Americans Advancing Justice-AAJC, Washington, DC, Edgar Saldivar, American Civil Liberties Union of Texas, Houston, TX, for Amici Curiae National Association of Latino Elected and Appointed Officials, Lori Edwards, and Clay Lewis Jenkins.

Before OWEN, Chief Judge, and CLEMENT and HO, Circuit Judges.

PRISCILLA R. OWEN, Chief Judge:

Texas’s Secretary of State and Director of Public Safety appeal a district court judgment declaring them in violation of the Equal Protection Clause and the National Voter Registration Act of 1993 and granting injunctive relief. We reverse the judgment because Plaintiffs do not have standing to pursue their claims.

I

Those who seek to renew their driver’s license in Texas or to change the address associated with their driver’s license can submit paper applications or apply online using the Texas Department of Public Safety’s (DPS) online system (DPS System). Paper applications ask the following voter registration questions: "If you are a US Citizen, would you like to register to vote? If registered, would you like to update your voter information?" Applicants answer by checking a box for "yes" or "no." DPS transfers the information provided by each applicant who answers "yes" to the Texas Secretary of State (the Secretary). The Secretary sends the applicant’s information to local voter registrars, who use the data to complete the voter registration process.

Those using the online DPS System to renew their driver’s license or to change the address associated with their driver’s license are asked a different voter registration question: "Do you want to request a voter application? You will receive a link to a voter application on your receipt page." The DPS System receipt page states, "You are not registered to vote until you have filled out the online application, printed it, and mailed it to your local County Voter Registrar. Click here to Download a Voter Registration Application." DPS System users can access a voter registration application through the link on the receipt page. DPS does not send the Secretary the information provided by applicants who answer "yes" to the DPS System’s voter registration question.

Plaintiffs Jarrod Stringer, Benjamin Hernandez, and John Woods each moved from a Texas county in which they were registered to vote to another Texas county between 2013 and 2015. Plaintiffs used the DPS System to change their driver’s license addresses and selected "yes" in response to the voter registration question. Plaintiffs believed that they had updated their voter registration by doing so. Stringer and Hernandez discovered that they were not registered to vote in their new counties when they unsuccessfully attempted to vote in the 2014 federal election. Woods was informed that he was not registered to vote in his new county when he called a county authority to confirm his polling location for the 2015 election. Woods and Hernandez submitted provisional ballots, which ultimately were not counted. All three plaintiffs were registered to vote in their new counties by the end of 2015.

Plaintiffs sued the Texas Secretary of State and the Director of the Texas Department of Public Safety, alleging that the DPS System violates the Equal Protection Clause and the National Voter Registration Act of 1993 (NVRA). Plaintiffs alleged that the DPS System violates a number of NVRA provisions, including 52 U.S.C. § 20504(d), which states "[a]ny change of address form submitted in accordance with State law for purposes of a State motor vehicle driver's license shall serve as notification of change of address for voter registration."¹ Plaintiffs sought declaratory and injunctive relief, not damages.

Plaintiffs filed a motion for summary judgment. Texas filed a cross-motion for summary judgment, contending, inter alia , that Plaintiffs do not have standing to bring their claims. The district court granted summary judgment to Plaintiffs, holding that Plaintiffs have standing to bring their claims and that the DPS System violates the NVRA and the Equal Protection Clause.² The district court entered a final judgment granting Plaintiffs wide-ranging declaratory and injunctive relief. Texas appeals.

II

We review questions of standing de novo.³ To have Article III standing, a plaintiff must show an injury in fact that is fairly traceable to the challenged action of the defendant and likely to be redressed by the plaintiff’s requested relief.⁴ Courts have divided this rule into three components: injury in fact, causation, and redressability.⁵ The party seeking to invoke federal jurisdiction, in this case the Plaintiffs, bears the burden of establishing all three elements.⁶

Requests for injunctive and declaratory relief implicate the intersection of the redressability and injury-in-fact requirements. The redressability requirement limits the relief that a plaintiff may seek to that which is likely to remedy the plaintiff’s alleged injuries.⁷ Because injunctive and declaratory relief "cannot conceivably remedy any past wrong,"⁸ plaintiffs seeking injunctive and declaratory relief can satisfy the redressability requirement only by demonstrating a continuing injury or threatened future injury.⁹ That continuing or threatened future injury, like all injuries supporting Article III standing, must be an injury in fact.¹⁰ To be an injury in fact, a threatened future injury must be (1) potentially suffered by the plaintiff, not someone else;¹¹ (2) "concrete and particularized,"¹² not abstract;¹³ and (3) "actual or imminent, not ‘conjectural’ or ‘hypothetical.’ "¹⁴ The purpose of the requirement that the injury be "imminent" is "to ensure that the alleged injury is not too speculative for Article III purposes."¹⁵ For a threatened future injury to satisfy the imminence requirement, there must be at least a "substantial risk" that the injury will occur.¹⁶

The district court did not apply this standard. The district court held that Plaintiffs had standing because they were "deprived of their individual right to simultaneous voter registration applications at the time they engaged in the online DPS transactions to change their driver's licenses," and "[c]ourt-ordered compliance with the NVRA would prevent repetition of the same injury to Plaintiffs and others."¹⁷ The injury identified by the district court—the "depriv[ation] of [Plaintiffs'] individual right to simultaneous voter registration applications at the time they engaged in the online DPS transactions "¹⁸ —was not a continuing or threatened future injury, but a past injury. To the extent that the district court identified a continuing or threatened future injury, it did so when it stated that "[c]ourt-ordered compliance with the NVRA would prevent repetition of the same injury to Plaintiffs and others."¹⁹ However, whether compliance with the NVRA would prevent future injury to others is irrelevant; plaintiffs seeking injunctive relief must show a continuing or threatened future injury to themselves.²⁰ Standing also does not follow from the conclusion that the injunctive relief sought by a plaintiff would prevent the plaintiff from suffering the same injury in the future, which is always true when a plaintiff seeks an injunction prohibiting a defendant from repeating an action that injured the plaintiff in the past. Plaintiffs must also show that there is a substantial risk that they will suffer the potential future injury absent their requested relief.²¹ The district court did not address the probability of Plaintiffs being injured in the future absent their requested relief.

A

Plaintiffs contend that they have demonstrated a substantial risk that they will suffer a future injury as a result of the DPS System’s noncompliance with the NVRA and Equal Protection Clause. As Plaintiffs concede, to do so, they must demonstrate "a sufficient probability that each Plaintiff will use the noncompliant driver’s license services again." All three Plaintiffs declared that they "plan to continue transacting online with [DPS] in the future whenever [they are] required to renew or change the address on [their] driver's license and [are] eligible to do so." However, each Plaintiff will have the occasion to use the DPS System to update his voter registration only if (1) he moves within Texas, in which case he might wish use the DPS System to change his address on file with DPS and his county voter registrar, or (2) he becomes both unregistered to vote and eligible to renew his driver’s license using the DPS System, in which case he might wish to use the DPS System to renew his driver’s license and register to vote.

Plaintiffs rely on two types of evidence that they contend demonstrate a substantial risk that they will move again. The first is evidence of their prior moves—Hernandez and Woods have each moved once in the past five years, and Stringer has moved several times. However, evidence that a plaintiff has taken an...