Tex. Alliance for Retired Ams. v. Hughs

• Decision Date: 30 September 2020
• Docket Number: No. 20-40643,20-40643
• Citation: Tex. Alliance for Retired Ams. v. Hughs, 976 F.3d 564 (5th Cir. 2020)
• Parties: TEXAS ALLIANCE FOR RETIRED AMERICANS; Sylvia Bruni; DSCC; DCCC, Plaintiffs—Appellees, v. Ruth HUGHS, in her official capacity as the Texas Secretary of State, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

976 F.3d 564

TEXAS ALLIANCE FOR RETIRED AMERICANS; Sylvia Bruni; DSCC; DCCC, Plaintiffs—Appellees,

v.Ruth HUGHS, in her official capacity as the Texas Secretary of State, Defendant—Appellant.

No. 20-40643

United States Court of Appeals, Fifth Circuit.

FILED September 30, 2020

Bruce Van Spiva, Spiva & Hartnett, L.L.P., Washington, DC, for Plaintiffs-Appellees.

Matthew Hamilton Frederick, Deputy Solicitor General, Kyle Douglas Hawkins, Office of the Attorney General, Office of the Solicitor General, Todd Lawrence Disher, Patrick K. Sweeten, Office of the Attorney General of Texas, Special Counsel Unit, William Thomas Thompson, Assistant General Counsel, Office of the Attorney General, General Litigation Division, Austin, TX, for Defendant-Appellant.

Before Clement, Elrod, and Haynes, Circuit Judges.

Per Curiam:

Early voting in Texas begins on October 13. On September 25—just eighteen days before early voting begins—the district court enjoined enforcement of Texas House Bill 25 (HB 25), which eliminates straight-ticket voting.

Applying the factors for ruling on a stay and observing the Supreme Court's repeated emphasis that courts should not alter election rules on the eve of an election, we STAY the district court's preliminary injunction pending appeal.

I.

HB 25 was signed into law on June 1, 2017, and its elimination of straight-ticket voting became effective on September 1, 2020. On March 5, 2020, Plaintiffs Bruni, DSCC, DCC, along with the Texas Democratic Party (TDP) and Jessica Tiedt, a candidate for the Texas State House of Representatives, filed their original lawsuit challenging HB 25 as unconstitutional and in violation of the Voting Rights Act. The district court dismissed the suit for lack of standing on June 24, 2020, and Plaintiffs did not file an appeal. Fifty days passed. Then, on August 12, 2020, Plaintiffs dropped Tiedt and TDP as parties, added the Texas Alliance for Retired Americans, and filed a new lawsuit alleging the same claims. Based on the parties’ briefs, the district court entered its order enjoining enforcement of HB 25. The district court ordered the Texas Secretary of State (the Secretary) to implement the laws that were in force before HB 25 was enacted in 2017 in time for the upcoming election.

In granting the preliminary injunction, the district court held that the plaintiffs were likely to succeed on the merits for their claim that HB 25 places an undue burden on Texans’ right to vote and their right to associate under the First and Fourteenth Amendments to the United States Constitution.

On September 28, 2020, the Secretary filed an emergency motion for stay pending appeal.

II.

A stay pending appeal "simply suspend[s] judicial alteration of the status quo," so as to allow appellate courts to bring "considered judgment" to the matter before them and "responsibly fulfill their role in the judicial process." Nken v. Holder , 556 U.S. 418, 427, 429, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (internal quotation marks omitted). We consider four factors in deciding a motion to stay pending appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Veasey v. Perry , 769 F.3d 890, 892 (5th Cir. 2014) (quoting Nken , 556 U.S. at 426, 129 S.Ct. 1749 ). "The first two factors ... are the most critical." Nken , 556 U.S. at 434, 129 S.Ct. 1749. "The proponent of a stay bears the burden of establishing its need." Clinton v. Jones , 520 U.S. 681, 708, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997).

III.

The Supreme Court has "repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election." Republican Nat'l Comm. v. Democratic Nat'l Comm. , ––– U.S. ––––, 140 S. Ct. 1205, 1207, 206 L.Ed.2d 452 (2020). Most recently, in Republican National Committee , the Court granted an application for stay of a district court's preliminary injunction to the extent that it changed election rules five days before an election because "[b]y changing the election rules so close to the election date ... the District Court contravened this Court's precedents and erred by ordering such relief." Id. Time and time again over the past several years, the Supreme Court has stayed lower court orders that change election rules on the eve of an election. See, e.g. , North Carolina v. League of Women Voters of N.C. , 574 U.S. 927, 135 S.Ct. 6, 190 L.Ed.2d 243 (2014) (staying a lower court order that changed election laws thirty-three days before the election); Husted v. Ohio State Conference of N.A.A.C.P. , 573 U.S. 988, 135 S.Ct. 42, 189 L.Ed.2d 894 (2014) (staying a lower court order that changed election laws sixty days before the election); Veasey v. Perry , 574 U.S. ––––, 135 S. Ct. 9, 190 L.Ed.2d 283 (2014) (denying application to vacate Court of Appeals’ stay of district court injunction that changed election laws on eve of election); Purcell v. Gonzalez , 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (staying a lower court order changing election laws twenty-nine days before the election).

The principle from these cases is clear: court changes of election laws close in time to the election are strongly disfavored. Bearing this principle in mind, our court previously has stayed orders changing election laws when an election is imminent. See, e.g. , Tex. Dem. Party v. Abbott , 961 F.3d 389, 411–12 (5th Cir. 2020) ; Veasey , 769 F.3d at 894. Today too, in staying a preliminary injunction that would change election laws eighteen days before early voting begins, we recognize the value of preserving the status quo in a voting case on the eve of an election, and we find that the traditional factors for granting a stay favor granting one here.

A.

The Secretary's arguments as to standing,¹ sovereign immunity, and the merits of Plaintiffs’ claims are harder to decide on our necessarily expedited review, but we need not reach them because the Secretary has made a strong showing that she is likely to succeed on the merits of her appeal on the argument that the district court improperly interfered with state election laws on the eve of an election. The Secretary argues that even if the district court had jurisdiction to issue its injunction, the injunction openly defies the Supreme Court's instruction, discussed above, not to interfere with state election laws on the eve of an election.

In its order, the district court contends that Republican National Committee is distinguishable. 140 S. Ct. at 1207. The district court reasons that its injunction "would be issued far earlier, would not extend any deadlines, and would not create the sort of confusion Republican National Commission [sic] frowns upon."

This reasoning is deeply flawed. First, eighteen days before early voting is not "far earlier" than five days before an election, especially considering that the Supreme Court has also stayed a lower court order that changed election laws sixty days ahead of an election. See League of Women Voters of N.C. , 574 U.S. at 927, 135 S.Ct. 6. Second, the district court's analysis of the burden on election officials and likelihood of confusion relies on the mistaken premise that the "status quo" of Texas election law prior to its issuance of an injunction was straight-ticket voting. The district court states expressly in its order that "Plaintiffs ... raise a challenge seeking to maintain the status quo." On this mistaken premise, the district court writes that "the requested injunction would not impose such an onerous burden on election officials and merely allows a century-old practice to remain in place for one more election." The district court repeats this mistake over and over, stating, for instance, that the injunction prevents "eliminating a practice that Texan voters have been accustomed to for 100 years" and enables "[a]dministering in-person voting the same way it has been administered for almost 100 years ...."

The district court ignores the fact that in June 2017, a majority of the Texas legislature—composed of officials elected by Texan voters to represent them—passed a law that ended the long practice of straight-ticket voting. That law became the new "status quo," and Plaintiffs had plenty of time over the past three years to challenge it. It is the district court's eleventh-hour injunction that alters the status quo, not the Texas legislature's 2017 duly enacted law. The fact that the status quo of Texas election law just prior to the district court issued the injunction was to not allow straight-ticket voting is demonstrated by the fact that Texas election officials, having had three years to adjust to HB 25, printed and mailed thousands of ballots without a straight-ticket voting option for the upcoming general election.

Because of its mistaken premise, the district court minimizes the difficulty and confusion likely to result from Texas election officials having to implement a new ballot type. Even if, as Plaintiffs argue, the district court's injunction does not apply to mail-in ballots, the Secretary describes the immense burden entailed in programming voting machines to process multiple ballot types, especially during an election. As discussed above, "the Supreme Court has instructed that we should carefully guard against judicially altering the status quo on the eve of an election." Veasey , 769 F.3d at 895. We find the Secretary has shown that she is likely to succeed on the merits that the district court erred in issuing an injunction that altered the status quo of Texas election law this close in time to an election. Thus, the first factor weighs in favor of issuing a stay.

B.

The Secretary has met the burden of showing irreparable injury absent a stay. Nken , 556 U.S. at 426, 129 S.Ct. 1749. "When the State is seeking...