Tex. Alliance for Retired Americans v. Scott

• Decision Date: 16 March 2022
• Docket Number: No. 20-40643,20-40643
• Citation: 28 F.4th 669
• Parties: TEXAS ALLIANCE FOR RETIRED AMERICANS; Sylvia Bruni; DSCC ; DCCC, Plaintiffs—Appellees, v. John SCOTT, in his official capacity as the Texas Secretary of State, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

28 F.4th 669

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

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

No. 20-40643

United States Court of Appeals, Fifth Circuit.

FILED March 16, 2022

Marc Erik Elias, Attorney, Lalitha Madduri, Daniel C. Osher, Elias Law Group, L.L.P., Washington, DC, Stephanie Command, Perkins Coie, L.L.P., Washington, DC, Skyler Howton, Perkins Coie, L.L.P., Dallas, TX, for Plaintiffs-Appellees.

Judd Edward Stone, II, Office of the Attorney General, Office of the Solicitor General, Austin, TX, Todd Lawrence Disher, Lehotsky Keller, L.L.P., Austin, TX, Patrick K. Sweeten, Office of the Attorney General of Texas, Special Counsel Unit, Austin, TX, William Thomas Thompson, Assistant General Counsel, Attorney General of Texas, Office of Special Litigation, Austin, TX, for Defendant-Appellant.

Before Higginbotham, Willett, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Shortly before the November 2020 election, Plaintiffs challenged Texas's elimination of straight-ticket voting. Agreeing with Plaintiffs' claims that this change unconstitutionally burdened the right to vote, the district court enjoined the Texas Secretary of State. A motions panel of our court stayed the injunction. We now reverse the district court's order, vacate the injunction, and remand for further proceedings. Because the Secretary of State does not enforce the law that ended straight-ticket voting, Plaintiffs' constitutional claims are barred by sovereign immunity.

I.

Texas House Bill 25 (HB 25) eliminated straight-ticket voting in Texas elections. Straight-ticket or "straight-party" voting meant "cast[ing] a vote for all the nominees of one party ... by placing an ‘X’ in the square beside the name of the party of [the voter's] choice." TEX. ELEC. CODE § 52.071(b), repealed by Act of May 20, 2017, 85th Leg., R.S., ch. 404, § 8, 2017 Tex. Gen. Laws 1081, 1083.¹ HB 25 ended that practice. It was signed June 1, 2017, and scheduled to go into effect over three years later on September 1, 2020. Ibid.

On August 12, 2020, Plaintiffs² filed suit challenging HB 25 on the grounds that eliminating straight-ticket voting would lengthen polling lines and therefore burden voting rights. They alleged claims under the First, Fourteenth, and Fifteenth Amendments to the United States Constitution and § 2 of the Voting Rights Act of 1965, 52 U.S.C. § 10301. The named defendant was the Texas Secretary of State ("the Secretary") in her official capacity.³ Plaintiffs sought injunctive and declaratory relief, as well as a preliminary injunction.

On September 25, 2020, the district court issued a preliminary injunction based only on Plaintiffs' constitutional undue burden claims. See Burdick v. Takushi , 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) ; Anderson v. Celebrezze , 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). In doing so, the district court rejected the Secretary's arguments that the suit should be dismissed on various grounds, including issue preclusion, lack of standing, and sovereign immunity. The Secretary timely appealed and moved for a stay pending appeal.

On September 30, 2020, a panel of our court stayed the preliminary injunction. See Tex. All. for Retired Ams. v. Hughs , 976 F.3d 564 (5th Cir. 2020) (per curiam). The stay rested on "[t]he principle ... [that] court changes of election laws close in time to the election are strongly disfavored." Id. at 566–67 (citing Republican Nat'l Comm. v. Democratic Nat'l Comm. , ––– U.S. ––––, 140 S. Ct. 1205, 1207, 206 L.Ed.2d 452 (2020) (per curiam); North Carolina v. League of Women Voters of N.C. , 574 U.S. 927, 135 S.Ct. 6, 190 L.Ed.2d 243 (2014) (per curiam); 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) (per curiam); Veasey v. Perry , 574 U.S. 951, 135 S.Ct. 9, 190 L.Ed.2d 283 (2014) (per curiam); Purcell v. Gonzalez , 549 U.S. 1, 127 S.Ct. 5, 166 L.Ed.2d 1 (2006) (per curiam)). The panel declined to address standing, sovereign immunity, or the merits. Id. at 567.

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). We review sovereign immunity and standing 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) ; N.A.A.C.P. v. City of Kyle , 626 F.3d 233, 236 (5th Cir. 2010) (citations omitted).

III.

In addition to arguing the merits, the Secretary raises the threshold issue of sovereign immunity.⁴ Because we agree with the Secretary that Plaintiffs' constitutional claims are barred on that basis, we need not reach the merits.

States are immune from private suits unless they consent or unless Congress validly strips their immunity. See Sossamon v. Texas , 563 U.S. 277, 283–84, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011) (citing Alden v. Maine , 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) ; THE FEDERALIST No. 81, p. 511 (B. Wright ed. 1961) (A. Hamilton)); Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 59, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ; see also U.S. CONST. amend. XI. Despite this general rule, Ex parte Young permits plaintiffs to sue a state officer in his official capacity for an injunction to stop ongoing violations of federal law. Ex parte Young , 209 U.S. 123, 155–56, 28 S.Ct. 441, 52 L.Ed. 714 (1908) ; see also Whole Woman's Health v. Jackson , ––– U.S. ––––, 142 S. Ct. 522, 532, 211 L.Ed.2d 316 (2021). The officer sued must have "some connection with the enforcement of the [challenged] act." Young , 209 U.S. at 157, 28 S.Ct. 441 (emphasis added).

How much of a "connection" has been hard to pin down, though. See Tex. Democratic Party v. Abbott , 978 F.3d 168, 179 (5th Cir. 2020) ( TDP ) (observing that "[our] circuit has not spoken with conviction" on this issue).⁵ But some guideposts have emerged. First, an official must have more than "the general duty to see that the laws of the state are implemented." City of Austin , 943 F.3d at 999–1000 (quoting Morris v. Livingston , 739 F.3d 740, 746 (5th Cir. 2014) ). Second, the official must have "the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty." TDP , 978 F.3d at 179 (citation omitted). This means the analysis is "provision-by-provision": The officer must enforce "the particular statutory provision that is the subject of the litigation." Ibid. (citation omitted); see also Mi Familia Vota v. Abbott , 977 F.3d 461, 467–68 (5th Cir. 2020). "Th[at] is especially true here because the Texas Election Code delineates between the authority of the Secretary of State and local officials." Ibid. Third, "enforcement" 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) ). If the official does not compel or constrain anyone to obey the challenged law, enjoining that official could not stop any ongoing constitutional violation. See Air Evac EMS, Inc. v. Tex., Dep't of Ins., Div. of Workers' Comp. , 851 F.3d 507, 520 (5th Cir. 2017) (noting "significant overlap between Article III jurisdiction, Ex parte Young , and equitable relief" (citation omitted)).

We apply these principles to decide whether the Secretary has the necessary connection to enforcing HB 25's repeal of straight-ticket voting. The Secretary argues he lacks that connection and therefore is not a proper defendant under Ex parte Young . We agree.

As the Secretary points out, enforcement of HB 25 falls to local election officials. HB 25 repealed election code section 52.071, which required that a "square" for straight-ticket voting "shall be printed to the left of each political party's name." TEX. ELEC. CODE § 52.071(a) (repealed eff. Sept. 1, 2020) (emphasis added). Because the now-defunct statute did not name an official, we ask whether the Secretary "actually ha[d] the authority to enforce [it]." City of Austin , 943 F.3d at 998. Our precedent says no. "The [Texas] Secretary [of State] is not responsible for printing ... ballots." Mi Familia Vota , 977 F.3d at 468 (citing TEX. ELEC. CODE §§ 52.002, 31.043 ; In re Cercone , 323 S.W.3d 293, 294 (Tex. App.—Dallas 2010, pet. denied) ). That task—and thus enforcement of section 52.071 and HB 25's repeal of it—belongs to the authority charged with preparing the ballot: a county clerk, county party chair, city secretary, or other local official, depending on the type of election. See TEX. ELEC. CODE § 52.002(1) – (4) ; Mi Familia Vota , 977 F.3d at 468 ("Th[e] responsibility [for printing ballots] falls on local officials."). Consequently, "directing the Secretary not to enforce [HB 25] would not afford the Plaintiffs the relief that they seek, and therefore, the Secretary of State is not a proper defendant." Ibid. (cleaned up).

Plaintiffs argue other election code provisions give the Secretary "responsibilities" for enforcing HB 25. Not so. Principally, Plaintiffs point to the Secretary's "voter education" duties in section 31.012. These require the Secretary to (1) post a notice on his website that HB 25 abolished straight-ticket voting, TEX. ELEC. CODE § 31.012(a) ; (2) send a similar notice to election officials, id. § 31.012(b-1) ; and (3) "adopt rules and establish procedures as necessary for the [State's] implementation of [HB 25] to ensure that voters and county election administrators are not burdened by the implementation," id. § 31.012(d). None of these duties makes the Secretary the "enforcer" of HB 25. In performing them, the Secretary does not "compel or constrain" officials to print ballots without the straight-ticket option. TDP , 978 F.3d at 180. Suppose a court enjoined the Secretary from sending notices about HB 25 or from...