Tex. Democratic Party v. Abbott
| Decision Date | 14 October 2020 |
| Docket Number | No. 20-50407,20-50407 |
| Citation | 978 F.3d 168 |
| Parties | TEXAS DEMOCRATIC PARTY; Gilberto Hinojosa; Joseph Daniel Cascino; Shanda Marie Sansing; Brenda Li Garcia, Plaintiffs—Appellees, v. Greg ABBOTT, Governor of the State of Texas; Ruth Hughs, Texas Secretary of State; Ken Paxton, Texas Attorney General, Defendants—Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Chad Wilson Dunn, Esq., Brazil & Dunn, Richard Alan Grigg, Attorney, Dicky Grigg, P.C., Austin, TX, Kembel Scott Brazil, Brazil & Dunn, L.L.P., Houston, TX, Martin Golando, San Antonio, TX, for Plaintiffs-Appellees.
Kyle Douglas Hawkins, Lanora Christine Pettit, Office of the Attorney General, Office of the Solicitor General, Michael Abrams, Office of the Attorney General, General Litigation Division, Austin, TX, for Defendants-Appellants.
Samuel Spital, Leah Camille Aden, Esq., Sherrilyn Ann Ifill, Janai S. Nelson, Esq., Deuel Ross, NAACP Legal Defense & Educational Fund, Incorporated, New York, NY, Mahogane Denea Reed, NAACP Legal Defense & Educational Fund, Incorporated, Washington, DC, for Amicus Curiae NAACP Legal Defense and Educational Fund, Incorporated.
Leslie Wood Dippel, Sherine Elizabeth Thomas, Assistant County Attorney, Cynthia Wilson Veidt, County Attorney's Office for the County of Travis, Austin, TX, for Amicus Curiae Dana Debeauvoir.
Amy Leila Prueger, Michael S. Truesdale, Esq., Enoch Kever, P.L.L.C., Austin, TX, for Amicus Curiae Healthcare Professionals.
Susan Lea Hays, Esq., Law Office of Susan Hays, P.C., Austin, TX, Scott Allen Lemond, Esq., General Counsel, Harris County Attorneys Office, Houston, TX, for Amicus Curiae Harris County, Texas.
Richard Warren Mithoff, Jr., Esq., Mithoff Law Firm, Houston, TX, Marianne W. Nitsch, Pieter M. Schenkkan, Esq., Attorney, Graves, Dougherty, Hearon & Moody, P.C., Austin, TX, for Amici Curiae Admiral Charles S Abbot, William J. Boatman, General Wesley K. Clark, Donald P. Dorsey, and Joe R. Reeder.
Marc Erik Elias, Attorney, Jacki Anderson, Stephanie Command, Elisabeth C. Frost, John Michael Geise, Perkins Coie, L.L.P., Washington, DC, for Amicus Curiae National Redistricting Foundation.
Elizabeth Baker Murrill, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Amici Curiae State of Louisiana and State of Mississippi.
Kaylan Lytle Phillips, Public Interest Legal Foundation, Indianapolis, IN, for Amici Curiae Public Interest Legal Foundation and Landmark Legal Foundation.
Lia Sifuentes Davis, Disability Rights Texas, Central Texas Regional Office, Austin, TX, for Amici Curiae American Diabetes Association, Disability Rights Advocates, National Disability Rights Network, and Disability Rights Legal Center.
Hartson Dustin Fillmore, III, Charles William Fillmore, Attorney, Fillmore Law Firm, L.L.P., Fort Worth, TX, for Amicus Curiae Tarrant County Republican Party.
Elizabeth Bonnie Wydra, Chief Counsel, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Constitutional Accountability Center.
Rachel F. Homer, Cameron Oatman Kistler, Protect Democracy, Washington, DC, for Amicus Curiae Protect Democracy Project.
Mark P. Gaber, Molly Danahy, Ravi Doshi, Campaign Legal Center, Washington, DC, Luis Roberto Vera, Jr., Esq., Law Offices of Luis Roberto Vera, Jr. & Associates, San Antonio, TX, for Amici Curiae League of United Latin American Citizens and Texas League of United Latin American Citizens.
Kevin Paul McCary, Attorney, El Paso, Texas County Attorney, El Paso, TX, for Amici Curiae Lisa R. Wise and County of El Paso, Texas.
Susan Lea Hays, Esq., Law Office of Susan Hays, P.C., Austin, TX, for Amicus Curiae Chris Hollins, Harris County Clerk.
Justin Carl Pfeiffer, County Attorney's Office for the County of Fort Bend, Richmond, TX, for Amicus Curiae Fort Bend County.
Sherine Elizabeth Thomas, Assistant County Attorney, County Attorney's Office for the County of Travis, Austin, TX, for Amicus Curiae Dana Debeauvoir, Travis County Clerk.
Juan Antonio Gonzalez, Daniel Nemecio Lopez, Cameron County Commissioners Court, Civil Legal Department, Edward A. Sandoval, District Attorney's Office for the County of Cameron, Brownsville, TX, for Amici Curiae Cameron County and Remi Garza, Elections Administrator.
Before King, Stewart, and Southwick, Circuit Judges.
The opinion entered on September 10, 2020 is withdrawn.
A Texas statute allows mail-in voting for any voter at least 65 years old but requires younger voters to satisfy conditions, such as being absent from the county on election day or having a qualifying disability. Amid an election-year pandemic, the district court entered a preliminary injunction requiring Texas officials to allow any Texan eligible to vote to do so by absentee ballot. This court stayed the injunction pending appeal. The plaintiffs defend the injunction at this stage of the proceedings only on the basis that the vote-by-mail privilege for older voters is unconstitutional under the Twenty-Sixth Amendment's prohibition against denying or abridging the right to vote on account of age. The statutory provision withstands that challenge. We VACATE and REMAND.
In Texas, in-person voting is the rule. TEX. ELEC. CODE ch. 64. Early voting by mail is the exception. Id. ch. 82. Texas law permits early voting by mail for voters who: (1) anticipate being absent from their county of residence; (2) are sick or disabled; (3) are 65 years of age or older; or (4) are confined to jail. Id. §§ 82.001–.004.
The 2020 COVID-19 pandemic prompted Texas state officials to adopt various emergency measures. In March, Governor Greg Abbott declared a state of disaster for all of Texas. He also postponed the May primary runoff election until July. In May, he extended the period for early voting for the July primary to help the election proceed efficiently and safely. Texas Secretary of State Ruth Hughs issued a proclamation in May concerning early voting hours and federal funding to combat the pandemic. Secretary Hughs also issued guidance concerning health and safety measures for in-person voting. The guidance encouraged voters to wear masks, disinfect their hands, and practice social distancing. In June, Secretary Hughs issued additional guidance concerning social distancing and sanitization of polling places.
State-court litigation preceded the current suit. In March, the Texas Democratic Party, its Chairman, and two voters sued a county clerk in Texas state court, and the State intervened. The plaintiffs sought a declaration that under the disability provision, Section 82.002 of the Texas Election Code, "any eligible voter, regardless of age and physical condition" may vote by mail "if they believe they should practice social distancing in order to hinder the known or unknown spread of a virus or disease." Under their interpretation, lack of immunity as well as concern about transmission qualified as a disability for the purpose of eligibility for mail-in voting. After the State intervened, the state court entered an injunction barring Texas officials from "prohibit[ing] individuals from submitting mail ballots based on the disability category" during the pandemic. The State immediately filed a notice of interlocutory appeal, which superseded and stayed the injunction order. See In re Texas , 602 S.W.3d 549, 552 (Tex. 2020).
Texas Attorney General Ken Paxton sought to reduce confusion surrounding the state-court action by sending a letter to Texas judges and election officials in early May. It explained: "Based on the plain language of the relevant statutory text, fear of contracting COVID-19 unaccompanied by a qualifying sickness or physical condition does not constitute a disability under the Texas Election Code for purposes of receiving a ballot by mail." The letter ordered public officials to refrain from advising voters who lacked a qualifying condition but nonetheless feared COVID-19 to vote by mail. The letter warned third parties that if they advised voters to vote by mail without a qualifying disability, then the party could be subject to criminal liability under the Texas Election Code. The plaintiffs characterize this guidance as a threat underlying some of the claims not before the court today and rely on it for part of their argument opposing sovereign immunity.
After a Texas Court of Appeals reinstated the initial injunction, the State sought an emergency mandamus from the Supreme Court of Texas. On May 27, the Supreme Court of Texas held "that a lack of immunity to COVID-19 is not itself a ‘physical condition’ for being eligible to vote by mail within the meaning of [Section] 82.002(a)." In re Texas , 602 S.W.3d at 560. A voter may "take into consideration aspects of his health and his health history" in deciding whether to apply to vote by mail, but COVID-19 is not itself a ground for voting by mail. Id. The In re Texas court found it unnecessary to issue a writ of mandamus, id. at 561, and the plaintiffs dismissed that suit with prejudice on June 9.
While the state-court litigation was pending, the plaintiffs filed this lawsuit in early April in the United States District Court for the Western District of Texas and added a third voter as a plaintiff. The plaintiffs’ operative complaint requested relief on seven grounds. The plaintiffs’ motion for a preliminary injunction slimmed down the claims and argued that Texas's statute allowing voting by mail for any persons aged at least 65 violated the First, Fourteenth, and Twenty-Sixth Amendments,1 and that it was void for vagueness. They also asserted that the Attorney General's May letter constituted voter intimidation and suppression of political speech.
On May 19, the district court issued an order requiring no-excuse mail-in balloting in Texas, meaning that "[a]ny eligible Texas voter who seeks to vote by mail in order to avoid transmission of COVID-19" could do so. The court's preliminary injunction prohibited ...
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