Tex. Democratic Party v. Abbott

• Decision Date: 19 May 2020
• Docket Number: CIVIL ACTION NO. SA-20-CA-438-FB
• Citation: 461 F.Supp.3d 406
• Parties: TEXAS DEMOCRATIC PARTY, Gilberto Hinojosa, Chair of the Texas Democratic Party, Joseph Daniel Cascino, Shanda Marie Sansing, and Brenda Li Garcia, Plaintiffs, v. Greg ABBOTT, Governor of Texas, Ken Paxton, Texas Attorney General, Ruth Hughs, Texas Secretary of State, Dana Debeauvoir, Travis County Clerk, and Jacquelyn F. Callanen, Bexar County Elections Administrator, Defendants.
• Court: U.S. District Court — Western District of Texas

461 F.Supp.3d 406

TEXAS DEMOCRATIC PARTY, Gilberto Hinojosa, Chair of the Texas Democratic Party, Joseph Daniel Cascino, Shanda Marie Sansing, and Brenda Li Garcia, Plaintiffs,

v.Greg ABBOTT, Governor of Texas, Ken Paxton, Texas Attorney General, Ruth Hughs, Texas Secretary of State, Dana Debeauvoir, Travis County Clerk, and Jacquelyn F. Callanen, Bexar County Elections Administrator, Defendants.

CIVIL ACTION NO. SA-20-CA-438-FB

United States District Court, W.D. Texas, San Antonio Division.

Signed May 19, 2020

K. Scott Brazil, Brazil & Dunn, Houston, TX, Martin Anthony Golando, The Law Office of Martin Golando, PLLC, San Antonio, TX, Richard Alan Grigg, Law Offices of Dicky Grigg, PC, Robert Leslie Meyerhoff, Texas Democratic Party, Pro Hac Vice, Chad W. Dunn, Brazil & Dunn, Austin, TX, for Plaintiffs.

Anne Marie Mackin, Cory A. Scanlon, Michael Abrams, Office of the Attorney General, Andrew M. Williams, Cynthia W. Veidt, Leslie W. Dippel, Sharon Talley, Sherine Elizabeth Thomas, Travis County Attorney's Office, Austin, TX, Robert D. Green, Bexar County District Attorney, San Antonio, TX, for Defendants.

ORDER REGARDING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

FRED BEERY UNITED STATES DISTRICT JUDGE

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness ....

THE DECLARATION OF INDEPENDENCE para.2 (U.S. 1776).

Two hundred forty-four years on, Americans now seek Life without fear of pandemic, Liberty to choose their leaders in an environment free of disease and the pursuit of Happiness without undue restrictions.

We the People of the United States, in Order to form a more perfect Union .... U.S. CONST. pmbl.

Of the 3,929,214 original Americans, "We the People" as the new sovereign with the power to prevent a new despot belonged in the hands of only 235,753 white males who owned property.¹

Over time the franchise grew to include all white males,² African-American men,³ and women.⁴ Without that evolving expansion, "We the People" are mere words on 200 year old parchment.

There are some among us who would, if they could, nullify those aspirational ideas to return to the not so halcyon and not so thrilling days of yesteryear of the Divine Right of Kings,⁵ trading our birthright as a sovereign people for a modern mess of governing pottage in the hands of a few and forfeiting the vision of America as a shining city upon a hill.⁶

PROCEDURAL BACKGROUND

Now before the Court is plaintiffs' assertion that current public health circumstances require an expansion of how votes are cast to prevent the spread of COVID-19. Plaintiffs would have the Court interpret "disability" to include lack of immunity from COVID-19 and fear of infection at polling places. Plaintiffs seek a preliminary injunction to enlarge the use of voting by mail in lieu of close quarters in-person voting.

Texas law allows voting by mail for absentees (those who will be away from home for all of early voting and on election day), voters age sixty-five or older, and those with a "disability" which prevents them from voting in person. Tex. Elec. Code §§ 81.001 -.004.

On April 17, 2020, a Travis County state court judge determined that any Texas voter without established immunity to COVID-19 meets the plain language definition of disability in the Texas Election Code, and thus, is eligible to apply for a mail in ballot in the upcoming July 2020 run off elections. Attorney General Paxton has appealed the ruling. He also threatened election administrators and voters with criminal prosecution if they followed the state court order.

Plaintiffs filed this federal suit on April 7, 2020. They allege the failure to allow voters under the age of sixty-five to vote by mail during the pandemic violates their federal constitutional rights. On April 29, 2020, plaintiffs filed a motion for preliminary injunction seeking to enjoin defendants from denying mail-in ballots to otherwise eligible voters under the age of sixty-five and to enjoin defendants from threatening to initiate criminal prosecutions to those seeking or providing mail-in ballots.

On May 13, 2020, the state defendants filed a petition for writ of mandamus with the Texas Supreme Court seek a determination that election administrators have a duty to reject applications for mail in ballots which claim disability under the Texas Election Code based solely on the generalized risk of contracting a virus. The state court order has been stayed pending further proceedings in the state appellate courts, and no ruling has issued either on the appeal or the petition for writ of mandamus.

Plaintiffs' motion for preliminary injunction is ripe for review by this Court. The state defendants filed a response in opposition to the motion, Bexar County Elections Administrator Jacquelyn F. Callanen filed a response, plaintiffs filed a reply, and amici curiae briefs were filed by several organizations.

In order to secure a preliminary injunction, plaintiffs must establish the following four elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted; and (4) that the grant of an injunction will not disserve the public interest. Byrum v. Landreth , 566 F.3d 442, 445 (5th Cir. 2009). Plaintiffs contend they have met their burden of proof because defendants' interpretation of the disability provision allowing vote by mail—which would exclude those who seek to avoid possible exposure to the coronavirus from the disability authorization—subjects voters under the age of sixty-five to unconstitutional burdens not levied on voters age sixty-five or older.

The state defendants respond that the resolution of the state court litigation will invariably alter this closely-related federal proceeding. They therefore argue that the abstention doctrine applies and this Court should decline to hear plaintiffs' claims at this juncture. The state defendants further contend that plaintiffs lack standing and have not met their burden to show they are entitled to a preliminary injunction.

Plaintiffs reply that they have standing to bring suit and that abstention is not warranted because resolution by the state courts will not render this case moot or materially alter the constitutional questions presented. Plaintiffs also reurge their arguments that they have met their burden to show substantial likelihood of success on the merits of their claims under the First, Fourteenth and Twenty-Sixth Amendments of the United States Constitution; irreparable injury to plaintiffs outweighs the threatened harm to defendants if the injunction is denied; and granting the injunction will not disserve the public interest. For a more expansive view of the parties' positions, please see Appendix B.

DISCUSSION

For those who have recently awakened from a Rip Van Winkle sleep, the entire world is mostly without immunity and fearfully disabled. Moreover, Governor Abbott, the State of Texas, and the federal government have issued guidance concerning prevention of the spread of the virus which speaks in terms of social distancing.⁷

Plaintiffs say in-person voting makes social distancing difficult if not impossible.

In order to implement in-person voting, poll workers, many of whom are in an at-risk category, are also exposed to the COVID-19 virus.⁸ The Court has concerns for the health safety of those individuals as well.

Other states have recognized the dangers of in-person voting and have implemented vote by mail procedures,⁹ a process recently used by the President of the United States.¹⁰

The confusion concerning vote by mail eligibility is exemplified in plaintiffs' Exhibit 35, campaign material for a Republican candidate endorsed by Attorney General Paxton, who urges voters to use mail ballots based on COVID-19 concerns authorized by Secretary of State guidance, but subsequently advises that a voter must have the virus based on Attorney General Paxton's advice letter dated April 14, 2020. See docket no. 10, Exhibit 2 (explaining Attorney General Paxton's conclusion that based on the plain language of the relevant statutory text "fear of contracting COVID-19 does not constitute a disability under the Texas Election Code for purposes of receiving a ballot by mail."). Confusion also reigns because plaintiffs have not received requested guidance nor can the Court find any guidance from the Secretary of State. The lack of clarity is evidenced in Exhibit 35:

Equally vague and confusing are Attorney General Paxton's prior opinions. Compare Op. Tex. Att'y Gen No. KP-0009 (2015) (determining that no special definition of "disability" is required to use mail in ballot) and contrast Op. Tex. Att'y Gen. No. KP-0149 (2017) (determining that sexual deviant under age sixty-five meets definition of disabled under Texas Election Code §§ 82.001 -.004) with Attorney General Paxton's advice letter of April 14, 2020 (determining that fear of contracting COVID-19 does not meet the definition of "disability" to use mail in ballot). Such contradictory opinions are at best duplicitous and at worst hypocritical.

Defendants raise the specter of widespread voter fraud if mail ballots are employed but cite little or no evidence of such in states already doing so. Texas truth is to the contrary. Between 2005 to 2018, there were 73 prosecutions out of millions of votes cast.¹¹ The Court finds the Grim Reaper's scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud in this sui generis experience. Indeed, if vote by mail fraud is real, logic dictates that all voting should be in person. Nor do defendants explain, and the Court cannot divine, why older voters should be valued more than our fellow citizens of younger...