Tex. Democratic Party v. Hughs, CIVIL NO. SA-20-CV-08-OG

• Court: United States District Courts. 5th Circuit. Western District of Texas
• Writing for the Court: ORLANDO L. GARCIA, CHIEF U.S. DISTRICT JUDGE
• Citation: 474 F.Supp.3d 849
• Parties: TEXAS DEMOCRATIC PARTY, DSCC, and DCCC, Plaintiffs v. Ruth R. HUGHS, in her official capacity as Texas Secretary of State, Defendant
• Docket Number: CIVIL NO. SA-20-CV-08-OG
• Decision Date: 22 July 2020

474 F.Supp.3d 849

TEXAS DEMOCRATIC PARTY, DSCC, and DCCC, Plaintiffs
v.
Ruth R. HUGHS, in her official capacity as Texas Secretary of State, Defendant

CIVIL NO. SA-20-CV-08-OG

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

Signed July 22, 2020

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Chad W. Dunn, Brazil & Dunn, Robert Leslie Meyerhoff, Pro Hac Vice, Texas Democratic Party, Austin, TX, Emily R. Brailey, Pro Hac Vice, Marc Erik Elias, Pro Hac Vice, Stephanie I. Command, Pro Hac Vice, Uzoma N. Nkwonta, Pro Hac Vice, Perkins Coie, LLP, Washington, DC, Skyler M. Howton, Perkins Coie LLP, Dallas, TX, for Plaintiff Texas Democratic Party.

Chad W. Dunn, Brazil & Dunn, Austin, TX, Emily R. Brailey, Pro Hac Vice, Marc Erik Elias, Pro Hac Vice, Stephanie I. Command, Pro Hac Vice, Uzoma N. Nkwonta, Pro Hac Vice, Perkins Coie, LLP, Washington, DC, Skyler M. Howton, Perkins Coie LLP, Dallas, TX, for Plaintiffs DSCC, DCCC.

Cory A. Scanlon, William Thomas Thompson, Office of the Attorney General, Patrick K. Sweeten, Texas Attorney General, Austin, TX, for Defendant.

ORDER

ORLANDO L. GARCIA, CHIEF U.S. DISTRICT JUDGE

Pending before the Court is Defendant's motion to dismiss. Docket nos. 13, 17, 20.

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Plaintiffs have filed a response. Docket nos. 14, 21. The Court has reviewed the amended complaint, the briefs, and the applicable law, and finds that Defendant's motion should be denied.

I.

Statement of the case

In this case, Plaintiffs challenge the Secretary of State's conduct in rejecting or instructing others to reject voter registration signatures on the pretense that they are not wet signatures. Plaintiffs allege this arbitrary, disparate conduct violates § 1971 of the Civil Rights Act of 1964, 52 U.S.C.§ 10101(a)(2)(B) ; the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, U.S. CONST. Amend. I, XIV § 1 ; and §§ 13.002(a) and 13.143(d-2) of the Texas Election Code. Plaintiffs assert their claims under 42 U.S.C. § 1983, and seek declaratory and injunctive relief.

II.

Standards of review

Defendant has filed her motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6). In ruling on a Rule 12(b)(1) motion, the court may consider: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court's resolution of disputed facts. Spotts v. United States , 613 F.3d 559, 566 (5th Cir. 2010). The trial court is "free to weigh the evidence and satisfy itself" that subject matter jurisdiction exists. MDPhysicians & Assocs., Inc. v. State Bd. of Ins. , 957 F.2d 178, 181 (5th Cir. 1992) (quoting Williamson v. Tucker , 645 F.2d 404, 413 (5th Cir. 1981) ). When a Rule 12(b)(1) motion is filed in conjunction with other motions under Rule 12, the court should consider the Rule 12(b)(1) jurisdictional challenge before addressing other challenges. Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001).

Rule 12(b)(6) allows a court to dismiss an action when the complaint fails "to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In deciding such a motion, "[t]he court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks omitted). The Supreme Court has explained that a complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft , 556 U.S. at 678, 129 S.Ct. 1937. The court's review is limited to the complaint, any documents attached to the complaint, and any documents attached to the motion to dismiss that are central to the claim and referenced by the complaint. Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC , 594 F.3d 383, 387 (5th Cir. 2010).

III.

Eleventh Amendment immunity and Article III standing

A. Ex parte young applies

Defendant first argues that sovereign immunity bars the instant claims because the Ex parte Young exception to Eleventh Amendment immunity does not apply. Having reviewed the amended complaint and the applicable law, the Court disagrees. "In determining whether the doctrine of Ex parte Young avoids an

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Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry in whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Verizon Md., Inc. v. Pub. Serv. Com'n of Md. , 535 U.S. 635, 122 S.Ct. 1753, 1760, 152 L.Ed.2d 871 (2002). In examining the complaint, the Court looks at whether the state official in question "has some connection" with the enforcement in question and there is a threat to exercise that authority. Air Evac EMS, Inc. v. Tex. Dep't. of Ins., Div. of Workers' Comp. , 851 F.3d 507, 517-519 (5th Cir. 2017).

A fair reading of the instant complaint,¹ in context, reflects a claim that the Texas Secretary of State has instituted and enforced a rule that arbitrarily invalidates voter registration signatures that are not wet ink signatures; such signatures have been and will continue to be rejected under the Secretary's guidance; and the Secretary has been and will continue to enforce a rule or policy unsupported by state law and in violation of federal law. Plaintiffs also assert that although the Secretary claims to be acting pursuant to state law, she has misinterpreted and misapplied the law because there is no state authority which requires wet ink signatures and, in fact, state law dictates otherwise. Plaintiffs further argue that even if state law does impose such a rule, which they dispute, the rule is unconstitutional and the Secretary's enforcement thereof violates federal law. Plaintiffs seek both declaratory and prospective injunctive relief. This is exactly the type of claim that falls under Ex parte Young. See Florida Dept. of State v. Treasure Salvors, Inc. , 458 U.S. 670, 102 S.Ct. 3304, 3321, 73 L.Ed.2d 1057 (1982) ("If conduct of a state officer taken pursuant to unconstitutional state statute is deemed to be unauthorized and may be challenged in federal court, conduct undertaken without any authority whatever is also not entitled to Eleventh Amendment immunity"); Air Evac EMS , 851 F.3d at 519 (plaintiffs establish an official's connection to the enforcement when the official effectively ensures the scheme is enforced or engages in action that constrains the plaintiffs); City of Austin v. Paxton , 943 F.3d 993, 1002 (5th Cir. 2019) (if an official can act, and there's a significant possibility that he or she will, the official has engaged in enough compulsion or constraint to apply the ex parte Young exception).

B. The Secretary's authority/role

The Secretary of State further claims that she "neither handles voter applications herself nor controls the local officials who do" and thus Plaintiffs do not have Article III standing to sue her. Docket no. 13, pp. 2-5. This argument is a nonstarter. As chief election officer, the Secretary of State has the duty and authority to maintain uniformity in the application, operation, and interpretation of state election laws, which includes directing, instructing, and ordering local election officials, prescribing statewide procedures, and protecting Texans' voting rights. TEX. ELEC. CODE ANN. §§ 31.001(a), 31.003, 31.005, 31.016 (West 2020) ; Tex. Democratic Party v. Abbott , 961 F.3d 389, 399-400 (5th Cir. 2020) ; Op. Atty. Gen. KP-009 (March 9, 2015) ("The Texas Secretary of State (SOS) is the entity tasked with administering [and] applying [the Texas election laws]"). As alleged in the amended complaint, the Secretary of State not only has the authority but has exercised that authority by instituting and enforcing a wet signature rule that arbitrarily rejects signatures on voter registration applications. The exercise of such authority, and

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the continued threat to exercise such authority, gives rise to the claims herein. Plaintiffs allege that the Secretary of State's exercise of authority by imposing this rule is not only reflected in statements and press releases, but is also the unequivocal position the Secretary has taken in Stringer v. Pablos , 320 F. Supp. 3d 862, 874-875 (W.D. Tex. 2018), rev'd and remanded sub nom on other grounds, Stringer v. Whitley , 942 F.3d 715 (5th Cir. 2019) ( Stringer I ). Notably, in the Stringer litigation, the Secretary has never claimed to lack authority or control over the validity, acceptance, or rejection of voter registration signatures. In fact, the Secretary has not allowed certain electronic signatures to ever reach local registrars.² Plaintiffs have asserted concrete, particularized, impending injuries which are fairly traceable to the challenged action of...