Tex. League of United Latin Am. Citizens v. Hughs

• Decision Date: 12 October 2020
• Docket Number: No. 20-50867,20-50867
• Citation: 978 F.3d 136
• Parties: TEXAS LEAGUE OF UNITED LATIN AMERICAN CITIZENS; National League of United Latin American Citizens; League of Women Voters of Texas; Ralph Edelbach; Barbara Mason ; Mexican American Legislative Caucus, Texas House of Representatives; Texas Legislative Black Caucus, Plaintiffs—Appellees, v. Ruth HUGHS, in her official capacity as Texas Secretary of State, Defendant—Appellant. Laurie-Jo Straty ; Texas Alliance for Retired Americans; BigTent Creative, Plaintiffs—Appellees, v. Ruth Hughs, in her official capacity as Texas Secretary of State, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

978 F.3d 136

TEXAS LEAGUE OF UNITED LATIN AMERICAN CITIZENS; National League of United Latin American Citizens; League of Women Voters of Texas; Ralph Edelbach; Barbara Mason ; Mexican American Legislative Caucus, Texas House of Representatives; Texas Legislative Black Caucus, Plaintiffs—Appellees,

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

Laurie-Jo Straty ; Texas Alliance for Retired Americans; BigTent Creative, Plaintiffs—Appellees,

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

No. 20-50867

United States Court of Appeals, Fifth Circuit.

FILED October 12, 2020

Chad Wilson Dunn, Esq., Brazil & Dunn, Austin, TX, Danielle Marie Lang, Campaign Legal Center, Washington, DC, Luis Roberto Vera, Jr., Esq., Law Offices of Luis Roberto Vera, Jr. & Associates, San Antonio, TX, for Plaintiff—Appellee Texas League of United Latin American Citizens.

Chad Wilson Dunn, Esq., Brazil & Dunn, Austin, TX, Danielle Marie Lang, Campaign Legal Center, Washington, DC, for Plaintiffs—Appellees National League of United Latin American Citizens, League of Women Voters of Texas, Ralph Edelbach, Barbara Mason, Mexican American Legislative Caucus, Texas House of Representatives, and Texas Legislative Black Caucus.

Skyler Howton, Perkins Coie, L.L.P., Dallas, TX, for Plaintiffs—Appellees Laurie-Jo Straty, Texas Alliance for Retired Americans, and BigTent Creative.

Kyle Douglas Hawkins, Lanora Christine Pettit, Office of the Attorney General, Office of the Solicitor General, Patrick K. Sweeten, Office of the Attorney General of Texas, Special Counsel Unit, Austin, TX, for Defendant—Appellant Ruth Hughs.

Elizabeth Bonnie Wydra, Chief Counsel, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Members of Congress.

Justin Carl Pfeiffer, County Attorney's Office for the County of Fort Bend, Richmond, TX, for Amici Curiae John W. Oldham, and Chris Hollins.

Angela Cai, Wilkinson Walsh, L.L.P., New York, NY, for Election Law Scholars, Rebecca Green, Justin Levittt, and Nicholas Stephanopoulos.

Caroline Van Zile, Esq., Office of the Attorney General for the District of Columbia, Washington, DC, for Amicus Curiae District of Columbia, and the States of California, Connecticut, Delaware, et al.

Robert Stephen Notzon, Law Office of Robert S. Notzon, Austin, TX, for Amicus Curiae Texas State Conference of NAACP Branches.

Before Willett, Ho, and Duncan, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

In response to the coronavirus pandemic, Texas Governor Greg Abbott has issued various proclamations about the upcoming November election. Among other things, these measures have expanded the options for Texans to vote in-person early or to vote by absentee ballot. Take, for instance, early in-person voting. Normally, early voting would have started October 19. Now it will start October 13, six days earlier. Or take absentee ("mail-in") ballots. Normally, if a voter wanted to hand-deliver her mail-in ballot, she would have had only one day to do it—Election Day. Now, under the Governor's expanded policy, she can deliver the ballot anytime until Election Day. That effectively gives voters forty extra days to hand-deliver a marked mail-in ballot to an early voting clerk. And the voter still has the traditional option she has always had for casting a mail-in ballot: mailing it.

To make the situation clear, this chart compares what we will call "pre-COVID" early-voting and absentee-ballot rules and "COVID" rules:

Pre-COVID	COVID
Early voting starts October 19.	Early voting starts October 13 (six extra days).
Absentee ballots may be mailed.	Absentee ballots may be mailed.
Absentee ballots may be hand-delivered only on Election Day .	Absentee ballots may be hand-delivered before and up to Election Day (forty extra days).

The controversy we now face involves the rules for hand-delivering absentee ballots. As noted, the Governor's prior proclamation expanded the timeframe for doing that by forty days. But it happened that a few large Texas counties wanted to set up multiple delivery locations for these ballots. The Governor disagreed with this policy which, in his view, threatened election uniformity and security. Consequently, on October 1, the Governor issued a new proclamation. This proclamation, refining the previous one, specified that mail-in ballots could be delivered only to one designated location per county. But it left in place the previous forty-day expansion for delivering mail-in ballots and the always-available option of the U.S. mail.

A coalition of Plaintiffs sued, claiming the October 1 proclamation violated their right to vote by restricting absentee voting options. The district court agreed and enjoined the October 1 proclamation. The Texas Secretary of State appealed and now seeks an emergency stay. Among other things, the Secretary argues that the district court fundamentally misunderstood the context of the October 1 proclamation. She explains that the proclamation is part of the forty-day expansion of Texans’ opportunities to hand-deliver absentee ballots beyond what state election rules normally permit. The proclamation refines that expanded voting period by specifying where ballots are to be delivered. But it leaves the enlarged period in place, and also does nothing to prevent Texans from mailing in their absentee ballots, as they have done in the past in election after election. Properly understood, the Secretary tells us, the October 1 proclamation is part of an expansion of absentee voting in Texas, not a restriction of it.

We agree with the Secretary and grant the stay.

I.

A.

Texas law allows eligible voters to vote early, either by mailing in a ballot or by personally appearing at an early voting place. TEX. ELEC. CODE §§ 81.001(a), 82.001 – 82.005. In response to the coronavirus pandemic, on July 27, 2020, Governor Abbott issued a proclamation (the "July 27 Proclamation") expanding early voting opportunities for the upcoming November 3 election beyond those provided in the Texas Election Code. Allegedly issued pursuant to authority granted the Governor by the Texas Disaster Act of 1975, see TEX. GOV'T CODE §§ 418.001 – 418.261, this measure was one of a series of pandemic-driven changes to Texas election effected taken since the Governor's March 13 coronavirus disaster declaration. See In re Steven Hotze, et al. , ––– S.W.3d ––––, –––– – ––––, 2020 WL 5919726, at *1–2 (Tex. Oct. 7, 2020) (explaining "[t]he Governor has repeatedly asserted his authority under the [Texas Disaster] Act to modify election procedures beginning shortly after his March 13 disaster proclamation," and listing measures including the July 27 Proclamation).¹

Among other things, the July 27 Proclamation authorized early in-person voting to begin on October 13, instead of October 19, thus allowing six extra days to vote in person.² The proclamation also expanded opportunities for delivering marked mail ballots in person to an early voting clerk's office. Previously, voters wishing to hand-deliver their mail ballots could do so "only while the polls are open on election day." TEX. ELEC. CODE § 86.006(a-1).³ The July 27 Proclamation, however, suspended this requirement by "allow[ing] a voter to deliver a marked mail ballot to the early voting clerk's office prior to and including on election day " (emphasis added). This had the effect of extending the amount of time for a voter to hand-deliver a mail ballot: as the Texas Director of Elections explained in this case, "because counties began sending mail ballots on or before September 19, 2020, the proclamation increased the opportunities for voters to hand-deliver their marked mail ballots from only one day—election day—to over forty days." Additionally, of course, voters retained the ability to send in their mail ballots the traditional way—through the mail. See id. § 86.006(a)(1), (2).

Following the July 27 Proclamation, at least four Texas counties—Harris, Travis, Fort Bend, and Galveston—announced their intention to have multiple mail ballot delivery locations in their counties for the November election. In response to this development, Governor Abbott issued a second proclamation on October 1 (the "October 1 Proclamation") amending the previous one. This new proclamation first reiterated that early in-person voting would begin on October 13. It then clarified that the prior suspension of section 86.006(a-1), concerning hand-delivery of mail ballots, applied only under certain conditions. First, a voter must deliver the ballot "at a single early voting clerk's office location that is publicly designated by the early voting clerk for the return of marked mail ballots under Section 86.006(a-1) and this suspension." Second, the early voting clerk must "allow[ ] poll watchers the opportunity to observe" the ballot delivery. Finally, the proclamation specified that "[a]ny marked mail ballot delivered in person to the early voting clerk's office prior to October 2, 2020, shall remain subject to the July 27, 2020 proclamation."

B.

On October 2, 2020, three individuals and several organizations (collectively, "Plaintiffs")⁴ challenged the October 1 Proclamation by filing two separate actions in federal district court against Governor Abbott, Texas Secretary of State Ruth Hughs, and four local election officials. They requested a preliminary injunction against the October 1 Proclamation on the grounds that it (1) places an undue burden on their right to vote under the First and Fourteenth Amendments and (2) violates the Equal Protection Clause of the Fourteenth Amendment. Consolidating the two cases for purposes of the preliminary injunction motion, on October 9, 2020, the district court granted the motion in part, enjoining Secretary Hughs and the local officials from enforcing the Proclamation's restriction on hand-delivering mail ballots to a single designated early voting clerk's office.

Initially, the court ruled that various...