Tex. Voters Alliance v. Dall. Cnty.

Citation495 F.Supp.3d 441
Decision Date20 October 2020
Docket NumberCIVIL ACTION NO. 4:20-CV-00775
Parties TEXAS VOTERS ALLIANCE, Donnie Wisenbaker, Alan Vera, Russell Hayter, and Warren Johnson, Plaintiffs, v. DALLAS COUNTY, Harris County, Hays County, and Hopkins County, Defendants.
CourtUnited States District Courts. 5th Circuit. United States District Court of Eastern District Texas

Clyde Moody Siebman, Siebman Forrest Burg & Smith LLP, Sherman, TX, for Plaintiffs.

Jason G. Schuette, Randall P. Miller, Dallas County Criminal District Attorney Office, Dallas, TX, Justin Adatto Nelson, Susman Godfrey, LLP, Houston, TX, for Defendant Dallas County.

Cameron Afton Hatzel, Harris County Attorney's Office, Justin Adatto Nelson, Susman Godfrey, LLP, Houston, TX, for Defendant Harris County.

Michael Anthony Shaunessy, McGinnis Lochridge, LLP, Austin, TX, Justin Adatto Nelson, Susman Godfrey, LLP, Houston, TX, for Defendant Hays County.

Justin Adatto Nelson, Susman Godfrey, LLP, Houston, TX, for Defendant Hopkins County.



The Court first acknowledges and unequivocally recognizes that its sole function is to interpret the existing law. It is not within the purview of the Court to formulate new law or pass judgment upon what the law should be, for "judicial power is never exercised for the purpose of giving effect to the will of the Judge" but instead is exercised only to give effect "to the will of the law." Osborn v. Bank of the United States , 22 U.S. (9 Wheat.) 738, 866, 6 L.Ed. 204 (1824). When confronted with an issue concerning "a host of considerations that must be weighed and appraised," such as the one presented before the Court, the considerations "should be committed to ‘those who write the laws’ rather than ‘those who interpret them.’ " Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1857, 198 L.Ed.2d 290 (2017) (internal quotation marks omitted in first quotation) (quoting Bush v. Lucas , 462 U.S. 367, 380, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) ).

The Court remains especially mindful of its role as a neutral arbiter in election-related cases. A citizen's right to choose their elected officials "in a free and unimpaired fashion is a bedrock of our political system."

Reynolds v. Sims , 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). For the reasons stated herein, PlaintiffsMotion for Temporary Restraining Order (Dkt. #2) is DENIED .


This case arises from the Center for Tech and Civic Life ("CTCL")—through $300 million in funding provided by Mark Zuckerberg and Priscilla Chan—awarding and distributing federal election grants to Texas counties. CTCL—a nonpartisan, nonprofit organization—offers COVID-19 relief election administration grants to counties and cities as supplemental funding to ensure the safety of voters. All counties and cities in the United States are eligible to apply for funds under the grants, regardless of the political affiliation of their officials or the voting tendencies of their electorates. The funding from these grants is intended to ensure that voting is a safe, secure, and effective exercise. Specifically, these grants cover expenses associated with: (1) ensuring safe and efficient election day administration; (2) expanding voter education and outreach efforts; (3) launching poll worker recruitment, training, and safety efforts; and (4) supporting early in-person voting and voting by mail. To be considered for a grant, applicants need only submit basic information—such as the number of active registered voters in the jurisdiction, the number of full-time staff on the election team, the election office's budget, and a W-9. CTCL approves the application of every eligible election department and subsequently awards these departments a minimum of $5,000. CTCL does not request or consider any partisan criteria.

Almost half of the 254 counties in Texas applied for CTCL grants. The overwhelming majority of those counties voted for the Republican presidential candidate in 2016. CTCL subsequently awarded funding to each county. Four of the counties that applied and received grants were Dallas County, Harris County, Hays County, and Hopkins County (collectively, the "Counties"). Dallas County received approximately $15.1 million from CTCL, Harris County received $9.6 million, Hays County received $289,075, and Hopkins County received $19,952. The Counties have since either spent or irrevocably committed a large fraction of the funds they received from the grants.

Plaintiffs Texas Voters Alliance, Donnie Wisenbaker, Alan Vera, Russell Hayter, and Warren Johnson (collectively, the "Plaintiffs") do not want progressive candidates to "win" the November 3rd election (Dkt. #1 at p. 7). Plaintiffs allege that CTCL's grants "are targeted to counties and cities with progressive voter patterns—resulting in more progressive votes and a greater chance that progressive candidates will win" (Dkt. #1 at p. 7). Plaintiffs sue to challenge CTCL's award to the four abovementioned counties.

On October 9, 2020, Plaintiffs filed their Complaint (Dkt. #1). Contained within Plaintiffs’ Complaint was their request for both declaratory and injunctive relief. That same day, Plaintiffs filed the present Motion for Temporary Restraining Order (Dkt. #2). On October 15, 2020, Counties filed their Response (Dkt. #19). On October 16, 2020, the Court held a hearing on the Motion (Dkt. #22). Shortly after the hearing, Counties submitted Defendants’ Notice of Supplemental Authority (Dkt. #23).


"A preliminary injunction is an ‘extraordinary remedy.’ "

Texans for Free Enter. v. Tex. Ethics Comm'n , 732 F.3d 535, 536 (5th Cir. 2013) (quoting Byrum v. Landreth , 566 F.3d 442, 445 (5th Cir. 2009) ). "To be entitled to a preliminary injunction, the applicants must show (1) a substantial likelihood that they will prevail on the merits, (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted, (3) their substantial injury outweighs the threatened harm to the party whom they seek to enjoin, and (4) granting the preliminary injunction will not disserve the public interest." Tex. Med. Providers Performing Abortion Servs. v. Lakey , 667 F.3d 570, 574 (5th Cir. 2012) (brackets and citations omitted). The party seeking preliminary injunctive relief must clearly carry the burden of persuasion on all four elements. Id. The decision whether to grant a preliminary injunction lies within the sound discretion of the trial court.


Plaintiffs first ask this Court to enter declaratory relief against the Counties. More specifically, Plaintiffs seek a declaration that the Counties acted ultra vires in accepting CTCL's private federal election grants. Plaintiffs also request this Court enjoin the Counties from both (1) accepting or using CTCL's private federal election grant, or items purchased with CTCL's private federal election grant, and similar private federal election grants and (2) soliciting or participating in public-private partnerships with CTCL unless the same are first approved by the State of Texas.

In support of their requests, Plaintiffs advance the argument that the Counties acted ultra vires in forming public-private partnerships for federal election administration with CTCL by accepting and using CTCL's private federal election grant because preemption applies under the Elections Clause, Supremacy Clause, the Help Americans Vote Act ("HAVA"), and the National Voter Registration Act ("NVRA").3

Defendants respond by presenting arguments couched within the factors that the Court considers when determining whether to issue a preliminary injunction. The Counties make three arguments as to why Plaintiffs cannot establish a likelihood of success on the merits: (1) Plaintiffs lack standing; (2) Plaintiffs lack a cause of action for their claims under the Supremacy Clause and HAVA; and (3) Plaintiffs are unlikely to succeed on the merits of their preemption arguments under the Elections Clause, HAVA, and public-private partnerships. Defendants further argue that Plaintiffs cannot show a likelihood of irreparable harm and that the remaining equitable factors weigh heavily against granting a preliminary injunction.

The Court will first address the standing arguments and then proceed to the consider the four preliminary injunction factors.

I. Standing

"[S]tanding is not, and must not be, a guessing game." Kumar v. Frisco Indep. Sch. Dist. , 443 F. Supp. 3d 771, 788 (E.D. Tex. 2020). Thus, the Court must first determine whether Plaintiffs have standing to bring the present suit. Article III standing requires that a plaintiff show an injury-in-fact that is fairly traceable to the challenged action of the defendant and is likely to be redressed by the plaintiff's requested relief. Stringer v. Whitley , 942 F.3d 715, 720 (5th Cir. 2019) (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). Standing requirements are divided into three components: (1) injury-in-fact; (2) causation; and (3) redressability. Id. at 720. Plaintiffs bear the burden of establishing all three elements. Id.

"Requests for injunctive and declaratory relief implicate the intersection of redressability and injury-in-fact requirements." Id. Relief is limited by the redressability requirement to "that which is likely to remedy the plaintiff's alleged injuries." Id. "Because injunctive and declaratory relief ‘cannot conceivably remedy any past wrong,’ " plaintiffs seeking these types of relief "can satisfy the redressability requirement only by demonstrating a continuing injury or threatened future injury." Id. (citing City of Los Angeles v. Lyons , 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) ). "That continuing or threatened future injury ... must be an injury in fact." Id. (citing Susan B. Anthony List v. Driehaus , 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) ).

A threatened injury qualifies as an injury-in-fact if three...

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