Texas Democratic Party v. Scott
| Docket Number | CIVIL ACTION NO. SA-20-CA-438-FB |
| Decision Date | 25 July 2022 |
| Citation | 617 F.Supp.3d 598 |
| Parties | TEXAS DEMOCRATIC PARTY, Gilberto Hinojosa, Chair of the Texas Democratic Party, Joseph Daniel Cascino, Shanda Marie Sansing, and Brenda Li Garcia, Plaintiffs, and League of United Latin American Citizens (LULAC), and Texas League of United Latin American Citizens, Plaintiff-Intervenors, v. John B. SCOTT, Texas Secretary of State, Defendant. |
| Court | U.S. District Court — Western District of Texas |
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, Austin, TX, Robert Leslie Meyerhoff, Pro Hac Vice, Texas Democratic Party, Austin, TX, Chad W. Dunn, Brazil & Dunn, Austin, TX, for Plaintiffs.
Alice Huling, Danielle M. Lang, Jonathan Diaz, Molly Elizabeth Danahy, Campaign Legal Center, Washington, DC, Luis Roberto Vera, Jr., Law Offices of Luis Roberto Vera & Associates, P.C., San Antonio, TX, for Plaintiff-Intervenors.
Cory A. Scanlon, Courtney Brooke Corbello, Matthew Bohuslav, Office of the Attorney General - Law Enforcement Defense, Austin, TX, for Defendant Ruth Hughs, Texas Secretary of State.
Dallin B. Holt, Holtzman Vogel Baran Torchinsky & Josefiak PLLC, Haymarket, VA, for Amicus The Republican Party of Texas.
Jose Garza, Law Office of Jose Garza, San Antonio, TX, for Amicus Mexican American Legislative Caucus.
Susan L. Hays, Law Office of Susan Hays, P.C., Austin, TX, for Amicus Harris County.
Andy Taylor, Andy Taylor & Associates, PC, Brenham, TX, for Amici Landmark Legal Foundation, Public Interest Legal Foundation.
AMENDED2 ORDER REGARDING DEFENDANT'S MOTIONS TO DISMISS
This case of first impression presents two main issues:
This Court answers the first issue affirmatively in plaintiffs’ favor. But there being "many a slip between the cup and the lip,"4 the Court, based on its reading and interpretation of current caselaw, is compelled to respond "Yes" to the second question, inuring to defendant's benefit. This Court has been presented previously with a conundra of cases in which the law requires results contrary to personal opinions. See Dutmer v. City of San Antonio , 937 F. Supp. 587, 589, 595 (W.D. Tex. 1996), and collected cases in Appendix I.
Accordingly, because the judicial handwriting, writ large, is on the constitutional wall, the defendant's motions to dismiss are granted for the reasons stated herein.
While the Court agrees with plaintiffs there are procedural differences among the cases cited by defendant,5 federal courts are expressly deferring to state legislatures.6 See Appendix II. The jury is still out on whether judicial deference will extend to legislative bodies wishing to return to the not-so-halcyon days of yesteryears’ poll taxes and literary tests.7 The concept of judicial deference to state legislatures is not always a fait accompli and appears to be applied unevenly. Compare and contrast Dobbs v. Jackson Women's Health Org. , ––– U.S. ––––, 142 S. Ct. 2228, 213 L.Ed.2d 545 (2022) () with New York State Rifle & Pistol Ass'n v. Bruen , ––– U.S. ––––, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022) () and Carson v. Makin , ––– U.S. ––––, 142 S. Ct. 1987, 213 L.Ed.2d 286 (2022) (); see also Moore v. Harper , ––– U.S. ––––, 142 S.Ct. 2901, 213 L.Ed.2d 1114 (2022) (); see also McConchie v. Scholz , 577 F.Supp.3d 842, 882-83 (N.D. Ill. 2021) ().
The Cynics8 of antiquity and modernity might base their scepticism of judicial consistency on whose ox is it.9
Circuit courts have likewise deferred to state legislatures particularly in voting cases. In Griffin v. Roupas , 385 F.3d 1128, 1129-30 (7th Cir. 2004), working mothers sought to expand voting options "that would allow people [to vote] who find it hard for whatever reason to get to the polling place on election day." The Seventh Circuit found no equal protection violation because, among other reasons, "unavoidable inequalities in treatment, even if intended in the sense of being known to follow ineluctably from a deliberate [legislative] policy, do not violate equal protection." Id. at 1132. Continuing this trend toward judicial deference in absentee voting cases, the Seventh Circuit recently determined that a state does not abridge the rights of younger voters in violation of the Twenty-Sixth Amendment by allowing older voters the option to vote by mail, even during the pandemic. Tully v. Okeson , 977 F.3d 608, 613 (7th Cir. 2020). The Supreme Court denied certiorari in both cases. Griffin v. Roupas , 544 U.S. 923, 125 S. Ct. 1669, 161 L.Ed.2d 481 (2005) ; Tully , ––– U.S. ––––, 141 S. Ct. 2798, 210 L.Ed.2d 930 (2021) ; see also Fifth Circuit and other cases discussed in the following pages and Appendix II.
Now before the Court on remand from the Fifth Circuit are "the real issue [of] equal protection" and other matters following the determination that "the Texas Legislature's conferring a privilege to those at least age 65 to vote absentee did not deny or abridge younger voters’ rights who were not extended the same privilege." Texas Democratic Party v. Abbott ("TDP II "), 978 F.3d 168, 192, 193 (5th Cir. 2020), cert. denied , ––– U.S. ––––, 141 S. Ct. 1124, 208 L.Ed.2d 562 (2021). Defendant moves to dismiss plaintiffs’ post-remand amended complaints seeking to expand the excuse-free mail-in-voting offered to those at least sixty-five years of age to all Texas voters regardless of age.
Texas law requires most voters to cast their ballots in person either on election day, Tex. Elec. Code ch. 64, or during an early-voting period prescribed by the legislature, id. § 82.005. Voters may apply to vote by mail in only one of four instances—if they: (1) anticipate being absent from their county of residence; (2) have a disability that prevents them from appearing at the polling place; (3) are sixty-five or older; or (4) are confined in jail. Tex. Elec. Code §§ 82.001 -.004. "Disability" for the purposes of the election code is defined to allow a qualified voter to vote by mail if the "voter has a sickness or physical condition that prevents the voter from appearing at the polling place on election day without a likelihood of needing personal assistance or of injuring the voter's health." Id. at § 82.002(a).
Plaintiffs filed this action on April 7, 2020, and sought a preliminary injunction which was substantively identical to an injunction that plaintiffs sought in state court. On May 19, 2020, this Court issued its order on the preliminary injunction requiring no-excuse mail-in balloting in Texas. The state defendants appealed and sought a stay of the injunction pending the appeal. A Fifth Circuit Panel granted the stay. Texas Democratic Party v. Abbott ("TDP I "), 961 F.3d 389, 397 (5th Cir. 2020). On the merits, plaintiffs defended the injunction solely on the grounds of their Twenty-Sixth Amendment claim. The Fifth Circuit merits Panel ultimately vacated the injunction and remanded this case for further proceedings consistent with the opinion on interlocutory appeal. TDP II , 978 F.3d at 194. Plaintiffs filed amended complaints. Defendant moves to dismiss the amended complaints, which plaintiffs oppose. This Court requested additional briefing. Supplemental briefs have now been filed by the parties and the issues are properly before this Court.
Plaintiffs bring claims on behalf of eighteen to sixty-four-year-old voters on the basis of age and race. Citing unprecedented challenges posed by the COVID-19 pandemic, plaintiffs allege that Texas's age limitation for voting–on its own and combined with election policies yet to be enacted and the trajectory of the pandemic–discriminates on the basis of age, both facially and as applied, and on the basis of age/race by creating separate classes of voters with lesser rights to access the ballot box. Specifically, plaintiffs contend that § 82.003 of Texas Election Code violates the Twenty-Sixth Amendment, the First Amendment, the Fourteenth Amendment, the Fifteenth Amendment, and § 2 of the Voting Rights Act ().
Defendant's motions seek dismissal of the amended complaints under Rule 12(b)(1) for lack of jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Defendant moves to dismiss for lack of jurisdiction pursuant to Rule 12(b)(1) arguing: (1) plaintiffs lack standing to complain of speculative future election policies and pandemic conditions; (2) plaintiffs’ claims regarding unspecified future election policies and pandemic conditions are not ripe; and (3) sovereign immunity bars plaintiffs’ claim regarding unspecified "election conditions." Defendant also moves to dismiss for failure to state a claim pursuant to Rule 12(b)(6) arguing: (1)...
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