Voting for Am., Inc. v. Steen

• Decision Date: 03 October 2013
• Docket Number: No. 12–40914.,12–40914.
• Citation: 732 F.3d 382
• Parties: VOTING FOR AMERICA, INC.; Brad Richey; Penelope McFadden; Project Vote, Inc., Plaintiffs–Appellees v. John STEEN, in his Official Capacity as Texas Secretary of State, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

732 F.3d 382

VOTING FOR AMERICA, INC.; Brad Richey; Penelope McFadden; Project Vote, Inc., Plaintiffs–Appellees

v.John STEEN, in his Official Capacity as Texas Secretary of State, Defendant–Appellant.

No. 12–40914.

United States Court of Appeals,Fifth Circuit.

Oct. 3, 2013.

Negative Treatment Vacated

V.T.C.A., Election Code §§ 11.002, 13.008, 13.031, 13.038, 13.042Chad Wilson Dunn, Esq., Brazil & Dunn, Houston, TX, Ryan Morland Malone, Attorney, David C. Peet, Ropes & Gray, L.L.P., Brian Mellor, Project Vote, Washington, DC, for Plaintiffs–Appellees.

Jonathan F. Mitchell, Solicitor General, Kathlyn C. Wilson, Esq., Assistant Attorney General, Office of the Attorney General, Austin, TX, for Defendant–Appellant.

Lawrence John Joseph, Washington, DC, for Eagle Forum Education and Legal Defense Fund, Amicus Curiae.

Farrah Robyn Berse, Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., Ian Arthur Vandewalker, Attorney, Esq., Brennan Center for Justice, New York, NY, for Brennan Center for Justice at New York University School of Law, League of Women Voters, Rock the Vote, Amicus Curiae.

Susan Lea Hays, Esq., Dallas, TX, for Former Governor Mark White, Former Lieutenant Governor William, Members of The 69th Texas Legislature, Amicus Curiae.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, JONES, and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellees Voting for America, Inc., Brad Richey, Penelope McFadden, and Project Vote, Inc. (“Appellees”) sued Texas Secretary of State John Steen (“Steen”) ¹ for declaratory and injunctive relief against several provisions of Texas's law regulating volunteer deputy registrars, Tex. Elec.Code Ann. § 13.031 et seq. (“VDR Law”). The district court granted a preliminary injunction against three provisions for violating the First Amendment and two provisions for violating the National Voter Registration Act (“NVRA”), 42 U.S.C. §§ 1973gg et seq. A motions panel of this court granted a stay pending appeal. Amplifying the motions panel's majority opinion, we conclude that Appellees failed to establish facial unconstitutionality of the challenged provisions. The preliminary injunction is reversed and the case remanded for further proceedings.

I. Background

Steen administers the VDR Law, which regulates the appointment and activities of volunteer deputy registrars (“VDRs”), individuals trained and empowered to receive and deliver completed voter registration applications. After Texas amended the VDR Law in 2011, Appellees requested Steen's interpretation of several provisions. Unsatisfied with the answers, Appellees filed this lawsuit seeking injunctive relief on the basis that several provisions restrict their ability to conduct voter registration drives in violation of the First Amendment and the NVRA.

In May 2012, Appellees moved for a preliminary injunction. After a hearing, the district court granted the motion in part, enjoining enforcement of the following provisions of the VDR Law:

(1) Texas Election Code § 13.031(d)(3) to the extent it forbids non-Texas residents from serving as VDRs (the “Non–Resident Provision”);

(2) Texas Election Code § 13.038 to the extent it prohibits VDRs appointed in one county from serving in another county (the “County Provision”);

(3) Texas Election Code § 13.008(a)(2) & (3) (the “Compensation Provision”);

(4) Texas Election Code § 13.038 to the extent it prohibits VDRs from photocopying or scanning voter registration applications submitted to the VDR but not yet delivered to the county registrar (so long as no information deemed confidential under § 13.004 is included) (the “Photocopying Provision”); and

(5) Texas Election Code § 13.042 to the extent it prohibits VDRs from sending completed voter registration applications via United States mail (the “Personal Delivery Provision”).²

Steen appealed and moved for a stay pending appeal, which the district court denied. A motions panel of this court granted the stay after hearing oral argument. The U.S. Supreme Court denied Appellees' emergency application to vacate the stay pending appeal. Voting for Am., Inc. v. Andrade, –––U.S. ––––, 133 S.Ct. 99, 183 L.Ed.2d 737 (2012) (Justice Sotomayor would have granted the application in part).

On September 26, 2012, the motions panel issued an unpublished opinion explaining its reasons for granting the stay, along with a dissenting opinion. Voting for Am., Inc. v. Andrade, 488 Fed.Appx. 890 (5th Cir.2012) [hereinafter Andrade II ] (unpublished). Although we are not bound by the ruling of motions panel in the same case, see Mattern v. Eastman Kodak Co., 104 F.3d 702, 704 (5th Cir.1997), we substantially agree with the majority's analysis, and we conclude that Appellees have not established a strong likelihood of prevailing on the merits of their claims.

II. Standard of Review

“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 to be enjoined; 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) (internal citation omitted). This court has repeatedly cautioned that “a preliminary injunction is an extraordinary remedy which should not be granted unless the party seeking it has ‘clearly carried the burden of persuasion on all four requirements.’ ” Id. (quoting Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195–96 (5th Cir.2003)). We review a district court's ultimate issuance of a preliminary injunction for an abuse of discretion. Janvey v. Alguire, 647 F.3d 585, 592 (5th Cir.2011). “As to each element of the district court's preliminary-injunction analysis, however, the district court's findings of fact are subject to a clearly-erroneous standard of review, while conclusions of law are subject to broad review and will be reversed if incorrect.” Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 267 (5th Cir.2012) (internal quotations omitted).

III. Discussion

Initially, we address the constitutional challenges concerning three VDR provisions, and we then move to the alleged conflict between two other provisions and federal law.

A. First Amendment

Principles of judicial restraint must be employed before a federal court may declare a state law unconstitutional. Although their briefing conveys some ambiguity, Appellees essentially assert the facial unconstitutionality of the Non–Resident, County, and Compensation provisions. Courts generally disfavor facial challenges, and for good reason. “[F]acial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451, 128 S.Ct. 1184, 1191, 170 L.Ed.2d 151 (2008). With the exception of First Amendment cases, a facial challenge will succeed only if the plaintiff establishes that the act is invalid under all of its applications. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987). The standard for facial challenges in First Amendment cases is different, although still daunting. A law implicating the right to expression may be may be invalidated on a facial challenge if “a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010) (quoting Washington State Grange, 552 U.S. at 449, n. 6, 128 S.Ct. at 1191 n. 6). Other relevant limits on our authority were well stated by the motions panel majority:

Our task as a federal court is, to the extent possible, to construe the provisions to avoid a constitutional conflict. See, e.g., Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 2980, 111 L.Ed.2d 405 (1990). A federal court should not lightly enjoin the enforcement of a state statute. Chisom v. Roemer, 853 F.2d 1186, 1189 (5th Cir.1988). The determination of whether a democratically enacted statute is constitutional on its face requires that “every reasonable construction must be resorted to [ ] in order to save a statute from unconstitutionality.” Nat'l Fed. of Indep. Bus. v. Sebelius, ––– U.S. ––––, 132 S.Ct. 2566, 2594, 183 L.Ed.2d 450 (2012). In this vein, [Steen's] interpretation must be accorded some meaningful weight, as [he] is the official charged with enforcing the statute. See Bellotti v. Baird, 428 U.S. 132, 143, 96 S.Ct. 2857, 2864, 49 L.Ed.2d 844(1976). We defer to [his] interpretation of how the law is to be enforced, so long as it does not conflict with the statutory text. See Hamer v. Musselwhite, 376 F.2d 479, 481 (5th Cir.1967) (deferring to the city's interpretation of an ordinance because city officials are charged with enforcing the statute and are the ones who must apply it).

Andrade II, 488 Fed.Appx. at 895.

Under the federalist structure of the United States, the states are responsible for regulating the conduct of their elections. It is well recognized that state regulations will invariably affect “the individual's right to vote and his right to associate with others for political ends.” Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983). Where a state election rule directly restricts or otherwise burdens an individual's First Amendment rights, courts apply a balancing test derived from two Supreme Court decisions, Anderson, supra, and Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Using the Anderson/Burdick balancing test, the court “must first consider the character and magnitude of the...