Justia Election Law Opinion Summaries

Articles Posted in US Court of Appeals for the Fifth Circuit
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After movants, who were the plaintiffs in a separate but similar case, were denied intervention in the district court, they moved to intervene in the Secretary of State's ongoing appeal concerning signature-verification procedures for ballots.The Fifth Circuit denied the motion to intervene because intervention on appeal is reserved for exceptional cases and movants' reasons for intervening do not come close to that high threshold. The court rejected movants' argument in favor of intervention because their appeal needs to be consolidated with the Secretary's appeal. The court explained that, because both movants and the Secretary are appealing from the same order, both appeals have been docketed under the same case number in this court. Therefore, assuming the motion to intervene in the Secretary's appeal is denied, the same merits panel will hear both the Secretary's appeal of the summary judgment and movants' appeal of the denial of their motion to intervene. The court stated that, to the extent movants want their voices heard, the proper procedure is to move to appear as amici curiae, not to move to intervene. Finally, the court declined to strike the motion. View "Richardson v. Texas Secretary of State" on Justia Law

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The City of Houston contends that it is being sued for a so-called "zombie" law. The City's Charter allows only registered voters to circulate petitions for initiatives and referenda, even though the Supreme Court held a similar law unconstitutional twenty years ago. Plaintiffs, Trent and Trey Pool, sought a preliminary injunction allowing them to collect signatures for their anti-pay-to-play petition as well as a declaratory judgment that the Charter's voter-registration and residency provisions are unconstitutional, permanent injunctive relief against enforcement of those provisions, and nominal damages. Plaintiffs also filed an emergency motion for a temporary restraining order (TRO), which would allow them to circulate the petition through the deadline of July 9, 2019. The district court granted a TRO, allowing plaintiffs to circulate the petition for the next week, but concluded that plaintiffs had not demonstrated an injury sufficient to support standing with regard to future petitions. The district court later dismissed plaintiffs' remaining claims. Although the City now concedes that the qualified-voter requirement is unconstitutional, at issue is whether plaintiffs may obtain a permanent injunction preventing its enforcement.The Fifth Circuit held that, although there would not usually be a reasonable fear of continued enforcement of a zombie law, the history of Houston's qualified-voter requirement gives Trent Pool standing to seek an injunction that would guard against continued chilling of his speech. The court also held that the City has not met its heavy burden of showing that plaintiffs' challenges are moot. Therefore, because there is a reasonable concern that the City might enforce its unconstitutional Charter provision, the court reversed the judgment dismissing this case and remanded for further proceedings. View "Pool v. City of Houston" on Justia Law

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After plaintiffs filed suit challenging Texas's absentee-ballot system in August 2019, the district court granted plaintiffs' summary judgment motion in part, issuing an injunction adopting many of plaintiffs' proposed changes to Texas's election procedures. The injunction included three main provisions regarding the 2020 election: first, the district court required the Secretary to issue an advisory, within ten days, notifying local election officials of the injunction, and the notification must inform them that rejecting ballots because of mismatching signatures is unconstitutional unless the officials take actions that go beyond those required by state law; second, the Secretary must either issue an advisory to local election officials requiring them to follow the district court's newly devised signature verification and voter-notification procedures, or else promulgate an advisory requiring that officials cease rejecting ballots with mismatched signatures altogether; and third, the district court mandated that the Secretary take action against any election officials who fail to comply with the district court's newly minted procedures.The Fifth Circuit considered the Nken factors and granted the Secretary's motion to stay the district court's injunction pending appeal, because the Secretary is likely to succeed in showing that Texas's signature-verification procedures are constitutional. The court held that the Secretary is likely to show that plaintiffs have alleged no cognizable liberty or property interest that could serve to make out a procedural due process claim. Given the failure of plaintiffs and the district court to assert that voting—or, for that matter, voting by mail—constitutes a liberty interest, along with the absence of circuit precedent supporting that position, the court stated that the Secretary is likely to prevail in showing that plaintiffs' motion for summary judgment on their due process claim should have been denied. The court rejected the district court's reasoning regarding any state-created liberty interest. Even if voting is a protected liberty or property interest, the court held that the Secretary is likely to show that the district court used the wrong test for the due process claim. The court held that the Anderson/Burdick framework provides the appropriate test for plaintiffs' due process claims and Texas's signature-verification procedures are reasonable and nondiscriminatory, and they survive scrutiny under the Anderson/Burdick framework. In this case, Texas's important interest in reducing voter fraud—and specifically in stymying mail-in ballot fraud—justifies its use of signature verification.The court also held that the Secretary is likely to prevail in her defense that sovereign immunity bars the district court's injunction requiring that she issue particular advisories and take specific potential enforcement action against noncomplying officials. Finally, the remaining Nken factors counsel in favor of granting a stay pending appeal where the Secretary will be irreparably injured absent a stay, public interest favors granting a stay, and the balance of harms weighs in favor of the Secretary. View "Richardson v. Texas Secretary of State" on Justia Law

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Plaintiffs appealed the dismissal of their claims challenging certain Texas voting procedures during the COVID-19 pandemic. Plaintiffs allege that Black and Latino communities have been disproportionately impacted by COVID-19 because these communities have experienced higher infection, hospitalization, and death rates; that Texas's policies and laws individually and cumulatively, operate to deny voters the right to vote in a safe, free, fair, and accessible election; and that long lines, the use of electronic voting devices rather than paper ballots, limited curbside voting, and the permissiveness of mask-wearing at polling locations present substantial health risks that create fear of voting and therefore infringe upon the right to vote. In their brief to the Fifth Circuit, plaintiffs narrowed their challenge to Executive Order GA-29 and four sections of the Texas Election Code. The district court granted the State's motion to dismiss, holding that the case presented non-justiciable political questions.The Fifth Circuit held that plaintiffs' racial discrimination and Voting Rights Act claims do not present political questions. The court also held that, with the exception of the Voting Rights Act claim, the Eleventh Amendment bars all the claims against Governor Abbott and Secretary Hughs. However, there is no sovereign immunity with respect to the Voting Rights Act claim. In this case, much of the relief sought by plaintiffs to remedy the alleged Voting Rights Act injuries and the injuries from alleged constitutional violations (were they not barred by sovereign immunity) is beyond the power of a court to grant. The court explained that, it is one thing for a court to strike down a law that violates the Voting Rights Act or the Constitution and to enjoin a state official from enforcing it. However, it is entirely another matter for a court to order an executive performing executive functions, or an executive performing essentially legislative functions, to promulgate directives mandated by the court. The court reversed in part and remanded the Voting Rights Act claim for further proceedings in the district court. View "Mi Familia Vota v. Abbott" on Justia Law

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Section 82.003 of the Texas Election Code allows mail-in voting for any voter at least 65 years old but requires younger voters to satisfy conditions, such as being absent from the county on election day or having a qualifying disability. In light of the election-year COVID-19 pandemic, the district court entered a preliminary injunction requiring Texas officials to allow any Texan eligible to vote to do so by absentee ballot.The Fifth Circuit held that the preliminary injunction was not properly granted on plaintiffs' Twenty-Sixth Amendment claim and vacated the injunction. After concluding that there are no jurisdictional impediments to plaintiffs' bringing their claims, the court held that the Twenty-Sixth Amendment confers an individual right to be free from the denial or abridgment of the right to vote on account of age, the violation of which allows for pursuing a claim in court. The court also held that an election law abridges a person's right to vote for the purposes of the Twenty-Sixth Amendment only if it makes voting more difficult for that person than it was before the law was enacted or enforced. In this case, plaintiffs' claim -- that the Twenty-Sixth Amendment prohibits allowing voters who are at least 65 years old to vote by mail without excuse -- fails because conferring a benefit on another class of voters does not deny or abridge plaintiffs' Twenty-Sixth Amendment right to vote. Therefore, Section 82.003 does not violate the Twenty-Sixth Amendment where 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. The court remanded for further proceedings where equal protection issues may come to the fore. View "Texas Democratic Party v. Abbott" on Justia Law

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The Fifth Circuit granted the Secretary's emergency motion for stay pending appeal of the district court's order enjoining the Secretary and local officials from enforcing Governor Abbot's October 1, 2020 Proclamation which restricted hand-delivering mail ballots to a single designated early voting clerk's office. The Proclamation left in place the previous forty-day expansion for delivering mail-in ballots and the always-available option of the U.S. mail.The court considered the Nken factors in determining whether to grant a stay and held that the Secretary has made a strong showing that she will likely succeed on the merits, because the district court erred in analyzing plaintiffs' voting rights and equal protection claims. Assuming that the Anderson-Burdick balancing framework applies, the court concluded that the district court erred in applying it to the voting rights claim where the district court vastly overstated the "character and magnitude" of the burden allegedly placed on voting rights by the Proclamation. Rather, the Proclamation is part of the Governor's expansion of opportunities to cast an absentee ballot in Texas well beyond the stricter confines of the Election Code. Furthermore, the district court undervalued the state interests furthered by the Proclamation in ballot security, election uniformity, and avoiding voter confusion. In regard to the equal protection claims, the court concluded that the district court misconstrued the nature of the alleged burden imposed by the Proclamation. The court explained that the proclamation establishes a uniform rule for the entire State: each county may designate one early voting clerk's office at which voters may drop off mail ballots during the forty days leading up to the election. That voters who live further away from a drop-off location may find it inconvenient to take advantage of this particular, additional method to cast their ballots does not limit electoral opportunity. Therefore, the Secretary is likely to show that the Proclamation does not impermissibly classify voters based on county of residence, and a state's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory voting regulations. Finally, the court held that the remaining Nken factors favored a stay where the Secretary has shown irreparable harm absent a stay; the balancing of harms weighs in favor of the state officials; and the public interest favors the Secretary. View "Texas League of United Latin American Citizens v. Hughs" on Justia Law

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The Fifth Circuit granted the Secretary's motion to stay the district court's preliminary injunction enjoining enforcement of Texas House Bill 25 (HB 25), which eliminates straight-ticket voting. The court applied the factors for ruling on a stay and observed the Supreme Court's repeated emphasis that courts should not alter election rules on the eve of an election.In staying a preliminary injunction that would change election laws eighteen days before early voting begins, the court recognized the value of preserving the status quo in a voting case on the eve of an election, and found that the traditional factors for granting a stay favor granting one here. In this case, the Secretary has shown that she is likely to succeed on the merits that the district court erred in issuing an injunction that altered the status quo of Texas election law this close in time to an election. Furthermore, the Secretary has met the burden of showing irreparable injury absent a stay; any harms to plaintiffs do not outweigh the other preliminary factors; and public interest weighs heavily in favor of a stay. View "Texas Alliance for Retired Americans v. Hughs" on Justia Law

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Section 82.003 of the Texas Election Code does not violate plaintiff's Twenty-Sixth Amendment right to vote during the COVID-19 pandemic. Plaintiffs based their Twenty-Sixth Amendment claim on the argument that differential treatment in allowing voters aged 65 and older to vote by mail without excuse constitutes, at least during the pandemic, a denial or abridgment of a younger citizen's right to vote on account of age.The Fifth Circuit vacated the preliminary injunction requiring Texas officials to allow any Texan eligible to vote to do so by absentee ballot. After determining that the voter plaintiffs have met their burden on the causation prong and therefore have standing, the court held that sovereign immunity does not bar suit against the Secretary and the political question doctrine does not bar the court's review.On the merits, the court held that adding a benefit to another class of voters neither denies nor abridges plaintiffs' Twenty-Sixth Amendment right to vote. The court explained that at-risk voters of any age can utilize the Election Code's disability provision to mitigate the risk of COVID-19. However, it does not permit all voters to claim that reasonable fear of exposure is a disability. The court further stated that there are quite reasonable concerns about voting in person, but the state's mandating that many voters continue to vote in that way does not amount to an absolute prohibition of the right to vote. As to abridgment, the court stated that voters under age 65 did not have no-excuse absentee voting prior to the pandemic. Furthermore, requiring many to vote in person during this crisis, with safety measures being imposed and some flexibility as to "disability" being shown, does not amount to an unconstitutional status quo. The court noted that the real issue here is equal protection, which is not before the court. The court remanded for further proceedings. View "Texas Democratic Party v. Abbott" on Justia Law

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Plaintiffs filed suit against the Texas Secretary of State Ruth Hughs under 42 U.S.C. 1983 for allegedly imposing a voter-registration requirement that violates federal law. After the district court denied the Secretary's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (b)(6), the Secretary noticed an interlocutory appeal, and plaintiffs moved for summary affirmance or dismissal of the Secretary's appeal as frivolous.The Fifth Circuit held that the Secretary's appeal is not frivolous because it presents an important question that has not been resolved by the court: whether and to what extent the exception in Ex parte Young, 209 U.S. 123, 157 (1908), to sovereign immunity permits plaintiffs to sue the Secretary in an as-applied challenge to a law enforced by local officials. Accordingly, the court denied the motion for summary affirmance and the motion to dismiss the appeal as frivolous. View "Texas Democratic Party v. Hughs" on Justia Law

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In 2014, plaintiffs, African-American voters and the Terrebonne Parish NAACP, filed suit to challenge the electoral method for Louisiana's 32nd Judicial District Court (JDC), alleging that at-large elections for the judges produce discriminatory results, violating Section 2 of the Voting Rights Act, and have been maintained for a discriminatory purpose in violation of that statute and the Fourteenth and Fifteenth Amendments. The district court upheld both claims and ordered a remedial plan breaking the 32nd JDC into five single-member electoral subdistricts.The Fifth Circuit reversed, holding that the district court clearly erred in its finding of minority vote dilution in the election of judges for Terrebonne Parish's 32nd JDC. The court held that the district court erred in holding that weak evidence of vote dilution could overcome the state's substantial interest in linking judicial positions to the judges' parish-wide jurisdiction. Furthermore, the district court erroneously equated failed legislative attempts to create subdistricts for the 32nd JDC with a racially discriminatory intent. View "Fusilier v. Landry" on Justia Law