TX Democratic v. Hughs ( 2021 )

Case: 20-50667 Document: 00515887464 Page: 1 Date Filed: 06/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 4, 2021
No. 20-50667
Lyle W. Cayce
Clerk
Texas Democratic Party; Democratic Senatorial
Campaign Committee; Democratic Congressional
Campaign Committee,
Plaintiffs—Appellees,
versus
Ruth R. Hughs, in her official capacity as the Texas Secretary of State,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-8
Before Haynes, Graves, and Willett, Circuit Judges.
Per Curiam:*
The Texas Secretary of State issued a press release that allegedly
stated that voter registration applications require a wet signature (the “wet
signature rule”). Plaintiffs—the Texas Democratic Party, the Democratic
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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Senatorial Campaign Committee, and the Democratic Congressional
Campaign Committee—sued the Secretary in her official capacity, alleging
that the Secretary’s alleged wet signature rule violates federal law. We hold
that, given the binding precedent we have in this area, we must conclude that
the Secretary lacks sufficient connection to enforcement of the alleged wet
signature rule for the Ex parte Young exception to state sovereign immunity
to apply. Accordingly, we REVERSE the district court’s denial of the
Secretary’s sovereign immunity defense and REMAND with instructions
to dismiss for lack of subject matter jurisdiction. 1
Background
The Secretary argues that in Texas, the responsibility of reviewing
voter registration applications is divided between her and local county
registrars but falls mostly on the local county registrars. We note that the
Secretary indisputably holds high-level responsibilities: she applies and
interprets the state’s Election Code, assists and advises all election
authorities regarding the Code, and may take appropriate action against those
authorities if they abuse their duties. Tex. Elec. Code Ann. §§ 31.003,
.004(a), .005. But there are also statutes imputing certain responsibilities on
the county registrars, such as the actual registering of voters. In particular,
they receive and review voter registration applications for compliance with
the Election Code, which, among other requirements, provides that an
application must be “in writing and signed by the applicant.” Id.§§ 13.002(b), .071. The county registrars accept those applications that
comply and reject those that do not. Id. § 13.072.
1
We also DENY the Secretary’s motion to strike the documents in Plaintiffs’
addendum as moot.
2
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To assist voters in completing their voter registration applications in
compliance with the Election Code, an organization seeking to increase voter
turnout in Texas released a smartphone application in 2018. Through that
app, a voter registration applicant could submit his or her information, which
would then be auto-populated into a paper voter registration form. To satisfy
the signature requirement, the applicant would sign a piece of paper, take a
picture of the signature, and upload that picture to the app. The organization
then affixed the applicant’s signature to the application form and sent a copy
of the application to the applicant’s county registrar. Many voters in Texas
registered to vote through this app.
Then, five days before the voter registration deadline, the Secretary
issued a press release “remind[ing] all eligible Texas voters that online voter
registration is not available in the State of Texas.” Press Release, Texas
Secretary of State, Secretary Pablos Reminds Texans To Exercise Caution
When Registering To Vote (Oct. 4, 2018). 2 The press release allegedly
required all voter registration applications to include an original, wet
signature and made applications submitted through the app invalid. The
Travis County registrar allegedly announced that he would not follow the wet
signature rule, but reversed course the following day, and rejected hundreds
of applications submitted without a wet signature. Several other county
registrars allegedly followed the Secretary’s wet signature rule.
Plaintiffs, who all expended resources to promote and employ the app,
sued the Secretary in her official capacity, alleging that the Secretary’s
alleged wet signature rule violates the United States Constitution and the
Civil Rights Act of 1964 and seeking declaratory relief and an injunction. The
2
The Secretary who issued the release was actually a predecessor to the current
one, but the current Secretary has not rescinded the press release addressed here; it is
available at: https://www.sos.texas.gov/about/newsreleases/2018/100418.shtml.
3
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Secretary moved to dismiss the complaint, arguing in part that the court
lacked jurisdiction based on state sovereign immunity. The district court
denied the motion, concluding, as relevant here, that the Ex parte Young
exception to sovereign immunity applied. The Secretary timely appealed the
denial of sovereign immunity under the collateral order doctrine.
Jurisdiction & Standard of Review
Plaintiffs asserted jurisdiction under 28 U.S.C. §§ 1331, 1343, and we
have jurisdiction to determine our own jurisdiction. Brownback v. King, 141
S. Ct. 740, 750 (2021). We review the district court’s jurisdictional
determination of sovereign immunity de novo. NiGen Biotech, L.L.C. v.
Paxton, 804 F.3d 389, 393 (5th Cir. 2015).
Discussion
Ex parte Young provides an exception to the general rule preventing
private suits against state officials in their official capacity in federal court. 3
Id. at 393–94 (referring to Ex parte Young, 209 U.S. 123, 155–56 (1908)). For
this exception to apply, the state official must have “some connection with
the enforcement of the act” in question. Ex parte Young, 209 U.S. at 157. We
look at the face of the complaint to determine whether there is a sufficient
connection. 4 City of Austin v. Paxton, 943 F.3d 993, 998 (5th Cir. 2019), cert.
denied, 141 S. Ct. 1047 (2021) (mem.).
3
The other exceptions to state sovereign immunity—state waiver and
congressional abrogation—are not applicable here. See NiGen, 804 F.3d at 393–94. It is
undisputed that Texas has not consented to this suit. Also, Congress has not abrogated
sovereign immunity for Civil Rights Act claims, as that Act does not provide “unequivocal
statutory language” abrogating state sovereign immunity. Allen v. Cooper, 140 S. Ct. 994,
1000 (2020); cf. 52 U.S.C. § 10101(a)(2)(B).
4
As a result, even if we were to accept Plaintiffs’ addendum to their brief, it is
irrelevant for our Ex parte Young analysis.
4
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We have a series of binding precedents addressing the question of
when a state official can be sued under the Ex parte Young exception—though
they do not provide as much clarity as we would prefer. See Tex. Democratic
Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020) (observing that our opinions
have ranged from requiring a heightened “special relationship” to a mere
“scintilla” of enforcement by the relevant state official), cert. denied, 141 S.
Ct. 1124 (2021) (mem.).
Notwithstanding some differences in our broad-strokes articulation of
the “some connection” requirement, the precedents distill three rules that
bind us in this case. First, whatever the merits of this conclusion, our case
law is clear that it is not enough that the state official was merely the but-for
cause of the problem that is at issue in the lawsuit. Id. at 175, 181 (holding
that the Attorney General of Texas, whose letter ordering public officials to
refrain from advising voters who feared COVID-19 to vote by mail, lacked a
sufficient connection to enforcement for Ex parte Young). 5 Second, where a
statute is being challenged, our precedents necessitate the state official to
“have the requisite connection to the enforcement of the particular statutory
provision that is the subject of the litigation”—in other words, a provision-
by-provision analysis is required. Id. at 179. Third, in the particular context
of Texas elections, we have held that the Secretary’s role varies, so we must
identify the Secretary’s specific duties within the particular statutory
provision. See id. at 179–80 (observing that for mail-in ballots, the Secretary
and local early voting clerks divide responsibilities); id. at 180(acknowledging that the Secretary’s general duties under the Texas Election
Code §§ 31.003–.004 are an insufficient connection under Ex parte Young).
5
A reasonable person could argue that it makes little sense to be unable to sue the
official who caused the problem in question, but we are bound to follow the relevant
precedents and, therefore, do not address this point further.
5
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The question presented today is whether, given the precedents we are
bound by in this area, the Secretary has a sufficient connection to enforce the
alleged wet signature rule when county registrars are the ones who review
voter registration applications. In light of applying the precedents enacting
the three rules articulated above, we are bound to conclude that the answer
is “no.”
Plaintiffs focus on the Secretary’s press release, arguing that it
compelled county registrars to reject voter registration applications that
lacked wet signatures. However, there is no dispositive difference between
the Secretary’s press release in this case and the Texas Attorney General’s
letter to local officials in Texas Democratic Party. Id. at 175. There, the
Attorney General issued a letter, which explained that the Election Code
plainly provided that fear of contracting COVID-19 did not qualify as a
disability for purposes of receiving a mail-in ballot, ordered local officials to
refrain from advising voters who feared contracting COVID-19 from voting
by mail, and warned local officials that issuing such advice would subject
them to criminal liability. Id. We held that the letter did not provide a
sufficient connection to enforcement of the Election Code because it (1) was
not sent to the plaintiffs, (2) did not make a specific threat or indicate that
enforcement was forthcoming, and (3) did not state that the plaintiffs had
violated any specific law. Id. at 181. All those factors come out the same way
here. Accordingly, Texas Democratic Party binds us to conclude that the
Secretary’s alleged wet-signature-rule press release to the general public
does not provide a sufficient connection to actual enforcement for Ex parte
Young to apply to the Secretary.
6
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Plaintiffs offer two additional reasons for why the Secretary has a
sufficient connection for Ex parte Young to apply, but Texas Democratic Party
forecloses those arguments. 6
First, Plaintiffs argue that Texas Election Code § 13.121(a), which
requires the Secretary to design the official voter registration application
form, provides a sufficient connection to enforcing the alleged wet signature
rule on those forms. But in their complaint in the district court, Plaintiffs did
not plead that the voter registration application form designed by the
Secretary specifically required a wet signature. Cf. id. at 179–80 (holding that
the Secretary had a sufficient connection to enforce an age-based absentee-
voting provision in mail-in ballot applications because the Texas Election
Code required the Secretary to design the application form for mail-in ballots
and the Secretary had designed that form to require applicants to indicate
whether they were entitled to an absentee ballot based on age). Thus, as
pleaded, there is no issue with the design of the voter registration application
form.
Second, Plaintiffs argue that Texas Election Code § 31.005(a)–(b),
which authorizes the Secretary to “take appropriate action to protect the
voting rights of the citizens” and to order local officials to correct any
offending conduct, provides sufficient connection to enforcing the alleged
wet signature rule on the county registrars. But, again, Plaintiffs did not plead
6
Plaintiffs also argue that the Secretary is sufficiently connected to the
enforcement of the alleged wet signature rule because the Secretary provides training on
election law to certain officials, but they refer only to sections of the Texas Election Code
applying to volunteer deputy registrars, rather than the county registrars who actually
reject the applications. See TEX. ELEC. CODE ANN. §§ 13.047, .048; see also id.
§§ 13.039(a), .042 (noting that a volunteer deputy registrar has a limited duty of reviewing
a voter registration application for completeness and then passing complete applications to
the county registrars for review). Those provisions fail to show that the Secretary has the
connection required by our precedent to the enforcement of the alleged wet signature rule.
7
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that the Secretary took such action or even that the Secretary threatened to
do so. See id. at 181 (observing that our precedent requires the necessary
connection to be “not merely the general duty to see that the laws of the state
are implemented, but the particular duty to enforce the statute in question
and a demonstrated willingness to exercise that duty” (internal quotation
marks and citation omitted)). The most that Plaintiffs pleaded was that the
Travis County registrar “reversed course” and rejected voter registration
applications submitted without a wet signature—but they did not allege that
the registrar did so under threat from the Secretary, or anything similar.
We therefore hold that our precedent requires us to conclude that the
Secretary lacks sufficient connection to the enforcement of the alleged wet
signature rule for the Ex parte Young exception to apply. Accordingly, we
REVERSE the district court’s denial of sovereign immunity and
REMAND from this interlocutory appeal with instructions to dismiss for
lack of subject matter jurisdiction. 7 We also DENY the Secretary’s motion
to strike the documents in Plaintiffs’ addendum as moot.
7
Because we hold that the Secretary lacked a sufficient connection to the
enforcement of the challenged statute, we need not, and do not, address whether Plaintiffs
requested the type of relief required under Ex parte Young.
8