Jarrod Stringer v. David Whitley ( 2019 )

Case: 18-50428 Document: 00515197377 Page: 1 Date Filed: 11/13/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 13, 2019
No. 18-50428
Lyle W. Cayce
Clerk
JARROD STRINGER; BENJAMIN HERNANDEZ; JOHN WOODS,
Plaintiffs–Appellees,
v.
DAVID WHITLEY, in His Official Capacity as the Texas Secretary of State;
STEVEN C. MCCRAW, in His Official Capacity as the Director of the Texas
Department of Public Safety,
Defendants–Appellants.
Appeal from the United States District Court
for the Western District of Texas
Before OWEN, Chief Judge, and CLEMENT and HO, Circuit Judges.
PRISCILLA R. OWEN, Chief Judge:
Texas’s Secretary of State and Director of Public Safety appeal a district
court judgment declaring them in violation of the Equal Protection Clause and
the National Voter Registration Act of 1993 and granting injunctive relief. We
reverse the judgment because Plaintiffs do not have standing to pursue their
claims.
I
Those who seek to renew their driver’s license in Texas or to change the
address associated with their driver’s license can submit paper applications or
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apply online using the Texas Department of Public Safety’s (DPS) online
system (DPS System). Paper applications ask the following voter registration
questions: “If you are a US Citizen, would you like to register to vote? If
registered, would you like to update your voter information?” Applicants
answer by checking a box for “yes” or “no.” DPS transfers the information
provided by each applicant who answers “yes” to the Texas Secretary of State
(the Secretary). The Secretary sends the applicant’s information to local voter
registrars, who use the data to complete the voter registration process.
Those using the online DPS System to renew their driver’s license or to
change the address associated with their driver’s license are asked a different
voter registration question: “Do you want to request a voter application? You
will receive a link to a voter application on your receipt page.” The DPS System
receipt page states, “You are not registered to vote until you have filled out the
online application, printed it, and mailed it to your local County Voter
Registrar. Click here to Download a Voter Registration Application.” DPS
System users can access a voter registration application through the link on
the receipt page. DPS does not send the Secretary the information provided
by applicants who answer “yes” to the DPS System’s voter registration
question.
Plaintiffs Jarrod Stringer, Benjamin Hernandez, and John Woods each
moved from a Texas county in which they were registered to vote to another
Texas county between 2013 and 2015. Plaintiffs used the DPS System to
change their driver’s license addresses and selected “yes” in response to the
voter registration question. Plaintiffs believed that they had updated their
voter registration by doing so. Stringer and Hernandez discovered that they
were not registered to vote in their new counties when they unsuccessfully
attempted to vote in the 2014 federal election. Woods was informed that he
was not registered to vote in his new county when he called a county authority
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to confirm his polling location for the 2015 election. Woods and Hernandez
submitted provisional ballots, which ultimately were not counted. All three
plaintiffs were registered to vote in their new counties by the end of 2015.
Plaintiffs sued the Texas Secretary of State and the Director of the Texas
Department of Public Safety, alleging that the DPS System violates the Equal
Protection Clause and the National Voter Registration Act of 1993 (NVRA).
Plaintiffs alleged that the DPS System violates a number of NVRA provisions,
including 52 U.S.C. § 20504(d), which states “[a]ny change of address form
submitted in accordance with State law for purposes of a State motor vehicle
driver’s license shall serve as notification of change of address for voter
registration.” 1 Plaintiffs sought declaratory and injunctive relief, not damages.
Plaintiffs filed a motion for summary judgment. Texas filed a cross-
motion for summary judgment, contending, inter alia, that Plaintiffs do not
have standing to bring their claims. The district court granted summary
judgment to Plaintiffs, holding that Plaintiffs have standing to bring their
claims and that the DPS System violates the NVRA and the Equal Protection
Clause. 2 The district court entered a final judgment granting Plaintiffs wide-
ranging declaratory and injunctive relief. Texas appeals.
II
We review questions of standing de novo. 3 To have Article III standing,
a plaintiff must show an injury in fact that is fairly traceable to the challenged
action of the defendant and likely to be redressed by the plaintiff’s requested
relief. 4 Courts have divided this rule into three components: injury in fact,
1 52 U.S.C. § 20504(d).
2 Stringer v. Pablos, 320 F. Supp. 3d 862 (W.D. Tex. 2018).
3 Bonds v. Tandy, 457 F.3d 409, 411 (5th Cir. 2006).
4 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted).
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causation, and redressability. 5 The party seeking to invoke federal
jurisdiction, in this case the Plaintiffs, bears the burden of establishing all
three elements. 6
Requests for injunctive and declaratory relief implicate the intersection
of the redressability and injury-in-fact requirements. The redressability
requirement limits the relief that a plaintiff may seek to that which is likely to
remedy the plaintiff’s alleged injuries. 7 Because injunctive and declaratory
relief “cannot conceivably remedy any past wrong,” 8 plaintiffs seeking
injunctive and declaratory relief can satisfy the redressability requirement
only by demonstrating a continuing injury or threatened future injury. 9 That
continuing or threatened future injury, like all injuries supporting Article III
standing, must be an injury in fact. 10 To be an injury in fact, a threatened
future injury must be (1) potentially suffered by the plaintiff, not someone
else; 11 (2) “concrete and particularized,” 12 not abstract; 13 and (3) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’” 14 The purpose of the requirement
that the injury be “imminent” is “to ensure that the alleged injury is not too
5 See Lance v. Coffman, 549 U.S. 437, 439 (2007) (referencing “the now-familiar
elements of injury in fact, causation, and redressability”).
6 Lance, 549 U.S. at 439; Lujan, 504 U.S. at 561.
7 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998) (citing Simon v. E. Ky.
Welfare Rights Org., 426 U.S. 26, 45-46 (1976)).
8 Id. at 108.
9 City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983) (stating that “Lyons’ standing
to seek the injunction requested depended on whether he was likely to suffer future injury
from the use of the chokeholds by police officers[,]” not whether he had previously been
injured by the use of a chokehold).
10 Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Warth v.
Seldin, 422 U.S. 490, 498 (1975)).
11 Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972).
12 Susan B. Anthony List, 573 U.S. at 158 (quoting Lujan v. Defs. of Wildlife, 504 U.S.
555, 560 (1992)).
13 Fed. Election Comm’n v. Akins, 524 U.S. 11, 24 (1998) (“The abstract nature of the
harm . . . prevents a plaintiff from obtaining what would, in effect, amount to an advisory
opinion.”).
14 Susan B. Anthony List, 573 U.S. at 158 (quoting Lujan, 504 U.S. at 560).
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speculative for Article III purposes.” 15 For a threatened future injury to satisfy
the imminence requirement, there must be at least a “substantial risk” that
the injury will occur. 16
The district court did not apply this standard. The district court held
that Plaintiffs had standing because they were “deprived of their individual
right to simultaneous voter registration applications at the time they engaged
in the online DPS transactions to change their driver’s licenses,” and “[c]ourt-
ordered compliance with the NVRA would prevent repetition of the same injury
to Plaintiffs and others.” 17 The injury identified by the district court—the
“depriv[ation] of [Plaintiffs’] individual right to simultaneous voter
registration applications at the time they engaged in the online DPS
transactions” 18—was not a continuing or threatened future injury, but a past
injury. To the extent that the district court identified a continuing or
threatened future injury, it did so when it stated that “[c]ourt-ordered
compliance with the NVRA would prevent repetition of the same injury to
Plaintiffs and others.” 19 However, whether compliance with the NVRA would
prevent future injury to others is irrelevant; plaintiffs seeking injunctive relief
must show a continuing or threatened future injury to themselves. 20 Standing
also does not follow from the conclusion that the injunctive relief sought by a
plaintiff would prevent the plaintiff from suffering the same injury in the
future, which is always true when a plaintiff seeks an injunction prohibiting a
defendant from repeating an action that injured the plaintiff in the past.
15 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Lujan, 504 U.S. at
564 n.2).
16 Susan B. Anthony List, 573 U.S. at 158 (quoting Clapper, 568 U.S. at 414 n.5).
17 Stringer v. Pablos, 320 F. Supp. 3d 862, 883 (W.D. Tex. 2018).
18 Id. (emphasis added).
19 Id.
20 Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972).
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Plaintiffs must also show that there is a substantial risk that they will suffer
the potential future injury absent their requested relief. 21 The district court
did not address the probability of Plaintiffs being injured in the future absent
their requested relief.
A
Plaintiffs contend that they have demonstrated a substantial risk that
they will suffer a future injury as a result of the DPS System’s noncompliance
with the NVRA and Equal Protection Clause. As Plaintiffs concede, to do so,
they must demonstrate “a sufficient probability that each Plaintiff will use the
noncompliant driver’s license services again.” All three Plaintiffs declared that
they “plan to continue transacting online with [DPS] in the future whenever
[they are] required to renew or change the address on [their] driver’s license
and [are] eligible to do so.” However, each Plaintiff will have the occasion to
use the DPS System to update his voter registration only if (1) he moves within
Texas, in which case he might wish use the DPS System to change his address
on file with DPS and his county voter registrar, or (2) he becomes both
unregistered to vote and eligible to renew his driver’s license using the DPS
System, in which case he might wish to use the DPS System to renew his
driver’s license and register to vote.
Plaintiffs rely on two types of evidence that they contend demonstrate a
substantial risk that they will move again. The first is evidence of their prior
moves—Hernandez and Woods have each moved once in the past five years,
and Stringer has moved several times. However, evidence that a plaintiff has
taken an action in the past does not, by itself, demonstrate a substantial risk
that the plaintiff will take the action in the future; there must be some evidence
21 Susan B. Anthony List, 573 U.S. at 158 (quoting Clapper, 568 U.S. at 414 n.5).
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that the plaintiff intends to take the action again. 22 Accordingly, evidence that
Plaintiffs moved in the past does not establish a substantial risk that they will
do so in the future. Notably, no Plaintiff has expressed any intention to move
in the future.
The second type of evidence cited by Plaintiffs is data from the United
States Census Bureau showing that Americans can expect to move 11.7 times
in their lifetimes. 23 This general data also does not establish a substantial risk
that Plaintiffs themselves will move again; Plaintiff-specific evidence is needed
before Plaintiffs’ claims can be properly characterized as an attempt to remedy
an imminent injury to Plaintiffs instead of a generalized grievance available to
all Texans. 24
Plaintiffs also have not demonstrated a substantial risk that they will
attempt to use the DPS System to renew their driver’s licenses and
simultaneously update their voter registrations. Plaintiffs contend that
Texas’s requirement that driver’s licenses must be renewed every six years and
the existence of Texas laws providing multiple avenues for the cancellation of
a voter’s registration create a “sufficient probability” that, at some point in the
future, Plaintiffs will be both unregistered to vote and eligible to renew their
driver’s licenses using the DPS System. However, Plaintiffs do not point to
22 Deutsch v. Annis Enters., Inc., 882 F.3d 169, 174 (5th Cir. 2018) (holding that a
disabled person did not have standing to bring an action seeking injunctive relief against a
defendant hair salon that he had visited once before absent evidence that he intended to
return to the salon); Machete Prods., L.L.C. v. Page, 809 F.3d 281, 288 (5th Cir. 2015) (holding
that a production company that had been denied a permit to produce the second installment
in a film series did not have standing to seek an injunction because it failed to show any
concrete or imminent plans to produce another film in the franchise).
23 The court takes judicial notice of UNITED STATES CENSUS BUREAU, CALCULATING
MIGRATION EXPECTANCY USING ACS DATA (2018),
https://www.census.gov/topics/population/migration/guidance/calculating-migration-
expectancy.html. See Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571-72 (5th Cir.
2011) (“United States census data is an appropriate and frequent subject of judicial notice.”).
24 See Hollingsworth v. Perry, 570 U.S. 693, 706 (2013) (“We have repeatedly held that
such a ‘generalized grievance,’ no matter how sincere, is insufficient to confer standing.”).
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any Plaintiff-specific evidence suggesting that they will become unregistered
and eligible to renew their driver’s licenses using the DPS System.
In light of the absence of any Plaintiff-specific evidence, the evidence in
the record does not demonstrate a substantial risk that Plaintiffs will become
unregistered and eligible to renew their driver’s licenses online. Plaintiffs cite
Texas laws that provide for the cancellation of voter registration in four
relatively uncommon situations: (1) when a voter’s registration card is
returned as undeliverable, the voter does not return a confirmation notice, and
the voter does not vote in two consecutive general elections; (2) when a
registrar finds a voter to be ineligible after an investigation; (3) when another
voter from the same county successfully challenges a voter’s registration; and
(4) when a voter cancels his or her voter registration. 25 There is no evidence
in the record that suggests that any Plaintiff is likely to fall within the ambit
of these provisions. Furthermore, Texans are only required to renew their
driver’s licenses every eight years, 26 and every other renewal must be
accomplished in person. 27 Chances are slim that Plaintiffs will become
unregistered around the time that they need to renew their driver’s licenses
and are eligible to do so using the DPS System.
In sum, Plaintiffs have not established a substantial risk that they will
attempt to update their voter registrations using the DPS System and be
injured by their inability to do so. As a result, Plaintiffs have not established
25 TEX. ELEC. CODE ANN. §§ 16.031-16.038, 16.091-16.095 (West 2010 and West Supp.
2017).
Act of June 10, 2019, 86th Leg., R.S., ch. 595, § 7.001, 2019 Tex. Sess. Law Serv.
26
1726 (West) (codified at TEX. TRANSP. CODE ANN. § 521.271(a)(1)).
27 37 TEX. ADMIN. CODE § 15.59(c) (2018) (Tex. Dep’t of Pub. Safety, Alternative
Methods for Driver License Transactions).
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an injury in fact sufficient to confer standing to pursue the declaratory and
injunctive relief that they seek. 28
B
Plaintiffs contend that two Eleventh Circuit cases support the opposite
conclusion. The first, Charles H. Wesley Education Foundation, Inc. v. Cox, 29
is distinguishable. Cox involved a charity that collected and submitted voter
registration forms in Georgia. 30 Georgia rejected the forms submitted by the
charity on state law grounds, including a form submitted on behalf of plaintiff
Crawford, a registered voter who was attempting to change her address. 31 At
the time the suit was filed, Georgia had not accepted the forms at issue. 32
Accordingly, Crawford had standing to sue for an injunction requiring Georgia
to accept her form because doing so would remedy her alleged injury—the
violation of her right under the NVRA to have her form accepted and her
address changed. 33 In this case, on the other hand, Plaintiffs are not seeking
an injunction requiring Texas to accept any form that they have previously
submitted or to take any action regarding their individual registrations.
The second case, Arcia v. Florida Secretary of State, 34 also does not help
Plaintiffs. Arcia arose out of two Florida programs designed to remove
ineligible voters from the voter rolls. 35 The first identified possible non-citizens
using state records. 36 The plaintiffs were identified as non-citizen candidates
28 See Los Angeles v. Lyons, 461 U.S. 95, 108 (1983) (holding that Lyons did not have
standing to seek injunctive relief because “it is surely no more than speculation to
assert . . . that Lyons . . . will be arrested in the future and provoke the use of a chokehold by
resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury”).
29 408 F.3d 1349 (11th Cir. 2005).
30 Id. at 1351.
31 Id.
32 Id.
33 Id. at 1352 n.3.
34 772 F.3d 1335 (11th Cir. 2014).
35 Id. at 1339.
36 Id.
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for removal by the first program, but ultimately were not removed. 37 The
second program identified candidates for removal using the federal “SAVE”
database. 38 The Eleventh Circuit held that the plaintiffs had standing to
“prospectively challenge” the second removal program because the evidence in
the record demonstrated “a realistic probability that they would be
misidentified due to unintentional mistakes.” 39 Whether the evidence in the
Arcia record demonstrated a “realistic possibility” that the Arcia plaintiffs
would suffer a threatened future injury does not have any impact on whether
the facts in this record demonstrate a “substantial risk” that Plaintiffs will
suffer a threatened future injury. Cox and Arcia do not support the conclusion
that Plaintiffs have standing.
C
Plaintiffs also contend that they have standing because their claims are
capable of repetition, yet evading review. The capable-of-repetition-yet-
evading-review doctrine is an exception to the general rule that federal courts
do not have jurisdiction over moot cases. 40 A case becomes moot when “[t]he
requisite personal interest that must exist at the commencement of the
litigation” 41 ceases to exist because “interim relief or events have completely
and irrevocably eradicated the effects of the alleged violation.” 42 The capable-
of-repetition-yet-evading-review doctrine applies only to claims that are moot,
i.e. presented a case or controversy when they were filed but ceased to do so at
37 Id.
38 Id.
39 Id. at 1341.
40 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190
(2000).
Goldin v. Bartholow, 166 F.3d 710, 717 (5th Cir. 1999) (citing Arizonans For Official
41
English v. Arizona, 520 U.S. 43, 68 n. 22 (1997)).
42 Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979).
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a later time. 43 “Standing admits of no similar exception; if a plaintiff lacks
standing at the time the action commences, the fact that the dispute is capable
of repetition yet evading review will not entitle the complainant to a federal
judicial forum.” 44 Because Plaintiffs became registered prior to bringing this
lawsuit, the fact that Plaintiffs were registered impacts whether they have
standing to sue, not whether their claims are moot. 45 Accordingly, the capable-
of-repetition-yet-evading-review doctrine is not implicated by Plaintiffs’
claims. 46
* * *
Because Plaintiffs do not have standing, we REVERSE the judgment of
the district court, VACATE the district court’s injunction, and REMAND to the
district court with instructions to dismiss Plaintiffs’ claims for lack of standing.
43 Renne v. Geary, 501 U.S. 312, 320 (1991) (“While the mootness exception for
disputes capable of repetition yet evading review has been applied in the election context,
that doctrine will not revive a dispute which became moot before the action commenced.”
(citation omitted)).
44 Laidlaw, 528 U.S. at 191.
45 Renne, 501 U.S. at 320.
46 Laidlaw, 528 U.S. at 191.
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JAMES C. HO, Circuit Judge, concurring:
The Chief Justice once wrote: “[T]hose who govern should be the last
people to help decide who should govern.” McCutcheon v. FEC, 572 U.S. 185,
192 (2014) (plurality op.). This sentiment is deeply engrained in our nation’s
DNA. As Americans, we have never trusted the fox to guard the henhouse.
In McCutcheon, the Chief applied this skepticism in the context of
campaign finance regulation. In sum, regulators say: I want to keep big money
out of politics. And fair enough. Money can certainly corrupt. But money can
also support speech. See id. at 191–92; see also Buckley v. Valeo, 424 U.S. 1,
288 (1976) (Marshall, J., concurring in part and dissenting in part) (“[A]ll
Members of the Court agree . . . money is essential for effective communication
in a political campaign.”). Bribery is prohibited. But speech is protected. And
in our legal system, we presume innocence—not corruption. So when
regulators regulate too far, citizens may fear that the real purpose is to reduce
speech. 1
The case before us today involves voting, not speech. But that raises the
question: Should the Chief’s sentiments apply here as well? After all, citizens
exercise “the right to participate in electing our political leaders . . . in a variety
of ways”—they can “urge others to vote” by engaging in and funding political
speech, but of course they can also “vote” themselves. McCutcheon, 572 U.S.
1 For example, it’s widely said that there’s “little sense” in restricting campaign
contributions unless we also restrict independent expenditures—either act can corrupt, so
it’s pointless to restrict one if you don’t also restrict the other. Buckley, 424 U.S. at 261
(White, J., concurring in part and dissenting in part). See also id. at 290 (Blackmun, J.,
concurring in part and dissenting in part) (same); FEC v. Nat’l Conservative Political Action
Comm., 470 U.S. 480, 518–521 (1985) (Marshall, J., dissenting) (same); Randall v. Sorrell,
548 U.S. 230, 276 (2006) (Stevens, J., dissenting) (same); Zimmerman v. City of Austin, 888
F.3d 163, 169 (5th Cir. 2018) (Ho, J., dissenting from denial of rehearing en banc) (same).
Yet “[w]ell-established precedent makes clear that the expenditure limits violate the First
Amendment.” Randall, 548 U.S. at 236 (plurality op. of Breyer, J.). So if there’s “little sense”
in regulating contributions alone, citizens may worry that the real target is not corruption,
but speech.
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at 191. So wouldn’t it be natural for citizens to harbor the same concerns
here—that political interest will triumph over public spirit, whether
intentionally or subconsciously, whenever public officials regulate any aspect
of how we choose public officials? Whether it’s regulating how citizens may
vote, or how citizens may urge others to vote, shouldn’t citizens insist that we
need not simply trust—we must also verify?
One potential difference is that, when it comes to administering
elections, someone obviously has to set ground rules to ensure the security and
integrity of the ballot box. See Crawford v. Marion County Election Bd., 553
U.S. 181, 191 (2008) (recognizing “the State’s interest in protecting the
integrity and reliability of the electoral process”). The Constitution expressly
authorizes states to regulate elections. See U.S. Const. art. I, § 4 (“The times,
places and manner of holding elections for Senators and Representatives, shall
be prescribed in each state by the legislature thereof; but the Congress may at
any time by law make or alter such regulations, except as to the places of
choosing Senators.”). And so “[c]ommon sense, as well as constitutional law,
compels the conclusion that government must play an active role in structuring
elections; as a practical matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of order, rather than
chaos, is to accompany the democratic processes.” Burdick v. Takushi, 504
U.S. 428, 433 (1992) (quotations omitted).
But surely that does not mean citizens must ignore entirely the Chief
Justice’s admonitions, and blindly trust that regulators never miss their
marks. At a minimum, citizens can verify that regulations are lawful and do
not infringe on the right to vote.
In this case, Plaintiffs allege that the State of Texas violates voting
rights in various ways. For example, the National Voter Registration Act of
1993 (also known as the Motor Voter Act) requires, inter alia, that “[a]ny
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change of address form submitted in accordance with State law for purposes of
a State motor vehicle driver’s license shall serve as notification of change of
address for voter registration.” 52 U.S.C. § 20504(d).
On the plain text of the statute, the rule seems simple enough: If it’s
good enough for motorist licensing, then it ought to be good enough for voter
registration. If the system is secure enough to ensure the integrity of the
former, then it ought to be secure enough to ensure the integrity of the latter.
Plaintiffs contend that the State of Texas violates this rule. For example,
Jarrod Stringer and Benjamin Hernandez alleged, and a respected district
judge found, that they each submitted an address change for their driver’s
licenses—but were nevertheless unable to vote in their new locations during
the 2014 federal election cycle.
The State responds, inter alia, that Congress enacted the National Voter
Registration Act in 1993—well before the age of the Internet, the advent of
online transactions and electronic signatures, and the bevy of security
questions that cyber-activities inevitably present.
I agree with my colleagues that we are not at liberty to decide the merits
in this case, because none of these Plaintiffs have standing to seek injunctive
relief here. They all secured their right to vote by the 2016 election cycle. And
they claim no future injury that we can redress today. I therefore join Judge
Owen’s opinion in full, reversing the judgment of the district court due to
Plaintiffs’ lack of standing.
But although we have no occasion to decide the merits of Plaintiffs’
claims due to their lack of a future injury, that does not prevent us from
acknowledging that Plaintiffs have indeed endured an injury in the past. They
were unable to exercise their right to vote in past election cycles. And it is a
right they will never be able to recover. As citizens, we can hope it is a
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deprivation they will not experience again—even if the law does not afford
them a remedy from this court at this time.
I concur.
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