Texas Alli for Retd Americans v. Ruth Hughs ( 2020 )


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  • Case: 20-40643     Document: 00515585161         Page: 1    Date Filed: 09/30/2020
    United States Court of Appeals
    for the Fifth Circuit                        United States Court of Appeals
    Fifth Circuit
    FILED
    September 30, 2020
    No. 20-40643                   Lyle W. Cayce
    Clerk
    Texas Alliance for Retired Americans; Sylvia Bruni;
    DSCC; DCCC,
    Plaintiffs—Appellees,
    versus
    Ruth Hughs, in her official capacity as the Texas Secretary of
    State,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 5:20-CV-128
    Before Clement, Elrod, and Haynes, Circuit Judges.
    Per Curiam:
    Early voting in Texas begins on October 13. On September 25—just
    eighteen days before early voting begins—the district court enjoined
    enforcement of Texas House Bill 25 (HB 25), which eliminates straight-ticket
    voting.
    Applying the factors for ruling on a stay and observing the Supreme
    Court’s repeated emphasis that courts should not alter election rules on the
    Case: 20-40643       Document: 00515585161         Page: 2    Date Filed: 09/30/2020
    No. 20-40643
    eve of an election, we STAY the district court’s preliminary injunction
    pending appeal.
    I.
    HB 25 was signed into law on June 1, 2017, and its elimination of
    straight-ticket voting became effective on September 1, 2020. On March 5,
    2020, Plaintiffs Bruni, DSCC, DCC, along with the Texas Democratic Party
    (TDP) and Jessica Tiedt, a candidate for the Texas State House of
    Representatives, filed their original lawsuit challenging HB 25 as
    unconstitutional and in violation of the Voting Rights Act. The district court
    dismissed the suit for lack of standing on June 24, 2020, and Plaintiffs did not
    file an appeal. Fifty days passed. Then, on August 12, 2020, Plaintiffs
    dropped Tiedt and TDP as parties, added the Texas Alliance for Retired
    Americans, and filed a new lawsuit alleging the same claims. Based on the
    parties’ briefs, the district court entered its order enjoining enforcement of
    HB 25. The district court ordered the Texas Secretary of State (the
    Secretary) to implement the laws that were in force before HB 25 was enacted
    in 2017 in time for the upcoming election.
    In granting the preliminary injunction, the district court held that the
    plaintiffs were likely to succeed on the merits for their claim that HB 25
    places an undue burden on Texans’ right to vote and their right to associate
    under the First and Fourteenth Amendments to the United States
    Constitution.
    On September 28, 2020, the Secretary filed an emergency motion for
    stay pending appeal.
    II.
    A stay pending appeal “simply suspend[s] judicial alteration of the
    status quo,” so as to allow appellate courts to bring “considered judgment”
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    to the matter before them and “responsibly fulfill their role in the judicial
    process.” Nken v. Holder, 
    556 U.S. 418
    , 427, 429 (2009) (internal quotation
    marks omitted). We consider four factors in deciding a motion to stay
    pending appeal:
    (1) whether the stay applicant has made a strong showing that
    he is likely to succeed on the merits; (2) whether the applicant
    will be irreparably injured absent a stay; (3) whether issuance
    of the stay will substantially injure the other parties interested
    in the proceeding; and (4) where the public interest lies.
    Veasey v. Perry, 
    769 F.3d 890
    , 892 (5th Cir. 2014) (quoting Nken, 
    556 U.S. at 426
    ). “The first two factors . . . are the most critical.” Nken, 
    556 U.S. at 434
    . “The proponent of a stay bears the burden of establishing its need.”
    Clinton v. Jones, 
    520 U.S. 681
    , 708 (1997).
    III.
    The Supreme Court has “repeatedly emphasized that lower federal
    courts should ordinarily not alter the election rules on the eve of an election.”
    Republican Nat’l Comm. v. Democratic Nat’l Comm., --- U.S. ---, 
    140 S. Ct. 1205
    , 1207 (2020). Most recently, in Republican National Committee, the
    Court granted an application for stay of a district court’s preliminary
    injunction to the extent that it changed election rules five days before an
    election because “[b]y changing the election rules so close to the election
    date . . . the District Court contravened this Court’s precedents and erred by
    ordering such relief.” 
    Id.
     Time and time again over the past several years,
    the Supreme Court has stayed lower court orders that change election rules
    on the eve of an election. See, e.g., North Carolina v. League of Women Voters
    of N.C., 
    574 U.S. 927
     (2014) (staying a lower court order that changed
    election laws thirty-three days before the election); Husted v. Ohio State
    Conference of N.A.A.C.P., 
    573 U.S. 988
     (2014) (staying a lower court order
    that changed election laws sixty days before the election); Veasey v. Perry, 574
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    U.S. ---, 
    135 S. Ct. 9
     (2014) (denying application to vacate Court of Appeals’
    stay of district court injunction that changed election laws on eve of election);
    Purcell v. Gonzalez, 
    549 U.S. 1
     (2006) (staying a lower court order changing
    election laws twenty-nine days before the election).
    The principle from these cases is clear: court changes of election laws
    close in time to the election are strongly disfavored. Bearing this principle in
    mind, our court previously has stayed orders changing election laws when an
    election is imminent. See, e.g., Tex. Dem. Party v. Abbott, 
    961 F.3d 389
    , 411–
    12 (5th Cir. 2020); Veasey, 769 F.3d at 894. Today too, in staying a
    preliminary injunction that would change election laws eighteen days before
    early voting begins, we recognize the value of preserving the status quo in a
    voting case on the eve of an election, and we find that the traditional factors
    for granting a stay favor granting one here.
    A.
    The Secretary’s arguments as to standing,1 sovereign immunity, and
    the merits of Plaintiffs’ claims are harder to decide on our necessarily
    1
    Although this remains a question for the panel that decides the merits of the
    appeal, we have some concerns about whether Plaintiffs have standing. To establish Article
    III standing, plaintiffs must satisfy the well-known requirements of Lujan v. Defenders of
    Wildlife, 
    504 U.S. 555
    , 560 (1992) (requiring plaintiffs to demonstrate that they have
    suffered an “injury in fact” that is “fairly traceable” to the defendant’s actions and will
    “likely . . . be redressed by a favorable decision.”). Yet, the district court’s analysis of
    standing rests on shaky factual and legal ground. First, the district court displays a
    fundamental misunderstanding of the way straight-ticket voting worked in Texas prior to
    HB 25 going into effect. Both the Plaintiffs’ expert and the district court seem to have
    mistakenly assumed that a one-punch straight-ticket voting option enabled voters to “mark
    a single bubble,” that eliminating that option would force voters “to make individual
    selections,” and that therefore, “the amount of time it will take to complete a ballot
    [without straight-ticket voting] will increase.”
    As the Secretary argued in the district court and here on appeal, and as any Texan
    who voted in previous elections knows, this is not how straight-ticket voting in Texas
    worked. The straight-ticket option still required in-person voters to scroll through the
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    expedited review, but we need not reach them because the Secretary has
    made a strong showing that she is likely to succeed on the merits of her appeal
    on the argument that the district court improperly interfered with state
    election laws on the eve of an election. The Secretary argues that even if the
    district court had jurisdiction to issue its injunction, the injunction openly
    defies the Supreme Court’s instruction, discussed above, not to interfere
    with state election laws on the eve of an election.
    In its order, the district court contends that Republican National
    Committee is distinguishable. 140 S. Ct. at 1207. The district court reasons
    that its injunction “would be issued far earlier, would not extend any
    deadlines, and would not create the sort of confusion Republican National
    Commission [sic] frowns upon.”
    entire ballot, page by page, at the voting machine in order to cast their ballot. This gave
    voters the opportunity to confirm each of their individual choices or change the selection
    for any of the individual contests. This fact presents a difficulty for Plaintiffs to establish
    redressability, an element of standing.
    Second, the district court mistakenly applies the minimal showing of standing that
    a plaintiff must show to overcome a motion to dismiss, rather than the “clear showing” of
    standing required to maintain a preliminary injunction. Barber v. Bryant, 
    860 F.3d 345
    , 352
    (5th Cir. 2017) (citing Winter v. Nat. Res. Def. Counc., Inc., 
    555 U.S. 7
    , 22 (2008)). A merits
    panel will need to address standing before reaching the merits because standing is
    jurisdictional. Steel Co. v. Citizens for a Better Env’t, 
    523 U.S. 83
    , 93–94 (1998). But we do
    not need to decide the issue of standing here as a prerequisite to addressing the Secretary’s
    stay request, even if the district court lacked jurisdiction to issue the injunction for which
    Appellants seek a stay. See, e.g., I.N.S. v. Legalization Assistance Project of L.A. Cty. Fed. of
    Labor, 
    510 U.S. 1301
    , 1305–06 (1993) (O’Connor, Circuit Justice, in chambers) (granting
    application to stay district court order pending final disposition by the Court of Appeals
    because the plaintiff likely lacked standing); El Paso Cty. v. Trump, No. 19-51144, slip op. at
    2 (5th Cir. Jan. 8, 2020) (granting stay pending appeal of district court’s injunction for,
    among other reasons, the substantial likelihood that the appellees lacked Article III
    standing); see also Tex. Dem. Party v. Abbott, 
    961 F.3d 389
    , 399 (5th Cir. 2020) (discussing
    standing in the context of likelihood of success on the merits).
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    This reasoning is deeply flawed. First, eighteen days before early
    voting is not “far earlier” than five days before an election, especially
    considering that the Supreme Court has also stayed a lower court order that
    changed election laws sixty days ahead of an election. See League of Women
    Voters of N.C., 574 U.S. at 927. Second, the district court’s analysis of the
    burden on election officials and likelihood of confusion relies on the mistaken
    premise that the “status quo” of Texas election law prior to its issuance of
    an injunction was straight-ticket voting. The district court states expressly
    in its order that “Plaintiffs . . . raise a challenge seeking to maintain the status
    quo.” On this mistaken premise, the district court writes that “the requested
    injunction would not impose such an onerous burden on election officials and
    merely allows a century-old practice to remain in place for one more
    election.” The district court repeats this mistake over and over, stating, for
    instance, that the injunction prevents “eliminating a practice that Texan
    voters have been accustomed to for 100 years” and enables “[a]dministering
    in-person voting the same way it has been administered for almost 100
    years . . . .”
    The district court ignores the fact that in June 2017, a majority of the
    Texas legislature—composed of officials elected by Texan voters to represent
    them—passed a law that ended the long practice of straight-ticket voting.
    That law became the new “status quo,” and Plaintiffs had plenty of time over
    the past three years to challenge it. It is the district court’s eleventh-hour
    injunction that alters the status quo, not the Texas legislature’s 2017 duly
    enacted law. The fact that the status quo of Texas election law just prior to
    the district court issued the injunction was to not allow straight-ticket voting
    is demonstrated by the fact that Texas election officials, having had three
    years to adjust to HB 25, printed and mailed thousands of ballots without a
    straight-ticket voting option for the upcoming general election.
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    Because of its mistaken premise, the district court minimizes the
    difficulty and confusion likely to result from Texas election officials having
    to implement a new ballot type. Even if, as Plaintiffs argue, the district
    court’s injunction does not apply to mail-in ballots, the Secretary describes
    the immense burden entailed in programming voting machines to process
    multiple ballot types, especially during an election. As discussed above, “the
    Supreme Court has instructed that we should carefully guard against
    judicially altering the status quo on the eve of an election.” Veasey, 769 F.3d
    at 895. We find 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. Thus, the
    first factor weighs in favor of issuing a stay.
    B.
    The Secretary has met the burden of showing irreparable injury absent
    a stay. Nken, 
    556 U.S. at 426
    . “When the State is seeking to stay a
    preliminary injunction, it’s generally enough to say [that] any time a State is
    enjoined by a court from effectuating statutes enacted by representatives of
    its people, it suffers a form of irreparable injury.” Valentine v. Collier, 
    956 F.3d 797
    , 803 (5th Cir. 2020) (quotation marks and brackets omitted); accord
    Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 
    734 F.3d 406
    , 419 (5th Cir. 2013) (“When a statute is enjoined, the State necessarily
    suffers the irreparable harm of denying the public interest in the enforcement
    of its laws.”). In June 2017, over three years ago, the Texas legislature passed
    HB 25. “If the district court judgment is ultimately reversed, the State
    cannot run the election over again, this time applying” HB 25. Veasey, 769
    F.3d at 896. “[T]he State has a significant interest in ensuring the proper
    and consistent running of its election machinery . . . .” Id. The district
    court’s understanding of the nature of the injury that the injunction inflicts
    on Texas election officials, as discussed above, relies on a mistaken premise
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    that the status quo of election law in Texas is straight-ticket voting. Given
    the actual reality, the State’s interest is severely hampered by the injunction.
    C.
    Nor would any harm to Plaintiffs outweigh the other three factors,
    especially considering the first two factors are the “most critical.” Nken, 
    556 U.S. at 434
    . We have already determined that the most critical factors favor
    granting a stay. See Planned Parenthood, 734. F.3d at 419 (“While we
    acknowledge that Planned Parenthood has also made a strong showing that
    their interests would be harmed by staying the injunction, given the State’s
    likely success on the merits, this is not enough, standing alone, to outweigh
    the other factors.”).
    D.
    Finally, given that thousands of ballots without straight-ticket voting
    have already been mailed in accordance with a law that was passed three years
    ago and the immense difficulty described by the Secretary of managing an
    election with different sets of ballots for in-person and mail-in voting, the
    public interest weighs heavily in favor of issuing the stay. When “the State
    is the appealing party, its interest and [aforementioned] harm merge with that
    of the public.” Veasey v. Abbott, 
    870 F.3d 387
    , 391 (5th Cir. 2017). The Texas
    Legislature passed HB 25 in 2017, and state election officials have planned
    for this election accordingly. The state election machinery is already well in
    motion. A stay here, while the court can consider argument on the merits,
    will minimize confusion among both voters and trained election officials. 
    Id.
    *        *         *
    The Secretary’s motion to stay the district court’s preliminary
    injunction pending appeal is GRANTED.                 The injunction, in all its
    particulars, is STAYED pending further order of this court.
    8