Cascino v. Nelson ( 2023 )

Case: 22-50748 Document: 00516884698 Page: 1 Date Filed: 09/06/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
September 6, 2023
No. 22-50748 Lyle W. Cayce
____________ Clerk
Joseph Daniel Cascino; Shanda Marie Sansing; Brenda
Li Garcia,
Plaintiffs—Appellants,
versus
Jane Nelson, Texas Secretary of State,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-438
______________________________
Before Jones, Stewart, and Duncan, Circuit Judges.
Per Curiam:*
Prior to this appeal, Plaintiffs, Joseph Daniel Cascino, Shanda Marie
Sansing, and Brenda Li Garcia, sought and obtained a preliminary injunction
from the district court, on grounds that a Texas election law was
unconstitutional as applied during the COVID-19 pandemic. The particular
law at issue only allowed mail-in voting for adults 65 and older without
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50748 Document: 00516884698 Page: 2 Date Filed: 09/06/2023
No. 22-50748
excuse. This court rejected that argument in a decision vacating the
injunction and remanding the case to the district court. See Tex. Democratic
Party v. Abbott, 978 F.3d 168 (5th Cir. 2020) (“TDP II”). Now this case is
back before us on review; but this time, the argument is slightly different.
Plaintiffs now argue that the same election law is facially unconstitutional
notwithstanding COVID-19 concerns. Recognizing the language in our prior
decision, the district court dismissed their claim. Because our caselaw
forecloses this issue and there has been no intervening change of law, we
AFFIRM.
I. Background1
Texas voters are generally required to cast their ballots in person
unless they face a particular circumstance or hardship that is expressly
provided for in the state’s election code. See Tex. Elec. Code §§ 82.001–
.004. If, on election day, the voter (1) anticipates their absence from a county
of residence, id. at § 82.001; (2) has a sickness or physical condition that
prevents them from showing up to the polls without a likelihood of injury or
a need for assistance or is expecting to give birth within three weeks before
or after election day, id. at § 82.002; (3) is 65 or older, id. at § 82.003; or (4)
incarcerated, id. at § 82.004, the voter may apply to cast his ballot by mail.
See In re State of Tex., 602 S.W.3d 549, 559 (Tex. 2020).
Plaintiffs are Texas voters who are between the ages of 20 and 60 and
want to cast mail-in ballots. They argue that Texas’s age-based eligibility for
casting mail-in ballots violates the Twenty-Sixth Amendment, which
provides that “[t]he right of citizens of the United States, who are eighteen
_____________________
1
The extensive background underlying this case is thoroughly described in our
previous opinion and briefly summarized here for purposes of completeness. See TDP II,
978 F.3d at 174–76.
2
Case: 22-50748 Document: 00516884698 Page: 3 Date Filed: 09/06/2023
No. 22-50748
years of age or older, to vote shall not be denied or abridged by the United
States or by any State on account of age.” U.S. Const. amend. XXVI § 1.
According to Plaintiffs, their right to vote is “abridged” because § 82.003
extends the opportunity to vote by mail to a group “solely on the basis of their
age.”2
Plaintiffs brought the instant federal suit against several state officials
including the Secretary of State.3 They alleged that the age-based condition
was both “unconstitutional as applied to these Plaintiffs during the
pandemic” and “facially unconstitutional.” Plaintiffs subsequently filed a
motion for a preliminary injunction regarding their as-applied claim. Their
claim focused on the added challenges to voting that arose from the spread of
COVID-19 during an election year. They sought to enjoin the state from
denying mail-in ballots to otherwise eligible voters under the age of 65. In
reviewing this claim, the district court, applying strict scrutiny, held that
Plaintiffs “established that they are likely to succeed on their as applied
Twenty-Sixth Amendment claim,” and entered the injunction.
The state officials appealed and sought an emergency motion for a stay
pending appeal. Tex. Democratic Party v. Abbott, 961 F.3d 389, 394 (5th Cir.
2020) (“TDP I”). A motions panel of this court granted the motion to stay,
and ultimately vacated the injunction. Id. at 412. As to the as-applied
_____________________
2
Plaintiffs first presented a similar constitutional argument in state court at the
onset of the COVID-19 pandemic. They sought a declaration that Texans who needed to
socially distance could vote by mail under the notion that the risk of contracting COVID-
19 was sufficient to meet the “physical condition” category under § 82.002. State of Tex.,
602 S.W.3d at 551. The Supreme Court of Texas held that “a lack of immunity to COVID-
19 is not itself a ‘physical condition’ for being eligible to vote by mail within the meaning of
§ 82.002(a).” Id. at 560.
3
Although there were other defendants in this suit, Plaintiffs bring their appeal
only against the Secretary of State.
3
Case: 22-50748 Document: 00516884698 Page: 4 Date Filed: 09/06/2023
No. 22-50748
challenge, it determined that rational basis review, rather than strict scrutiny,
was the proper standard because the right to a mail-in ballot was at stake
rather than the right to vote. TDP I, 961 F.3d at 408–09 (citing McDonald v.
Bd. of Election Comm’rs of Chicago, 394 U.S. 802, 807–08 (1969)). Because
there was “no evidence that Texas [] denied or abridged” the right to vote,
the panel concluded that Plaintiffs failed to show a substantial likelihood of
success on the merits, and the injunction was stayed pending merits review.4
TDP I, 961 F.3d at 409 (emphasis omitted).
Later when their appeal came before the merits panel, Plaintiffs
defended the preliminary injunction “only on Twenty-Sixth Amendment
grounds.” TDP II, 978 F.3d at 176. The panel first grappled with the lack of
clarity in Plaintiffs’ briefing. Based on the nature of their arguments, it was
unclear whether Plaintiffs were still challenging the law’s constitutionality in
the pandemic context or whether they were abandoning their as-applied
challenge for the facial challenge. Id. at 177. Despite this lack of clarity, the
panel cabined its review to the district court order properly before it. Id. at
177–78. As stated, that order solely addressed the as-applied challenge—i.e.,
it considered the constitutionality of § 82.003 in light of COVID-19 concerns.
After establishing standing, ripeness, and the inapplicability of the political
question doctrine, the court held that, contrary to the district court’s
conclusions, § 82.003 does not run afoul of the Twenty-Sixth Amendment
because “conferring a benefit on another class of voters does not deny or
abridge” other individuals’ right to vote. Id. at 194. As such, it vacated the
injunction and remanded the case to the district court.5 Id.
_____________________
4
Plaintiffs’ writ of certiorari to the Supreme Court in response to this decision was
denied. Tex. Democratic Party v. Abbott, 140 S. Ct. 2015 (2020).
5
Plaintiffs also filed a writ of certiorari to the Supreme Court on this decision,
which was denied. Tex. Democratic Party v. Abbott, 141 S. Ct. 1124 (2021).
4
Case: 22-50748 Document: 00516884698 Page: 5 Date Filed: 09/06/2023
No. 22-50748
On remand, Plaintiffs filed a second amended complaint.6 It alleged
that § 82.003, alone and considered alongside upcoming election policies and
future pandemic conditions, was unconstitutional, both as applied and
facially. As to the allegations regarding future laws and conditions, the
district court held that Plaintiffs lacked standing and that their claims were
unripe and precluded by sovereign immunity. As to Plaintiffs’ allegations
based on current harm, the district court dismissed them on the merits.
Pertinent here, it held that this court’s decision in TDP II foreclosed
Plaintiffs’ Twenty-Sixth Amendment claim, “as a matter of law,” and that
the “law of the case” doctrine precluded it from relitigating this issue. The
suit was dismissed in its entirety, and Plaintiffs timely appealed. On appeal,
Plaintiffs’ arguments rely only on a facial challenge of the Twenty-Sixth
Amendment claim against the Secretary. Specifically, they argue that the
election law’s age-based requirement is unconstitutional, and the district
court erred in dismissing their claims based on the rule of orderliness and the
law of the case doctrine.
_____________________
6
Intervening as plaintiffs, the League of United Latin American Citizens and the
Texas League of United Latin American Citizens also filed a complaint. When the
Secretary moved to dismiss Plaintiffs’ complaint, it moved to dismiss the intervenors’
complaint as well. The district court addressed the claims congruently in both complaints
when it dismissed the suit based on a failure to state a claim. Nevertheless, only Plaintiffs
(i.e., Cascino, Sansing, and Garcia) appealed.
5
Case: 22-50748 Document: 00516884698 Page: 6 Date Filed: 09/06/2023
No. 22-50748
II. Standard of Review
When a district court dismisses a claim pursuant to 12(b)(6), this court
conducts a de novo review of that judgment on appeal. Walker v. Beaumont
Indep. Sch. Dist., 938 F.3d 724, 734 (5th Cir. 2019). A “claim[] may be
dismissed under Rule 12(b)(6) ‘on the basis of a dispositive issue of law.’”
Id. (quoting Neitzke v. Williams, 490 U.S. 319, 326 (1989)). It may also be
dismissed “if the complaint does not contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In our review, we “must
accept all well-pleaded facts as true, and . . . view them in the light most
favorable to the plaintiff.” Id. at 735 (quoting Campbell v. Wells Fargo Bank,
N.A., 781 F.2d 440, 442 (5th. Cir. 1986)).
Finally, whether the law of the case doctrine “forecloses any of the
district court’s actions on remand” warrants de novo review. Deutsche Bank
Nat’l Tr. Co. v. Burke, 902 F.3d 548, 551 (5th Cir. 2018) (quotation omitted).
III. Discussion
In this appeal, Plaintiffs seek to prevent preliminary barriers to the
court’s review of their facial challenge to the age-based election law.
Specifically, they assert that: (1) they have standing to bring this claim; (2)
that this claim is ripe for review; and (3) that this claim is not barred by
sovereign immunity. Plaintiffs highlight that, unlike some of their claims that
were dismissed for these reasons on remand, their facial challenge does not
ask the court to “consider potential future legislation or evaluate the
potential impact of the pandemic in future elections.” They also point to this
court’s prior decision in TDP II holding that they had standing to challenge
the election law and that the Secretary had a sufficient connection to the
enforcement of the election law to preclude sovereign immunity. See TDP II,
978 F.3d at 178. In response to these arguments, the State concedes that the
6
Case: 22-50748 Document: 00516884698 Page: 7 Date Filed: 09/06/2023
No. 22-50748
facial challenge “is ripe and that TDP II establishes [that] [P]laintiffs have
standing to bring this claim and that it is not barred by the Secretary’s
sovereign immunity.” The parties, therefore, agree that this appeal is
properly before this court for review of the merits.
The single merits question before us is whether the Twenty-Sixth
Amendment prohibits the State from providing access to mail-in ballots for
those 65 and older to the exclusion of younger voters.7 As stated, a prior panel
vacated a preliminary injunction arising from Plaintiffs’ challenge to the
election law as applied during the perils of the COVID-19 pandemic. See TDP
II, 978 F.3d at 177–78. In that decision, the court held that “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.” Id. at 192. It then stated that “[§] 82.003 itself does not
violate the Twenty-Sixth Amendment.” Id. The district court held that this
decision foreclosed its review of the facial challenge to § 82.003 and holding
otherwise would violate the law of the case doctrine.
A. Rule of Orderliness
Plaintiffs first argue that TDP II does not foreclose their current
appeal because “the preliminary injunction review panel disclaimed ruling
on the facial challenge presented in this appeal.” As such, they contend that
the rule of orderliness does not apply to their facial challenge. On the other
hand, the State argues that the district court did not err in holding that TDP
II binds the outcome of the central question of this appeal, regardless of
whether Plaintiffs now bring a facial or as-applied challenge. According to the
_____________________
7
As the State notes, Plaintiffs have abandoned all other claims against all other
defendants. See also Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987) (holding that an appellant abandons claims on appeal by failing to identify any
error in the district court’s analysis).
7
Case: 22-50748 Document: 00516884698 Page: 8 Date Filed: 09/06/2023
No. 22-50748
State, even though the prior panel did not ultimately decide Plaintiffs’ facial
challenge to § 82.003 because it was not the exact question before it, the
holding in TDP II “did not turn on the facts of the pandemic.” We agree with
the State that TDP II already answered the question that Plaintiffs attempt to
relitigate now, and thus the rule of orderliness must apply.
Under the rule of orderliness, we may not overrule controlling
precedent unless there is “an intervening change in the law, such as a
statutory amendment or a decision from either the Supreme Court or our en
banc court.” Thompson v. Dall. City Attorney’s Off., 913 F.3d 464, 467 (5th
Cir. 2019). In other words, the rule of orderliness applies when a prior panel
decision already answers the issue before us. See Newman v. Plains All Am.
Pipeline, L.P., 23 F.4th 393, 400 (5th Cir. 2022) (explaining that the rule of
orderliness “binds us to follow a prior panel’s decision on an issue”);
McClain v. Lufkin Indus., Inc., 649 F.3d 374, 385 (5th Cir. 2011). TDP II is a
published opinion that provides a substantive analysis of whether § 82.003’s
age-based requirement is violative of the Twenty-Sixth Amendment.
Although the prior panel cabined its analysis to the as-applied question that
was the only dispute on review, it noted that the analysis necessarily required
it to answer generally “whether the law denies or abridges [Plaintiffs’] right
to vote based on age.” TDP II, 978 F.3d at 182. It further stated throughout
the decision that “[r]egardless of whether [Plaintiffs brought] a facial or as-
applied challenge, [the] analysis does not turn on the effect of the pandemic.”
Id.
In deciding to vacate the preliminary injunction on § 82.003, this
court went step-by-step through the exact analysis that would apply to a facial
challenge. It first determined 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.” Id. at 184. It then established the scope of the
Amendment’s protection by distinguishing a right to vote from the right to
8
Case: 22-50748 Document: 00516884698 Page: 9 Date Filed: 09/06/2023
No. 22-50748
an absentee ballot. Id. at 188. Based on its interpretation of the terms
“denied” and “abridged,” the panel made clear that “an election law
abridges a person’s right to vote . . . only if it makes voting more difficult for
that person than it was before the law was enacted or enforced.” TDP II, 978
F.3d at 191. A law, such as the one at issue here, which “makes it easier for
others to vote does not abridge any person’s right to vote for the purposes of
the Twenty-Sixth Amendment.” Id. In its concluding language, the panel
explicitly stated that Ҥ 82.003 itself does not violate the Twenty-Sixth
Amendment.” Id. at 192. It was not until after the panel drew this conclusion
that it considered whether the pandemic affected its analysis for purposes of
resolving the as-applied challenge. Id. Thus, the scope of the mandate in TDP
II prevents this panel from departing from that holding and ruling in
Plaintiffs’ favor on their facial challenge.
What’s more, Plaintiffs do not point to any intervening law that we
may rely on to sway from our precedent. See McClain, 649 F.3d at 385. As
such, like the district court, we reject Plaintiffs’ attempt to relitigate these
issues and hold that the rule of orderliness applies. See Thompson, 913 F.3d at
467.
B. Law of the Case Doctrine
Plaintiffs alternatively argue that the district court erred in applying
the mandate of TDP II because that decision was clearly erroneous and
following it would constitute a manifest injustice. We disagree. Under the law
of the case doctrine, “an issue of law or fact decided on appeal may not be
reexamined either by the district court on remand or by the appellate court
on a subsequent appeal.” McClain, 649 F.3d at 385 (quoting Fuhrman v.
Dretke, 442 F.3d 893, 896 (5th Cir. 2006)). “The district court may only
deviate from the mandate if one of the exceptions to the law of the case
doctrine applies.” Fuhrman, 442 F.3d at 897. Those exceptions include: “(i)
9
Case: 22-50748 Document: 00516884698 Page: 10 Date Filed: 09/06/2023
No. 22-50748
the evidence on a subsequent trial was substantially different, (ii) controlling
authority has since made a contrary decision of the law applicable to such
issues, or (iii) the decision was clearly erroneous and would work a manifest
injustice.” Id. (quoting United States v. Becerra, 155 F.3d 740, 752–53 (5th
Cir. 1998)).
According to Plaintiffs, the prior panel in TDP II, “significantly
departed from well-established law” when it failed to read the Twenty-Sixth
Amendment “consistent with the Fifteenth, Nineteenth, and Twenty-
Fourth Amendments,” and this was a manifest injustice because it
“allow[ed] [the State] to continue to discriminate against Plaintiffs on
account of age in voting.” However, the prior panel squarely addressed these
arguments in TDP II and thus it appears Plaintiffs are simply attempting to
relitigate their previous appeal.8 See 978 F.3d at 189–92. The exceptions to
the law of the case doctrine may not be used as a means to revisit issues
properly addressed. Indeed, the manifest injustice exception is to be applied
narrowly such that “mere doubts or disagreement about the wisdom of a prior
decision of this or a lower court will not suffice.” Hopwood v. Texas, 236 F.3d
256, 272 (5th Cir. 2000). “To be clearly erroneous, a decision must strike us
as more than just maybe or probably wrong; it must be dead wrong.” Id. at
272–73.
The prior panel addressed “seemingly novel questions regarding the
Twenty-Sixth Amendment.” Tex. Democratic Party, 140 S. Ct. at 2015
(Sotomayor, J., writing separately, but agreeing with the denial of application
_____________________
8
In the prior appeal, the TDP II panel noted that Plaintiffs only mentioned the
COVID-19 pandemic as a basis for the law’s unconstitutionally a few times throughout
their briefs. In its analysis determining whether Plaintiffs were bringing an as-applied or a
facial challenge, it further highlighted that Plaintiffs explicitly stated that, rather than the
pandemic, it was the “unambiguous text” of the Twenty-Sixth Amendment that rendered
the law unconstitutional. TDP II, 978 F.3d at 176–77.
10
Case: 22-50748 Document: 00516884698 Page: 11 Date Filed: 09/06/2023
No. 22-50748
to vacate stay). Plaintiffs point to no evidence that strikes us as a clearly
erroneous application of law. The district court therefore did not err in
holding that the law of the case doctrine applied and in dismissing Plaintiffs’
Twenty-Sixth Amendment challenge to Texas’ age-based election law.
IV. Conclusion
For the foregoing reasons, we AFFIRM.
11