Flores v. TX Secy of State

Case: 20-50774 Document: 00516241853 Page: 1 Date Filed: 03/16/2022
United States Court of Appeals United States Court of Appeals
for the Fifth Circuit Fifth Circuit
FILED
March 16, 2022
No. 20-50774 Lyle W. Cayce
Clerk
Doctor George Richardson; Rosalie Weisfeld; MOVE
Texas Civic Fund; League of Women Voters of Texas;
Austin Justice Coalition; Coalition of Texans with
Disabilities,
Plaintiffs—Appellees,
versus
Federico Flores, Jr.; Maria Guerrero; Vicente
Guerrero,
Movants—Appellants,
versus
John Scott, in his official capacity as the Texas Secretary of State,
Defendant—Appellant - Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:19-CV-963
Before Higginbotham, Willett, and Duncan, Circuit Judges.
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Stuart Kyle Duncan, Circuit Judge:
Plaintiffs challenged Texas’s system for verifying the signatures on
mail-in ballots. Based on purported constitutional defects in that system, the
district court issued a detailed injunction against the Texas Secretary of
State. But the Secretary does not verify mail-in ballots; that is the job of local
election officials. Sovereign immunity therefore bars the injunction. We
reverse the district court’s order, vacate the injunction, and remand for
further proceedings.
I.
A.
First, we sketch Texas’s system for verifying mail-in ballots. 1
An eligible voter applies for a mail-in ballot by timely signing and
mailing an application to the early voting clerk. Tex. Elec. Code 2
§ 84.001(a), (b), (d). 3 Upon receiving a proper application, the early voting
clerk mails the voter balloting materials, including the ballot, ballot envelope,
and carrier envelope. §§ 86.001(b), 86.002(a), 86.003(a). The voter then fills
out the ballot, seals the ballot envelope, places it in the carrier envelope, and
timely returns it. §§ 86.005(c), 86.007. The voter must sign the certificate
on the carrier envelope. §§ 86.005(c), 86.013(c).
The Early Voting Ballot Board (“EVBB”) is responsible for
processing mail-in ballots. § 87.001. The ballots are verified by the EVBB or
initially by a Signature Verification Committee (“SVC”), if one is
appointed. §§ 87.041(a), 87.021(2), 87.022–024, 87.027(a), (h). The EVBB
1
For more detail, we refer the reader to the motions panel opinion. See Richardson
v. Tex. Sec’y of State, 978 F.3d 220, 224–26 (5th Cir. 2020).
2
All references to statutory sections in this opinion are to the Texas Election Code
as effective for the 2020 General Election.
3
A witness may sign if the applicant cannot “because of a physical disability or
illiteracy.” § 1.011(a).
2
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and the SVC compare the signatures on the ballot application and the carrier
envelope certificate, as well as signatures already on file. §§ 87.041(b)–(e),
87.027(h)–(i). Either body may accept or reject ballots based on signature
comparisons. §§ 87.027(i), (j), 87.041(b), (d). The EVBB, however, may
overrule the SVC’s rejection of a ballot and accept the ballot. § 87.027(j).
Following its review, the EVBB secures rejected ballots and delivers
them to the general custodian of election records. § 87.043(c). No more than
ten days after an election, the EVBB must notify a voter in writing that his
ballot was rejected. § 87.0431(a). No more than thirty days after an election,
the early voting clerk must notify the Attorney General of the EVBB’s
rejections and provide certified copies of balloting materials. § 87.0431(b).
B.
In August 2019, Plaintiffs 4 filed suit challenging this verification
system. They brought claims under the due process and equal protection
clauses of the Fourteenth Amendment, as well as the Americans with
Disabilities Act, 42 U.S.C. § 12131 et seq., and the Rehabilitation Act of 1973,
29 U.S.C. § 794. The named defendants were the Secretary of State 5 (“the
Secretary”), in her official capacity, as well as two local election officials.
After denying the Secretary’s motion to dismiss and receiving cross-
motions for summary judgment, in September 2020 the district court granted
Plaintiffs partial summary judgment on their constitutional claims and
ordered “detailed and lengthy” injunctive relief pertaining to the November
2020 election. Richardson v. Tex. Sec’y of State (Richardson II), 978 F.3d 220,
4
Plaintiffs are individuals (Dr. George Richardson and Rosalie Weisfeld) who
claim their votes have been previously rejected based on signature mismatches, as well as
organizations (Austin Justice Coalition, Coalition of Texans With Disabilities, Move Texas
Civic Fund, and League of Women Voters of Texas) whose members or services are
allegedly impacted by the challenged system.
5
Ruth Hughs, the Secretary when suit was filed, has been replaced by John Scott.
3
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227 (5th Cir. 2020); see also Richardson v. Tex. Sec’y of State (Richardson I),
485 F. Supp. 3d 744, 801–03 (W.D. Tex. 2020).
The Secretary timely appealed, and a motions panel stayed the
injunction. Richardson II, 978 F.3d at 224. While declining to reach standing
or sovereign immunity, the panel found the Secretary likely to succeed on the
merits because Texas’s system did not implicate due process rights and
survived the Anderson / Burdick test. Id. at 228–33, 235–41. 6 The panel also
concluded that the injunction likely went beyond the remedy available under
Ex parte Young by purporting to “control the Secretary in [the] exercise of
discretionary functions.” Id. at 241; see Ex parte Young, 209 U.S. 123 (1908).
Judge Higginbotham concurred on the grounds that the Supreme Court has
“consistently counseled against court-imposed changes to ‘election rules on
the eve of an election.’” Richardson II, 978 F.3d at 244 (Higginbotham, J.,
concurring) (quoting Republican Nat’l Comm. v. Democratic Nat’l Comm., ---
U.S. ---, 140 S. Ct. 1205, 1207 (2020) (per curiam)).
II.
“We review a preliminary injunction for abuse of discretion,
reviewing findings of fact for clear error and conclusions of law de novo.”
Planned Parenthood of Greater Tex. v. Kauffman, 981 F.3d 347, 354 (5th Cir.
2020) (en banc) (citation omitted). Similarly, “[w]e review the district
court’s jurisdictional determination of sovereign immunity de novo.” City of
Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019), cert. denied --- U.S. ---, 141
S. Ct. 1047 (2021).
6
Under Anderson / Burdick, a law that does not place a “severe” burden on voting
rights will be upheld if it is a “reasonable, nondiscriminatory restriction” justified by “the
State’s important regulatory interests.” Richardson II, 978 F.3d at 233 & n.26 (citing
Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992)).
Instead of Anderson / Burdick, the district court applied the due process analysis from
Mathews v. Eldridge, 424 U.S. 319 (1976). Richardson I, 485 F. Supp. 3d at 778. The motions
panel held Eldridge was the wrong test. Richardson II, 978 F.3d at 233–34.
4
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III.
The Secretary raises sovereign immunity as a threshold ground for
reversal. He contends that, because he does not enforce the challenged ballot
verification system, Plaintiffs’ suit falls outside the Ex parte Young exception
to sovereign immunity. See Ex parte Young, 209 U.S. at 157 (state officer
defendant must have “some connection with the enforcement of the act”).
We agree.
Plaintiffs claim the process of verifying signatures on mail-in ballots
violates their rights under the Fourteenth Amendment and federal disability
laws. But, as discussed, the Texas Election Code places those duties in the
hands of local election officials: the early voting clerk, the EVBB, and the
SVC. See Richardson II, 978 F.3d at 224–26. The Secretary has no
enforcement role. See Lewis v. Scott, No. 20-50654, --- F.4th ---, slip. op at 5
(5th Cir. March 16, 2022) (holding “[i]t is local election officials, not the
Secretary, who verify voters’ signatures and notify voters of a mismatch”).
“Where a state actor or agency is statutorily tasked with enforcing the
challenged law and a different official is the named defendant, our Young
analysis ends.” City of Austin, 943 F.3d at 998 (citation omitted).
To find the required connection, the district court relied on the
Secretary’s broad duties to oversee administration of Texas’s election laws.
See Richardson I, 485 F. Supp. 3d at 771–72 (citing §§ 31.001–.005). Since
then, however, our precedent has clarified that the Secretary’s “general
duties under the [Texas Election] Code” fail to make the Secretary the
enforcer of specific election code provisions. Tex. Democratic Party v. Abbott,
978 F.3d 168, 180 (5th Cir. 2020) (citing §§ 31.003–.004). 7 More is needed—
7
See also Bullock v. Calvert, 480 S.W.2d 367, 371–72 (Tex. 1972) (Reavley, J.)
(rejecting argument that Secretary’s role as “chief election officer” or his duty to
“maintain uniformity” in application of election laws are “a delegation of authority to care
for any breakdown in the election process”); In re Hotze, 627 S.W.3d 642, 649 (Tex. 2020)
(Blacklock, J., concurring) (same).
5
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namely, a showing of the Secretary’s “connection to the enforcement of the
particular statutory provision that is the subject of the litigation.” Id. at 179;
see also City of Austin, 943 F.3d at 999–1000 (distinguishing “general duty”
to implement state law from “particular duty to enforce the statute in
question” (quoting Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014))).
“Th[at] is especially true here because the Texas Election Code delineates
between the authority of the Secretary of State and local officials.” Tex.
Democratic Party, 978 F.3d at 179. None of the general duties cited by the
district court shows that the Secretary enforces the particular verification
provisions challenged here. See Lewis, No. 20-50654, slip op. at 5–7 (reaching
same conclusion). 8
Plaintiffs argue enforcement authority is evident in election code
section 31.002, which requires the Secretary to prescribe the “design and
content” of forms local officials use. Plaintiffs did not make this argument in
the district court, so it is waived. See Certain Underwriters at Lloyd’s v. Axon
Pressure Prods. Inc., 951 F.3d 248, 273 n.20 (5th Cir. 2020). But even had they
not waived it, the argument would fail. Plaintiffs do not challenge the design
or content of the forms associated with mail-in balloting. Rather, they
challenge the processes of verifying mail-in ballots and notifying voters. The
code confers the duty to verify ballots on local officials, not the Secretary. See
Lewis, No. 20-50654, slip op. at 5. So, enjoining the Secretary to change the
balloting forms “would not afford the Plaintiffs the relief that they seek, and
therefore, the Secretary of State is not a proper defendant.” Mi Familia Vota
v. Abbott, 977 F.3d 461, 467–68 (5th Cir. 2020) (citation and internal
quotation marks omitted). 9
8
For those reasons, we must respectfully disagree with our esteemed colleague’s
erudite dissenting opinion. See post, at 2.
9
For that reason, our decision in Texas Democratic Party v. Abbott is distinguishable.
There, we held the Secretary enforced a challenged age restriction on mail-in voting,
because she created the mail-in application form that local officials had to use. 978 F.3d at
6
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Plaintiffs also argue the Secretary’s enforcement authority is shown
because the Secretary has issued various advisories to local officials about
ballot verification. We disagree. “Enforcement” for Young purposes means
“compulsion or constraint.” City of Austin, 943 F.3d at 1000 (quoting K.P. v.
LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)). Offering advice, guidance, or
interpretive assistance does not compel or constrain local officials in fulfilling
their duty to verify mail-in ballots. See Tex. All. for Retired Ams. v. Scott, No.
20-40643, --- F.4th ---, slip op. at 6 (5th Cir. March 16, 2022).
Nor, finally, is the Secretary’s enforcement authority shown by the
fact that the Secretary wrote a letter to Harris County about a different
election code provision. Even assuming the letter showed the Secretary
“enforced” some mail-in ballot provisions, an official’s choice “to defend
different statutes under different circumstances does not show that he is likely
to do the same here.” City of Austin, 943 F.3d at 1002.
In sum, the district court erred in finding the Secretary was the proper
defendant under Ex parte Young.
IV.
We REVERSE the district court’s order, VACATE the preliminary
injunction, and REMAND for further proceedings consistent with this
opinion. 10
180. Here, Plaintiffs challenge not the mail-in forms but how local officials verify the
signatures on those forms. See Tex. All. for Retired Ams. v. Scott, No. 20-40643, --- F.4th ---,
slip op. at 7 (5th Cir. March 16, 2022) (distinguishing Texas Democratic Party v. Abbott).
10
Also before us is an appeal of the district court’s denial of permissive intervention
to Appellants Federico Flores Jr., Maria Guerrero, and Vicente Guerrero, who challenged
the same provisions in separate litigation. Finding no abuse of the district court’s
discretion, we DISMISS that appeal for lack of jurisdiction. See Sommers v. Bank of Am.,
N.A., 835 F.3d 509, 512 (5th Cir. 2016).
7
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Patrick E. Higginbotham, Circuit Judge, dissenting:
I must dissent with this case as well as its companion cases. 1 None
present an issue of sovereign immunity, as the Eleventh Amendment does
not bar these claims under the Fourteenth Amendment. Our issue is rather
the antecedent question of Article III standing, turning on injury and
redressability.
I.
I write to remind failing memories of the signal role of Ex parte Young
in directly policing the path of cases and controversies to the Supreme Court
from our state and federal courts and warn against its further diminution. 2 As
I explained over twenty years ago in Okpalobi v. Foster, “Ex parte Young poses
no threat to the Eleventh Amendment or to the fundamental tenets of
federalism. To the contrary, it is a powerful implementation of federalism
necessary to the Supremacy Clause, a stellar companion to Marbury and
Martin v. Hunter’s Lessee.” 3 Just as then, “the destination of the majority’s
trek today is inevitably a narrowing of the doctrine of Ex parte Young . . . I
decline passage on that voyage. I decline because I am persuaded that familiar
principles of standing are better suited to answer these questions with less
risk to the vital role of Ex parte Young.” 4
1
Tex. Alliance for Retired Americans v. Scott, No. 20-40643, --- F.4th ---, (5th Cir.
March 16, 2022); Lewis v. Scott, No. 20-50654, --- F. 4th ---, (5th Cir. March 16, 2022).
2
209 U.S. 123 (1908).
3
Okpalobi v. Foster, 244 F.3d 405, 432 (5th Cir. 2001) (Higginbotham, J.
concurring).
4
Id.8
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The majority continues this Court’s effort to shrink the role of Ex
parte Young, by overly narrow readings of the state officer’s duty to enforce
Texas’s election laws. Unlike in Okpalobi “where the defendants had no
enforcement connection with the challenged statute,” 5 the Texas Secretary
of State is the “chief election officer of the state” and is directly instructed
by statute to “obtain and maintain uniformity in the application, operation,
and interpretation of this code and of the election laws outside this code.” 6
Moreover, the Secretary is charged to “take appropriate action to protect the
voting rights of the citizens of this state from abuse by the authorities
administering the state’s electoral processes” and “to correct offending
conduct.” 7 Although recent decisions by this Court have split hairs regarding
the level of enforcement authority required to satisfy Ex parte Young, 8 the
Secretary is charged to interpret both the Texas Election Code and the
election laws outside the Code, including federal law, to gain uniformity,
tasks it is clearly bound to do. 9 The allegation in these cases is that the
Secretary is failing in that duty. This charge should satisfy our Ex parte Young
inquiry.
5
OCA-Greater Houston v. Texas, 867 F.3d 604, 613 (5th Cir. 2017).
6
Tex. Elec. Code § 31.001(a) and Tex. Elec. Code § 31.003.
7
Tex. Elec. Code § 31.005(a), (b).
8
Compare Mi Familia Vota v. Abbott, 977 F.3d 461 (5th Cir. 2020); City of Austin v.
Paxton, 943 F.3d 993, 1002 (5th Cir. 2019); Morris v. Livingston, 739 F.3d 740, 746 (5th Cir.
2014) with Texas Democratic Party v. Abbott, 978 F.3d 168 (5th Cir. 2020); Texas Democratic
Party v. Abbott, 961 F.3d 389, 401 (5th Cir. 2020); Fusilier v. Landry, 963 F.3d 447, 455 (5th
Cir. 2020); OCA-Greater Houston, 867 F.3d at 613–14.
9
See Texas Democratic Party, 961 F.3d at 401; City of Austin, 943 F.3d at 1002.
9
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II.
None other than the inimitable Charles Alan Wright saw Ex parte
Young as “indispensable to the establishment of constitutional government
and the rule of law.” 10 Professor Wright’s views, drawn as they were from a
lifetime of disciplined study stand on their own, gaining their strength from
years of recording judicial performance and the currency of our system by the
teachings of the Constitutional Convention and the acts of our first Congress.
This is the wisdom of a scholar and practitioner, here grounded by the reality
that Ex parte Young brings the axis necessary for the courts to harness the
power vested in them by the Constitutional Convention of 1787—the
direction of the flow to the Supreme Court of challenges to the validity of
state action, a function essential to the splitting of the atom of sovereignty in
a sovereign nation of sovereign states in a young republic and today.
The three-judge district courts, with direct appeal to the Supreme
Court, were quickly established as a needed counter to the reach of Ex parte
Young. 11 And with this concern faded by the creation of three-judge district
courts, there came a list of seminal decisions protecting civil liberties, long
and distinguished. 12 Recall that it was a three-judge district court, with its
10
Charles Alan Wright & Mary Kay Kane, Law of Federal Courts 14 (6th ed. 2002).
11
36 Stat. 557; Michael E. Solimine, The Strange Career of the Three-Judge District
Court: Federalism and Civil Rights, 1956–76, 72 CASE W. RES. L. REV. __, *4–5
(forthcoming); Barry Friedman, The Story of Ex parte Young, in Federal Courts
Stories 269–71 (Vicki C. Jackson and Judith Resnick ed., 2010).
12
See e.g., Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S.
510 (1925), aff’g Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary 296 F. 92810
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injunctive power, that brought Brown v. Board of Education to the federal
courts, sustaining the integration of public schools. 13
III.
Another strand of history completes the relevant frame for this state-
federal tension. While the need for a Supreme Court was never an issue for
the delegates at the Constitutional Convention, as its absence was a driving
force for its convening, whether to create a tier of lower courts divided the
delegates. The cornerstone Madisonian Compromise resolved the
impasse—authorizing Congress to create the lower federal courts. And it did,
over resistance born of a concern of potential federal court intrusion into state
affairs, the work of its judiciary. That lingering concern of the Convention
led the first Congress to enact the Anti-Injunction Act: providing that “a writ
of injunction [shall not] be granted to stay proceedings in any court of a
state,” assuring direct review of state courts by the Supreme Court. 14 An
exception clause later added: “except as expressly authorized by Act of
Congress, or where necessary in aid of its jurisdiction, or to protect or
(D. Ore. 1924); W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943), aff’g Barnette
v. W. Virginia State Bd. of Educ., 47 F. Supp. 251, 252 (S.D.W. Va. 1942); Baker v. Carr,
369 U.S. 186 (1962), rev’g Baker v. Carr, 179 F. Supp. 824 (M.D. Tenn. 1959); Younger v.
Harris, 401 U.S. 37 (1971), rev’g Harris v. Younger, 281 F. Supp. 507, 508 (C.D. Cal. 1968);
San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973), rev’g Rodriguez v. San Antonio
Indep. Sch. Dist., 337 F. Supp. 280, 281 (W.D. Tex. 1971); Roe v. Wade, 410 U.S. 113 (1973),
aff’g Roe v. Wade, 314 F. Supp. 1217, 1219 (N.D. Tex. 1970).
13
347 U.S. 483 (1954); Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 98 F.
Supp. 797 (D. Kan. 1951), rev’d sub nom. Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294(1955). See also Briggs v. Elliot, 98 F. Supp. 529 (E.D.S.C. 1951) and Davis v. County School
Bd., 103 F. Supp. 337 (E.D. Va. 1952).
14
1 Stat. 334 § 5 (1793).
11
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effectuate its judgments.” 15 And there it rested, through the Civil War with
its attending Constitutional amendments.
With the turn of the century, we entered the Lochner period,
characterized by federal injunctions blocking state efforts to address social
issues in the rising industrial world. 16 It is significant that from
Reconstruction to the Lochner era, lawyers seldom reached for § 1983 given
its inclusion of the language of the Privileges and Immunities Clause,
language neutered in the Slaughterhouse cases. 17 In more recent times, § 1983
came to be a major pathway to the lower federal courts, prompting challenges
to its injunctive power as violating the Anti-Injunction Act. The Supreme
Court’s response sheds light on the wielding and melding of federal
injunctions and our federalism.
From these threads of history, the Supreme Court in Mitchum v. Foster
laid bare the subtle relationship of the Anti-Injunction Act, § 1983, and Ex
parte Young. The Court saw the then sixty-four-year-old Ex parte Young as a
critical valve to direct the flow of cases from the state courts to the Supreme
Court. 18 Justice Stewart explained that “Section 1983 was thus a product of
a vast transformation from the concepts of federalism that had prevailed in
the late 18th century when the anti-injunction statute was enacted.” 19
15
28 U.S.C.A. § 2283 (West).
16
Lochner v. New York, 198 U.S. 45 (1905).
17
83 U.S. 36 (1872).
18
Mitchum v. Foster, 407 U.S. 225, 242 (1972).
19
Id.; 42. U.S.C. § 1983.
12
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Congress was “concerned that state instrumentalities could not protect
those rights; it realized that state officers might, in fact, be antipathetic to the
vindication of those rights; and it believed that these failings extended to the
state courts.” 20 He continued:
The very purpose of § 1983 was to interpose the federal courts
between the States and the people, as guardians of the people’s
federal rights—to protect the people from unconstitutional
action under color of state law, “whether that action be
executive, legislative, or judicial.” 21
Mitchum v. Foster is itself a contemporary example of the on-going allocation
of the flow of cases to the Supreme Court from the state courts and the
Congressionally created lower federal courts, as well as the role of Ex parte
Young in that cast.
In sum, Ex parte Young, birthed as a tool of the Lochner period, proved
its effectiveness in sustaining challenges to state efforts to protect workers.
Mitchum v. Foster presents as a parallel—protecting civil rights—giving to
civil rights claimants a § 1983 with the power of the injunction, albeit not
always a path around the Eleventh Amendment.
IV.
Here however, as it was in Okpalobi, the threshold question is
standing, the Article III door to the federal courthouse, which the majority
stepped past. Standing doctrine was a product of the shift to the public law
model. With its focus upon injury and redressability, it rejected an
20
Mitchum, 407 U.S. at 242.
21
Id. (quoting Ex parte Commonwealth of Virginia, 100 U.S. 339, 346 (1879)).
13
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ombudsman role for the federal courts. Here, as all three of our cases bring
claims of constitutional violation under § 1983, there is no immunity issue,
no necessary role for Ex parte Young. 22 As the state has no immunity from
enforcement of the Fourteenth Amendment here, 23 the remaining inquiry is
standing—itself a constitutional demand of injury and redressability. 24
Under a proper Article III analysis, these suits have a redressable
injury because the Secretary is directed by the election laws of Texas to
interpret and conform the election code to other election laws (as federal law
is state law). Power to interpret to gain uniformity with state and federal law
is power to enforce. 25 And “our precedent suggests that the Secretary of
State bears a sufficient connection to the enforcement of the Texas Election
Code . . . to support standing.” 26 Again, the claim is that the Secretary failed
to discharge that duty or has done so in an unconstitutional manner. These
claims can proceed if there is standing with its requirement of injury and
redressability.
22
These three cases also present claims under the Voting Rights Act and the
Americans with Disabilities Acts, where Congress has specifically abrogated state
sovereign immunity. See e.g., Tennessee v. Lane, 541 U.S. 509, 534 (2004); Fusilier, 963 F.3d
at 455; OCA-Greater Houston, 867 F.3d at 614.
23
Reynolds v. Sims, 377 U.S. 533, 537 (1964); Fitzpatrick v. Bitzer, 427 U.S. 445, 454
(1976).
24
E.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
25
Tex. Elec. Code § 31.001(a) and Tex. Elec. Code § 31.003. See Testa v. Katt, 330
U.S. 236 (1947).
26
Texas Democratic Party, 961 F.3d at 401 (citing OCA-Greater Hous., 867 F.3d at
613).
14
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In sum, I am persuaded that these cases ought not fail on standing or
sovereign immunity grounds. Rather, we should have fully considered the
merits of the plaintiffs’ arguments, especially where these cases also present
claims under the Voting Rights Act and Americans with Disabilities Act, thin
though they all may be. 27
V.
Even this quick glance back sheds light on threshold questions of the
role of the Court in protecting the most vital Constitutional right of a
democratic government: the right to vote. And so, I am troubled by this
Court’s narrowing of Ex parte Young. Ex parte Young is no culprit. 28
About this we can agree, partisan views ought to prevail by persuading
voters, not by denying their right to vote. With respect to my able colleagues,
I must dissent.
27
See e.g., Lane, 541 U.S. at 534; Fusilier, 963 F.3d at 455; OCA-Greater Houston,
867 F.3d at 614.
28
Okpalobi, 244 F.3d at 432.
15