Ostrewich v. Nelson

Case: 21-20577 Document: 00516803616 Page: 1 Date Filed: 06/28/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 28, 2023
No. 21-20577 Lyle W. Cayce
____________ Clerk
Jillian Ostrewich,
Plaintiff—Appellant/Cross-Appellee,
versus
Clifford Tatum, in his official capacity as Harris County Elections
Administrator; Jane Nelson, in her official capacity as Secretary of State of
Texas; John Scott, in his official capacity as the Attorney General of
Texas,
Defendants—Appellees/Cross-Appellants,
Kim Ogg, in her official capacity as Harris County District Attorney,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-715
______________________________
Before Clement, Duncan, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
America’s “early elections were not a very pleasant spectacle” for
voters. Burson v. Freeman, 504 U.S. 191, 202 (1992) (plurality opinion)
(quotation omitted). Indeed, in the nineteenth century, polling places were
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often a place of bedlam: “Sham battles were frequently engaged in to keep
away elderly and timid voters,” id. at 202, “[c]rowds would gather to heckle
and harass voters who appeared to be supporting the other side,” and
“[e]lectioneering of all kinds was permitted,” Minn. Voters All. v. Mansky,
138 S. Ct. 1876, 1882–83 (2018). To facilitate more orderly voting, states
came to institute a number of reforms, including restrictions on “election-
day speech in the immediate vicinity of the polls.” Id. at 1883 (quotation
omitted). “Today, all 50 states and the District of Columbia have laws
curbing various forms of speech in and around polling places on Election
Day.” Id.At issue in this case are three such Texas laws: Texas Election Code
sections 61.003, 61.010, and 85.036 (collectively, the “electioneering laws”).
Jillian Ostrewich filed this action, alleging that she was unconstitutionally
censored under the electioneering laws when she voted in 2018 and that the
statutes unconstitutionally “chilled” her right to free speech by criminalizing
political expression within polling places. The district court, adopting the
magistrate judge’s report and recommendation, upheld section 61.010 as
constitutional, but concluded that sections 61.003 and 85.036 are facially
unconstitutional under the First Amendment. Both sides appealed,
contesting jurisdictional issues as well as the merits. Following Mansky, we
hold that all three electioneering laws pass constitutional muster.
I.
A.
Sections 61.003 and 85.036—which are near duplicates—prohibit
“electioneering” near polling places. Section 61.003 states, in relevant part:
(a) A person commits [a misdemeanor] offense if, during the
voting period and within 100 feet of an outside door through
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which a voter may enter the building in which a polling place
is located, the person:
(1) loiters; or
(2) electioneers for or against any candidate, measure,
or political party.
...
(b) In this section:
(1) “Electioneering” includes the posting, use, or
distribution of political signs or literature.
Tex. Elec. Code § 61.003. Section 85.036 is substantively the same but
applies during the early voting period instead of on Election Day itself. Tex.
Elec. Code § 85.036. Section 61.010, entitled “Wearing Name Tag or
Badge in Polling Place,” complements the first two statutes, restricting what
a person may wear in a polling place. Section 61.010 reads:
(a) . . . [A] person may not wear a badge, insignia, emblem, or
other similar communicative device relating to a candidate,
measure, or political party appearing on the ballot, or to the
conduct of the election, in the polling place or within 100 feet
of any outside door through which a voter may enter the
building in which the polling place is located.
...
(c) A person commits an offense if the person violates
Subsection (a). An offense under this subsection is a Class C
misdemeanor.
Tex. Elec. Code § 61.010.
B.
Houston’s 2018 election ballot included a proposition (“Prop B”) to
amend the City Charter to guarantee Houston’s firefighters pay parity with
the City’s police officers. Prop B supporters actively campaigned for the
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initiative, including through street demonstrations. Many supporters wore
distinctive yellow t-shirts that contained a union logo and the words
“Houston Fire Fighters.” Prop B supporters also wore the shirts while
advocating around polling locations.
Jillian Ostrewich, a self-proclaimed “fire wife,” and her firefighter
husband wore these shirts when they headed to the polls to vote during
Houston’s early voting period. When Ostrewich reached the front of the
voting line, an unidentified election worker pointed at her shirt and told her
that “[y]ou are not going to be allowed to vote,” because voters were “voting
on that.” This was consistent with the policy established by the polling
location’s presiding judge, the official who manages polling locations in
Texas. See Tex. Elec. Code § 32.075(a). 1 For Ostrewich to be permitted
to vote, the election worker instructed her to go to the restroom to turn her
shirt inside-out. 2 Ostrewich complied, then returned to the line and voted.
The next day, the Harris County Administrator of Elections advised election
workers that only yellow firefighter t-shirts explicitly promoting Prop B
needed to be covered up; union-logoed, yellow firefighter t-shirts—like the
one Ostrewich had worn—were permissible.
After the election, Ostrewich filed suit, alleging that she was
unconstitutionally censored and that Texas’s electioneering laws
unconstitutionally chilled her right to free speech. She sued both local and
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1
Under section 32.075(a), the presiding judge “shall preserve order and prevent
breaches of the peace and violations of this code in the polling place and in the area within
which electioneering and loitering are prohibited . . . .” See also Tex. Elec. Code
§ 32.071 (“The presiding judge is in charge of and responsible for the management and
conduct of the election at the polling place of the election precinct that the judge serves.”).
2
While the election worker was who instructed Ostrewich to change her shirt, the
policy originated from the presiding judge. Our analysis therefore refers to the presiding
judge as the relevant actor.
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state defendants in their official capacities, including the Texas Secretary of
State, Texas Attorney General, Harris County Clerk, and Harris County
Attorney, (collectively, the “State”). 3 After discovery, both Ostrewich and
the State moved for summary judgment. The case was assigned to a
magistrate judge, who recommended rejecting the State’s assertions that
Ostrewich’s claims were barred by sovereign immunity and, alternatively,
that she lacked Article III standing. Addressing the merits, the magistrate
judge recommended upholding section 61.010 as constitutional because it
was sufficiently limited to apparel “relating to a candidate, measure, or
political party appearing on the ballot,” but concluded that sections 61.003
and 85.036 were facially unconstitutional under the First Amendment
because they contained no such limiting language. The district court adopted
the recommendation in full. Both sides timely appealed the ruling.
On appeal, Ostrewich asserts the district court erred in upholding
section 61.010 as constitutional, both facially and as applied. The State
disagrees, asserting that the district court should not have ruled on
Ostrewich’s constitutional claims because she lacks standing and the
Eleventh Amendment bars her claims against Texas’s Attorney General and
Secretary of State. On the merits, the State contends all three sections pass
constitutional muster.
_____________________
3
Various officeholders have changed during the pendency of this appeal. We have
previously granted unopposed motions to substitute and refer to each officer using his or
her official title for consistency.
We recognize that the defendants encompass both state and local government
officials. However, because the defendants are represented by a single brief, we refer to
them collectively as “the State” for simplicity.
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II.
We review a “district court’s judgment on cross motions for summary
judgment de novo, addressing each party’s motion independently, viewing
the evidence and inferences in the light most favorable to the nonmoving
party.” CANarchy Craft Brewery Collective, LLC v. Tex. Alcoholic Beverage
Comm’n, 37 F.4th 1069, 1074 (5th Cir. 2022) (quotation omitted). Summary
judgment is appropriate if “the evidence shows that there is no genuine issue
as to any material fact, and that the moving party is entitled to judgment as a
matter of law.” High v. E-Sys. Inc., 459 F.3d 573, 576 (5th Cir. 2006); Fed
R. Civ. P. 56.
When interpreting Texas statutes, this court employs “the same
methods of statutory interpretation used by the Texas Supreme Court.”
Camacho v. Ford Motor Co., 993 F.3d 308, 311 (5th Cir. 2021). That court
instructs that “text is the alpha and the omega of the interpretive process.”
Id. (quoting BankDirect Cap. Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76,
86 (Tex. 2017)).
III.
Before addressing the merits, we must traverse a couple of threshold
issues: the proper parties to this action, and Ostrewich’s standing. Both
implicate the court’s jurisdiction to consider the case. We conclude that
Texas’s Attorney General and Secretary of State enjoy sovereign immunity,
but that Ostrewich has standing to bring her claims against the remaining
defendants.
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A.
The district court found that the Ex parte Young 4 exception to
Eleventh Amendment sovereign immunity permitted Ostrewich to bring her
claims against Texas’s Attorney General and Secretary of State. This was
incorrect; the exception only applies if the state officials have a sufficient
connection with enforcing the electioneering laws. Per our precedent, they
do not.
Eleventh Amendment sovereign immunity “prohibits suits against
state officials or agencies that are effectively suits against a state.” City of
Austin v. Paxton, 943 F.3d 993, 997 (5th Cir. 2019). The Young exception to
this rule “allows private parties to bring suits for injunctive or declaratory
relief against individual state officials,” but only if those officials have “some
connection with the enforcement of the challenged act.” Id. (cleaned up).
To show this required “connection,” a state officer must have a “particular
duty to enforce the statute in question and a demonstrated willingness to
exercise that duty.” Tex. Democratic Party v. Abbott, 978 F.3d 168, 181 (5th
Cir. 2020) (quoting Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014)).
It is insufficient for a party to show only that a state officer has “a general
duty to enforce the law.” Id. In the Young context, “enforcement” means
“compulsion or constraint.” Richardson v. Flores, 28 F.4th 649, 655 (5th Cir.
2022) (quoting City of Austin, 943 F.3d at 1000); see also Tex. All. for Retired
Ams. v. Scott, 28 F.4th 669, 672 (5th Cir. 2022) (“If the official does not
compel or constrain anyone to obey the challenged law, enjoining that official
could not stop any ongoing constitutional violation.”).
We first address the Secretary of State. To overcome her sovereign
immunity via Young, Ostrewich must show that the Secretary has “some
_____________________
4
209 U.S. 123, 155–56 (1908).
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connection with the enforcement” of the “specific election code provisions”
at issue. Richardson, 28 F.4th at 653–54 (quotation and citation omitted). She
may not rely simply on the Secretary’s “broad duties to oversee
administration of Texas’s election laws.” Id. at 654. The Secretary’s
“[o]ffering advice, guidance, or interpretive assistance” to local officials
does not constitute enforcement. Id. at 655.
The district court concluded that the Secretary had a sufficient
connection to the enforcement of Texas’s electioneering laws because she is
responsible for training presiding judges to enforce elections law, and she
issues election advisories interpreting the electioneering laws, which guide
presiding judges’ discretionary decisions “under threat of removal.” See
Tex. Elec. Code § 32.111 (“The [S]ecretary of [S]tate shall adopt
standards of training in election law and procedure[s] for presiding and
alternate judges.”). But the Secretary’s training and advisory duties fall
short of the showing required for her to face suit under Young.
In Texas, presiding judges are exclusively entrusted with enforcing
the electioneering laws at polling locations. See Tex. Elec. Code
§ 32.075; see also supra n.1. Both parties agree that a presiding judge has
absolute discretion in exercising that enforcement power. See § 32.075 (“[A]
presiding judge has the power of a [state] district judge to enforce order and
preserve the peace[.]”). The Secretary, thus, does not directly enforce the
electioneering laws, but only provides interpretive guidance. And, because
“[o]ffering advice, guidance, or interpretive assistance does not compel or
constrain” presiding judges in fulfilling their duties, Young does not operate
to strip the Secretary of her sovereign immunity. See Richardson, 28 F.4th at
655.
The same goes for the Attorney General. Ostrewich must show that
he has a particular duty to enforce the electioneering laws and has
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demonstrated willingness to do so. See City of Austin, 943 F.3d at 1000–02.
The district court determined that Ostrewich met this burden because there
was no evidence that “the Attorney General will not prosecute violators in
the future.” The court further determined that the Attorney General had
two specific statutory duties that require him to enforce the electioneering
laws: Texas Election Code sections 273.001 (triggering an obligatory
investigation by local authorities upon receipt of two or more complaints and
permitting the Secretary to refer a complaint to the Attorney General for
criminal investigation), and 273.021(a) (permitting the Attorney General to
prosecute election law offenses).
A recent opinion from the Texas Court of Criminal Appeals is
dispositive of this question. In State v. Stephens, the Court of Criminal
Appeals held that section 273.021(a) violated Texas’s Constitution because
the Attorney General has no independent authority to prosecute election-
related criminal offenses. 663 S.W.3d 45, 47 (Tex. Crim. App. 2021), reh’g
denied, 664 S.W.3d 293 (Tex. Crim. App. 2022). According to the Court of
Criminal Appeals, section 273.021(a)’s plain language merely allows the
Attorney General to “prosecute with the permission of the local prosecutor”
but, critically, “[he] cannot initiate prosecution unilaterally.” Id. at 55.
Indeed, the section does not require the Attorney General to prosecute
election law violations at all—rather, it uses the permissive term “may”
instead of a mandatory term like “shall.” Id. at 54–55. As such, “nothing in
[the] statute ‘requires’ the Attorney General to prosecute election cases.”
Id. at 55. The Attorney General’s power related to election laws is therefore
limited—he does not have the ability to “compel or constrain local officials”
to enforce the electioneering laws, nor can he bring his own proceedings to
prosecute election-law violators. Cf. City of Austin, 943 F.3d at 1001 (finding
application of Young warranted when the Attorney General prohibited
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payments, set rates, and sent letters threatening formal enforcement
actions).
This holds true irrespective of section 273.001. As with section
273.021(a), the Attorney General lacks the power to prosecute election-
related criminal offenses directly under section 273.001. Instead, section
273.001 simply empowers the Attorney General to investigate criminal
conduct upon a triggering event—namely, referral by the Secretary. Nothing
in this section gives the Attorney General the ability to prosecute, as that
power would come from section 273.021(a) if it did not contravene the Texas
Constitution. Ultimately, as with the Secretary, the Young exception does
not strip the Attorney General of his sovereign immunity. Richardson, 28
F.4th at 655. The district court erred in holding otherwise. Accordingly, we
reverse the district court’s holding regarding sovereign immunity and
dismiss Ostrewich’s claims against the Secretary of State and Attorney
General for lack of jurisdiction.
B.
To have standing against the remaining two defendants, Ostrewich
must (1) have suffered an injury in fact (2) that is fairly traceable to the
challenged action of one of the remaining defendants and (3) that will likely
be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555,
560–61 (1992). Ostrewich alleges two injuries: First, an election worker—
while enforcing the electioneering laws—unconstitutionally censored her
speech by instructing her to turn her firefighter t-shirt inside-out; second, the
electioneering laws unconstitutionally chilled her speech. The State argues
neither injury is sufficient to confer standing, maintaining that the first is not
traceable to a named defendant, and the second is not an injury-in-fact. We
disagree; Ostrewich’s allegation that Texas’s electioneering laws
unconstitutionally chilled her speech establishes standing.
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In the pre-enforcement context, this court has repeatedly held that
chilling a plaintiff’s speech is a constitutional harm adequate to satisfy the
injury-in-fact requirement. E.g., Speech First, Inc. v. Fenves, 979 F.3d 319,
330–31 (5th Cir. 2020) (collecting cases). A plaintiff sufficiently pleads such
an injury when she “(1) has an ‘intention to engage in a course of conduct
arguably affected with a constitutional interest,’ (2) [her] intended future
conduct is ‘arguably proscribed by the policy in question,’ and (3) ‘the threat
of future enforcement of the challenged policies is substantial.’” Id. at 330
(cleaned up) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 161–
64 (2014)).
The State argues that Ostrewich fails to “show a threat of future
enforcement” because she provides no evidence that she—or any Texas
voter—has or will ever face a credible threat of prosecution for violating the
electioneering laws. But the State’s argument is refuted by Speech First,
where we explained that for pre-enforcement challenges to newly enacted or
“non-moribund” statutes restricting speech, this court “assume[s] a
credible threat of prosecution in the absence of compelling contrary
evidence.” Id. at 335; see also id. at 331 (“It is not hard to sustain standing for
a pre-enforcement challenge in the highly sensitive area of public regulations
governing bedrock political speech.”). 5 Ostrewich has standing because her
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5
The State tries to circumvent this analysis by arguing that Speech First is
inapplicable because the electioneering laws are not new. Yet the State completely ignores
that Speech First also applies to “non-moribund” statutes. 979 F.3d at 335. Moreover, the
electioneering laws at issue are routinely invoked by Texas and enforced by election judges.
See, e.g., Election Advisory No. 2020-06,
https://www.sos.state.tx.us/elections/laws/advisory2020-06.shtml.
Similarly, the State asserts that it presented “compelling contrary evidence” that
Ostrewich does not face a threat of prosecution, as no voter has been prosecuted for
violating the law for at least a decade. But “a lack of past enforcement does not alone doom
a claim of standing”—more evidence is needed. Speech First, 979 F.3d at 336; see also Ctr.
for Individual Freedom v. Carmouche, 449 F.3d 655, 660 (5th Cir. 2006) (“Controlling
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“claim is that the [non-moribund] policy causes self-censorship among those
who are subject to it, and [her] speech is arguably regulated by the policy[.]”
Id. at 336–37.
IV.
We now turn to the merits of Ostrewich’s appeal. The First
Amendment prohibits laws “abridging the freedom of speech.” U.S.
Const. amend. I. Texas’s electioneering laws, forbidding certain forms of
electioneering and political apparel, plainly restrict a form of expression
within the First Amendment’s ambit. But such laws do not always run afoul
of the First Amendment. Indeed, states are often faced “with [this]
particularly difficult reconciliation: the accommodation of the right to
engage in political discourse with the right to vote.” Mansky, 138 S. Ct. at
1892 (quoting Burson, 504 U.S. at 198).
The Supreme Court has articulated a “reasonableness” test for
dealing with such situations. In Mansky, a group of voters, like Ostrewich,
challenged a Minnesota electioneering law that prohibited voters from
wearing a “political badge, political button, or other political insignia . . . at
or about the polling place.” Id. at 1883. Recognizing that a polling place is a
“nonpublic forum,” as polling locations have not traditionally been “a forum
for public communication[,]” the Court held that Minnesota could
reasonably restrict speech—based on content—to further the state’s interest
“in maintaining a polling place free of distraction and disruption.” Id. at
1885, 1891 (quotation omitted). Under this flexible standard, states are
required only to draw a reasonable line that “articulate[s] some sensible basis
for distinguishing what [speech] may come in from what must stay out.” Id.
_____________________
precedent . . . establishes that a chilling of speech because of the mere existence of an
allegedly vague or overbroad [law] can be sufficient injury to support standing.”).
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at 1888. States may entrust election workers, like Texas’s presiding judges,
with discretion to enforce these restrictions at the polls, so long as the law
guides that discretion by “objective, workable standards.” Id. at 1891.
Here, as in Mansky, the electioneering laws regulate conduct within
polling places—which, as noted, are nonpublic forums. Tex. Elec. Code
§§ 61.003 (limiting the restriction to “within 100 feet” of a polling place);
61.010(a) (similar); 85.036(a) (similar). The district court, heavily relying on
Mansky, determined that section 61.010 is a constitutional restriction on
speech because it is limited to specific political apparel “relating to a
candidate, measure, or political party appearing on the ballot,” but held
sections 61.003 and 85.036 facially unconstitutional because they contain no
such limiting principle.
On appeal, Ostrewich contends the district court erred in holding
section 61.010 constitutional, and she challenges the constitutionality of all
three sections. She contends the electioneering laws were unreasonably
applied to her and that they are incapable of reasonable application because
they are facially overbroad or vague. The State disagrees, arguing that all
three sections pass constitutional muster, both facially and as applied. We
agree with the State. We first address section 61.010, which the district court
upheld, before turning to sections 61.003 and 85.036, which the court struck
down. Last, we address Ostrewich’s claim for nominal damages deriving
from her alleged constitutional injuries.
A.
Ostrewich contends that section 61.010 violates the First
Amendment’s Free Speech Clause, both facially and as applied to her
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wearing the firefighter t-shirt. 6 The district court rejected these arguments
and, correctly, held the section constitutional.
1.
When a litigant brings both facial and as-applied challenges, we
generally decide the as-applied challenge first because it is the narrower
question. Buchanan v. Alexander, 919 F.3d 847, 852 (5th Cir. 2019). So we
begin with Ostrewich’s contention that the State’s enforcement of section
61.010 violates the First Amendment as applied to her sporting her firefighter
t-shirt at the polling location. We agree with the district court’s conclusion
that section 61.010 provided a reasonable and constitutional basis for
restricting Ostrewich from doing so.
“Casting a vote . . . is a time for choosing, not campaigning. The State
may reasonably decide that the interior of the polling place should reflect that
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6
Ostrewich also asserts that the district court erroneously interpreted section
61.010 to apply to Texas voters, rather than poll watchers. But her interpretation does not
comport with the statute’s unambiguous text: It prohibits, “except as provided by
Subsection (b), a person” from wearing a “badge, insignia, emblem, or other similar
communicative device.” Subsection (b) exempts presiding judges, clerks, and peace
officers, which shows that if the Texas Legislature wanted to exempt voters or otherwise
limit section 61.010(a) only to poll workers, it knew how to do so. Moreover, other Texas
election provisions—including section 61.003, which Ostrewich agrees applies to voters—
use “person” without further defining the term.
Ostrewich further argues that the district court’s interpretation renders section
61.010 superfluous because sections 61.003 and 85.036 already prohibit persons from
electioneering at the polling place and include apparel restrictions. But the three laws can
be read congruently. Sections 61.003 and 85.036 broadly prohibit electioneering for any
candidate, measure, or political parties, while section 61.010 more narrowly prohibits
expression relating to a candidate, measure or political party appearing on the ballot.
Finally, Ostrewich posits that section 61.010’s prohibition does not apply to
apparel. But the Supreme Court has previously held that laws prohibiting political badges,
buttons, or other insignia apply to apparel. Mansky, 138 S. Ct. at 1883. As the State argues,
“apparel,” can certainly contain an “emblem” or “insignia.”
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distinction.” Mansky, 138 S. Ct. at 1887. Thus, to prevent partisan discord,
Texas may restrict voter apparel in a polling place during the voting period
“as long as the regulation on speech is reasonable.” Id. at 1885. The question
is whether a presiding judge, by enforcing section 61.010, could reasonably
restrict Ostrewich from wearing her firefighter t-shirt in order to maintain a
polling place free of partisan influence.
The district court concluded that Ostrewich’s firefighter t-shirt was
synonymous with the campaign in favor of Prop B. Moreover, Ostrewich
herself testified that she wore the shirt to the polls because she was excited
to vote on the measure. From these facts, the district court concluded that
Ostrewich’s firefighter t-shirt related to a measure appearing on the ballot,
so that the presiding judge permissibly censored her to further Texas’s
interest in ensuring a campaign-free polling place.
Ostrewich argues the district court erred because section 61.010 can
only constitutionally proscribe “express advocacy.” And wearing her
generic firefighter t-shirt did not constitute express advocacy because it did
not contain any explicit message supporting Prop B. But a shirt, even one
lacking words, can constitute advocacy for a political issue. See Tinker v. Des
Moines Indep. Comm’y Sch. Dist., 393 U.S. 503, 504 (1969) (voters donning
black armbands to express disapproval of Vietnam war). As explained by the
district court, “the State’s interest in preventing partisan discord at the
voting booth ‘may be thwarted by displays that do not raise significant
concerns in other situations.’” Based on the undisputed evidence, the
district court correctly concluded that Ostrewich’s firefighter t-shirt
expressed support for Prop B and the presiding judge properly had “clear
authority” under section 61.010 to order Ostrewich to change her shirt.
Ostrewich’s as-applied challenge to section 61.010 fails.
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2.
We move to her facial challenge. See Buchanan, 919 F.3d at 854(“Generally, we proceed to an overbreadth issue only if it is determined that
the statute would be valid as applied.” (quotation omitted)). In the First
Amendment context, litigants can challenge a statute “because of a judicial
prediction or assumption that the statute’s very existence may cause others
not before the court to refrain from constitutionally protected speech or
expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Ostrewich
lodges such a claim against section 61.010, asserting that the statute does not
pass constitutional muster under Mansky and is overbroad or vague.
Ostrewich’s theories for facial unconstitutionality collapse into each
other—essentially, Ostrewich contends that section 61.010 flunks Mansky’s
reasonableness standard because it does not provide “objective, workable
standards” to guide presiding judges’ discretion, rendering it overbroad or
vague. According to her, because section 61.010 prohibits content “related
to” ballot measures, the statute impermissibly relies on presiding judges’
discernment of whether speech is sufficiently “related to” ballot issues.
Without additional guidance, presiding judges are left to guess at what may
“come in from what must stay out,” Mansky, 138 S. Ct. at 1888, leading to
inconsistent and haphazard enforcement. Section 61.010, in Ostrewich’s
telling, thus fails to provide a sufficient limiting construction, permitting
presiding judges to censor arbitrarily any type of apparel they deem to be
related to a candidate, measure, or political party on the ballot.
The State disagrees, asserting that the statute’s “related to” proviso
constitutes a workable standard. Rather than requiring presiding judges to
retain a mental index of various political issues and positions, section
61.010’s standard is clear and simple to apply: When a “candidate, measure,
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or political party” is on the ballot, its “badge, insignia, [or] emblem” is
prohibited.
“Clear and simple” may be a bit of an overstatement. The record
offers many examples of Texas officials inconsistently applying section
61.010. Nonetheless, while there may be room for interpretation, “[p]erfect
clarity and precise guidance have never been required even of regulations that
restrict expressive activity.” Mansky, 138 S. Ct. at 1891 (quoting Ward v.
Rock Against Racism, 491 U.S. 781, 794 (1989)).
In Mansky, the Supreme Court was particularly concerned that
Minnesota’s law lacked any limiting principle. By Minnesota’s own
admission, its statute could apply to ban content promoting any
“recognizable political view.” Id. at 1890. In contrast, section 61.010 only
prohibits Texans from wearing apparel related to a candidate, measure, or
political party “appearing on the ballot,” thereby remedying the Mansky
Court’s concerns about overbroad or vague electioneering restrictions.
Indeed, this may explain why the Court explicitly referred to section 61.010
as a law that “proscribes displays (including apparel) in more lucid terms”
than the Minnesota statute at issue in Mansky. Id. at 1891.
As the district court succinctly explained,
[Section 61.010] targets people who have gathered at a
government-designated spot at a government-designated time
to perform a civic task—vote. Its restrictions extend no
further . . . . By limiting its reach to issues appearing on the
ballot, the Texas law provides fair notice of what is expected of
people gathered in and around the polling place on election day
and during early voting.
Section 61.010 draws the requisite line between permitted and prohibited
content to meet Mansky’s “reasonableness requirement.”
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Ostrewich also argues section 61.010 is unconstitutional because the
law undermines Texas’s interest in ensuring a distraction-free polling place.
According to her, section 61.010 counterintuitively fosters polling place
distractions by requiring presiding judges to confront voters. But this belies
the brash history of electioneering that led every state to adopt some sort of
electioneering and secret ballot protections. See Mansky, 138 S. Ct. at 1883;
Burson, 504 U.S. at 202. And even disregarding that history, states may
properly “respond to potential deficiencies in the electoral process with
foresight, rather than react reactively,” as long as “the response is
reasonable.” Munro v. Socialist Workers Party, 479 U.S. 189, 195–96 (1986).
We agree with the district court that section 61.010 is constitutional.
B.
Ostrewich next challenges the facial constitutionality of sections
61.003 and 85.036. We agree with the State that the district court erred in
holding the statutes unconstitutional because the court ignored their limiting
language. 7 The statutes prohibit “electioneering,” which is generally
defined to include “political signs and literature.” Tex. Elec. Code
§§ 61.003, 85.036. The district court concluded that the word “political” is
unmoored from any limiting language, thus allowing presiding judges
broadly, and impermissibly, to ban voters from wearing “political apparel.”
As the State contends, however, the district court misconstrued the statutes.
_____________________
7
The State also asserts that the district court did not need to address these
constitutional claims once the court concluded that section 61.010 properly prohibited
Ostrewich’s firefighter t-shirt in the polling location. But this construes Ostrewich’s claims
too narrowly, as only related to her firefighter t-shirt. She asserts a broader claim, that all
three statutes unconstitutionally chill her right to free expression at polling locations. She
may assert such a pre-enforcement challenge as to sections 61.003 and 85.036 because these
laws arguably restrain her from wearing expressive apparel unrelated to measures on the
ballot. See Speech First, 979 F.3d at 336 (holding plaintiffs suffer an injury-in-fact when a
censoring regulation chills speech).
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Indeed, both sections state “a person may not electioneer for or against any
candidate, measure, or political party.” Tex. Elec. Code § 85.036; see
also § 61.003 (same). The sections then define “electioneering” to include
the “posting, use, or distribution of political signs or literature.” When read
together, these electioneering laws prohibit people from deploying political
signs or literature “for or against any candidate, measure, or political party”
“within 100 feet of . . . [a] building in which a polling place is located.” Id.
§ 85.036. Thus, contrary to the district court’s conclusion, sections 85.036
and 61.003 are in fact cabined by a limiting principle that meets Mansky’s
standard. See 138 S. Ct. at 1888.
The district court also erred in holding that sections 61.003 and 85.036
lack an objective, workable standard. Unlike section 61.010, these two
sections are not limited to candidates, measures, or political parties appearing
“on the ballot.” Without the “on the ballot” limitation, the district court
reasoned, sections 61.003 and 85.036 leave presiding judges with
impermissible discretion. But in Mansky, the Supreme Court endorsed,
albeit in dicta, similar prohibitions on “items displaying the name of a
political party, items displaying the name of a candidate, and items
demonstrating ‘support of or opposition to a ballot question’” as “clear
enough.” 138 S. Ct. at 1889. By contrast, the Minnesota law at issue there
instructed election workers to restrict any political-issue or political-group
content. The electioneering laws at issue in today’s case are narrower—
Texas’s presiding judges are limited to excluding content that would
constitute electioneering “for or against” candidates, measures, and political
parties.
We reach this conclusion mindful that the standard for holding these
sections facially unconstitutional is “daunting” and requires us to find that
“a substantial number of its applications are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.” Voting for Am., Inc. v.
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Steen, 732 F.3d 382, 387 (5th Cir. 2013) (quotation omitted). The Supreme
Court has never suggested that electioneering restrictions could only
proscribe content related to issues appearing on the ballot, and the district
court failed to explain how these two statutes would otherwise be
unconstitutional in “a substantial number” of their applications. We
certainly do not foresee that they would be. The district court therefore erred
in holding sections 61.003 and 85.036 unconstitutional.
C.
Based on our conclusion that all three electioneering laws pass
constitutional muster, such that Texas elections workers had a constitutional
basis for prohibiting Ostrewich from wearing her firefighter t-shirt at the
polling place, her claim for nominal damages fails as a matter of law. See
Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 n.* (2021) (“Nominal damages
go only to redressability and are unavailable where a plaintiff has failed to
establish a past, completed injury.”). We therefore affirm the district court’s
denial of nominal damages.
V.
In sum: We REVERSE the district court’s holding denying Texas’s
Secretary of State and Attorney General sovereign immunity under the
Eleventh Amendment and DISMISS those defendants for lack of
jurisdiction. We AFFIRM that Ostrewich has standing to bring her claims
against the remaining two defendants. We also AFFIRM the district court’s
holding that section 61.010 is constitutional. However, we REVERSE and
RENDER the district court’s holding that sections 61.003 and 85.036 are
unconstitutional and instead uphold all three electioneering laws. Finally, we
AFFIRM the district court’s denial of nominal damages.
20